Opinion
Court of Appeals Nos. A-9756, A-9835 A-9885.
August 20, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip Volland and John Suddock, Judges, Trial Court Nos. 3AN-05-8906 CR, 3AN-96-4971 CR.
David Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, 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
Jerry W. Taylor was convicted of eluding a peace officer in the first degree, a class C felony. Taylor appeals, arguing that Superior Court Judge John Suddock erred in denying his motion to continue his trial so he could consult an expert witness on eyewitness identification. We conclude that Judge Suddock did not abuse his discretion in denying the continuance.
AS 28.35.182(a), (e).
Taylor was a third felony offender for purposes of presumptive sentencing and therefore faced a presumptive term of 3 to 5 years of imprisonment. Judge Suddock found four aggravating factors and rejected Taylor's proposed mitigating factor that his conduct was among the least serious conduct within the definition of the offense. Judge Suddock imposed a 3-year term of imprisonment. Taylor argues that Judge Suddock erred in rejecting his proposed mitigating factor. We affirm.
AS 12.55.125(e).
AS 12.55.155(d)(8).
While the felony eluding charge was pending, the State filed a petition to revoke Taylor's probation on a former conviction for assault in the third degree for which Taylor had received a sentence of 4 years with 1½ years suspended. Superior Court Judge Philip Volland found that Taylor had violated his probation and imposed the entirety of Taylor's suspended sentence. Taylor argues that there was insufficient evidence to show that he had violated his probation and that the sentence Judge Volland imposed was excessive. We affirm.
Factual background for the eluding offense
On September 22, 2005, Anchorage Police Officer Kevin Armstrong had just finished his shift. It was approximately 2:00 a.m., and he was driving south on the Seward Highway when a white Cadillac passed him going approximately ninety miles per hour. It had been raining, and the roads were wet and slick. Armstrong turned on his overhead lights and effected a traffic stop of the Cadillac. Once the Cadillac stopped, Armstrong informed the dispatcher of the car's license plate and that he was making a traffic stop. Armstrong approached the driver's side window. He saw only one person in the car, "a black male, older, with a black baseball cap."
Armstrong asked the man why he had passed a marked patrol car at a speed close to 100 miles per hour in the rainy conditions. The man stated that he had a sick child at home. Armstrong told the man that if the child was that sick he could get on the radio and get medics to his child quickly. The man stated that the child was not sick enough to need medics.
Armstrong asked the man for his driver's license. The man took his wallet from the rear of his pants and held up his driver's license, but he appeared reluctant to give the license to the officer. Armstrong reached through the window and took the license out of his hand. From the license, Armstrong identified the driver as Jerry Taylor. At this point, Armstrong was standing less than a foot from Taylor.
Armstrong testified that he looked at the driver's license an d at Taylor's face to make sure they matched. He stated that he did this in every case because he had previously encountered people who carried false identification. He explained that, occasionally, people would use the license of a brother, sister, or family member who looked similar to them.
Taylor again insisted that he needed to go. Armstrong replied that he just needed to run a quick computer check and would then follow him home to check on the child.
As soon as Armstrong got into his patrol car, Taylor fled. Armstrong pursued him down the Seward Highway at speeds up to about 100 miles per hour. Taylor then left the Seward Highway and ran a red light at approximately fifty miles per hour without slowing for traffic. At this point, Armstrong was ordered to discontinue the pursuit by the sergeant on duty because the pursuit was becoming too hazardous.
Armstrong, however, still had Taylor's driver's license and had previously reported the license number of the Cadillac. The owner of the Cadillac was Ethel Kelly. A short time after Armstrong discontinued the pursuit, two Anchorage police officers arrived at Kelly's home. The officers noticed wet tire tracks leading to the garage. The officers talked to Kelly, who allowed the officers to search her house. The officers found the white Cadillac in the garage. Kelly told the officers that she had loaned her car to "Joe Taylor," a man she had met through her church. (At trial, Kelly testified that she had lied when she said that "Joe Taylor" had been driving her car. She testified that the driver was "Joe Santiago," who was her boyfriend at the time. She admitted knowing Taylor, whom she had met at church. She stated that she had visited him over twenty times during the time between the incident on September 22, 2005, and her testimony at Taylor's trial on May 11, 2006.)
At trial, Taylor did not testify. He argued that Officer Armstrong had erred in his identification of Taylor as the man who was driving the Cadillac. But the jury convicted Taylor.
Why we conclude that Judge Suddock did not err in denying Taylor's motion for a continuance
On May 5, 2006, the Friday before his trial was set to begin, Taylor requested a continuance. Taylor's counsel stated that he needed a continuance in order to consult with an expert witness on eyewitness identification. He conceded that he should have contacted the expert "a long time ago." But he argued that it was critical for him to challenge Officer Armstrong's identification of Taylor as the driver of the Cadillac. Judge Suddock found that Taylor had made an insufficient showing to justify a continuance.
Taylor renewed the motion to continue on Monday, May 8, 2006. Judge Suddock concluded that Taylor had not shown that there was a reasonable likelihood that consulting with an expert witness on eyewitness identification would aid his case. Judge Suddock pointed out that this case did not present a typical eyewitness identification problem because the officer had compared the driver of the Cadillac to the picture on Taylor's driver's license and the police had evidence that connected Taylor to the Cadillac. He questioned whether an expert would be able to benefit Taylor under the facts of this case. He concluded that, to be consistent, if he were to grant a continuance in this case, he would have to grant a continuance any time a party wanted to do additional investigation, even when the party had not shown that there was a reasonable likelihood that the investigation would make any difference.
We are to reverse the trial court's decision to deny a motion for a continuance only when the trial court commits an abuse of discretion and the movant demonstrates that he or she was prejudiced by the ruling. In the present case, Taylor's counsel admitted that he had planned to contact an expert on eyewitness testimony for a long time but had neglected to do so. He made no showing that he would be able to do so within a reasonable period of time or that the expert witness would actually be able to aid him in defending Taylor. We note that, even though Taylor had several days — from May 5th, when Judge Suddock first denied his motion to continue, until May 11th, when the State concluded its case — to make a showing that an expert on eyewitness identification would soon be available and could aid Taylor's defense, Taylor never mad e this showing. Under the circumstances, we conclude that Judge Suddock did not abuse his discretion in denying Taylor's motion to continue the trial. Why we conclude that Judge Suddock did not err in refusing to find Taylor's proposed mitigating factor
Boggess v. State, 783 P.2d 1173, 1182 (Alaska App. 1989).
Taylor argues that Judge Suddock erred in refusing to find the mitigating factor that Taylor's eluding offense was "among the least serious conduct included in the definition of the offense." At sentencing, Taylor argued that because his eluding took place at approximately 2:15 a.m., there were no cars on the street and, therefore, he did not endanger anyone. Judge Suddock concluded that Taylor's offense was "probably pretty squarely within the mid-range of what happens in these eluding matters." He therefore rejected the proposed mitigating factor.
AS 12.55.155(d)(8).
As a proponent of the mitigating factor, Taylor had to establish it by clear and convincing evidence. We independently review whether Taylor made the required showing. We previously set out the details of Taylor's eluding offense. Taylor fled from the police at speeds up to 100 miles per hour while the roads were wet and slippery. He ran a red light at fifty miles per hour, apparently without hesitating or checking for other traffic in the intersection. Officer Armstrong was ordered to stop pursuing Taylor to keep the incident from escalating to an even more dangerous one. Under these circumstances, we conclude that Taylor did not establish by clear and convincing evidence that this was a least serious offense.
AS 12.55.155(f)(1).
State v. Michael, 115 P.3d 517, 520 (Alaska 2005).
Why we conclude that Judge Volland did not err in finding that Taylor violated his conditions of probation
Taylor argues that Judge Volland erred in finding that Taylor violated his conditions of probation. Judge Volland found that Taylor violated his conditions of probation based upon his conviction on the eluding offense. Taylor points out that if we reverse his eluding conviction, we must also reverse Judge Volland's ruling that Taylor violated his conditions of probation. But since we affirm Taylor's conviction, Taylor's argument has no merit.
Taylor also argues that there was insufficient evidence to support Judge Volland's finding that Taylor violated his conditions of probation by consuming cocaine. Taylor's probation officer, Amy Brubaker, testified that she directed Taylor to submit a urine sample. The urine sample tested positive for both marijuana and cocaine. She testified that Taylor admitted using marijuana but denied using cocaine. Taylor then asked Brubaker a hypothetical question — if there was cocaine in the kitchen when he was making dinner and if the cocaine fell in the food, would this explain a positive test.
Taylor argues that the State presented insufficient evidence to prove that he had consumed cocaine because Brubaker did not actually observe him give the urine sample — a male probation officer watched Taylor urinate. Taylor points out that the State relied on hearsay to establish his violation. But when Taylor raised this observation in the trial court, Judge Volland correctly pointed out that the evidence rules (with the exception of rules of privilege) do not apply to probation revocation hearings. Judge Volland found that the evidence the State introduced established that the urine sample was taken by following standard practices and procedures, was never out of the observation of one or both probation officers, that the State established the urine sample was Taylor's, and that the State established Taylor had tested positive for the consumption of cocaine.
A .R .E. 101(c)(2); Veeder v. Anchorage, 969 P.2d 642, 643-44 (Alaska A pp. 1998).
Taylor points out that Bru baker testified that she did not know whether there were false positives to the cocaine test and admitted that she did not understand the chemistry involved in the test. But Taylor never argued that the State failed to lay an adequate foundation to admit the results of the test. Judge Volland could properly consider the test results, as well as Taylor's questionable hypothetical explanation that cocaine might have fallen in his food, in determining that the State had established by a preponderance of the evidence that Taylor violated his conditions of probation by consuming cocaine.
Why we conclude that Judge Volland was not clearly mistaken in imposing the balance of Taylor's previously suspended sentence for violating his conditions of probation
Taylor was on probation from a prior conviction for assault in the third degree, a class C felony. Taylor had originally been sentenced to serve 4 years with 1½ years suspended. Judge Volland found that Taylor had committed six felonies and several misdemeanors. He noted that while on felony probation Taylor committed yet another felony. He concluded that Taylor had consistently failed on probation and had established that he would continue to fail on probation. Judge Volland therefore concluded that there was no reason to keep Taylor on probation and that it was appropriate to impose all of Taylor's suspended time. We conclude that Judge Volland fully justified the sentence he imposed. We conclude that the sentence is not clearly mistaken.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgments of the superior court are AFFIRMED.