Opinion
Court of Appeals No. A-10146.
September 15, 2010.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, and Patrick J. McKay, Judges, Trial Court No. 3AN-07-2383 CR.
Serena Green, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Glenn Howard Cooper of four counts of assault in the third degree based upon his actions on January 22, 2007, when police officers attempted to contact him when he was asleep or passed out in his truck. The charges arose when Cooper responded by fleeing from the police in his truck. Cooper appeals, arguing that the superior court erred in denying his motion to dismiss under Alaska Criminal Rule 45, that the court erred in admitting evidence that there was a methamphetamine pipe on the passenger seat of his truck, and that the court erred in limiting his final argument to the jury. We affirm.
Factual and procedural background
On the morning of January 22, 2007, the police were alerted that there was a suspicious vehicle near Turnagain Elementary School. Four officers arrived at the scene at approximately 8:30 a.m. and found a man (Cooper) behind the wheel of a running truck. He was unresponsive, appearing to be asleep or passed out. The officers called out to the man and knocked on the windows of the truck. After a short period, Cooper finally opened his eyes. He refused to roll down his window or turn off the truck, in spite of the officers' requests. One of the officers testified that Cooper looked around to assess the situation, put the truck in reverse and gunned the accelerator, then put the truck in forward and gunned the accelerator again, trying to flee the encounter. Cooper appeared to be trying to plow through the police cars and police officers. The officers broke the windows of the cab of the truck in an attempt to gain control, but Cooper managed to drive away. An officer drew his weapon and shot at Cooper. Cooper turned down a dead end street and abandoned the truck. The police officers followed and apprehended him. Cooper had been shot in the arm. The police found a methamphetamine pipe and baggy under a sweatshirt on the passenger seat of the truck.
The State charged Cooper with four counts of assault in the third degree, a class C felony, for recklessly placing the four Anchorage police officers who tried to contact him in fear of imminent serious physical injury with his truck. At trial, Cooper defended on the theory that he did not realize that the people knocking on his window were in fact police officers and that he was acting in self-defense when he drove away. The jury convicted Cooper on all four counts of assault in the third degree.
AS 11.41.220(a)(1)(A).
Why we conclude the court did not err in denying Cooper's Criminal Rule 45 motion
At the time of the January 22 incident, Cooper was on probation for a conviction of second-degree theft. A warrant had issued for his arrest based on a petition to revoke his probation.
All of the proceedings which took place in court were initially based on the State's petition to revoke Cooper's probation. On March 5, 2007, the State filed an information charging Cooper with the assault charges at issue in the present case. On March 8, 2007, Cooper's probation officer amended the petition to revoke Cooper's probation to include the assaults charged in the information. At a hearing on the petition to revoke probation on March 13, Cooper denied the allegations in the petition. The State formally served Cooper with a summons and a copy of the information of the assault charges on March 30.
Cooper's argument that the State did not bring him to trial within the time limits set forth in Criminal Rule 45 rests on a contention that the rule started running on March 13, 2007, when he appeared in court on the petition to revoke probation to answer the assault charges which had been added to the petition. Superior Court Judge Patrick McKay concluded, however, that Criminal Rule 45 did not begin to run until March 30, 2007, when Cooper was formally served with a summons on the assault charges.
Criminal Rule 45 requires that a defendant charged with a crime be tried within 120 days from the time the defendant is served with the charging document. Criminal Rule 45(c)(1) provides that the time for bringing a defendant to trial is calculated "from the date the charging document is served upon the defendant." In State v. Gottschalk, we concluded that, under the rule, the time limit for bringing the defendant to trial should be calculated from the date the defendant was formally served with the charging document or formally arraigned. In Gottschalk, the defendant was incarcerated based on a petition to revoke probation. The petition was based on information that Gottschalk had violated his probation by consuming alcohol and driving under the influence. At a hearing on the petition, the prosecutor informally gave Gottschalk a copy of the indictment for a felony DUI which was based on the same incident upon which the petition to revoke probation was based. We held that, in spite of the fact that Gottschalk had been incarcerated based on the same incident and in spite of the fact that he had been given a copy of the felony charges, the Criminal Rule 45 clock did not start on the criminal charges until Gottschalk was formally arraigned on those charges:
Alaska R. Crim. P. 45(b) (c)(1).
138 P.3d 1170 (Alaska App. 2006).
Gottschalk, 138 P.3d at 1172.
We conclude that Criminal Rule 45 must have a clear and exact starting date. In order to eliminate any confusion as to when the Criminal Rule 45 clock starts, we believe that the defendant must be formally served under Criminal Rules 4 or 9 or formally arraigned on the charges under Criminal Rule 10.
Id.
Cooper's argument is essentially the same argument that Gottschalk raised and we rejected. We conclude that Judge McKay did not err in denying Cooper's Criminal Rule 45 motion.
Why we conclude that Judge Wolverton did not err in admitting the evidence that there was a methamphetamine pipe in Cooper's truck
Prior to trial, Cooper asked Superior Court Judge Michael L. Wolverton to prohibit the State from introducing evidence that, when they apprehended him shortly after the assaults, the police found a methamphetamine pipe and baggy in his truck. Cooper argued that the evidence was unduly prejudicial. The State argued that the evidence was relevant to show Cooper's motive to flee from the police because he was in possession of an illegal drug, and also to prove that Cooper was acting recklessly because he was under the influence of methamphetamine. Judge Wolverton concluded that the evidence was admissible to show why Cooper might have been motivated to flee from the police.
The admissibility of this evidence is determined under Evidence Rule 404(b)(1) and 403. Relevant evidence of other acts is not admissible to prove the defendant's character in order to show he acted in conformity with that character, but evidence of other acts is admissible for other purposes. A judge may exclude relevant evidence if the risk of unfair prejudice outweighs the probative value of the evidence.
Alaska Evid. R. 404(b)(1); Lerchenstein v. State, 697 P.2d 312, 316 n. 2 (Alaska App. 1985).
Cooper argues that evidence of his possession of methamphetamine was highly prejudicial because "[t]he prejudicial nature of the methamphetamine pipe . . . is obvious." He argues that there was little evidence that the pipe was his or that he knew it was in the truck. He argues that the State never tested the pipe for DNA or fingerprints. He points out that there was no evidence that he owned the truck. And he points out that there was evidence that his friend was in the truck shortly before the incident and that the pipe was found on the passenger seat underneath a sweatshirt. He contends that there was no evidence that the sweatshirt belonged to him.
But Cooper's friend testified that, although she had been in the truck late in the evening and into the early morning hours before the assaults, she did not see the methamphetamine pipe. So if the jury found her testimony credible, the pipe was not hers and it was put on the passenger seat after she left the truck. This testimony supported an inference that Cooper had placed the pipe there and that the pipe was Cooper's.
We conclude that Judge Wolverton did not abuse his discretion in allowing the State to introduce evidence of Cooper's possession of the methamphetamine pipe and the baggy. He could reasonably conclude that the evidence was admissible to combat Cooper's assertion that he was unaware that he was surrounded by police officers and that he fled in self-defense. The evidence suggests that Cooper feared he was about to be apprehended in possession of an illegal drug. Cooper's possession (and possible recent use of) methamphetamine provided an explanation for his decision to flee from the police.
Judge Wolverton did not err in restricting Cooper's closing argument
Cooper argues that Judge Wolverton erred when, toward the end of Cooper's final argument to the jury, he limited the amount of time that Cooper could argue his case to the jury. Cooper points out that, before he began his closing argument, the court did not mention any time constraints. He argues that the trial court "denied Cooper a full and fair opportunity to [explain his defense] when it unexpectedly cut short his closing argument."
As Cooper points out, the United States Supreme Court has emphasized the importance of closing argument for a defendant and has held that the defense always has the right to make a closing summation to the jury, "no matter how strong the case for the prosecution may appear to the presiding judge." But the Supreme Court has also said that trial judges "must be . . . given great latitude in controlling the duration and limiting the scope of closing summations." They may "limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant." They "must have broad discretion" in these decisions.
Herring v. New York, 422 U.S. 853, 858, 95 S.Ct. 2550, 2553, 45 L. Ed. 2d 593 (1975).
Id. at 862, 95 S.Ct. at 2556.
Id.
Id.
We have reviewed the final arguments of the parties. The record shows that Cooper was given a substantial time to argue his case to the jury, more than an hour and fifteen minutes, approximately the same amount of time the State was given. Cooper's counsel extensively discussed the evidence in the case and Cooper has not been able to show specifically how he was prejudiced or what argument he was unable to make.
We conclude that Judge Wolverton did not abuse his discretion in limiting Cooper's final argument to the jury.
Conclusion
The judgment of the superior court is AFFIRMED.