SLC v. Yager

SLC v. Yager

IN THE UTAH COURT OF APPEALS

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Salt Lake City,

Plaintiff and Appellee,

v.

Kyle Jason Yager,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20010956-CA

F I L E D

(February 6, 2003)
 

2003 UT App 26

 

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Third District, Salt Lake Department

The Honorable Anthony B. Quinn

Attorneys: Brenda Viera, Salt Lake City, for Appellant

Padma Veeru-Collings, Salt Lake City, for Appellee

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Before Judges Jackson, Davis, and Thorne.

DAVIS, Judge:

Yager argues the trial court abused its discretion by proceeding with trial as scheduled although defense counsel did not receive discovery from the city prosecutor until three days before trial. He contends defense counsel did not have the opportunity to thoroughly investigate his case, interview witnesses, or subpoena witnesses to testify.

Yager fails to detail what discovery information was unknown to defense counsel and could not have been supplied by Yager or revealed by an independent investigation. Yager was not prevented from conducting an investigation or from interviewing witnesses. Further, Yager does not allege the information was solely in the city's possession or that he did not have access to the evidence the city prosecutor presented at trial. Moreover, Yager has not shown that the prosecutor failed to fully comply with the discovery request.(1) Instead, Yager relies on "a possible motion to suppress" as reason for postponing trial. Because there is no record of what the discovery included in this case and Yager does not explain what information supported the possible motion to suppress, we conclude the trial court did not abuse its discretion by proceeding with trial.

Furthermore, the record shows defense counsel had adequate opportunity to prepare for trial. Defense counsel was appointed six weeks prior to trial, but filed an appearance and discovery request less than two weeks before trial. Although defense counsel received discovery from the city prosecutor three days before trial, defense counsel did not communicate with the city prosecutor or make a motion to continue prior to trial. Also, prior to receiving the discovery, defense counsel could have obtained the arresting officers' names and could have met with Yager,(2) and prepared for trial based on information, including the name of the co-defendant, that Yager could have supplied.

Yager also argues the trial court abused its discretion by proceeding with trial because the co-defendant could not be produced at trial to testify on Yager's behalf. Defense counsel could have obtained information about the co-defendant from Yager before discovery was received and could have secured the co-defendant's appearance at trial scheduled six weeks after defense counsel was appointed and four weeks after the pretrial conference defense counsel attended. Because Yager has failed to show that due diligence was exercised, we conclude the trial court did not abuse its discretion by proceeding with trial.(3) See State v. Creviston, 646 P.2d 750, 752 (Utah 1982) ("When a defendant in a criminal action moves for a continuance in order to procure the testimony of an absent witness, such a defendant must show that the testimony sought is material and admissible, that the witness could actually be produced, that the witness could be produced within a reasonable time, and that due diligence has been exercised before the request for a continuance."); State v. Oliver, 820 P.2d 474, 476 (Utah Ct. App. 1991) (noting that if requirements for continuance are not met, trial court does not abuse its discretion in denying motion).

Accordingly, we affirm Yager's convictions.

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James Z. Davis, Judge

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WE CONCUR:

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Norman H. Jackson,

Presiding Judge

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William A. Thorne Jr., Judge

1. This is not a case where the prosecutor failed to provide discovery in accordance with rule 16 of the Utah Rules of Criminal Procedure. The record shows the city prosecutor provided discovery to defense counsel eight days after the request was filed.

2. Defense counsel met with Yager the Friday before the Monday trial, "to discuss the discovery, the issues in his case and the possible defenses available to him."

3. In addition, "on appeal, the moving party must show that it was materially prejudiced by the court's denial of [a] continuance or that the trial result would have been different had [a] continuance been granted." State v. Oliver, 820 P.2d 474, 476 (Utah Ct. App. 1991). However, because Yager has failed to establish the initial requirement of due diligence, we do not consider whether proceeding with trial in this case was prejudicial. See id. (noting that absent a showing that denial will prevent party from obtaining evidence, that witness can be produced within reasonable time, and that party exercised due diligence, the trial court does not abuse its discretion if it denies a request for a continuance).