 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Woods v. State4/7/1999
tting the side show swallow the circus[.] . . . ou're free . . . to argue that she was talking about [being] battered before but I'm not going to allow expert testimony on this particular issue."
Woods renews her claim that she could not have anticipated what portion of the audiotape the state would play. However, the contents of this audiotape formed the basis for much Discussion between the parties before it was played to the jury. Woods knew the audiotape's contents, and ultimately agreed to allow the state to play part of it to the jury. She had no basis to contend that she was surprised by, and could not have anticipated, the portion selected and played by the state. Furthermore, as she argued to Judge Lombardi, part of her defense, and in fact part of her opening argument, was that Woods was "afraid of most men in general and of the police in particular." This claim was not a new development that unexpectedly surfaced during the trial; Woods had the responsibility to anticipate her need for this expert, and to provide notice under Criminal Rule 16(c).
In addition, we conclude Judge Lombardi could reasonably find that the expert's testimony would not have assisted the jury in any meaningful way. The prosecutor said that he had used that part of the audiotape to help prove that Woods, with her slurred speech and her difficulties communicating, was impaired by alcohol. Below, Woods claimed that LaRusso's testimony would show how "a domestic violence victim feels about the police." On appeal, she asserts that it might have helped the jury "understand extremely bad behavior the evening of her arrest." Judge Lombardi could reasonably find this testimony would not have significantly assisted the jury "to understand the evidence or to determine a fact in issue." On this record, we conclude that Judge Lombardi did not abuse her discretion when she refused to allow Woods to call LaRusso as an expert.
Although Woods next contends that it was error to deny her request to call an expert on field sobriety tests, Judge Lombardi actually denied Woods' request for a continuance to find such an expert. Below, Woods basically argued that she could not have anticipated that HGN evidence would come up at trial, and that she needed an expert to show that DeCoeur was being untruthful when he testified that to his knowledge, a stroke did not affect the results of the HGN test.
A Judge's decision denying a mid-trial continuance to secure the testimony of an absent witness will be overturned only if it is an abuse of discretion. The Alaska Supreme Court and this court have enumerated factors to guide this discretion; these factors can be paraphrased as follows:
"(1) Is the witness' proposed testimony important to the case?"
"(a) Is the proposed testimony material?"
"(b) Is the proposed testimony cumulative of other testimony? Or might the proposed testimony be elicited from other witnesses?"
"(c) What is the likelihood that the absent witness' testimony would affect the verdict?"
"(2) Has the party requesting the continu-ance shown diligence and good faith in trying to obtain the witness?"
"(3) Is there reason to expect that the absent witness can be secured within a reason-able time?"
"(4) Would a continuance of trial incon-venience the court, the other parties, or other interested people?"
On this record and argument, Woods has not shown that Judge Lombardi abused her discretion. Most obviously, Woods has not shown diligence and good faith in trying to obtain the expert; Woods knew or should have known that in a DWI case, the HGN field sobriety test would be a facto
Page 1 2 3 4 5 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|