Opinion
Case No. 20010956-CA.
FILED February 6, 2003. (Not For Official Publication)
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.
Before Judges Jackson, Davis, and Thorne.
MEMORANDUM DECISION
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. FootnoteInstead, 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,Footnoteand 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. FootnoteSee 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.
WE CONCUR: Norman H. Jackson, Presiding Judge, and William A. Thorne Jr., Judge.