CARR v. STATE, A-10395 (Alaska App. 8-10-2011)

JOHN A. CARR JR., Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-10395.Court of Appeals of Alaska.
August 10, 2011.

Appeal from the Superior Court, Third Judicial District, Anchorage, Mark C. Rowland and Patrick J. McKay, Judges, Trial Court No. 3AN-91-1179 CR.

Dave 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 John J. Burns, Attorney General, Juneau, for the Appellee.

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

BOLGER, Judge.

John A. Carr Jr. was indicted for third-degree assault on an allegation that he threatened another man with a handgun. Carr’s trial was scheduled to begin on May 13, 1991. Carr requested continuances, first to July 8, 1991, then to July 22, 1991. In response the State filed a notice that several key witnesses would be unavailable beginning in early August 1991.Page 2

On July 22, Carr appeared in court several minutes late. He requested a continuance on the basis that he had suffered a head injury the previous week. Superior Court Judge Mark C. Rowland contacted Carr’s treating physician, Dr. Steve Nathanson, by telephone. Dr. Nathanson testified that, as far as he knew, there was nothing seriously wrong with Carr, and that he had recommended only that Carr take Anacin-3 for his headache. The judge then denied Carr’s request to continue the trial. But the judge noted that Carr had a doctor’s appointment that afternoon and that Carr could renew his request if new evidence supported his position.

On the second day of trial, Carr made a request to represent himself. During the course of the discussion on this request, the trial judge found that Carr was attempting to manipulate the proceedings in order to obtain a continuance. After the judge denied Carr’s request to represent himself, Carr renewed his request for a continuance on the basis of his head injury. But Carr did not offer any new evidence. The judge again denied the continuance, but he stated that he would consider a renewed request at any time during the trial if the defendant arranged to have a doctor testify in support of such a request.

Carr did not appear for the third day of his trial. A bench warrant was issued for his arrest, and the trial was completed in his absence. The jury found Carr guilty of third-degree assault.

Carr was located in Pennsylvania sixteen years later. He returned to Alaska and was sentenced to serve two years’ imprisonment on the assault conviction. He now appeals, arguing that his request for a continuance should have been granted.

Alaska Criminal Rule 12(h) provides, “A motion for continuance of a trial date will be granted by the court only for cause shown.” A trial judge has broadPage 3
discretion to decide whether to grant or deny a request for a continuance.[fn1] On appeal, a defendant must show that the trial court abused this discretion and that he suffered resulting prejudice.[fn2]

We generally will not reverse a judge’s decision denying a medical continuance unless the evidence is clear: “For a denial of a continuance to constitute an abuse of discretion, the medical repercussions must be serious and out of the ordinary; the impending trial must pose a substantial danger to a defendant’s life or health.”[fn3] It is especially important to defer to a trial judge’s decision on this type of motion because a trial judge will be in the best position to assess the defendant’s medical condition compared with the other circumstances of the case.[fn4]

Carr argues that Judge Rowland committed an abuse of discretion when he denied his request for a continuance on the first day of trial. But the judge’s decision appears to be reasonably based on the evidence that Carr presented. Dr. Nathanson testified that Carr was “normal.” There was no evidence that Carr’s medical condition would prevent him from continuing with the trial. And the judge informed Carr that he could make another request based on the doctor’s appointment he had scheduled later in the day.

Judge Rowland also made a reasonable decision in response to Carr’s request on the second day of trial. Carr presented no additional medical evidencePage 4
suggesting that his condition would prevent him from continuing with the trial. And the judge made a finding that Carr was attempting to manipulate the system to obtain a continuance. Again, the judge stated that Carr could make another request for a continuance if he arranged for a doctor to testify concerning his condition.

Based on this record, we conclude that Judge Rowland made a reasonable decision to deny Carr’s requests to continue his trial. We therefore AFFIRM the superior court’s judgment.

[fn1] Nielsen v. State, 623 P.2d 304, 307 (Alaska 1981).

[fn2] Id.

[fn3] Jones v. State, 812 P.2d 613, 616 (Alaska App. 1991) (quoting United States v. Brown,821 F.2d 986, 988 (4th Cir. 1987)).

[fn4] Id. at 617 (quoting United States v. Zannino,895 F.2d 1, 13 (1st Cir. 1990)).Page 1