Submitted June 25, 2015.
Appeal from the Superior Court of the District of Columbia. (CTF-4447-09). (Hon. Anthony C. Epstein, Trial Judge).
Daniel K. Dorsey was on the brief for appellant.
Irvin B. Nathan, Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General, Rosalyn Calbert Groce, Deputy Solicitor General, and Janice Y. Sheppard, Assistant Attorney General, were on the brief for appellee.
Before GLICKMAN and MCLEESE, Associate Judges, and NEWMAN, Senior Judge. OPINION by Associate Judge GLICKMAN. Concurring Opinion by Senior Judge NEWMAN at page 29.
This case came to be heard on the transcripts of record, the briefs filed, and was argued by counsel. On consideration whereof, and for the reasons set forth in the opinion filed this date, it is now hereby
ORDERED and ADJUDGED that appellant's conviction for operating a vehicle while impaired (" OWI" ) is reversed, and the matter is remanded for further proceedings not inconsistent with this opinion.
Stephen H. Glickman, Associate Judge:
Appellant Krishna Patrick Muir went to trial in 2011 on charges of driving under the influence (" DUI" ) and operating a vehicle while impaired (" OWI" ). The trial judge instructed the jury that it could convict Muir of OWI if it found his consumption of alcohol had impaired his ability to operate a motor vehicle " in any way," while it would have to find " an appreciable degree" of impairment to convict appellant of DUI. Muir did not object to this instruction. The jury proceeded to find him guilty of OWI and acquit him of DUI. Following this verdict, the judge concluded that OWI actually requires the same " appreciable degree" of impairment as DUI requires. Nonetheless, concluding that the law on this point was unsettled and that the instructional error was neither plain nor prejudicial, the judge declined to set the verdict aside.
Subsequently, this court clarified in Taylor v. District of Columbia that the alcohol-impairment threshold is the same for OWI and DUI, and that both offenses require proof of an " appreciable degree" of impairment. Relying on our decision in Taylor, Muir asks us to reverse his OWI conviction on the ground that the instruction given at his trial unconstitutionally allowed the jury to convict him without finding the requisite degree of impairment.
Having forfeited this claim by failing to object to the instruction at trial, appellant must show plain error in order to obtain relief. Prior to the Supreme Court's decision in Henderson v. United States, the unsettled state of the law at the time of trial might have prevented appellant from showing the necessary " plainness" of the instructional error within the meaning of the plain error doctrine. But after Henderson, an error need only be clear as of the time of appellate review to satisfy the plainness requirement, regardless of the state of the law at the time of trial. And because we conclude there exists a reasonable probability that the now-clear error did affect appellant's substantial rights and resulted in his conviction of OWI despite the jury's determination that the government failed to prove an essential element of that offense, we reverse his conviction and remand for further proceedings.
I. Factual Background
The main contested issue at appellant's trial was whether he was impaired by his consumption of alcohol when his car was stopped and he was arrested on the evening of Saturday, February 7, 2009. Metropolitan Police Department Officer Henry Gallagher testified that he was on patrol in a police cruiser shortly after 9:00 p.m. that evening when he observed appellant driving down Emerson Street N.W. toward Georgia Avenue. Officer Gallagher saw appellant proceed through the crosswalk and continue across Georgia Avenue without slowing or stopping and then make " rolling stops" (slowing but not actually stopping) as he went through subsequent intersections. Officer Gallagher activated his lights and siren. Appellant sped up and drove for another block before coming to a stop and parking in the 1500 block of Emerson Street.
According to Officer Gallagher, appellant got out of the car and nearly fell down before he grabbed the driver's door to
steady himself. Officer Gallagher told appellant to get back inside his car and appellant complied. When the officer requested appellant's driver's license and registration, he smelled alcohol coming from inside the car and on appellant's breath. Officer Gallagher noticed that appellant's eyes were half open and saw a Styrofoam cup on the floor behind the front passenger seat containing what smelled like an alcoholic beverage. Officer Gallagher asked appellant how much he had had to drink, and appellant said " one shot." Appellant attributed the odor of alcohol emanating from his vehicle to a friend's having spilled beer on the car's door.
Officer Gallagher asked appellant to step out to perform the standard field sobriety test protocol, which consisted of a horizontal gaze nystagmus (" HGN" ) test, a walk-and-turn test, and a one-leg-stand test. Appellant complied, though he mentioned having a hip injury. During the HGN test, Officer Gallagher testified, appellant's eye movements exhibited four out of a possible six clues indicating impairment. Appellant also had some difficulties with the walk-and-turn test, such as missing a few of the heel-to-toe steps. According to Officer Gallagher, the clues he observed during these two tests indicated an 80% probability that appellant's blood alcohol content was " above .10" (grams per 100 milliliters of blood, implying legal intoxication). Officer Gallagher did not observe any clues suggesting impairment during appellant's performance of the one-leg-stand test. However, the officer did notice that appellant was unsteady on his feet and that his speech was slurred.
The government also called Officer Sean Hill as a witness. Officer Hill was at the scene when Officer Gallagher conducted the stop and saw appellant hold onto the car door for support when he got out of the vehicle. He corroborated Officer Gallagher's testimony and added that later, at the police station, he observed that appellant's eyes were bloodshot, that there was a moderate odor of alcohol on his breath, and that he swayed from side to side a bit.
Based on their training, experience, and observations, both officers were of the opinion that appellant was under the influence of alcohol.
In his defense, appellant testified that on the night he was stopped, he was driving to the home of his fiancé e's family in the 1500 block of Emerson Street after having been at a wedding reception. He said he did not notice the police cruiser or hear its siren before he parked his car, and he denied having difficulty standing up
when he got out. Appellant acknowledged having had an alcoholic drink at the wedding reception some hours before the stop. He claimed it had no effect on him and denied being impaired in his ability to drive. Appellant said his eyes might have been red because he suffered from allergies. He confirmed that a friend spilled a drink on his car door at the wedding while reaching into the car for cigarettes. He said he had not seen the Styrofoam cup in the back of his car before the police retrieved it and did not know what the cup contained.
Appellant's fiancé e and her father also testified, saying they witnessed appellant's encounter with the police from across the street. They said appellant got out of his car without any difficulty and acted normally when he was asked to perform the field sobriety tests. They testified that he did not sway or wobble and that he walked in a straight line when he performed the walk-and-turn test.
Before the start of trial, the judge informed the parties of his tentative view that the same standard of " impairment to an appreciable degree" applies to both DUI and OWI, and that the government therefore should elect which of the two essentially equivalent charges it wished to proceed on. The government agreed that an " appreciable degree" of impairment in the ability to operate a motor vehicle must be shown for a DUI conviction, but it argued that both charges should be submitted to the jury because a defendant can be found guilty of OWI if he was impaired " in any way." Appellant did not object to this request, and the judge, recognizing the uncertainty in the law, acquiesced in it. Accordingly, at the conclusion of the trial, the jury was asked to consider both counts on the understanding that DUI and OWI are separate offenses differing only in the level of ...