Russell v. Municipality of Anchorage, 5159

• Decision Date: 16 April 1981
• Docket Number: No. 5159,5159
• Citation: 626 P.2d 586
• Parties: Henry Louis RUSSELL, Jr., Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
• Court: Alaska Court of Appeals

Page 586

626 P.2d 586

Henry Louis RUSSELL, Jr., Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

No. 5159.

Court of Appeals of Alaska.

April 16, 1981.

James D. Oswald, Asst. Public Defender, Anchorage, and Brian Shortell, Public Defender, Anchorage, for appellant.

David G. Berry, Municipal Prosecutor, and Theodore D. Berns, Municipal Atty., Anchorage, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

BRYNER, Chief Judge.

Henry L. Russell was convicted of assault and battery on June 6, 1978, following a jury trial in the district court. On appeal to the superior court, his conviction was affirmed; this appeal followed. Russell argues that he was denied his right to speedy trial under Criminal Rule 45. ¹ He also contends that the trial court improperly denied a motion for continuance made on the opening day of trial.

I. FAILURE TO DISMISS PURSUANT TO CRIMINAL RULE 45

Russell was arrested for assault and battery on May 5, 1977; he entered a plea of not guilty at his arraignment on May 10. An in-chambers conference ² was scheduled for May 26, and Russell was referred to the office of pretrial services, which determines eligibility for appointment of the Public Defender Agency.

At his first in-chambers conference, Russell executed a standard form waiver of speedy trial. Thereafter, he appeared at a series of abortive in-chambers conferences, each apparently postponed at his request because he had not yet contacted pretrial services or otherwise arranged for an attorney. Ultimately, on July 7, 1977, a trial date was fixed for September 1, 1977; Russell had still not obtained an attorney.

When the date for trial arrived, Russell failed to appear; his bail was forfeited and a warrant was issued for his arrest. Some three and one-half months later, on December 14, 1977, he was arrested on the warrant. He was rearraigned that same day, and the Public Defender Agency was appointed to represent him within several days.

There followed another series of conferences, all but one of which were continued at the request of defendant's counsel. Finally, on March 9, 1978, a trial was set for June 5, 1978. ³

On the day of trial, Russell moved to dismiss, claiming that he had not been brought to trial within 120 days of his arrest as required by Alaska R.Crim.P. 45. The trial court computed the time under Rule 45 and concluded that, allowing for excluded periods, Russell had been brought to trial within 107 days of his original arrest. The court found valid the written waiver of speedy trial which Russell executed after his original arrest. On this basis the court excluded all time attributable to the continuances which occurred in the interval between Russell's original arrest and his first scheduled trial. The court further found all time between March 9 and June 5, 1978, to be excluded because of a notation on the calendaring slip from Russell's March 9 conference indicating that he had waived speedy trial.

Russell contests the court's exclusion of these periods. The municipality has responded by contending that there was justification for recommencing the full 120-day Rule 45 period upon Russell's rearrest. Though the trial court did not consider this argument, we are persuaded that under the circumstances of this case the 120-day period should properly have been commenced anew from the December 14, 1977, rearrest. ⁴

Russell does not dispute that his avoidance of trial was intentional. Moreover, in the interval between Russell's original arrest and his failure to appear for trial, Russell displayed an almost total indifference to his case. Despite specific referrals by both the court and the municipal prosecutor, Russell failed to take even the preliminary steps necessary to obtain court appointed counsel. Because of Russell's inaction, no discovery requests were made, no pretrial motions were filed and apparently there was no meaningful discussion of a plea bargain; municipal prosecutors could do nothing but accede to a time-consuming series of continuances and endure a lengthy period of pretrial delay only to learn that Russell had no intention of appearing for trial.

Under these circumstances, it is inconceivable that the purposes of Rule 45, either in terms of legitimate protection of the rights of the accused or in terms of society's interest in swift justice, ⁵ could be furthered by allowing Russell to claim the benefit of any portion of the time elapsing prior to his rearrest on December 14, 1977.

Criminal Rule 45(d) provides, in pertinent part:

(d) Excluded Periods. The following periods shall be excluded in computing the time for trial:

. . .

(4) The period of delay resulting from the absence or unavailability of the defendant. A defendant should be considered absent whenever his whereabouts are unknown and in addition he is attempting to avoid apprehension or prosecution .... (emphasis added)

The plain meaning of the phrase "the period of delay resulting from the absence ... of the defendant" dictates the conclusion that this subsection encompasses more than the mere period of the accused's actual absence. ⁶ Common sense, if nothing else, tells us that the unanticipated failure to appear of a defendant can be expected to cause disruption and delay going beyond the period of the defendant's actual unavailability. Our conclusion is that the language of Rule 45(d)(4) recognizes this fact in its provision for an exclusion covering the period "resulting from the absence" of the accused. Accordingly we hold that "the period of delay resulting from the absence ... of the defendant" includes not only the actual period of absence itself, but also all subsequent delay which is occasioned by and attributable to the absence.

In one of its earliest cases dealing with Criminal Rule 45, the Alaska Supreme Court held that the rule must be read in a manner which gives effect to its objective terminology. State v. Clouatre, 516 P.2d 1189, 1191 (Alaska 1973). In keeping with this holding, the court has repeatedly rejected arguments which would have required either an expansive or restrictive construction of the terminology of the rule. ⁷ We believe our reading of Rule 45(d)(4) to be consonant with these prior holdings of the supreme court.

There is, of course, no precise mechanism for measuring the "delay resulting from the absence" of a defendant. We think, however, that reinstatement of the full 120-day period provided for by Rule 45 is justified in this case for two reasons. As we have already stated, the policies underlying Criminal Rule 45 would hardly be served by allowing Russell to take advantage of his own misconduct by claiming the benefit of the 119-day period which elapsed before his failure to appear for trial. More crucial is the reality that upon Russell's rearrest for failing to appear for trial all concerned including the prosecution, the court system and Russell himself stood in essentially the same position with respect to their ability to proceed to trial as they did immediately following Russell's original arrest. ⁸

We emphasize that our decision today by no means implies that the entire Rule 45 period can properly be made to run anew any time a defendant fails to appear for trial or misses a scheduled court appearance. ⁹ The circumstances of this case are unusual, and the result we reach will be appropriate only in cases involving similar situations. ¹⁰ Our holding will apply where: (1) the defendant intentionally fails to appear for court; (2) his disappearance is followed by a substantial period of absence; and (3) by virtue of defendant's inaction no progress is made in the normal pretrial process before the defendant's disappearance.

The period of time between Russell's rearrest on December 14, 1977, and his trial on June 5, 1978, taking into account periods conceded by Russell to be properly excluded under Criminal Rule 45(d), totals less than 120 days. ¹¹ We therefore conclude that the trial court properly denied Russell's motion to dismiss. ¹²

II. DENIAL OF MOTION TO CONTINUE

On the morning of trial, before court convened, the municipal prosecutor presented Russell's attorney for the first time with newly discovered police reports containing the name and address of one Steven David Triplett, an apparent witness to the incident which led to Russell's charge. Triplett's identity as a potential witness had not previously been disclosed to the defense and was not contained in other police reports made available to the defense during pretrial discovery. No statement had been taken from Triplett at the scene of the crime, and since the officer who originally contacted him had left the police force and the state, there was no way of determining what Triplett would have said as a witness.

Russell's attorney immediately moved for a continuance in order to contact Triplett and obtain his presence as a witness in Russell's behalf. Russell's attorney theorized that Triplett was a hitherto unidentified person referred to and described in police reports as having been present at the time of the assault. It was argued that if Triplett was the unidentified person he would be capable of giving testimony favorable to Russell.

Despite the strenuous argument of Russell's counsel that the last-minute revelation of Triplett's name was a violation of Criminal Rule 16 ¹³ and that a continuance was the appropriate remedy for such violations, the trial judge denied the motion, and trial proceeded. ¹⁴

It is well established that even an unintentional violation of Criminal Rule 16 normally entitles the defendant to a continuance of sufficient duration to remedy the violation. ¹⁵ For example, in Des Jardins v. State, 551 P.2d at 187, the court held:

The proper procedure for a trial court faced with prosecution failure to disclose to the defense evidence that it is required to provide, until just before it plans to use such evidence, is to grant a continuance long enough to...