Opinion
Court of Appeals No. A-10128.
October 13, 2010.
Appeal from the District Court and Superior Court, Fourth Judicial District, Fairbanks, Bethany Harbison, Magistrate, and Robert B. Downes, Judge, Trial Court No. 4FA-06-5627 MO 4FA-07-1466 CI.
Victor L. Buberge, pro se, Fairbanks. Joseph B. Dallaire, Assistant District Attorney, J. Michael Gray, District Attorney, Fairbanks, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Magistrate Bethany Harbison entered a default judgment against Victor L. Buberge for improperly passing a parked emergency vehicle. Buberge appeals, arguing his discovery rights were violated and the district court erred by denying his request for a continuance of trial and by entering a default judgment against him. Having reviewed the record in this case, we conclude the trial court did not abuse its discretion and affirm Buberge's conviction.
Former AS 28.35.185(a), (b)(2) (pre-August 30, 2006 version).
Background
On July 20, 2006, Fairbanks Police Officer Ron Dupee cited Buberge for improperly overtaking and passing a parked emergency vehicle. Buberge litigated the case for a year and a half. During that time, he petitioned the superior court to review various rulings by the trial court. Superior Court Judge Robert B. Downes affirmed the magistrate's rulings.
Former AS 28.35.185(a), overtaking and passing a parked emergency vehicle, states:
(a) The driver of a vehicle that approaches a stationary emergency, fire, or law enforcement vehicle displaying flashing emergency lights on a highway or roadway
(1) with two or more lanes traveling in the same direction, unless otherwise directed by law enforcement or emergency personnel, shall safely vacate the lane closest to the emergency, fire, or law enforcement vehicle; or
(2) unless otherwise directed by law enforcement or emergency personnel, shall slow to a reasonable and prudent speed considering the traffic, roadway, and weather conditions.
On January 23, 2008, Magistrate Harbison set the case for trial January 30. Buberge objected. He complained that he was getting ready for surgery on January 31, would be busy, and wanted more time to produce witnesses. The court noted the trial would not take long and that the court could issue a warrant if Buberge's subpoenaed witnesses did not appear for trial.
Two days before the January 30 trial date, Buberge filed a motion with the court asking for a continuance. He supplemented that motion with notices asserting that he would be unavailable for trial because he was preparing for surgery.
Magistrate Harbison denied Buberge's request for a continuance. Buberge did not appear for trial, and Magistrate Harbison entered a default judgment against him.
Discussion
Buberge argues the district court erred by denying his request for a continuance of trial and by entering a default judgment. He also claims the district and superior courts erred in failing to enforce his discovery rights.
The motion for a continuance
Buberge claims the district court erred by denying his request for a continuance of trial and by subsequently entering a default judgment when he did not appear at trial.
As described above, after a year and a half of litigation, the parties appeared before Magistrate Harbison on January 23, 2008. Magistrate Harbison scheduled trial for January 30. Buberge opposed the January 30 trial date. He complained that he was scheduled for surgery January 31, said he might be busy with medical appointments on the 30th, and claimed he had subpoena issues. Magistrate Harbison assured him the trial would not take much time and that she could enforce the subpoenas if his witnesses did not appear for trial.
On January 28 — 30, Buberge filed requests for a continuance of the January 30 trial date. He asserted he was on medications that interfered with his ability to think and present a defense.
In denying Buberge's requests, Magistrate Harbison noted Buberge had not submitted sufficient information to justify a continuance and that he had not shown he was medically incapable of appearing for trial or defending himself. She noted Buberge was still able to drive despite the medications he was on. And she indicated her decision to deny a continuance was influenced by concern that Buberge's motion was a delay tactic to avoid going to trial.
We conclude that Magistrate Harbison did not abuse her discretion when she denied Buberge's request for a continuance. This case involved simple charges and no complex issues. Buberge had ample time to thoroughly prepare for trial and his defense would have taken minimal time and effort. More than a year earlier, the trial court expressed concern that Buberge was stalling his trial by asking for continuances. Even after that observation, the court granted a number of continuances at Buberge's request. In view of this record, the magistrate could reasonably conclude that Buberge had not shown good cause for an additional continuance.
See Gottschalk v. State, 602 P.2d 448, 451 (Alaska 1979).
After Magistrate Harbison convicted Buberge of his traffic offense, he asked the court to set aside the default judgment. Magistrate Harbison denied Buberge's request. A defendant requesting an order setting aside a default judgment generally must allege a meritorious defense to the charges an d a reason, such as excusable neglect, for the failure to appear. In his request to set aside the default judgment, Buberge merely referred to his medical condition and asked the court to vacate the judgment and continue the trial indefinitely until his condition improved. Buberge did not assert a meritorious defense. The magistrate therefore did not abuse her discretion when she concluded that Buberge did not show good cause for setting aside the judgment. The discovery claims
Zok v. Anchorage, 41 P.3d 154, 155-56 (Alaska App. 2001). Under Pew v. Foster, 660 P.2d 447, 448-49 (Alaska 1983), the requirement that the moving party show a meritorious defense does not apply when a due process violation is the basis for requesting relief from a default judgment. Zok, 41 P.3d at 156.
Gregor v. Hodges, 612 P.2d 1008, 1010 (Alaska 1980).
Buberge also argues that the trial court violated his discovery rights. Buberge made many motions and requests concerning discovery in the trial court. These requests all centered around Buberge's contention that he was being denied access to "original" recordings in his case and his request for a written description of "why he may have been guilty" of the charged offense.
The trial court granted many of Buberge's discovery requests and ordered the State to give Buberge all relevant evidence, including original recordings and information concerning a prior traffic stop conducted by one of the officers involved in Buberge's case. Magistrate Harbison denied Buberge's motion to compel discovery of the "original" evidence he sought, concluding he could present any evidence of tampering at trial.
Buberge petitioned for review to the superior court from the magistrate's decision on his motion to compel discovery. On review, the superior court affirmed the trial court's denial of Buberge's motion. The court concluded that all relevant materials had been provided to Buberge and noted that the expert Buberge hired had found no evidence of alteration on the recordings provided in discovery. With regard to Buberge's request for a written description of "why he may have been guilty," the court concluded that Buberge had been adequately advised of the accusation against him in the traffic citation itself.
On appeal, Buberge argues that the superior court's decision was incorrect. But a litigant does not have an unqualified right to appeal to this court from a superior court decision on a petition for review from the district court. In order to obtain review of this type of decision, a litigant must show the grounds supporting a petition for hearing: that the case involves a significant question of law, that we should exercise our discretion to resolve a conflict in the law or otherwise to further the administration of justice. The issues related to Buberge's discovery request do not satisfy these grounds for discretionary review.
See AS 22.07.020(d)(1), (e); Alaska R. App. P. 302(b).
Alaska R. App. P. 304(b), (c).
Even if we exercised our discretion to hear this claim, we would conclude that the superior court properly affirmed the magistrate's ruling on these discovery issues. Having reviewed the record, we agree that Buberge did not show that the State failed to produce evidence to which he was entitled, nor did he show that he was prejudiced in any way. Moreover, Buberge's request for discovery became moot when he failed to attend his scheduled trial.
See Alaska R. Crim. P. 16; Jurco v. State, 825 P.2d 909, 917 (Alaska App. 1992).
Conclusion
We therefore AFFIRM the judgment of the district court.
I write separately to address the claim that Mr. Buberge set forth at oral argument — the claim that he had a meritorious defense to the charge against him.
Buberge was convicted of improperly overtaking and passing a stationary emergency vehicle. The statute that applies to his case is the pre-August 2006 version of AS 28.35.185(a) — the version that was in effect at the time of the incident that gave rise to the charge against Buberge. This version of the statute (as enacted by SLA 2004, ch. 44, § 1) read as follows:
(a) The driver of a vehicle that approaches a stationary emergency, fire, or law enforcement vehicle displaying flashing emergency lights on a highway or roadway
(1) with two or more lanes traveling in the same direction, unless otherwise directed by law enforcement or emergency personnel, shall safely vacate the lane closest to the emergency, fire, or law enforcement vehicle; or
(2) unless otherwise directed by law enforcement or emergency personnel, shall slow to a reasonable and prudent speed considering the traffic, roadway, and weather conditions.
Buberge contends that this version of the statute gave motorists two options when they came upon an emergency vehicle parked on a multi-lane road: either (1) move out of the lane closest to the emergency vehicle, or (2) continue driving in the lane closest to the emergency vehicle, but slow to a reasonable and prudent speed. In other words, Buberge interprets the statute as if the phrase "with two or more lanes traveling in the same direction" applied to both subparagraph (a)(1) and subparagraph (a)(2). And, based on this interpretation of the statute, Buberge contends that his conduct conformed to the statute — because, even though he did not move into an available farther lane, he did slow down to a reasonable and prudent speed when he passed the emergency vehicle.
I conclude that Buberge's interpretation of the statute is inconsistent with the wording of the statute. The phrase "with two or more lanes traveling in the same direction" appears only in subparagraph (a)(1), and not in subparagraph (a)(2). This indicates that subparagraph (a)(1) is the provision that governs situations where a motorist approaches a stationary emergency vehicle on a road with more than one available lane of travel in that direction. Subparagraph (a)(2), on the other hand, governs situations where the road has only one lane running in that direction.
Thus, Buberge did not have the option of continuing to drive in the lane closest to the stationary emergency vehicle. The statute required him to safely vacate that lane. For this reason, I conclude that Buberge has not shown that he had a meritorious defense to the charge against him.