Taplin skips testimony, manslaughter case goes to jury today

Defense attorney opted against bringing some witnesses forward

Posted: Thursday, January 27, 2000

KETCHIKAN - Accused hit-and-run driver Joel Taplin will not take the stand in his own defense.

Taplin's attorney rested his case Wednesday without calling the defendant to the stand. Several other witnesses mentioned by the defense were also not called to testify before attorneys began closing arguments today.

Taplin, a 27-year-old teacher from New England, is charged with manslaughter in the death of Auke Bay area resident Harry Richard Carlson. The prosecution alleges Taplin drove an unsafe car while drunk partially off Back Loop Road on July 21, striking Carlson and causing injuries that killed him. Taplin continued driving after the incident.

Defense counsel Louis Menendez said Tuesday he was expecting half-a-dozen witnesses to fly in early Wednesday from Juneau and the East Coast.

However, just after the witnesses arrived Wednesday morning, Menendez announced, ``The defense plans to finish with the jury today.''

After the jury left the courtroom, Juneau Superior Court Judge Patricia Collins asked if Taplin would take the stand.

Taplin declined.

``The jury cannot hold it against you if you choose not to testify; the burden of proof lies with the state,'' Collins told him.

After closing arguments today, the case was to go to the jury.

Prosecuting attorney Rick Svobodny, Menendez and Collins, with Taplin in attendance, spent Wednesday afternoon debating instructions for the jury. The instructions are directives, ranging in length from a sentence to a paragraph to more than a typed page.

Both the defense and prosecution sought to insert wording that would influence jury decisions toward a particular verdict.

Suggested wording included:

``You are not to decide the issue by the simple process of counting the number of witnesses who have testified on the opposite side.''

``The final test is not the number of witnesses but the relative convincing power of the evidence.''

``A fact may be proved by direct evidence, by circumstantial evidence, or both.''

Much of the afternoon's debate dealt with how jurors might determine or infer ``recklessness'' or ``intoxication.'' Adjectives came under special scrutiny. Menendez wanted one instruction to refer to ``failure to drive with the caution characteristic of a person of ordinary prudence,'' while Svobodny preferred the wording, ``failure to drive with the caution characteristic of a sober person of ordinary prudence.''

Menendez also said he preferred the old method of determining intoxication - used before breath-test machines - evidence of slurred words, confused speech, and/or not being in control of a vehicle.

Svobodny has presented evidence that Taplin had a blood-alcohol level of 0.142 percent, above the legal limit for driving. Menendez presented witnesses who suggested Taplin's behavior did not indicate intoxication.

One item under discussion was the ``Mangiapane instruction,'' based on a June 1999 case in Anchorage. The instruction tells jurors how to determine a defendant was driving while intoxicated. Elements include:

The defendant drove or operated a motor vehicle.

Within four hours of driving a motor vehicle, the defendant submitted to a breath test on a properly calibrated, properly functioning intoximeter.

The breath-test result was 0.10 grams or more of alcohol per 210 liters of breath.

Menendez indicated his closing arguments would try to ``separate recklessness from the legal cause of death.''

``Though (Taplin) may have been above 0.10 percent (blood-alcohol level), that may have been irrelevant if he was acting reasonably,'' Menendez said.

``It's going to be hard for the court to keep those separate,'' Collins said.

``I have great faith in the jury system,'' Collins said, ``but I believe we should make our instructions on the law as clear as we possibly can.''



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