Crosby v. State, 82A01-9202-CR-28

• Decision Date: 19 August 1992
• Docket Number: No. 82A01-9202-CR-28,82A01-9202-CR-28
• Parties: Everton CROSBY a/k/a Antwaine Lonley James a/k/a Jimmy, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 984

597 N.E.2d 984

Everton CROSBY a/k/a Antwaine Lonley James a/k/a Jimmy, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 82A01-9202-CR-28.

Court of Appeals of Indiana,

First District.

Aug. 19, 1992.

Scott A. Danks, Evansville, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

ROBERTSON, Judge.

Everton Crosby appeals his convictions of dealing in cocaine, a class A felony, and conspiracy to deliver cocaine, a class A felony. He contends the trial court erred in denying his request for discharge pursuant to Ind.Crim.Rule 4(B)(1). We agree.

The record reflects the following chronology of events. The State filed its information against Crosby on May 20, 1991, alleging, in a single count, that Crosby knowingly possessed cocaine in an aggregate amount in excess of three grams with the intent to deliver. On motion of defense counsel, the parties appeared before the court on August 12, 1991, at which time Crosby rejected the State's offer for a plea and moved for a speedy trial. The court determined that Crosby needed to be tried on or before October 21, 1991 and set the trial for September 30, 1991. The State indicated at this time that it "expected" it would file a charge of conspiracy with "quite a few" paragraphs, none of which had yet been prepared.

On September 17, 1991, the State moved for a continuance. Over the defendant's objection, the trial date of September 30, 1991 was vacated and Crosby's trial was reset for October 9, 1991. At the hearing on the State's motion, the State again indicated it intended to file a conspiracy charge.

The State then proceeded to file count II against Crosby on September 26, 1991, two weeks before the scheduled trial, in which it alleged that Crosby conspired with three other individuals to deliver cocaine, a class B felony. The information avers thirty overt acts performed by the conspirators, covering five pages. The court conducted an initial hearing and scheduled an omnibus date of November 25, 1991. Standing upon his speedy trial motion on count I, Crosby requested a severance of count II for trial but the State resisted, demanding instead that the entire cause be continued. Crosby objected. The court granted a continuance, resetting both counts for trial on October 15, 1991.

On October 7, 1991, the State filed amended counts I and II. Amended count I alleges that Crosby delivered cocaine in excess of three grams rather than that he possessed with the intent to deliver. Count II was amended to reflect that the amounts involved were in excess of three grams and changed the substance of the allegations contained in paragraphs 13, 15, 17, 22, 27. The State expressly stated that the State's witnesses would remain the same. An initial hearing was held the following day. The court's docket then shows the following entries:

10/09/91 ... DEFENDANT INDICATES THAT HE HAS RECEIVED ADDITIONAL DISCOVERY TODAY AND HE CANNOT BE READY FOR TRIAL ON OCTOBER 15, BUT DOES NOT WISH TO WAIVE HIS SPEEDY TRIAL MOTION. TRIAL DATE OF OCTOBER 15 VACATED OVER DEFENDANT'S OBJECTION. DELAY IS CHARGABLE (sic) TO STATE OF INDIANA. TRIAL RESET TO NOVEMBER 11, 1991, AT 8 A.M.

10/10/91 ... ON MOTION OF STATE, HEARING IS HAD TO CLARIFY RECORD AS TO DEFENDANT RETAINING HIS RIGHT TO SPEEDY TRIAL. AFTER HEARING ARGUMENT, THE COURT DETERMINES THAT TRIAL DATE OF OCTOBER 15 WAS VACATED DUE TO NEGLIGENCE OF STATE IN FURNISHING INFORMATION TO ATTORNEY AND THAT ON OCTOBER 7 THE STATE SUBSTANTIALLY AMENDED CONSPIRACY CHARGES, MAKING DELAY IN TRIAL DATE CHARGABLE (sic) TO THE STATE.

The court does indicate at the hearing on October 9, 1991, that the court's docket is "jammed," commenting that "some of this [congestion] has happened because of very similar type things that have happened on this trial. Last minute changes, last minute pleadings, really harpooning the defense counsel." On October 10, 1991, the State specifically asked the court to take notice of its congested calendar and the fact that an emergency existed but the court created the docket entries recited above. The transcripts of all of the hearings on the delay, when taken together, reflect that the reason for the postponement beyond the seventy-day period was the State's late amendment of the charges and untimely production of such a substantial amount of discovery material as to prevent counsel from preparing in time for trial. At this point, the court's inability to reset the cause within the remaining six days of the seventy-day limit was due to a congested court calendar as well as defense counsel's inability to be prepared for trial given the volume of materials.

Crosby's motion for dismissal which was made on October 21, 1991 was denied. The motion alleges that Crosby received the State's "file" in response to his request for discovery on August 5, 1991; that on October 4, 1991, eleven days before trial, the State produced one hundred twenty-one (121) pages of material to be used by the State in prosecuting the cause; that on October 8, 1991, the day after the State amended counts I and II, it furnished an exhibit list containing seventy-seven potential exhibits; and that on October 9, 1991, the State furnished an additional one hundred seventy-seven pages of material. Included within this material, which the court described as "more than is in most case files," are police reports, telephone records lease agreements, and witness statements dated May and June, 1991.

Thereafter, on October 31, 1991, the State filed its witness list containing twelve additional witnesses including Crosby's alleged co-conspirators. Crosby again objected to the late filing and moved for a continuance to be charged to the State or in the alternative that the court deny the State permission to file the list. The court denied the motion for continuance. Trial began on November 11, 1991.

Criminal Rule 4(B) provides:

(B)(1) Defendant in Jail--Motion for Early Trial. If any defendant held in jail on an ... affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar.... Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time.

We note at the outset of our analysis of the law that this case poses none of the demand-waiver problems we have so frequently addressed. Crosby sought no continuances and committed no acts which can be said to have caused delay. Cf. Collins v. State (1975), 163 Ind.App. 72, 321 N.E.2d 868. Under these circumstances, the rule provides that Crosby "shall be discharged," because he was not brought to trial within seventy days of his motion, unless "there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar." The direction to discharge is mandatory; nothing will prevent the rule's operation save its own exceptions. Stokes v. State (1973), 157 Ind.App. 273, 299 N.E.2d 647, 649.

The express language of the exception does not preclude the interpretation sought by the State, namely, that a defendant need not be discharged if at any time during the seventy-day period there no longer remains sufficient time to reschedule a trial because of court congestion. This would include cases where the defendant obtains a trial date within the seventy-day period but with much of the seventy-day period remaining, the State for whatever reason must seek a brief continuance and, because of court congestion, the case cannot be scheduled within the seventy-day limit.

But, when read as a whole, other than reasons attributable to the defendant, the rule envisions only one justification for not bringing a defendant to trial within seventy days--court congestion. The rule authorizes the court to take note of congestion, and upon finding congestion, order a continuance, the implication being that the finding of congestion be the ground for the continuance. The sentence which follows contemplates the granting of such a continuance on the court's own motion due to a congested calendar. The drafters' choice of the language "due to" again...