Opinion
Court of Appeals No. A-10638 Trial Court No. 3AN-08-12037 CRNo. 5801
02-08-2012
WESTON J. GLADNEY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Attorney at Law, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee. Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge.
Appearances: Jane B. Martinez, Attorney at Law, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
Weston J. Gladney was convicted of robbery in the second degree, vehicle theft in the first degree, and assault in the second degree. Superior Court Judge Larry D. Card merged Gladney's three convictions and imposed a sentence of seven years with two years suspended.
On appeal, Gladney argues that Judge Card erred in denying his request for a thirty-day continuance to investigate new information provided by the victim, Dennis Cox, on the evening after the first day of trial. We conclude that Judge Card did not abuse his discretion in refusing to grant a continuance.
Gladney also argues that Judge Card erred in not making more extensive revisions to the presentence report. We conclude that Gladney did not preserve his objections to the presentence report, and that he has not shown plain error.
Factual and procedural background
On Saturday, October 25, 2008, Dennis Cox, from Gig Harbor, Washington, was in Anchorage on business. Cox began the morning with breakfast at Gwennie's. Shortly thereafter, he procured a bottle of whiskey, returned to his hotel room, and consumed about half of the bottle. Afterwards, he drove to a gift shop and purchased several beaver pelts. He then drove through the Spenard area looking for prostitutes. Sometime between 11:00 a.m. and noon, Cox arranged with a prostitute to receive sex in exchange for taking her shopping at Walmart. At about 1:30 p.m., the pair visited Walmart, where they were recorded on a store surveillance video. The woman selected her desired goods, which Cox subsequently purchased. But, before the pair could consummate their bargain, Cox decided to visit a liquor store to purchase beer, leaving the prostitute in the rental car. When Cox returned to the car, the prostitute had left with the proceeds from the shopping trip.
Cox then drove the streets of Anchorage for several hours. Shortly before 4:00 p.m., he decided to visit a Carrs supermarket to get something to eat. When he pulled into the parking lot at the Aurora Village Carrs, he noticed a woman who he thought was a prostitute standing in front of the adjacent Shell gas station. He parked his car, and the woman approached. Cox invited her into his rental car. Shortly after the woman had seated herself in the front seat of Cox's car, two men, Weston Gladney and Bruce Hawthorne, slid into the back seat. Sensing trouble, Cox took the keys from the ignition and fled toward Carrs. Gladney and Hawthorne overtook Cox. Cox was hit in the back of the head and fell to the ground. Gladney and Hawthorne then pummeled Cox and repeatedly kicked him in the face. The men forcibly took Cox's car keys and then absconded with his rental car. Cox sought help within Carrs.
Although Gladney and Hawthorne initially left the Carrs parking lot in the rental car, they returned almost immediately and entered Carrs. Police arrived on the scene, responding to a report of "a car jacking in progress." Several witnesses identified Gladney and Hawthorne as the individuals who attacked Cox. Hawthorne was detained leaving the liquor store next to Carrs. Gladney was arrested inside of Carrs. Police were unable to locate a female matching the description they had received from witnesses.
In an interview with police after the incident, Cox did not mention his encounter with the prostitute he took to Walmart. Nor did Cox detail the extent to which he had been drinking and the fact that he had likely been driving drunk.
Gladney was charged with multiple crimes and his case proceeded to trial in April 2009. The information about Cox's alcohol consumption and his encounter with the first prostitute came to light on April 15, 2009, after the parties had selected a jury, but before the jury had been sworn. Cox disclosed this information to the prosecutor. The State then immediately informed the defense attorneys for Gladney and Hawthorne, via e-mail, of Cox's disclosures. The following day, April 16, Gladney requested a thirty-day continuance to further investigate the new information (Hawthorne did not join the request for a continuance). It was Thursday morning; Judge Card allowed Gladney a continuance until the following Monday. Judge Card noted that Gladney could renew his request for a continuance on Monday.
On Monday, Gladney renewed his request for a thirty-day continuance. He asserted that three days had not been enough time to investigate the new information. Specifically, he wanted more time to perform an analysis of the fingerprints recovered from the car and from the beer and soda cans found inside the car, with the objective of either discovering the identities of the prostitutes or further discrediting Cox's account. Gladney also wanted additional time to show the eyewitnesses photographs taken from the Walmart video. Judge Card denied Gladney's request for a continuance, reasoning that further investigation was unlikely to bolster Gladney's defense.
Why we conclude Judge Card did not abuse his discretion in refusing to grant a continuance
The decision whether to grant a motion for a continuance is committed to the trial court's discretion. We are to reverse a decision denying a continuance only upon finding an abuse of that discretion. Even if a trial court errs in granting a continuance, reversal is only required if "the refusal of additional time in some manner embarrassed the accused in preparing his defense and prejudiced his rights."
Nielsen v. State, 623 P.2d 304, 307 (Alaska 1981) (citations omitted).
Id.
We conclude that Judge Card did not abuse his discretion in denying Gladney's motion for a continuance. Judge Card reasoned that when Cox admitted to withholding information from the police about picking up a prostitute earlier in the day and about the extent of his drinking, these admissions in themselves provided valuable information to the defense which it could use to impeach Cox. He concluded that the additional information Gladney indicated he wanted to investigate would not be particularly fruitful for advancing Gladney's defense. Judge Card reasoned that, although it was possible that Gladney might find further impeachment information, it would likely be cumulative to the information he already had about Cox's activities before he encountered Gladney and Hawthorne.
In fact, during the trial, Gladney was able to make full use of Cox's misstatements and omissions in cross-examining him. And the case did not turn solely on Cox's testimony, as several witnesses identified Gladney as one of the individuals who assaulted Cox and stole his vehicle.
Gladney also argues that Judge Card's refusal to grant the continuance interfered with his right to cross-examine Cox. But, as we just pointed out, Gladney was able to fully cross-examine Cox. This part of Gladney's argument is just another way of saying that Judge Card erred in denying him a continuance. We have already rejected that argument.
Why we conclude Judge Card did not commit plain error by allowing the presentence report to include information taken from police reports
At sentencing, Gladney noted that the author of the presentence report had relied on police reports in preparing the description of the offense. He asserted that the information in the presentence report would be more accurate if the author had relied on trial testimony rather than police reports.
Judge Card agreed that requiring the authors of presentence reports to rely on trial testimony would make presentence reports more accurate. But he pointed out that this procedure was not required. He suggested that Gladney's counsel move to supplement the presentence report with a defense version of the facts. Gladney's counsel indicated that she would consider doing that, but she never made such a motion.
Gladney argues that Judge Card erred in not requiring the presentence report to be based upon trial testimony. But we recently rejected this same contention in Darroux v. State. In Darroux, we pointed out that Alaska Criminal Rule 32.1(d)(5) requires a defendant who objects to information contained in the presentence report to give notice of this objection before the sentencing hearing. The notice must include information that the defendant intends to rely on to refute the information to which he objects. Gladney did not follow this procedure. He did not provide any specific objection to anything in the presentence report; he only complained about how the author had obtained the information. He therefore did not preserve his objection to the report.
____ P.3d ____, Op. No. 2335, 2011 WL 5429532 (Alaska App. Nov. 10, 2011).
Id. at *2.
Furthermore, the courts of this state have consistently held that a sentencing judge is authorized to rely on sufficiently verified hearsay information in the presentence report unless the defendant offers testimony or other substantial evidence to dispute the information. Judge Card was therefore authorized to rely on the information presented in the presentence report unless Gladney offered testimony or other substantial information to dispute it. We find no plain error.
Nukapigak v. State, 576 P.2d 982, 984 (Alaska 1978); Garland v. State, 172 P.3d 827, 829-30 (Alaska App. 2007) (Mannheimer, J., concurring).
Judge Card did not commit plain error in not requiring preparation of a new, approved version of the presentence report
Gladney objected to several items in the presentence report. Judge Card responded by excising portions of the report and making amendments to the report in the margins. Gladney observed Judge Card make these amendments, and he did not object to the modifications. At the end of the discussion of the presentence report, Judge Card stated that he had two copies of the report that he had "marked approved as amended ... to send ... to the Department of Corrections." He therefore made it clear that the two reports that he had modified were going to the Department of Corrections without further amendment. Gladney did not object to this procedure and therefore did not preserve this issue for appeal. We conclude that Judge Card did not commit plain error.
Conclusion
The judgment of the superior court is AFFIRMED.