Opinion
Court of Appeals No. A-12195 No. 6710
09-26-2018
ANTHONY L. MOORE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Senta, Assistant District Attorney, Palmer, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
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 authority for any proposition of law. Trial Court No. 3PA-14-2092 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Palmer, William L. Estelle, Judge. Appearances: Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Senta, Assistant District Attorney, Palmer, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Anthony L. Moore was convicted of driving while under the influence of alcohol. Moore now appeals, arguing that the trial court erred in denying his motions to continue the trial for a week after the State announced its intent to call an expert witness.
For the reasons explained in this opinion, we conclude that the judge properly found that the State did not commit a discovery violation, and that the judge did not abuse his discretion when he denied Moore's request for a week's continuance.
Background facts and proceedings
On July 16, 2014, Alaska State Troopers stopped Moore's car for an equipment violation. After speaking briefly with Moore, a trooper conducted field sobriety tests and concluded that Moore was intoxicated. A subsequent DataMaster breath test revealed that Moore had a blood alcohol level of .081 percent, slightly over the legal limit.
The State charged Moore with driving under the influence pursuant to two theories: that he drove while impaired, and that his blood alcohol level was at or above .08 percent. The following month, the State served notice on the defense that it would call an expert witness to explain the DataMaster machine (i.e., the device that had tested Moore's breath). This notice listed three employees of the Alaska Crime Lab who might be called to testify about the DataMaster.
AS 28.35.030(a)(1), (2), respectively.
But when the trial began, the prosecutor (who had only been assigned to the case on the morning of trial) initially thought that she had not been authorized by her office to call any expert witnesses — so, when she recited the State's witnesses for the jury, she did not mention any Crime Lab employee from among those who were listed in the previous expert witness notice.
After jury selection was completed and opening statements had been delivered, the prosecutor learned that she was authorized to call an expert witness. The prosecutor then informed the defense attorney that she would be calling Charles Foster, one of the three previously listed Crime Lab employees, the following day.
The defense attorney objected, arguing that the prosecutor had violated Alaska Criminal Rule 16(b)(1)(B), which requires the State to inform the defense of any expert witnesses at least forty-five days in advance of trial. The defense attorney conceded that the State had disclosed Foster's identity more than forty-five days before trial, and he did not claim that the prosecutor had at any time before the trial implied that the State would not call an expert to testify. Nonetheless, the defense attorney asserted that the State issued identical expert witness notices in every Palmer DUI case, and that the State often did not call an expert witness at trial. Based on these assertions, Moore's attorney argued that the expert witness notice in Moore's case was a uninformative "boilerplate" that did not comply with the discovery rule.
The judge rejected this argument, ruling that "notice is notice." But the judge agreed that the prosecutor should have told the jury that she would be calling an expert witness.
The defense attorney then asked the judge for a one-week continuance. He told the judge that he had reviewed Foster's testimony in other cases and that there was "a whole lot more that I'd like to do with [this expert]," particularly given that Moore's breath test result was only .001 percent over the statutory limit.
The judge again ruled that the State had not violated the notice requirements of Rule 16(b). He found that expert testimony was to be expected in a case like Moore's, where the DataMaster reading was only slightly above .08 percent, and so Moore's attorney could not reasonably claim surprise. However, the judge allowed the defense attorney to interview Foster over the midday break in the trial.
During the ensuing interview, the defense attorney learned that, before and after each breath test, the DataMaster performs a check test using an air sample with a known alcohol concentration of .08 percent at standard atmospheric pressure. Because the atmospheric pressure at the time and place of an individual breath test will almost inevitably vary from standard atmospheric pressure, and because the density of the standard alcohol sample will respond to those pressure variations, the DataMaster is equipped with a barometer that enables its software to adjust the check-test results for atmospheric pressure variations. Thus, when the DataMaster checks its own calibration, the accuracy of this self-check necessarily depends on the accuracy of the DataMaster's internal barometer.
Because Moore's attorney did not have any information regarding the accuracy of the barometer in Moore's case, he conducted some quick research and found what appeared to be a discrepancy between the atmospheric pressure reading he located for Palmer on the day in question and the pressure reading logged by the DataMaster on the day of Moore's arrest.
Based on this information, Moore's attorney renewed his request for a continuance on two grounds. First, he told the court that the atmospheric pressure logged by the DataMaster did not match the pressure reading that he had found on the Internet, and that he needed time to investigate this discrepancy. Second, he stated that he had learned during his interview with Foster that, following periodic calibration checks of the DataMaster, passing results were published on the crime lab's website, but incomplete results or test failures were not published. The attorney said that he wanted a continuance so that he could investigate whether the unit that tested Moore's breath had generated any such failed results.
The judge denied the continuance motion because Moore's attorney could have investigated these matters before the trial started.
The jury returned a general verdict finding Moore guilty of driving under the influence. This appeal followed.
Why we affirm the judge's rulings
Moore argues on appeal that the judge erred when he ruled that the State's expert witness notice complied with the expert witness disclosure provision of Criminal Rule 16, and that the judge should have granted a continuance of the trial.
Under Criminal Rule 16(b)(1)(B), the State must inform the defendant of any expert witness that the prosecutor is likely to call at trial no less than forty-five days prior to trial. Under this rule, a failure to provide timely disclosure entitles a defendant to a continuance, or to other relief if a continuance is an inadequate remedy under the circumstances of the case. But in general, a judge's decision whether to grant a continuance is reviewed for abuse of discretion.
Salazar v. State, 559 P.2d 66, 72 (Alaska 1976). --------
Moore concedes that the State gave notice within the time limits of Rule 16, but he argues that the State's apparent practice — filing a list of several crime lab witnesses in all Palmer DUI cases — constitutes a discovery violation, because a defendant cannot know whether the State actually intends to call one of the listed crime lab witnesses at trial. But in Moore's case, the breath test result was a mere thousandth of a percent over the proscribed level of .08 percent. As the judge found, a defense attorney in Moore's case would reasonably have assumed that the State would call an expert to support the accuracy of this DataMaster result. And had the defense attorney wanted the State to elect among its three listed experts as trial approached, he could have moved for this. Accordingly, the record supports the judge's finding that the State did not violate the discovery rule.
When the trial resumed after the defense attorney's interview of the expert, Moore's attorney argued two additional reasons why he should receive a continuance. First, the attorney stated that, during the interview, he had learned that the DataMaster self-checks its calibration using a standard sample of air with a known concentration of alcohol, and that this procedure employs a barometer whose atmospheric pressure reading is logged in the machine's memory. The attorney argued that a discrepancy between the barometric pressure reading he had gotten off the internet and the barometric pressure logged on the DataMaster suggested a possible calibration error. The attorney stated that he needed time to investigate this possibility.
The judge ruled that the internet atmospheric pressure report did not necessarily suggest a machine malfunction and did not justify a continuance. He noted that Moore's attorney could have informed himself about DataMaster operational procedures well before trial, and he could have double-checked the unit's logged barometric pressure against other readings if he thought this would be useful.
(We also note that, at trial, the State's expert used Moore's internet data and extrapolated what the check-test reading would have been if this data was accurate. He calculated that, even using Moore's data, the check-test result would remain within the margin of error set forth in the DataMaster's calibration specifications.)
We conclude that the judge did not abuse his discretion when he denied a request for a week's continuance based on the defense attorney's mid-trial discovery of an investigative lead regarding the accuracy of the DataMaster's barometer, an issue he could have pursued before trial.
We also conclude that the judge did not abuse his discretion in denying a continuance based on Moore's other argument — the speculative possibility that the crime lab might have additional records regarding periodic calibration tests of the DataMaster unit that was used in Moore's case.
Conclusion
We AFFIRM the judgment of the district court.