Judge SUDDOCK.
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-13-1399 CR MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa H. White, Judge. Appearances: Lars Johnson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, 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).
While riding his motorcycle, Mark Alan Downs led the Palmer police on a late-night high-speed chase. The police were ultimately able to arrest Downs when he was thrown from his motorcycle. The police obtained a search warrant authorizing them to draw a sample of Downs's blood, and subsequent testing of Downs's blood was positive for methamphetamine. Downs was charged with felony eluding, reckless driving, driving under the influence, and driving without a license.
Immediately before Downs's trial, his defense attorney decided to independently test the blood drawn from Downs. The court granted an eight-week continuance for this purpose. Then, on the eve of the rescheduled trial, the defense attorney moved for another continuance for more testing, but she did not explain why the prior testing had been inadequate, or what she hoped to accomplish with additional testing. The judge denied the continuance motion.
On the second day of trial, the defense attorney renewed her request for a continuance, this time asking for a two-to-three-month continuance. For the first time, she explained that she had encountered problems with the testing laboratory, and she told the judge why she thought that she needed further testing. The judge denied the continuance, finding that the attorney had not acted diligently, and also finding that the proposed further testing would likely not be helpful to Downs's case.
We conclude that the judge did not abuse her discretion when she denied Downs's mid-trial continuance motion.
Downs also appeals his 4-year sentence as excessive. But the judge found that the facts of this case were aggravated, and that Downs also had an aggravated record of driving-related offenses. We conclude that the judge's sentencing decision was not clearly mistaken.
The chase and Downs's arrest
In the early morning hours of June 8, 2013, Palmer Police Officer Jason Crockett was patrolling the Palmer-Wasilla Highway. Sometime between 1:00 a.m. and 1:30 a.m., he saw a motorcyclist passing cars in a no-passing zone. When the officer activated his lights, the motorcyclist, later identified as Downs, led him on a chase at speeds up to ninety-five miles per hour. Downs drove through parking lots and residential areas, abruptly turned through intersections, drove on the wrong side of the road, and ignored several stop signs. He eventually crashed his motorcycle while trying to traverse a potato field. Officer Crockett then apprehended Downs.
Downs appeared to be intoxicated; he smelled of alcohol, had bloodshot and watery eyes, slurred his speech, and had trouble maintaining his balance. He refused to perform field sobriety tests. DataMaster testing revealed that Downs had a .079 percent blood alcohol content.
Suspecting that Downs was under the influence of drugs, Officer Crockett then applied for a search warrant to collect a sample of Downs's blood. Upon obtaining the warrant, Crockett drove Downs to the Mat-Su Regional Hospital for a blood draw. Technicians at the hospital collected the sample roughly two hours after Downs's arrest and, as instructed, sent it to toxicologist Christopher Johnston at the Washington State Crime Laboratory. Johnston tested the blood and determined that Down's sample had a .048 percent blood alcohol content and also contained .30 milligrams of methamphetamine per liter of blood.
Downs's continuance motions
The grand jury indicted Downs for felony eluding. Via an information, the State also charged Downs with the misdemeanors of driving under the influence (DUI), reckless driving, and driving with a revoked license (DWLR).
AS 28.35.182(a)(1).
AS 28.35.030(a)(2), AS 28.35.400, and AS 28.15.291(a)(1), respectively.
The State provided its toxicology results to Downs by late January 2014. On June 2, 2014 — one day before trial and four months after the State had furnished Downs with the test results — Downs's defense attorney moved for a continuance so that she could arrange for independent testing of Downs's blood sample. She acknowledged her fault for failing to obtain testing earlier. Superior Court Judge Vanessa H. White granted the continuance and ultimately rescheduled the trial for the week of July 21st (approximately seven weeks later).
At a trial call held on July 15, one week before the scheduled trial, the defense attorney requested an additional three-week continuance. The attorney stated that she needed this additional time in order to have the blood sample further tested to determine the concentration (as opposed to the presence) of any drugs in Downs's blood. (The defense's laboratory had confirmed the presence of methamphetamine in Downs's blood, but not its concentration.)
The State opposed this continuance. The State argued that, if the defense's testing confirmed the presence of methamphetamine, the concentration of the drug was largely irrelevant, because the State was not going to contend that a concentration above a particular level proved driving impairment. The judge denied the defense's continuance motion and set the trial for two weeks later.
Shortly before trial, the defense attorney filed another continuance motion. In this motion, the attorney argued that if she was not accorded additional time "to allow testing," Downs's defense would be prejudiced. But the motion offered no explanation of why the previously granted eight-week continuance had proven to be insufficient, no representation that the defense attorney had acted diligently, and no explanation of what the defense attorney had accomplished to date or of what the defense hoped to accomplish with additional testing.
Due to these shortcomings, the judge denied the motion, stating:
I asked [defense counsel when she first moved for a continuance,] how long do you need? [Defense counsel] said "I need four weeks." She's had seven, almost eight, to get that done. And, in fact, [defense counsel] did get lab results. [Defense counsel] has not shared with the Court what those results are. I know nothing about the results other than they showed the presence of some substance. That's her only representation to the Court. With that representation alone, it is difficult for me to understand how Mr. Downs's confrontation right is impacted by not allowing additional testing. It's not clear to me what additional testing is needed or what that additional testing might establish.
Then, after the jury had been sworn and jeopardy had attached, the defense attorney renewed her continuance motion. Under questioning by the judge, the attorney for the first time revealed what had transpired. The attorney disclosed that independent testing had confirmed the presence of methamphetamine in Downs's blood, but that she did not instruct the testing laboratory that, if the initial drug screen was positive for methamphetamine, the laboratory should then perform additional testing to determine the concentration of the methamphetamine. The attorney explained that she sent in her request for testing to a laboratory on June 2. Then, on July 11, the laboratory informed her that it had detected methamphetamine and a marijuana metabolite in Downs's blood, and that it needed additional funding to test the concentration of these substances. The laboratory told her that, if she was willing to pay for expedited testing, it would take another two months to determine the methamphetamine's concentration.
Downs's attorney further explained that one week later, on July 18, she sought approval for additional funds from the public defender's office to finance a second round of testing. She then faxed an order for an expedited second round of testing on July 21. She expected results, not in the three weeks that she had earlier requested at the trial call, but in two to three months.
The judge denied this mid-trial continuance motion, stating that the defense had presented no reason to believe that the State's test result was inaccurate, and that even a lower test result would not aid Downs's defense, because "the statute on drug DUI does not require quantification; it merely requires the presence." The judge also reiterated her earlier conclusion that the defense attorney had not been diligent.
The trial
At trial, the State's toxicologist testified that methamphetamine users experience a period of stimulation characterized by excitability and confidence consistent with an adrenaline rush, followed by a period of lethargy. He explained that, during the initial stage, a driver could overestimate their ability to drive and might take unnecessary risks. But the toxicologist did not correlate a specific concentration of methamphetamine to impaired driving.
Downs testified that he fled from the police because he believed that they had murdered his brother thirty years before, and that he wanted to get to a friend's bar so that the bar's patrons could witness any mistreatment of him by the police. Downs admitted that he drove ninety to ninety-five miles per hour during the chase, and that he went the wrong way down a one-way road. He also acknowledged that he was a methamphetamine user, but he claimed that methamphetamine did not impair his driving because it is a "performance drug."
After the jury returned guilty verdicts on all counts, the judge imposed a composite sentence 5 days short of 4 years' imprisonment. This appeal followed.
The judge's denial of a mid-trial continuance was not an abuse of discretion
As we have explained, the trial judge had already granted the defense attorney's first request for a continuance — the request that was made one day before Downs's initial trial date. Indeed, the judge gave the defense attorney all of the time she requested and more — despite the fact that the defense attorney had known about the State's blood test results for four months before she asked the court for a continuance.
Then, just before the date of Downs's rescheduled trial, the defense attorney asserted that she still had not obtained the test results she needed. Even then, the judge indicated that she was willing to at least consider a further continuance. But the defense attorney failed to explain the factual basis for another continuance — i.e., why the current test results were inadequate, what new testing might disclose, and why this would be important to the defense case. The judge declared that, given these deficiencies in the defense attorney's request, the judge was unwilling to grant another continuance.
Even after the judge explained these crucial deficiencies in the defense attorney's request for a continuance, the defense attorney waited until after the jury had been sworn — i.e., after jeopardy had attached — before she made her final request for a continuance. Only then did the defense attorney disclose the factual basis for her request. But at the same time, the defense attorney explained that the proposed additional testing was likely to take weeks, if not months.
Thus, the pertinent issue for us to decide is whether the trial judge abused her discretion when she denied this mid-trial motion for a continuance, when granting the continuance would inevitably require the judge to declare a mistrial.
In deciding whether to grant a motion for a continuance to allow a party to develop additional evidence, a court must consider several factors. These include: the diligence of the requesting party, whether the evidence sought is material, whether it is cumulative, the probability of obtaining the evidence within a reasonable time, and the inconvenience to the court and the opposing party.
Salazar v. State, 559 P.2d 66, 72 (Alaska 1976).
In such instances, our supreme court has declared that the diligence of the requesting party is a "critical" factor in the trial judge's analysis. And this Court has held that a DUI defendant's failure to diligently pursue testing can be "reason enough" to deny a requested continuance.
Id.
Best v. Anchorage, 712 P.2d 892, 895 (Alaska App. 1985).
Applying these factors to the judge's decision in Downs's case, the record amply supports a finding that the defense attorney acted dilatorily rather than diligently. In addition, the defense attorney failed to explain why the precise concentration of methamphetamine in Downs's blood would be material to Downs's defense — and, if material, why it would not be cumulative (i.e., why there was any reason to think that new testing would yield results that were significantly different from the testing already performed by the State). Finally, the defense attorney explained that the proposed additional testing would require a lengthy delay of Downs's trial — a delay so lengthy that the judge would be forced to declare a mistrial. Thus, the inconvenience to the court and to the State would have been substantial.
For these reasons, we conclude that the trial judge did not abuse her discretion when she denied Downs's mid-trial request for a continuance.
Downs's sentence is not clearly mistaken
As a first felony offender, Downs faced a presumptive sentencing range of 0 to 2 years on his felony eluding conviction. The judge merged Downs's convictions for reckless driving and felony eluding and sentenced Downs to serve the following sentences consecutively: 24 months for felony eluding, 360 days for the misdemeanor DUI, and 12 months for DWLR — a composite sentence 5 days short of 4 years.
AS 28.35.182(a), (e), and AS 12.55.125(e)(1).
Downs argues that, in order to sentence him to 360 days for DUI, the judge must have implicitly found him to be a worst offender as to that crime, and that this implicit finding was clearly erroneous. But Downs's focus on his DUI sentence standing alone is misplaced, for when we review a claim of excessiveness, we review the entire composite sentence rather than its individual components. "Alaska law does not require that a specific sentence imposed for a particular count or offense be individually justifiable as if that one crime were considered in isolation." Accordingly, we need not resolve whether Downs's 360-day DUI sentence, standing alone, was justified.
Felber v. State, 243 P.3d 1007, 1013 (Alaska App. 2010).
The judge noted that Downs, who was fifty-seven years old, had over thirty prior convictions, including eighteen for DWLR, six for DUI, and two for reckless driving. Downs had a prior conviction for eluding a police officer and multiple reckless driving convictions. He last held a valid license in 1983. Downs had violated conditions of his probation ten times.
Moreover, at the time of his arrest in this case, Downs was awaiting trial on charges of DUI and DWLR dating from 2011. Then, while he was released on bail in this case to the third-party custody of his mother, he stole his mother's car. When an officer attempted a traffic stop, Downs again fled at high speed. He was arrested for felony eluding, reckless driving, DWLR, third-degree weapons misconduct, and tampering with evidence. (Downs later pleaded guilty to the felony eluding charge and the State dismissed the other charges.)
The judge stated that she was "disheartened" that, in a statement to the presentence report author, Downs claimed that a five-year period of sobriety had been "the most boring" time of his life. Downs also claimed that, notwithstanding his numerous convictions, drugs and alcohol were not a problem for him. The judge concluded that "there's really nothing that our criminal justice system can do to [disabuse] him of that belief, and ... his past history when [he's] on probation and parole indicates that I can't give any weight to rehabilitation as a consideration."
Based on Downs's extensive record, the judge concluded that individual deterrence could not be achieved. She found Downs to be a worst offender with respect to the crime of DWLR, and that the pre-eminent Chaney considerations were isolation of the defendant to protect the public and community condemnation. The judge concluded that "Downs continues to present a credible, ongoing, irremediable threat to the public because of his eluding by means of reckless driving, because of his repeat DUI's [and] because of his belief that he is entitled somehow to ignore the law."
Having reviewed the record, we conclude that Downs's composite sentence is within the range that reasonable judges would impose, and thus is not clearly mistaken.
See McClain v. State, 519 P.2d 811 (Alaska 1986). --------
Conclusion
We AFFIRM the judgment of the superior court.