Opinion
Court of Appeals No. A-10110.
June 24, 2009.
Appeal from the Superior Court, Third Judicial District, Kenai, Peter Ashman, Judge pro tem, and Anna M. Moran, Judge, Trial Court Nos. 3KN-06-664 CR, 3KN-05-117 CR, 3KN-04-2013/2661 CR.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant.
Blair M. Christensen, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
David M. Booth appeals his conviction for felony driving under the influence. He contends that he was denied his right to a speedy trial under Alaska Criminal Rule 45. Booth was not brought to trial until over a year after he was indicted. The trial court found that most of this intervening time was exempted under Criminal Rule 45(d)(4). Specifically, the trial court found that Booth's whereabouts were unknown, and that the police were unable to determine his whereabouts despite their diligent efforts. We have examined the evidence presented to the trial court on this issue, and we conclude that the State's efforts to find Booth did not satisfy the "due diligence" required by Rule 45(d)(4). Thus, Rule 45 continued to run, and the time for bringing Booth to trial expired before his trial began. Accordingly, we reverse Booth's conviction.
AS 28.35.030(n).
Background
David Booth was arrested for driving under the influence of alcohol on April 15, 2006 in Soldotna. Officer Jared Meyer began to transport Booth to the Wildwood Correctional Center, but Booth suffered a heart attack en route and needed to stay at a hospital until the next day. Consequently, Officer Meyer released Booth with a written citation for misdemeanor driving under the influence. But the citation included a mistaken date for Booth to appear in court: May 7, 2006. To correct this mistake, Meyer called Booth on his cellular telephone to give him the correct court date: May 8, 2006.
Booth made a written request for appointed counsel on April 20th and gave the superior court his mailing address, telephone number, and other personal contact information. The court then appointed counsel from the Public Defender Agency on May 1st, and the order included the date of Booth's arraignment on May 8th. But a grand jury indicted Booth for felony driving under the influence on May 5th, and the superior court issued a warrant for his arrest, vacating the May 8th hearing in the process.
Booth telephoned the Public Defender Agency on May 5, 2006, the same day that he was indicted. The Public Defender Agency informed Booth that his name was not on the docket to be arraigned May 8th, but suggested that he show up for his scheduled court hearing to stay fully informed. Booth appeared for his scheduled arraignment on May 8th, but his name was not on the docket. When Booth asked the clerk's office about the status of his case, they did not tell him that a warrant for his arrest had already been issued.
The Public Defender Agency sent Booth a letter that he received around May 14, 2006. This letter instructed Booth to review the contents of the attached grand jury tape, but did not explicitly inform Booth that he had already been indicted or that a warrant had been issued.
Officer Meyer eventually attempted to serve the arrest warrant on Booth a couple of months after the original incident. Apparently, Meyer went to Booth's then-current residence at Poppy Lane, as well as two of Booth's prior residences. However, Booth had previously told Meyer at the time of his arrest that he planned on working for the state's Department of Fish and Game during the upcoming summer. Meyer still had Booth's cell phone number, but Meyer did not call Booth when he was trying to serve the warrant.
Booth moved on May 15, 2006 from his address at Poppy Lane to a trailer home at River Terrace. Still, Booth's mailing address remained the same and he did wind up working for one month over the summer on the Yentna River with the Department of Fish and Game. But Meyer did not make any other attempts to locate Booth in 2006.
Nearly one year later, on April 28, 2007, Officer Meyer observed Booth ride his bicycle past the Soldotna police department. Meyer then checked Booth's records and found that Booth still had an outstanding warrant for his arrest. Meyer investigated Booth's whereabouts and eventually arrested him at his River Terrace residence.
Citing Alaska Criminal Rule 45, Booth moved to dismiss his case on the ground that the State had failed to try him within one-hundred and twenty days of the date of the charging document. The State opposed Booth's motion and argued that the deadline under Criminal Rule 45 was tolled for the time that the defendant was absent or unavailable — from May 5, 2006, when the arrest warrant was first issued, to April 28, 2007, when Booth was finally arrested.
The superior court held an evidentiary hearing and heard the testimony of Booth and Meyer. At the hearing, Meyer testified that he went to the listed Poppy Lane address for Booth but was unable to find him. He also testified that he went to look for Booth at two prior residences with the same result. Additionally, Meyer testified that other officers also attempted to find Booth.
Booth also testified at the evidentiary hearing. Aside from the above facts, Booth claimed that he attempted to find out the status of his case from the Public Defender Agency, but "nobody knew what was going on." Following the hearing, the trial court made oral findings and later issued a written order denying Booth's Rule 45 motion.
Booth entered a plea of no contest to the charge of felony driving under the influence and reserved his right to appeal the trial court's order denying his motion to dismiss the indictment. Discussion
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Alaska Criminal Rule 45 requires that a defendant be tried within 120 days "from the date the charging document is served upon the defendant." If the defendant is not brought to trial within the 120-day period, then the charges are dismissed with prejudice. But the period of delay resulting from the absence of the defendant is excluded when a court computes the time for trial. A defendant is absent "whenever the defendant's whereabouts are unknown and in addition . . . the defendant's whereabouts cannot be determined by due diligence."
Alaska R. Crim. P. 45(b), (c).
Alaska R. Crim. P. 45(g).
Alaska R. Crim. P. 45(d)(4).
Id.
In order to comply with this due diligence requirement, police must take reasonable steps to ascertain the whereabouts of the accused, but need not follow up on every conceivable lead. When we determine whether due diligence has been shown, we primarily emphasize the reasonableness of the efforts actually made, not the alternatives that might have been available. We have previously found due diligence lacking where the police make only pro forma efforts to locate a defendant and disregard a number of significant leads.
Spencer v. State, 611 P.2d 1, 7 (Alaska 1980); Odekirk v. State, 648 P.2d 1039, 1043 (Alaska App. 1982).
Ingram v. State, 703 P.2d 415, 431 (Alaska App. 1985).
See Odekirk, 648 P.2d at 1041-43.
We review a superior court's factual findings underlying a Rule 45 determination for clear error. A finding of fact is "clearly erroneous" when we have a definite and firm conviction on the entire record that a mistake has been made. We determine independently whether those facts constitute due diligence.
See, e.g., Machado v. State, 797 P.2d 677, 684 (Alaska App. 1990).
See, e.g., Troyer v. State, 614 P.2d 313, 318 n. 11 (Alaska 1980).
James v. State, 84 P.3d 404, 406 (Alaska 2004).
We conclude that the judge made a clearly erroneous finding in his order denying the motion to dismiss. In his oral remarks, the judge stated that: "The state trooper made inquiries of other people in the neighborhood when he could not find the defendant." And in his written order, the judge found that: "The trooper did contact neighbors and was given the impression that the defendant had left the area to look for work."
But there is no record evidence supporting this finding. Officer Meyer testified that he went to three different residences looking for Booth shortly after the warrant was issued. The officer did not describe any other efforts he undertook to locate Booth at that time. There is no evidence that the officer talked to any neighbors about Booth's whereabouts during the spring or summer of 2006. Meyer did talk to some people about Booth's location, but that was not until Booth was sighted riding past the police department in April 2007.
The record shows that Officer Meyer abandoned his search after he could not locate Booth at the three previous residences. But the officer had a number of significant leads remaining and chose not to use them. Meyer did not use Booth's mailing address or the telephone number he had previously used to locate Booth. And he did not check with the Alaska Department of Fish and Game where Booth had indicated he would be employed. The State thus failed to exercise due diligence to determine Booth's whereabouts after the early summer of 2006. Consequently, the resulting period of delay is not excluded from the deadline for trial. Conclusion
See Alaska R. Crim. P. 45(d)(4).
When the period from the summer of 2006 until April 2007 is included in the calculation of time under Criminal Rule 45, the 120-day deadline ran long before Booth filed his motion to dismiss. We therefore REVERSE the judgment of the superior court.