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State v. Velarde11/7/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
AFFIRMED
After a jury trial, appellant George Albert Velarde was convicted of one count of aggravated driving while under the influence (DUI) of alcohol on a suspended license. The state had alleged that appellant had prior felony convictions for purposes of sentence enhancement, and the allegations were tried to the court. The court found appellant had two prior felony convictions and sentenced appellant to the presumptive prison term of ten years. On appeal, appellant contends the arresting police officer's response to a question posed by the prosecutor resulted in fundamental error and that the trial court abused its discretion when it granted the state a continuance during the trial on the prior convictions. For the reasons stated below, we affirm.
Appellant first contends that, in questioning Officer Newman, the prosecutor elicited a response that resulted in an improper comment on appellant's invocation of his constitutional rights, presumably the right to remain silent. Through Officers Newman and Davis, the prosecutor elicited testimony that Officer Newman had seen appellant's vehicle traveling at an excessive rate of speed and weaving. He stopped appellant, and the officer noted signs that suggested appellant might be intoxicated. Officer Davis then administered field sobriety tests. Appellant's performance was poor, and Officer Newman then determined he had probable cause to arrest appellant. He read appellant the Miranda warning. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The prosecutor asked Officer Newman at trial, "Per your arrest, did you read Miranda warnings?" The officer responded, "Yes."
We fail to see how the officer's statement that he had given appellant the warning, as he was required to do, was an improper comment on appellant's invocation of his rights. The argument is meritless. As the state points out, Officer Newman never stated or suggested that appellant had invoked his right to remain silent or his right to counsel. We see no error, much less fundamental error.
Although we are disturbed by the circumstances that resulted in a continuance of the trial on appellant's prior convictions, we also reject appellant's second claim on appeal, which is that the trial court abused its discretion in granting that continuance. The state had alleged that appellant had the following prior felony convictions: April 1995 aggravated DUI conviction in Pima County Superior Court No. CR-47908; May 1993 conviction for unlawful possession of marijuana in Pima County Superior Court No. CR-40736; August 1993 conviction for aggravated DUI in Cochise County Superior Court No. CR-9200307; a 1986 conviction from the United States District Court in Tucson, Arizona cause number CR83194 for escape; an aggravated assault conviction from May 1981 from Pima County Superior Court No. CR-5135; and a 1978 conviction for fleeing from a law enforcement vehicle in Pima County Superior Court No. A-36013. On the first day of the prior-convictions trial to the court, the fingerprint expert was able to match prints recently taken from appellant with those pertaining to the file from the Cochise County aggravated DUI conviction from August 1993, CR-9200307. But when the expert was given what was apparently a sentencing minute entry from the record in Pima County Superior Court No. CR-47908, she testified it was "not enough to make an identification," presumably because of the poor quality of the copy of that document. The trial court suggested the prosecutor could ask for the original file, which she did, first showing the expert another
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