Opinion
A-13628 0315
03-22-2023
DONALD RAY AUSTIN, Appellant, v. STATE OF ALASKA, Appellee.
David T. McGee, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. RuthAnne Beach, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, First Judicial District Trial Court No. 1PW-18-00066 CR, Prince of Wales, M. Jude Pate, Judge
David T. McGee, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
RuthAnne Beach, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
SUMMARY DISPOSITION
Donald Ray Austin was charged with multiple counts of weapons misconduct and assault after he fired gun shots toward a fishing boat anchored offshore of his cabin. A jury found Austin guilty of fourth-degree weapons misconduct, but could not reach a verdict on the remaining charges. The State retried Austin on the remaining charges, and a second jury convicted him of second-degree weapons misconduct and four counts of third-degree assault.
AS 11.61.210(a)(1).
AS 11.61.195(a)(3)(A) and AS 11.41.220(a)(1)(A), respectively.
On appeal, Austin argues that, at his second trial, the superior court improperly pressured him into waiving his right to testify. We have reviewed the record, and we reject this claim.
After the State rested its case at Austin's second trial, Austin stated that he wanted to testify, but he wished to do so the following day because he was feeling ill. The court was reluctant to grant a continuance, finding that Austin appeared clearheaded and able to testify. The court noted that at Austin's first trial, Austin had "claimed illness" in a "concerted" attempt to continue the trial. The court expressed concern that if it granted Austin's requested continuance, Austin would continue to claim illness "as an excuse to try to continue trial or otherwise impede the progress" of trial.
The court also expressed concern that a continuance would risk a mistrial, as the trial was being held on Prince of Wales Island and winter weather conditions could interfere with the availability of jurors, some of whom had traveled lengthy distances. The court noted that it had been difficult to empanel a jury at all.
In response, Austin's attorney stated that, if Austin was not permitted to testify the following day, he would not testify.
Several other defense witnesses then testified. Afterward, the superior court revisited the issue of Austin's testimony and offered to allow Austin to testify the following day. But Austin nevertheless declined to testify, stating that he saw "no reason" for doing so. Austin also told the court that a continuance until the following day would not change his mind in light of "all the . . . guilt and pressure that . . . these people [i.e., jurors] might run off the road or something." The court then conducted a LaVigne inquiryandaccepted Austin's decision not to testify as knowing and voluntary.
LaVigne v. State, 812 P.2d 217, 222 (Alaska 1991).
On appeal, Austin argues that the superior court's comments about the weather and juror availability improperly pressured him into waiving his right to testify by making him feel responsible for the safety of the jurors and the efficiency of the judicial system, rendering his waiver of his right to testify involuntary. But contrary to Austin's assertion on appeal, the superior court did not insist that Austin weigh the jurors' safety and the needs of the court system in his decision whether to testify. Rather, the court stated that winter weather conditions could prevent jurors from traveling, and that this could result in a mistrial. That was a proper comment in light of the issue it was considering: whether to grant Austin's request for a continuance.
Moreover, the superior court's concern was aimed squarely at whether jurors would be able to travel to the courthouse in light of the weather. The court never stated that a juror might "run off the road," or that it would insist on the jurors' presence even if travel put them in harm's way.
For these reasons, we reject Austin's claim that the superior court acted improperly. We note that Austin does not otherwise challenge the adequacy of the superior court's LaVigne inquiry.
We therefore AFFIRM the judgment of the superior court.