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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MATTHEW J. DRAKE, )
) Court of Appeals No. A-5120
Appellant, ) Trial Court No. 3KN-92-1600 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1421 - July 28, 1995]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Kenai, Charles K. Cranston, Judge.
Appearances: Heather O'Brien and Blair McCune,
Assistant Public Defenders, and John B. Salemi, Public Defender,
Anchorage, for Appellant. Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, and Coats and Mannheimer,
Judges.
MANNHEIMER, Judge.
Matthew J. Drake was indicted on three counts of
misconduct involving a controlled substance; two counts of
misconduct involving a controlled substance in the third degree,
AS 11.71.030(a)(1), and one count of misconduct involving a
controlled substance in the fourth degree, AS 11.71.040(a)(2).
He asked the superior court to dismiss these charges under
Alaska's speedy trial rule, Criminal Rule 45. When the superior
court denied Drake's motion to dismiss, Drake entered pleas of no
contest to one count of third-degree misconduct and one count of
fourth-degree misconduct, reserving his right to appeal the
superior court's denial of his motion to dismiss. See Cooksey v.
State, 524 P.2d 1251, 1255-57 (Alaska 1974). We uphold the
superior court's ruling and thus affirm Drake's convictions.
Drake was arrested on October 28, 1992. Under the 1992
version of Criminal Rule 45(c), Drake was entitled to be brought
to trial by the 120th day following his arrest, not counting the
periods of time excluded under Rule 45(d).
On November 13, 1992, Drake filed a pleading that he
styled, "Motion to Compel Discovery of Rule 16 Materials". In
this motion, Drake asked the superior court to order the State to
disclose "[t]he full name and all aliases of N-517" _ the police
designation for the confidential informant who had purchased
cocaine and marijuana from Drake. Drake also sought production
of "[t]he current address, phone number, and employer of N-517",
as well as "[a]ny materials relating to [any] contacts between
any law enforcement officer [or agency] and N-517" and "[a]ll
accounting records for all salaries, ... rewards, and other
benefits given or to be given to N-517".
Five days later, on November 18, 1992, Drake was
arraigned in superior court in front of Superior Court Judge
Charles K. Cranston. Judge Cranston was informed that Drake had
been arrested on October 28th; the judge then declared that the
time for bringing Drake to trial under Rule 45 would expire on
February 25, 1993. Drake's attorney accepted the judge's
calculation (which was correct). The defense attorney then
called Judge Cranston's attention to the pending discovery
motion:
DEFENSE ATTORNEY: Your Honor, there's
just two other quick matters, if I could. ...
First of all, Your Honor, we filed a motion
to compel [discovery] ... while this matter
was still pending in the district court.
Your Honor, what we'd just ask the court to
do [now] is to treat that motion as moot.
The [prosecutor] and I will be ... working
through that [discovery request]. If there
are parts of that discovery that we're going
to need to have a battle over, Your Honor,
we'll refile that motion. I don't think
there's any reason for the court to spend
further time ...
THE COURT: So, this order that's loose
in the file, [to compel] discovery, I should
just mark as moot?
DEFENSE ATTORNEY: Yes, Your Honor. The
order compelling discovery.
THE COURT: Okay.
On January 14, 1993, the parties appeared in court for
the omnibus hearing. At that time, Drake's attorney told the
court that pre-trial discovery was complete, and he affirmed that
Drake's case should remain set for trial on the February
calendar.
The parties next appeared in court on February 25th for
trial call. The following colloquy occurred:
THE COURT: What's the situation in this
case[?]
PROSECUTOR: Your Honor, at this point
there are -- there's not been a [negotiated]
disposition[.] [T]he State's ready for trial
if [the defense attorney] is ready for trial.
DEFENSE ATTORNEY: Yeah, ... at this
point [we are] ready for trial -- asked to
have the matter set on. I'm sure [the
prosecutor] and I will be talking. We've
both been extremely busy[.] If it can be
resolved [without trial], it sure will be.
THE COURT: Would a status hearing
tomorrow ... be of any assistance[?]
DEFENSE ATTORNEY: Not from our perspec-
tive, Your Honor. If it -- we'll be
notifying the court if it is resolved.
THE COURT: Okay. What I'm going to do,
then, I'll set [this case] for trial to begin
Tuesday morning, April 2nd.
PROSECUTOR: [Do you mean] March 2nd?
. . . .
THE COURT: Is that the 2nd of March?
[Yes,] Tuesday, March 2nd.
PROSECUTOR: Your Honor, there may be
other cases ... that have more pressing Rule
45 [problems]. Could ... the order for trial
be determined at the end of the court's
hearing?
. . . .
THE COURT: Okay. ... What I'll do is
set it for trial the week of March 1st [with]
its trailing status vis-a-vis other cases ...
yet to be determined.
DEFENSE ATTORNEY: Yes, Your Honor.
However, the parties returned to court the very next
day (February 26th). At that time, Drake's attorney informed
Judge Cranston that he believed Rule 45 had expired the day
before. The defense attorney reminded the court that Drake had
been arrested on October 28, 1992. The defense attorney then
argued that none of the intervening time was excludable under
Rule 45(d), that Rule 45 had run the previous day (February
25th), and that therefore the charges against Drake would have to
be dismissed. Judge Cranston ultimately denied Drake's motion to
dismiss, and Drake entered his Cooksey plea.
Because Drake was arrested on October 28, 1992,
February 25, 1993 was the 120th day for Rule 45 purposes _ the
last day for bringing Drake to trial unless some event or
combination of events interrupted the ticking of the Rule 45
clock. In this case, there are two events that tolled Rule 45:
Drake's motion to compel discovery, and his attorney's acceptance
of a March 1st trial date at the trial call hearing held on
February 25th.
Rule 45(d)(1) declares, in general, that the period of
time needed to litigate pre-trial motions is excluded from the
Rule 45 calculation.1 As described above, Drake filed a pre-
trial motion to compel the State to disclose information and
records relating to its informant. This motion, filed on
November 13, 1992, was pending for 5 days _ until Drake orally
withdrew it at his arraignment on November 18th. If these 5 days
are excluded from the Rule 45 computation, then February 25, 1993
was only the 115th day. Because the Rule 45 clock definitely
stopped running one day later (February 26th) when Drake orally
moved to dismiss the charges, see Spencer v. State, 611 P.2d 1, 4-
5 n.6 (Alaska 1980), it follows that Drake was brought to trial
within the time limit of Rule 45.
Drake argues that this reasoning is flawed because his
"Motion to Compel Discovery" was not the kind of motion
contemplated by Rule 45(d)(1). He points out that in Miller v.
State, 706 P.2d 336 (Alaska App. 1985), this court held that the
tolling provisions of Rule 45(d) did not apply to a defense
request for pre-trial discovery under Criminal Rule 16(b).
However, the facts of Miller are readily distinguishable from the
facts of Drake's case.
In Miller, the State argued that the Rule 45 clock had
been tolled when the defendant served a request for discovery on
the prosecutor's office. The State asserted (1) that the
defendant's discovery request transcended the bounds of
disclosure required by Criminal Rule 16(b), (2) that court action
was required to resolve the discovery request, and (3) that the
discovery request therefore tolled Rule 45. This court rejected
the State's argument, stating:
We disagree with the state's
characterization of Miller's discovery
request. On the whole, the language of
Miller's ["]Interrogatory and Request for
Production["] ... is taken directly from
Criminal Rule 16(b)(1)-(4). The fact that
Miller's discovery request was for evidence
which the state was under obligation to
provide in accordance with Criminal Rule 16,
that Miller did not request action of the
court, and that the court never took any
action, leads us to conclude that there was
no discovery motion pending[.] Therefore, we
hold that the trial court erred in excluding
the twenty-four days from ... [the] speedy
trial computation[.]
Miller, 706 P.2d at 339 (footnote omitted). The court then added
that it was "therefore not necessary ... to decide whether
[Criminal Rule 45(d)(1)] applies to discovery motions which do
require court action." Id.
Unlike Miller, who served a discovery "request" on the
State, Drake filed a discovery "motion" with the court. This was
not an idle difference in phrasing. In his motion, Drake
explicitly declared that the State had failed to provide him with
the requested information and materials, and he explicitly called
upon the court to issue an order compelling the State to disclose
the information and materials. That is, Drake's motion asked the
court to affirmatively intervene in the pre-trial discovery
process: his motion ended with the assertion that "a [court]
order compelling production is appropriate and necessary".
We therefore reach the issue left open in Miller. We
hold that, under Criminal Rule 45(d)(1), the running of Rule 45
is tolled by the filing of a discovery motion that requires court
action.
The State never filed a response to Drake's motion;
Drake withdrew the motion before the response time had run. We
note, however, that the information and documents listed in
Drake's motion are not explicitly covered by the provisions of
Criminal Rule 16(b). We further note that much of the information
Drake sought is potentially protected from disclosure by Alaska
Evidence Rule 509(a), the evidence rule that grants the
government a limited privilege "to refuse to disclose the
identity of a person who has furnished information relating to or
assisting in an investigation of a possible violation of law".
By its terms, Drake's motion asked the court to
intervene in the pre-trial discovery process and compel the State
to disclose information that it apparently had already declined
or failed to disclose. A motion that calls for court
intervention in the discovery process is not substantially
different from other types of motions included among the "other
proceedings concerning the defendant" referred to in Rule
45(d)(1). Moreover, given the content of Drake's discovery
request, the court could properly assume that, absent a
stipulated resolution, litigation would be required to resolve
the discovery issues raised in Drake's motion. For these
reasons, we uphold the superior court's decision that Rule 45 was
tolled for the 5 days during which Drake's discovery motion was
pending.
Additionally, Drake's case presents an alternative
reason for upholding the superior court's decision. At Drake's
arraignment, the superior court explicitly declared February 25,
1993 to be the 120th day for Rule 45 purposes. Yet at the trial
call held on February 25th, Drake's attorney (who had represented
Drake throughout the proceedings) told the court that he was
still pursuing a negotiated settlement with the State, and he
assented to having Drake's case called again for trial on March
1st.
If an attorney assents to a trial date knowing that the
proposed date will violate Rule 45, the attorney thereby waives
the potential Rule 45 objection to holding the trial on that
date. Andrew v. State, 694 P.2d 168, 171 (Alaska App. 1985),
aff'd as modified, 718 P.2d 471 (Alaska 1986); DeMille v. State,
581 P.2d 675, 677 (Alaska 1978); Buffington v. State, 745 P.2d
78, 79-80 (Alaska App. 1987). Drake's attorney waived any claim
that Rule 45 expired on February 25th when he assented to the
superior court's suggestion that a renewed trial call be held on
March 1st.
Drake argues that his attorney's action should not be
deemed a waiver because the record does not show that the State
would have been ready to go to trial on February 25th if Drake
had insisted on that date. Drake's argument overlooks the
prosecutor's statement at the February 25th hearing: "Your
Honor, at this point ... there's not been a [negotiated]
disposition[.] [T]he State's ready for trial if [the defense
attorney] is ready for trial."
More importantly, it does not matter if the State was
ready to take Drake to trial on February 25th or not: the
superior court was entitled to rely on the defense attorney's
agreement to the later trial date. A contrary rule _ one that
would allow an attorney to agree to postponement of the trial
date, then return to court the next day and allege a violation of
Rule 45 _ "would give rise to an unacceptable potential for
manipulation of the rule in a manner that thwarts the ends of
justice". State v. Jeske, 823 P.2d 6, 10 (Alaska App. 1991).
The judgement of the superior court is AFFIRMED.
_______________________________
1 Criminal Rule 45(d) reads, in pertinent part:
Excluded Periods. The following periods shall be excluded in computing the
time for trial:
(1) The period of delay resulting from other proceedings concerning the
defendant, including but not limited to motions to dismiss or suppress,
examinations and hearings on competency, the period during which the
defendant is incompetent to stand trial, interlocutory appeals, and trial
of other charges. No pre-trial motion shall be held under advisement for
more than 30 days and any time longer than 30 days shall not be considered
as an excluded period.
