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Holden v. State11/16/2005
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
No. 5019
Before: Coats, Chief Judge, Mannheimer and Stewart, Judges.
In 2000, Eric J. Holden was convicted, on a plea of no contest, of refusing to submit to a breath test. Several years later, he was charged with drunk driving . Facing enhanced penalties as a repeat offender, Holden filed an application for post-conviction relief from his earlier conviction. In his application, he argued that he had received ineffective assistance of counsel in the 2000 case because his trial attorney had not moved to suppress the evidence of his breath test refusal on the ground that he had been denied his right to contact a friend or relative before deciding whether to take the breath test.
After a hearing, at which Holden and his trial attorney testified, Superior Court Judge Eric Smith denied the application, concluding that Holden had failed to rebut the strong presumption that his attorney had made a sound tactical decision. Holden challenges that ruling, arguing that it rested on factual and legal errors. We conclude that Holden's claims of error have no merit, and affirm Judge Smith's decision.
Holden also argues that Judge Smith abused his discretion by refusing to admit certain evidence, and by not allowing him to present expert testimony to establish that his trial attorney was incompetent. These claims fail because Holden never asked the court to admit the evidence that he now claims the court erroneously excluded.
Facts and Proceedings
On March 25, 2000, the state troopers received a report that a vehicle was stuck in a ditch near Big Lake and that the driver was intoxicated. Trooper Skip Chadwell found the vehicle in a ditch with the engine idling and Holden asleep in the driver's seat. Trooper Chadwell established that Holden was intoxicated and arrested him. Holden was ultimately charged with driving while intoxicated, refusal to submit to a chemical test, and driving with a revoked license.
Before trial, Holden moved to suppress the evidence of his breath test refusal, arguing that he had been denied his right under Copelin v. State and AS 12.25.150(b) to contact an attorney before deciding whether to take the breath test. The district court denied the motion after finding that Trooper Chadwell had told Holden at least a dozen times that he could call his lawyer, had offered to move his handcuffs to the front so he could dial the phone, and had offered him two local phone books. The court found that Holden gave non-responsive answers to all these offers, answering Trooper Chadwell by saying he wanted to give his lawyer "a few minutes." The court concluded that there was "little else" Trooper Chadwell could have done to help Holden contact a lawyer, and that Holden had not been sincerely interested in doing so.
After the court denied Holden's motion to suppress, Holden pleaded no contest to breath test refusal and the State dismissed the drunk driving charge.
In 2002, after Holden was again charged with drunk driving, this time as a felon, Holden filed this application for post-conviction relief. Holden claimed that his trial attorney had been ineffective because he had not moved to suppress the evidence on the ground that he was denied the right described in Zsupnik v. State to call a relative or friend before submitt
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