[Copyrighted Material Omitted]
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and COATS, Senior Judge [*].
Serena Michelle Joseph received a traffic ticket for speeding. At the trial of this traffic ticket, Joseph took the stand and testified that she had not been driving the vehicle when the police officer observed the speeding violation. Joseph was later charged with, and convicted of, perjury for giving this testimony.
At her perjury trial, Joseph asked the judge to let her introduce a video re enactment made by her defense investigator— a video which, Joseph claimed, showed that it would have been impossible for the police
officer to have identified the physical characteristics of the driver of the car. The trial judge refused to let Joseph introduce this video, and Joseph contends that this ruling was error. We conclude that the trial judge did not abuse his discretion in making this ruling.
In addition, Joseph appeals the sentence she received for her perjury conviction. Joseph argues that the sentencing judge relied on an improper legal rationale when he rejected her proposed mitigating factor, AS 12.55.155(d)(9) (conduct among the least serious within the definition of the offense). We agree with Joseph on this issue, and we therefore vacate the judge's ruling on mitigator (d)(9) and direct the judge to reconsider this matter.
Underlying facts regarding Joseph's request to introduce the video
While on patrol in early February 2009, headed north on Boniface Parkway, Anchorage Police Officer Christopher Ritala saw a Chevy van traveling south on Boniface Parkway at a high rate of speed. The speed limit was 45 miles per hour, and Ritala estimated that the van was traveling at 65 miles per hour. Ritala then used the radar in his patrol car to get a more accurate determination of the vehicle's speed; the radar reading was 67 miles per hour.
Ritala testified that he was able to identify the driver of the van as a lighter-skinned black female with " wiry" hair.
Ritala executed a u-turn and followed the van. The van made several turns, and Ritala briefly lost sight of it, but he soon found the van parked outside a house. Ritala testified that, when he arrived, Joseph was either still in the driver's seat or near the door of the vehicle.
During their ensuing conversation, Joseph never expressly admitted that she had been speeding, but she told Ritala that she had been driving home from work, that she needed to use the bathroom, and that she did not feel comfortable using a public facility. Joseph supplied Ritala with her driver's license, registration, and proof of insurance. She never said that someone else had been driving the vehicle, or that Ritala was ticketing the wrong person.
Joseph decided to contest the speeding ticket, and the case went to trial several months later. At the trial, Joseph testified that she had not been driving the van. She stated that her brother was the one driving the van, and that she had arrived in a different vehicle. Joseph further testified that, by the time Ritala arrived at the house, her brother had already left. Joseph's brother then took the stand and corroborated Joseph's account.
The magistrate presiding over the trial found Joseph guilty of speeding. He declared that Joseph and her brother had both committed perjury. Ritala then referred the case to the district attorney's office, leading to perjury indictments against Joseph and her brother.
Joseph and her brother were tried jointly in a single trial. Officer Ritala was the only witness for the State. To impeach Ritala's account of events, Joseph's attorney sought to introduce a video filmed by a defense investigator. This video was intended to be a re-enactment of Ritala's initial observations of the van as it traveled south on Boniface Parkway, except that both the van and the investigator's car (from which the video was being shot) were traveling at the speed limit (45 miles per hour).
According to Joseph's attorney, this video demonstrated that Ritala could not have observed the kind of identifying information he claimed to have seen— i.e., that the driver of the van was a lighter-skinned black female with wiry hair. In particular, the defense attorney claimed that the video showed that such observations were not possible, given the vehicles' relative speed and the reflective glare of the van's windshield.
But Ritala testified that the video did not accurately depict what a person could see under those conditions. Specifically, Ritala noted that the video camera produced a one-dimensional view, while a person would see things in three dimensions, and from a shifting aspect. Ritala also pointed out that a person's eyes are able to " track" the driver of another car in a way that a video camera
can not ( i.e., focus attention on the driver, to the exclusion of other ...