31 N.E.3d 34 (Ind.App. 2015), 02A05-1308-CR-447, Tate v. State

JudgeBaker, J., and Riley, J., concur.
PartiesVinson Tate, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff
Docket NumberCourt of Appeals 02A05-1308-CR-447
Citation31 N.E.3d 34
CourtIndiana Appellate Court
Date17 March 2015

Page 34

31 N.E.3d 34 (Ind.App. 2015)

Vinson Tate, Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff

Court of Appeals No. 02A05-1308-CR-447

Court of Appeals of Indiana

March 17, 2015

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

Appeal from the Allen Superior Court. The Honorable Wendy W. Davis, Judge. Case No. 02D05-1206-FA-28.

ATTORNEY FOR APPELLANT: Gregory L. Fumarolo, Fort Wayne, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana.

Baker, J., and Riley, J., concur.

MEMORANDUM DECISION

Vaidik, Chief Judge.

Case Summary

Vinson Tate represented himself at trial and was convicted of dealing in cocaine as a Class A felony and possession of marijuana as a Class A misdemeanor. He now appeals raising numerous issues. We hold that Tate knowingly, voluntarily, and intelligently waived his right to counsel. We also hold that the trial court did not err in denying Tate's motion to continue trial. In addition, although Tate waived his argument that the trial court erred in admitting the cocaine into evidence, the trial court nevertheless did not err in admitting it. The trial court also did not err in admitting Tate's prior conviction for dealing in cocaine. Further, any error in the exclusion of Tate's wife's testimony was harmless. Finally, Tate's dealing conviction is supported by sufficient evidence, and his thirty-five-year executed sentence is not inappropriate.

Facts and Procedural History

On June 21, 2012, Fort Wayne Police Department Narcotics Detectives were dispatched to an apartment complex following a call regarding the sale of drugs. Detective Kirschner arrived at the scene and observed a parked, running, and occupied black Suburban in the parking lot. She also saw several individuals approach the vehicle, enter it, exit it, and leave immediately, which is consistent with the sale of drugs. When the driver of the Suburban left the parking lot, Detective Kirschner followed him in an unmarked car. Shortly thereafter, Detective Kirschner told Detective Marc Deshaies, who was driving a car with police emergency lights, that she saw the Suburban's driver cross the center line several times. Detective Deshaies caught up with the Suburban and stopped it.

When Detective Deshaies approached the Suburban, the driver, Tate, was very nervous. The detective looked inside the Suburban with a flashlight and noticed marijuana residue on top of the console. He asked Tate to exit and step to the rear. As the detective performed a pat-down search of Tate, Tate's legs and buttocks muscles tightened. A search of Tate's Suburban revealed additional marijuana residue. The detective also found three large bundles of cash totaling $3000 in the Suburban's console.

Detective Deshaies transported Tate to the Allen County Jail, where officers conducted a strip search of Tate and found a folded wad of toilet paper between Tate's buttocks. When the officers unfolded the toilet paper, they discovered a plastic baggie that held fifteen small knotted baggies of cocaine. Six of those baggies contained crack cocaine and nine of the baggies contained powder cocaine. The total weight of the cocaine was 5.74 grams, and it had a street value of $850.

The State charged Tate with dealing in cocaine as a Class A felony and possession of marijuana as a Class A misdemeanor. At the initial hearing on June 28, 2012, Tate requested a public defender. However, at the omnibus hearing on August 17, Tate told the trial court that he wanted to represent himself. Five days later, on August 22, the trial court scheduled trial for October 16, and Tate told the trial court that he now wanted to hire private counsel. At a September 19 pre-trial hearing, Tate had private counsel, who requested a continuance of the hearing to obtain information about the case from the public defender. Private counsel attended a rescheduled hearing five days later.

At an October 22, 2012 hearing, private counsel told the trial court that Tate had asked him to withdraw from the case, and Tate told the trial court that he wanted to represent himself. The trial court told Tate that trial was scheduled for January 15, 2013, and that it would not grant any motions to continue trial. A week later, Tate advised the trial court that he was going to keep private counsel. However, at a status hearing on December 10, 2012, private counsel tendered a motion to withdraw. Tate had again decided that he wanted to represent himself; however, the trial court convinced him to talk to a public defender. Four days later, the public defender asked for a continuance, which the trial court granted, and trial was re-scheduled for April 10, 2013.

On December 20, 2012, Tate filed a motion to suppress the cocaine, which the trial court denied after a hearing. At a March 11, 2013 pre-trial hearing, Tate advised the trial court that he had asked his public defender to withdraw from the case because he wanted to represent himself. The trial court informed Tate that the issue would be discussed at a March 15 hearing. At that hearing, the public defender told the trial court that Tate had asked three or four times to represent himself, and he recommended that " [a]t this point . . . that's the appropriate way to go." March 15 Hr. Tr., p. 4.

The trial court released the public defender's office from representing Tate and allowed Tate to proceed pro se. However, the court advised Tate that an attorney has skills and expertise to prepare and present a defense in a criminal case and that if Tate decided not to have an attorney, he would not receive any special treatment. Specifically, the trial court advised Tate that he would be required to follow the same rules and legal procedures that an attorney follows, and he would be expected to understand the case law and statutes that applied to his case. The trial court further explained that the deputy prosecutors on the case were skilled and experienced lawyers. Tate responded that he would represent himself better than his public defender had. The trial court further explained that it would not grant Tate any further continuances in the case and that Tate would be held to the same standard as a lawyer. Last, the trial court told Tate that if he represented himself and was convicted, he would not be able to argue ineffective assistance of counsel on appeal. When asked if he could " represent [him]self in that regard," Tate responded that he could. Id. at 11. However, at the close of the hearing, Tate asked if he could hire private counsel. The trial court responded that he could but that he had to be ready for trial on April 10, 2013.

Before trial, Tate, who had not hired an attorney and was representing himself, filed a motion to continue. At a hearing on the motion the day before trial, the trial court denied Tate's motion to continue " based on the history of the case." April 9 Hr. Tr., p. 19. Specifically, the trial court pointed out that it had been almost a year since the initial hearing was held, and the trial court had already twice rescheduled trial. The trial court had also previously advised Tate that it would not grant any further continuances.

At trial, Detective Deshaies testified that the pre-packaged and pre-weighed individual baggies filled with cocaine, the amount of cocaine, and the value of the cocaine were all consistent with drug dealing. According to the detective, a typical drug user does not possess 5.74 grams of cocaine worth $850. Rather, the detective explained that drug users typically " don't have quantities in excess of a couple of days' worth." Tr. p. 218. Detective Deshaies further explained that a " $20.00 rock is considered a single usage quantity that would last for four to six hours maybe. Four hours total by the time they were done being high. . . . A $20.00 rock is typically two tenths of a gram of crack cocaine. So you would see someone with maybe up to a gram. The largest we see is up to three grams for a user and typically anything beyond that is going to be consistently with the dealing quantities." Id. at 219. Tate, however, testified that although he had not used drugs for the past nine or ten years, the cocaine was for his own personal use and that he did not intend to sell it. Thereafter, the trial court admitted into evidence Tate's prior conviction for dealing in cocaine. Also at trial, the trial court excluded the testimony of Tate's wife who would have testified that the money found in Tate's car was going to help pay for the couple's wedding expenses.1

The jury convicted Tate of dealing in cocaine as a Class A felony and possession of marijuana as a Class A misdemeanor. Evidence presented at the sentencing hearing revealed that Tate has three prior felony convictions, including two convictions for obstruction of justice and one conviction for dealing in cocaine as a Class A felony as well as five misdemeanor convictions. In addition, Tate's probation has been revoked twice. The trial court sentenced Tate to forty-five years for the Class A felony, with thirty-five years executed and ten years suspended, and one year for the Class A misdemeanor, with the sentences to be served concurrently, for a total executed sentence of thirty-five years.

Tate appeals his convictions and sentence.

Discussion and Decision

At the outset we note that although Tate represented himself at trial, he is held to the same standard as trained counsel and is required to follow the same procedural rules at trial. See Evans v. State, 809 N.E.2d 338, 344 (Ind.Ct.App. 2004), trans. denied. We now turn to the issues in this case.

I. Waiver of Right to Counsel

Tate first contends that the...

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