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Holden v. State11/16/2005
Never Asked to Present Expert Testimony
Holden next claims that Judge Smith abused his discretion by refusing to permit him to present expert testimony on whether, under the facts of his case, a competent attorney would have filed a motion to suppress the evidence of his breath test refusal by claiming a violation of the Zsupnik right to contact a friend or relative.
Holden points to the following discussion to support his claim that Judge Smith refused to allow him to present expert testimony: Court: Well, [Holden's trial attorney] testified today that he didn't think [the Zsupnik claim] was an appropriate thing to raise.
Defense counsel: Then we're in disagreement. Then we - then [the trial attorney] and I are in disagreement ... .
Court: But the fact that you disagree doesn't render him incompetent.
Defense counsel: Right. So you have to make the independent decision.
Court: That's right.
Defense counsel: Right. You - unless you want to hear from experts on that point, and ... .
Court: No, not particularly.
The above discussion plainly shows that Holden never made a request to present expert testimony, he merely asked Judge Smith if he "want to hear from experts on that point." Moreover, Holden made no offer of proof as to the substance of that expert testimony, as required under Evidence Rule 103(a)(2). Given these circumstances, we conclude that Holden failed to preserve this claim of error.
Conclusion
The decision of the superior court is AFFIRMED.
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