BURGER v. STATE, A-9816 (Alaska App. 4-2-2008)

SAUL C. BURGER, Petitioner, v. STATE OF ALASKA, Respondent.

Court of Appeals No. A-9816.Court of Appeals of Alaska.
April 2, 2008.Page 1

Petition for Review from the District Court, Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge, Trial Court No. 4FA-06-1475 CR.

Allen Vacura, Stepovich Vacura Law Office, Fairbanks for the Petitioner. Matthew C. Christian, Assistant District Attorney, J. Michael Gray, District Attorney, Fairbanks, and Talis J. Colberg, Attorney General, Juneau, for the Respondent.

Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.

MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.

Saul C. Burger contends that his Alaska Criminal Rule 45 right to a speedy trial was violated when the district court delayed his trial until the State’s main witness, the arresting trooper, returned from his military deployment in Iraq. Burger argues that the State did not exercise due diligence to obtain the trooper’s testimony because it made no effort to depose him before he left the country. We conclude that, under the circumstances of this case, the State was not obliged to make efforts to depose the trooperPage 2
to show due diligence. The district court therefore did not abuse its discretion by granting the State a continuance and by excluding the period of delay due to that continuance in determining that Burger’s Rule 45 right to a speedy trial was not violated.

Facts and proceedings

On April 27, 2006, Alaska State Trooper Jeff D. Jones stopped Burger for running a stop sign. During this traffic stop, Trooper Jones observed that Burger showed signs of intoxication: he had a strong odor of alcohol, slurred speech, a wobbly stance, poor manual dexterity, and bloodshot, watery eyes. After administering field sobriety tests, Trooper Jones arrested Burger. A subsequent breath test showed a blood alcohol level of .192 percent.

The State charged Burger with driving while under the influence.[fn1]
Calendar call was scheduled for June 9, 2006, with trial set for June 12. On June 9, Burger requested a one-month continuance of the trial date, and the court rescheduled calendar call for July 12.

On July 27, the State filed a “Motion to Toll Rule 45,” asserting that Trooper Jones had reported to active duty in the military and was not expected to return from his deployment until May 31, 2007. Trooper Jones had been ordered to active duty on June 14, 2006, and apparently left the United States for Iraq on August 18, 2006. Burger opposed the State’s motion, arguing that the State had not exercised “due diligence” to obtain Trooper Jones’s testimony as required by Criminal Rule 45(d)(3)(a).

At a status hearing on August 29, 2006, Burger asked the court to dismiss his case because the State had made no effort to depose Trooper Jones before he left the country. District Court Judge Jane F. Kauvar ruled that Burger’s request was prematurePage 3
because the 120-day time for trial in Rule 45 had not yet expired. She therefore scheduled calendar call for September 29, 2006, and directed the State to find out if Jones was in the country and available to be deposed.

On October 11, 2006, the court held an evidentiary hearing on the State’s motion to continue the case and to exclude the period of delay due to that continuance under Rule 45(d)(3)(a). At that hearing, Jones’s commanding officer at the Alaska State Troopers, Burke Barrick, testified that he first learned that Jones might be deployed on June 3 or June 4. Jones took personal leave from June 6 to June 15 to spend time with his family. Jones received his deployment orders on June 14. Barrick said he did not see Trooper Jones after that, although he heard that Jones spent time training in Texas and California and returned to Alaska for two days of R R with his family before leaving for Iraq.

Major Brent Goodrum, a United States Marine based in Anchorage, testified for the defense. Major Goodrum said he contacted Jones on June 5, 2006, to ask him if he was interested in filling a team leader vacancy in a Texas battalion that was deploying to Iraq. When Jones indicated that he was interested, his mobilization was put on a fast track. Goodrum testified that Jones flew to Anchorage on June 14 for four days, then departed for Texas. On July 5, he flew to California for additional training. He left for Iraq on August 18. Goodrum did not know if Jones had returned to Alaska for R R before August 18. When asked if the Marines could have made Jones available for a deposition, Goodrum said:

Goodrum: I imagine that’s possible. I imagine, I mean, had he been — had something like that been asked [of] him, they could have run it through his chain of command [to] see if he could have been made available for something like that.

Defense counsel: So he’s not like out in the mountains unavailable for something. . . .Page 4

Goodrum: Well, they are out in California out in the desert doing training for going to combat [in] Iraq. And so not everyone has access to everything at their immediate disposal. Sometimes it is challenging to — to reach some folks out there who are doing training, but there are phones and some stuff available out there.

Defense counsel: Okay. And there is a short window of time . . . between when they end their training and before they’re sent off to Iraq?

Goodrum: Right. Generally there is.

On cross examination, Goodrum acknowledged that Jones was probably “pretty much busy from sun up to sun down and then some” in California and that he would not be surprised if Jones was equally occupied with training in Texas.

After this hearing, Judge Kauvar ruled that the case could not have gone to trial before Trooper Jones was mobilized on June 14, even if the State had exercised due diligence, because the case was continued at Burger’s request from June 9 to July 12 (apparently because Burger had not received blood evidence from the troopers). She ruled that Jones was unavailable after that time. Judge Kauvar stated that Burger might have been able to work with the State to arrange a deposition, but she ruled that the State was not obliged to initiate that process to show due diligence under Criminal Rule 45(d)(3)(a). After finding that Jones was a necessary witness, Judge Kauvar granted the State’s motion to exclude the period of delay due to his deployment from the 120-day time for trial. Burger filed a motion for reconsideration, which the district court denied.

Burger then filed this petition for review, which we granted.

Why we reject Burger’s claim that his right to a speedy trial wasviolated

In this petition, Burger renews his claim that the State failed to exercise due diligence to obtain Trooper Jones’s testimony before he left the country.Page 5

Criminal Rule 45 states that, as a general rule, a defendant must be brought to trial within 120 days of the date the charging document is served on the defendant, not counting the various excluded periods defined in subsection (d) of the rule. Under Criminal Rule 45(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

[t]he 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 such evidence and there are reasonable grounds to believe that such evidence will be available at the later date[.]

Burger does not challenge Judge Kauvar’s finding that even if the State had exercised due diligence, Burger’s case could not have gone to trial before Trooper Jones was mobilized on June 14 because Burger was not ready for trial. Because Burger has not challenged this finding, the only question before us is whether the State exercised due diligence to obtain Jones’s testimony after he was mobilized on June 14.

Burger argues that the State failed to exercise due diligence after June 14 because it made no effort to depose Jones before he left the country. As noted above, Judge Kauvar ruled that the State was not required to make this effort to demonstrate due diligence as required by Rule 45(d)(3)(a).

There is no Alaska authority directly on point. But the Arkansas Supreme Court addressed a similar circumstance in Strickland v.State.[fn2] In Strickland, the court granted the state a continuance beyond the speedy trial deadline because the lead police investigator in the case had been chosen to represent the state at a convention in Washington D.C. and would be meeting with President Clinton.[fn3] The defendant objected to the exclusion of this period of delay from his time for trial, arguing that the state hadPage 6
not shown due diligence because it made no effort to depose the police investigator once it learned of his scheduling conflict.[fn4] In rejecting this claim, the Arkansas court reasoned:

[W]hether a deposition might have substituted for live testimony in this case was problematic for the State. Investigator Roberts was a material witness for the State, and the State undoubtedly wanted his credibility and demeanor on display before the jury. Moreover, this court has said that under some circumstances, an unavailable witness’s deposition testimony may be inadmissible. See Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). In Bennett, we refused to permit deposition testimony where (1) the testimony was damaging to the defendant, (2) there was a need for the jury to be able to evaluate the credibility of the witness, and (3) there had not been a sufficient showing of unavailability. Though the Bennett decision does not disallow deposition testimony in all instances, it underscores the importance of having a jury assess the demeanor of a critical witness. Investigator Roberts was the State’s first witness at the eventual trial and an important cog in the State’s case. We can readily see how it would be important to both parties for the witness to give his testimony in person.[fn5]

The State faced a similar circumstance in Burger’s case. Trooper Jones was the arresting and investigating officer. In district court, the State asserted that it could not prove its case without Trooper Jones’s testimony because he was the only witness who could testify to Burger’s condition in the field, his breath test processing, and his breath test result. Burger has not disputed that Jones’s testimony is critical to the State’s case. Thus, the State “undoubtedly want[s] his credibility and demeanor on display before thePage 7
jury.”[fn6] Moreover, Judge Kauvar found that Burger never agreed to participate in a deposition or to waive any objection to the admission of that deposition at trial.

Burger argues that Judge Kauvar erred by relying on the fact that he never agreed to participate in a deposition in finding that the State was not obliged to try to arrange for one. He argues that, underCrawford v. Washington,[fn7] Judge Kauvar could have admitted Jones’s deposition over his objection as long as he had the opportunity to cross-examine Jones at the deposition. But this was not Burger’s position below. In district court, Burger agreed with Judge Kauvar that he could refuse to participate in a deposition of Jones. Burger asserted that the State was nevertheless obliged to try to arrange a deposition and if he then refused to participate, the State would be entitled to its continuance and to exclusion of the period of delay due to that continuance under Rule 45(d)(3)(a). Because Burger did not argue in district court that Jones’s deposition would have been admissible at trial over his Confrontation Clause objection, he has not preserved that claim for our review.

Even if Burger had preserved this constitutional claim, it is beside the point. The State never asked the court to permit it to depose Jones. Alaska Criminal Rule 15 authorizes a court to permit a party to depose a witness in a criminal case if the court finds by clear and convincing evidence that (1) the witness will not be present to testify at trial or (2) due to exceptional circumstances, the deposition is necessary to prevent a failure of justice.[fn8] Without any indication from Burger that he would rather have the State prove its case by deposition than waive his right to a speedy trial, Judge Kauvar would have been warranted in denying the State’s request for a deposition and in continuing the trial untilPage 8
a time that Jones was present to testify. As our supreme court has observed, the Confrontation Clause “requires the state, wherever possible, to present its evidence against the accused in what is traditionally considered the most reliable form, that of direct testimony in open court.”[fn9]

Judge Kauvar ruled that the State showed sufficient diligence in other respects to obtain Trooper Jones’s testimony, given how quickly and unexpectedly Jones was deployed. We agree. The State served Jones with a subpoena on May 24, 2006, when trial was scheduled for June 12. On June 5, just a week before the trial date, Jones learned that he might be deployed to Iraq, and he left Fairbanks on June 14. The prosecutor did not learn of Jones’s deployment until June 12. By then, Burger had been granted a continuance and calendar call had been rescheduled to July 12.

We recognize that Burger faces a lengthy trial delay as a result of Trooper Jones’s deployment. But Jones is a necessary witness, and the State has no control over the situation.[fn10] We therefore hold that Judge Kauvar did not abuse her discretion by excluding the period of delay due to the State’s continuance in its Rule 45 calculation.

Burger challenges several other aspects of Judge Kauvar’s ruling. First, he argues that she improperly placed the burden on him to arrange for a deposition of Jones. Burger points to Judge Kauvar’s comments at the evidentiary hearing that he could have requested a deposition if he was more interested in a speedy trial than in having JonesPage 9
testify in open court. But Judge Kauvar clearly stated several times that Burger had no obligation to request a deposition. We therefore find no merit to this claim.

Burger also challenges Judge Kauvar’s finding that Jones was unavailable to appear in person at trial after his June 14 mobilization. In his petition, Burger argues that there “was reason to believe that testimony or a deposition could have been arranged”[fn11] after Jones was mobilized. But the only evidence he cites to support this claim is Major Goodrum’s testimony that it might have been possible to arrange a telephonic deposition while Jones was in California or Texas. Indeed, in district court, Burger never argued that Jones was available to appear in person at trial during this period. Burger has therefore not shown that Judge Kauvar’s finding that Burger was unavailable for trial was clearly erroneous.

Lastly, Burger argues that Judge Kauvar abused her discretion by not considering whether the police had exercised due diligence to obtain Jones’s testimony. Jones’s commanding officer at the Alaska State Troopers learned of the possibility of Jones’s deployment on June 5, but because Jones took personal leave and was mobilized quickly, his supervisors did not follow their normal procedure of reviewing Jones’s cases with him to determine what trial dates might be affected. But, as explained earlier, Judge Kauvar found that, even if the State had exercised due diligence to obtain Trooper Jones’s testimony before he was mobilized on June 14, Burger’s case could not have gone to trial because Burger was not ready for trial. Burger has not challenged this finding. There is thus no merit to Burger’s claim that Judge Kauvar abused her discretion by not considering the troopers’ conduct during this period.Page 10
Conclusion

The district court’s decision granting the State’s continuance and excluding the period of delay due to the continuance in determining Burger’s right to a speed trial is AFFIRMED.

[fn1] AS 28.35.030(a).

[fn2] 962 S.W.2d 769 (Ark. 1998).

[fn3] Id. at 772-73.

[fn4] Id. at 772.

[fn5] Id.; cf. People v. Diaz, 646 N.Y.S.2d 767, 772 (N.Y.Sup.Ct. 1996) (holding that when the government’s main witness is incapacitated, “due diligence” does not require the government to make any effort to locate possible other witnesses whose testimony would be less probative in the absence of any defense claim of prejudice).

[fn6] Strickland, 962 S.W.2d at 772.

[fn7] 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

[fn8] Alaska R. Crim. P. 15(a).

[fn9] Stores v. State, 625 P.2d 820, 824 (Alaska 1980) (quoting Peter Westen, Confrontation and Compulsory Process: A Unified Theory ofEvidence for Criminal Cases, 91 Harv. L.Rev. 567, 578 (1978)).

[fn10] See Commonwealth v. Hyland, 875 A.2d 1175, 1191 (Pa.Super.Ct. 2005) (excluding the period of delay due to the military deployment of the state’s witness, a state trooper, noting that “[t]he Commonwealth cannot be held to be acting without due diligence when a witness becomes unavailable due to circumstances beyond its control”).

[fn11] Emphasis added.Page 1