Opinion
Court of Appeals No. A-9743.
February 20, 2008.
Appeal from the District Court, Fourth Judicial District, Nenana, Tracy L. Blais, Magistrate, and Douglas L. Blankenship, Superior Court Judge, Trial Court No. 4NE-05-28 CR.
Kim S. Stone, McC onahy, Zimmerman Wallace, Fairbanks, for the Appellant. Blair M. Christensen, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Gary G. Foster argues that his right to a speedy trial was violated when the district court delayed his trial for four months because one of the State's witnesses was deployed overseas and unavailable to testify. Foster argues that the district court abused its discretion by excluding this period of delay in calculating whether he was brought to trial within 120 days as required by Criminal Rule 45. He argues that the court should not have excluded this period because the State's request for a continuance was not timely, the witness's testimony was not material, and the State did not exercise due diligence to obtain the witness's testimony for trial. He also argues that the State violated his due process rights by not providing him with an independent blood test at the closest facility.
For the reasons exp lained below, we affirm the decision o f the district court.
Facts and proceedings
On March 3, 2005, at about 10:00 p.m., Foster was driving north on the Parks Highway when his vehicle went into a ditch and landed on its side. Another motorist, Gilbert Campbell, stopped and helped Foster out of his vehicle. Campbell observed that Foster was "obviously intoxicated." Emergency crews from Clear Air Force Base arrived, followed by Alaska State Trooper Rachel Foster.
When Trooper Foster contacted Foster, she observed clear signs that he was intoxicated — he had watery, bloodshot eyes, slurred speech, a strong odor of alcohol, and he swayed, stumbled, and almost fell several times. Foster admitted he had consumed a small bourbon and cola about three hours earlier. A fter administering field sobriety tests, Trooper Foster arrested Foster and transported him to Clear Air Force Base for a breath test. That breath test, administered at 12:40 a.m., showed a blood alcohol level of .201 percent. Foster opted for an independent blood test at the state's expense and was transported to Fairbanks Memorial Hospital. A blood test there at 2:30 a.m. showed a blood alcohol level of .175 percent.
Foster was charged with driving while under the influence. Trial was originally scheduled for the week of May 2, 2005. But trial was delayed numerous times, mainly to accommodate the schedules of Foster and his attorney.
AS 28.35.030(a).
At a status hearing in April 2005, Magistrate Tracy L. Blais told the parties that May 23 was the earliest date a jury trial could be scheduled in Nenana, the venue closest to where the incident occurred, and Foster's preferred trial site. Foster was unavailable on that date because of a planned hunting trip to Africa, so trial was scheduled for the middle of June.
On June 2, 2005, Foster filed a motion to suppress the breath and blood test results. That motion was denied on July 21. At a status hearing on August 17, 2005, Magistrate Blais proposed a mid-September trial date. Foster asked that trial not be scheduled at that time because of moose hunting season and highway construction between Nenana and Fairbanks.
The next status hearing on October 21 was rescheduled to November 14, with Foster's consent, because of Magistrate Blais's leave schedule. At the November 14 hearing, Foster's attorney indicated he was unavailable for trial in November and December because he and his wife had jury duty during those months and one of them had to be available to care for their severely disabled child. A new trial date was set for January 24, 2006.
At the January 23 calendar call, the State asked that trial be set after May 17 because Campbell, the motorist who helped Foster out of his vehicle at the accident scene, had been deployed to Iraq until mid-May. The State argued that Campbell's testimony was necessary to prove that Foster had been driving the vehicle because Campbell was the first person on the scene of the accident and the only person who saw Foster in the car alone. The magistrate granted the State's request and scheduled a status hearing for May 22.
Later that day, Magistrate Blais decided she had not made adequate findings under Rule 45(d)(3)(a) to justify excluding from the 120-day window for trial the period of delay resulting from the continuance she granted to the State. She therefore vacated the May 22 hearing date and scheduled an evidentiary hearing. In a written order, Magistrate Blais alerted the parties that she would be considering whether all the elements of Rule 45(d)(3)(a) had been met: whether the State's request for a continuance was timely; whether Campbell was unavailable; whether his testimony was material to the State's case; whether the State had exercised due diligence to obtain Campbell's presence for trial; and whether there were reasonable grounds to believe Campbell would be available at the later trial date the State requested.
At the January 27 hearing, the State presented the testimony of paralegal Joleen Cooper. Cooper testified that Campbell had been served with a subpoena on April 28, 2005, to appear at Foster's trial, and that he had been notified each time trial was continued. Cooper said she called Campbell after the November 14 calender call to tell him trial had been continued until January. She said Campbell called back on about November 16 to inform her that he would be deployed to Iraq from mid-December until mid-May. Cooper notified the prosecutor of Campbell's expected deployment. She said the prosecutor told her "he didn't think it was going to be a concern because he was under the impression that this was going to be a . . . stipulated facts court trial."
Following this testimony, the State argued that the court should grant the continuance because it was the State's first request for a continuance, the four-month delay was reasonable, and Campbell was a material witness. The prosecutor noted that there had not been "any discussion that he's not a material witness."
Foster's attorney opposed the continuance. But he did not dispute the State's claim that Campbell was a material witness; nor did he argue that the State's request was untimely or that a four-month delay was unreasonable. Rather, he reserved his right to file a motion to dismiss under Rule 45. He also asserted that he had evidence that Campbell's deployment was voluntary.
Magistrate Blais ruled that Campbell was a material witness. Although she expressed concern that the State had waited so long to notify the court and Foster about Campbell's deployment, she ruled that a continuance was warranted given the numerous continuances already granted to Foster and the "overall state of the case."
On May 22, 2006, the date of the next status hearing, Foster filed a motion to dismiss under Rule 45. In that motion, Foster argued that the period of delay due to the State's continuance could not be excluded under Rule 45(d)(3)(a). Foster argued that the State's request had not been timely because the State did not ask for the continuance until the status conference on January 23, even though it learned in mid-November that Campbell would be deployed. Foster also argued that Campbell w as not a material witness because his testimony was merely cumulative. He noted that the record was "replete with admissible evidence from Alaska State Trooper Rachel Foster that defendant Foster readily admitted to her, in unambiguous statements, not only that he was driving, but the speed at which he was driving, where he was driving from and where he was driving to, and a description of how a semi-trailer cut him off while he was driving." Lastly, Foster argued that the State had not exercised due diligence because, after learning of Campbell's anticipated deployment, the State made no attempt to schedule an earlier trial date or to preserve his testimony in a deposition. Foster added that Campbell in fact had not been deployed to Iraq but had taken a voluntary assignment to Diego Garcia, an island in the Indian Ocean.
Magistrate Blais denied Foster's motion, finding that there was good cause for the continuance under Criminal Rule 45(d)(7) and that strict adherence to Rule 45 would result in an injustice. Foster filed a motion for reconsideration, which the magistrate denied.
Foster later asked the judge assigned to his trial, Superior Court Judge Douglas L. Blankenship, to review the magistrate's decision based on the pleadings already submitted. Judge Blankenship ruled that the magistrate had properly excluded the period from January 23 to May 22 due to the unavailability of the State's witness. He found that Campbell was a material witness and that the State had exercised due diligence to obtain his testimony. He also rejected Foster's claim that the State's request for a continuance was untimely. Judge Blankenship conceded that it "would have been better" if the State had notified Foster of Campbell's deployment earlier. But he found the State's request timely, given that Foster had already waived Rule 45 from October 21, 2005, to January 23, 2006, due mainly to the unavailability of his attorney. After excluding the period of delay due to the State's continuance, Judge Blankenship found that at most 92 days had elapsed under Rule 45 on the date Foster filed his motion to dismiss.
Following a bench trial, Foster was convicted of driving while under the influence. He appeals the denial of his motion to dismiss.
Why Foster is not entitled to dismissal under Criminal Rule 45
On appeal, Foster renews his claim that the district court erred in excluding in its Rule 45 calculation the period of delay due to the continuance granted to the State. Criminal Rule 45(b) and (c)(1) require, as a general rule, that a defendant be brought to trial within 120 days of the date the charging document is served on the defendant. But subsection (d) of the rule requires courts to exclude certain periods in determining whether 120 days have passed. Under sub section (d)(3)(a), a trial court must exclude the period of delay resulting from a continuance granted at the "timely request of the prosecution" if:
The continuance is granted because of the unavailability of evidence material to the state's case, when the prosecuting attorney has exercised due diligence to obtain [the] evidence and there are reasonable grounds to believe that [the] evidence will be available at the later date[.]
Foster raises several challenges to the district court's decision to exclude time under Rule 45(d)(3)(a). First, he argues that the State's request for a continuance was not timely.
As noted earlier, on January 23 Magistrate Blais granted the State's request for a continuance and set a new trial date for May 22. But later that day, Magistrate Blais vacated the May trial date and scheduled a January 27 hearing on the State's request. In a written order, Magistrate Blais explained:
[Before] granting a continuance under Criminal Rule 45(d)(3)(a), the court must find that the state made a timely request for the opposed continuance because a witness material to the state's case was unavailable, the prosecuting attorney had exercised due diligence to insure the witness's availability for trial and there are reasonable grounds to believe that the witness will be available at a later date requested. Although the court heard some information from both parties regarding the unavailability of a material witness and when defense counsel was notified, the court should have taken more extensive testimony and made specific findings.
Foster thus had notice four days before the January 27 hearing that the court would hear evidence and argument on whether the requirements of Rule 45(d)(3)(a) had been met.
At the hearing, Cooper, the State's paralegal, testified that she learned in mid-November that Campbell would be deployed to Iraq from mid-December until mid-May. Cooper said that, as far as she knew, Foster was not informed of this fact until January 23. Despite this testimony, Foster did not object to the State's request for a continuance on the ground that it was untimely. Instead, he objected in general terms to the continuance and reserved his Rule 45 argument until a later date.
The prosecutor urged the court to grant the continuance, observing that it was the State's first request for a continuance, that the case had been continued until after the date of Campbell's initial deployment at Foster's request, that Campbell was a material witness, and that a delay of four months was reasonable.
In granting the continuance, Magistrate Blais indicated that her primary concern was the State's delay in notifying Foster and the court of Campbell's expected deployment:
Court: The concern that I have, you know, in looking at the case that both you cite and the cases that are cited under Rule 45 is how much . . . notice the State had about their witness being available.
. . . .
I think the State could have, you know, notified both [defense counsel] and the Court back in November when they first got notified about the issue.
But, you know, I think that given the continuances that the Court has granted and the overall state of the case . . . I am going to stand by the original ruling and . . . grant the State's continuance.
The prosecutor then asked the court to make an explicit finding before continuing the case past the Rule 45 deadline that Campbell was a material witness and that he was unavailable for trial. The magistrate stated that she had already found at the January 23 hearing that Campbell was unavailable and material, and that she was "going to stand by my original ruling."
Given this record, we conclude that Foster did not preserve his claim that the State's request for a continuance was untimely. Foster did not object on that ground at the January 27 hearing. Cooper's testimony put Foster on notice of all the facts underlying his current claim that the State's request for a continuance was untimely under Rule 45(d)(3) — indeed, the record suggests that he was aware of these facts prior to the January 23 hearing. He was also on notice that the court was ruling on this issue, and that the court considered this a close question. Yet Foster did not object to the timeliness of the State's request until he filed his Rule 45 motion four months later, when, Foster argues, the time for trial had expired. If Foster had objected on this ground at the January hearing, the court might have denied the continuance and the State might have gone to trial without Campbell's testimony (as it ultimately did, after Foster stipulated he was driving). Because Foster did not preserve this claim, it is waived.
Foster next argues that the district court erred in finding that Campbell was a material witness. As noted earlier, before time may be excluded under Rule 45(d)(3)(a), the court must find that the unavailable evidence that forms the basis for the State's request for a continuance is "material" to the State's case. Foster argues that Campbell's testimony was not material, and that the district court erred by finding that his testimony was material based solely on the prosecutor's statement to that effect.
As to this second claim, the magistrate relied on the prosecutor's assertion that Campbell's testimony was material in large measure because Foster did not dispute that assertion. At the January 23 status hearing, Magistrate Blais asked the State if Campbell's testimony was necessary. The prosecutor responded:
Yes, Your Honor. He was the first one on the scene of the accident when Mr. Foster was involved in the accident, and he was the one who observed Mr. Foster in the car alone without anybody else around. Essentially, without that, we can't prove the element of driving, which is a necessary element for driving under the influence.
Foster did not object to this characterization of Campbell's testimony. Nor did he alert the court to the fact that the State had other evidence — notably, Foster's admissions to the trooper — to prove that he had been driving.
At the January 27 hearing, the State asked the court to make an explicit finding that Campbell was a material witness. The prosecutor observed: "I don't think there's been any discussion that he's not a material witness[.]" Again, Foster did not object to the prosecutor's characterization. Foster has therefore not preserved his claim that Campbell's testimony was not material.
Foster next argues that the State did not exercise "due diligence" to obtain Campbell's testimony. Again, Foster had notice before the January 27 hearing that the court would consider whether the State had exercised due diligence to obtain Campbell's testimony, and the court, in granting the State a continuance, implicitly ruled that the State had exercised due diligence. Because Foster did not argue that the State failed to show due diligence, he waived his objection on this ground.
In any event, Foster's main argument is that the State did not exercise due diligence because it waited too long to notify him and the court of Campbell's deployment. We agree that the State should have moved for a continuance more promptly. But, as discussed earlier, Foster waived his challenge to the timeliness of the State's request for a continuance because he did not object when the issue was litigated in district court.
Foster also argues that the State failed to show due diligence because it made no effort to depose Campbell or to explore other alternatives to live testimony. But in this case, the State had good reason to want the jury to have the opportunity to observe Campbell's demeanor when assessing his credibility. Driving is an element of the offense of driving while under the influence, and Campbell was the first person on the scene of the accident and the only witness to observe Foster alone in his vehicle. Furthermore, it is not apparent from the record before us that Foster agreed to cooperate with a deposition of Campbell or that he indicated he would waive any constitutional objections to substituting a deposition for live testimony in open court.
See Stores v. State, 625 P.2d 820, 824 (Alaska 1980) (quoting Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L.Rev. 567, 578 (1978)).
Foster also argues that the State cannot show due diligence because it made no effort to delay Campbell's deployment. In support of this claim, he asserts that Campbell's deployment was voluntary. But even if this were true, Foster offers no evidence or legal authority to show that the State could have, or should have, delayed Campbell's military deployment to accommodate his trial date. For these reasons, even if Foster had preserved this claim, we would find no error in the district court's conclusion that the State exercised due diligence to obtain Campbell's testimony.
Why Foster's due process rights were not violated by the purported delay in obtaining an independent blood test
Foster next argues that the State violated his due process rights by failing to provide a timely independent blood test.
Foster submitted to a breath test at Clear Air Force Base at 12:40 a.m. That test showed a blood alcohol level of .201 percent. Foster then elected to have an independent test at state expense and was transported to Fairbanks Memorial Hospital, where a blood test was administered at 2:30 a.m., one hour and fifty minutes after the breath test. That test showed a blood alcohol level of .175 percent. Before trial, Foster moved to suppress his breath and blood test results, arguing that the State had deprived him of a usable blood test by transporting him all the way to Fairbanks (some 76.7 miles northeast of Clear Air Force Base) instead of to Healy (some 36.5 miles southeast). After an evidentiary hearing, Magistrate Blais denied the motion.
Trooper Foster's testimony at the evidentiary hearing was undisputed. She estimated that it would have taken her forty-five minutes to an hour to drive to Healy. There were two people qualified to perform a blood test in Healy but Trooper Foster would have had to call them and, assuming they were home and sleeping, wake them up. She testified that the drive to Fairbanks was thirty minutes to an hour longer than the drive to Healy. She said she took Foster to Fairbanks because her supervisor told her to. She conceded that there was nothing that prevented her from taking Foster to Healy, but she said it seemed "more prudent" to go to Fairbanks, given that it was the middle of the night and the roads were icy. Foster in any event had to be transported to jail in Fairbanks.
Due process obliges the State to make an independent blood test available to a defendant arrested for driving while under the influence as long as doing so is not "impracticable or exceedingly burdensome." For instance, an independent blood test is not constitutionally required if the accused is arrested in a community without the capability of providing a blood test.
Snyder v. State, 930 P.2d 1274, 1277-78 (Alaska 1996).
Id. at 1278.
If the State had not made a blood test available to Foster there is no doubt his due process rights would have been violated. Even if it was inconvenient to arrange a blood test in Fairbanks or Healy, it was neither "impracticable" nor "exceedingly burdensome" to do so. But the issue here is whether Foster's due process rights were violated because the State did not make a blood test available until 2:30 a.m., instead of up to an hour earlier.
Department of Public Safety regulations require that a blood sample be collected "by medically acceptable means as soon as feasible after an alleged offense." Trooper Foster testified that, while it seemed "more prudent" to do the test in Fairbanks, there was nothing that prevented her from taking Foster to Healy. As the State points out, there is no guarantee a blood test could have been arranged more quickly in Healy because the two individuals who performed such tests might have been unavailable or asleep, while Fairbanks had a facility that operated twenty-four hours a d ay. O n the other h and, a simple phone call from Clear Air Force Base likely would have established whether a blood test was available in Healy.
13 AAC 63.110(2) (emphasis added).
Even assuming, without deciding, that the State violated this regulation by transporting Foster to Fairbanks instead of Healy, that violation would not entitle Foster to suppression of the evidence. "[W]hen the government has violated a statute (as opposed to the Constitution), suppression of evidence has generally been imposed only when the government's violation of the statute demonstrably prejudiced a defendant's ability to exercise related constitutional rights or to prepare or present a defense." Foster has not shown that he was prejudiced by the purported delay in obtaining a blood test.
Winfrey v. State, 78 P.3d 725, 729 (Alaska App. 2003) (quoting Nathan v. Anchorage, 955 P.2d 528, 533 (Alaska App. 1998)).
At trial, Judge Blankenship found that Foster's accident took place at about 10:00 p.m. and that Foster did not drink any alcohol after the accident. To convict Foster of driving while under the influence, the court only needed to find that a chemical test properly administered within four hours of driving showed a blood alcohol level at or above the legal level of .08 percent at the time of the test.
AS 28.35.030(a); Valentine v. State, 155 P.3d 331, 335 (Alaska App. 2007).
Foster's breath test some two hours and forty minutes after the accident showed a blood alcohol level of .201 percent. Foster's blood test four and one-half hours after the accident showed a blood alcohol level of .175 percent. Foster has not challenged the accuracy of the blood test. Instead, he argues that an earlier test would have allowed him to meaningfully challenge the accuracy of his breath test result. In other words, he argues that the State, by its delay in obtaining a blood test, failed to preserve evidence that would have been favorable to his defense.
When the State fails to preserve material evidence that may prove important to the accused's defense, "the issue is whether [the evidence] would have been favorable to the accused." If a court cannot make this determination, it must evaluate whether the evidence "might have led the jury to entertain a reasonable doubt about the defendant's guilt." At trial and on appeal, Foster offered no persuasive evidence to show how an earlier test might have aided his defense. Indeed, it seems likely, given that his blood test showed a blood alcohol level more than twice the legal limit four and one-half hours after the accident, that a blood test an hour earlier would also have shown a blood alcohol level above the legal limit. Thus, even assuming the State could have arranged an earlier test, Foster has not shown that the test result would have been favorable to his case, or that it might have led the court to entertain a reasonable doubt about his guilt.
Thorne v. Dep't of Public Safety, 774 P.2d 1326, 1330 (Alaska 1989).
Id. (quoting Wyrick v. State, 590 P.2d 46, 46 n. 1 (Alaska 1979)).
Foster did offer an affidavit by an expert suggesting that the late blood test made it impossible to extrapolate his blood alcohol level at the time of driving. But Foster's blood alcohol level at the time he was driving was irrelevant; as noted earlier, to convict Foster of driving while under the influence, the court only had to find that his blood alcohol level exceeded the legal level at the time of a chemical test properly administered within four hours of driving.
Because Foster has not met his burden to show that he was prejudiced by the State's purported delay in administering his blood test, we reject his claim that his due process rights were violated.
Conclusion
Foster's conviction is AFFIRMED.