Abdul-Musawwir v. State

• Decision Date: 30 September 1985
• Docket Number: A,ABDUL-MUSAWWI,No. 3-585A116,3-585A116
• Citation: 483 N.E.2d 464
• Parties: Jamilppellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 464

483 N.E.2d 464

Jamil ABDUL-MUSAWWIR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 3-585A116.

Court of Appeals of Indiana,

Third District.

Sept. 30, 1985.

Paul James Newman, South Bend, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

STATON, Presiding Judge.

Jamil Abdul-Musawwir (Jamil) was charged with the crime of Theft, a Class D felony. He was released on bond, and his trial on that charge was set for September 10, 1984. Jamil failed to appear for that trial, and he was subsequently arrested and convicted by a jury of Failure to Appear, a Class D felony. ¹ In his appeal of that conviction, Jamil raises three issues for us to consider. They are as follows:

(1) Whether the verdict is supported by sufficient evidence and is it contrary to the evidence and the law?

(2) Whether the trial court erred in denying Jamil's Motion for a Change of Judge?

(3) Whether the trial court erred in denying Jamil's Motion for a Continuance?

Affirmed.

I. Verdict

Our standard of review for sufficiency of the evidence issues is well known. Recently it was reiterated in Smith v. State (1985), Ind., 474 N.E.2d 71 as follows:

"The appellate court will not weigh the evidence nor judge the credibility of the witnesses. Rather, it considers only that evidence most favorable to the State and all reasonable inferences to be drawn therefrom which support the verdict. If there is substantial evidence of probative value which would permit a reasonable trier of fact to find the existence of each element of the offense beyond a reasonable doubt the judgment must be affirmed. Reed v. State (1979), 180 Ind.App. 5, 387 N.E.2d 82; Henderson v. State (1980), 273 Ind. 334, 403 N.E.2d 1088."

Smith, 474 N.E.2d at 73.

The evidence most favorable to the State is that at a hearing held on August 24, 1984, Jamil's trial on the charge of Theft was set for 9:30 a.m., September 10, 1984, at South Bend, Indiana. Jamil was directly informed of his trial date and place by the court and by his counsel.

On Friday evening, September 7th, Jamil traveled to Chicago, Illinois where he remained until September 10th. When Jamil failed to appear by 11:00 a.m. on the day of his trial, a bench warrant was issued for his arrest. ² When asked to explain why he did not appear in the South Bend courtroom at the specified time, Jamil replied as follows:

"I was in Chicago that morning, and I called my counsel Paul Newman to verify what time I was to appear in court because I had become confused with so many court dates and time settings on my mind, and I was also under the influence of intoxicants at that time. I spoke to Mr. Newman, and he told me that I was mistaken. I was not supposed to appear at 1:30. I was to be there at 9:30. So at that time I told Mr. Newman that I would have a difficulty in trying to get from Chicago, Illinois to South Bend, Indiana within that proximity of time. I further said that I would have to wait until my friends returned to get a ride back to South Bend and I would like for him to ask the judge to give me a continuance because I had been present at all other proceedings." ³

(R. 177-78).

The elements of the crime of failure to appear are as follows: (1) a person released from lawful detention; (2) on condition he appear at a specific time and place; (3) in connection with a charge of a crime; (4) who intentionally fails to appear at the time and place specified. Pennington v. State (1981), Ind., 426 N.E.2d 408, 409-10. That case is similar to the present one in that the issue in focus is the intentional element of the crime.

In Pennington our Supreme Court strictly construed IC 35-44-3-6 requiring that both the letter and the spirit of the statute must be violated to eliminate the spectre of criminal laws subjectively applied or unwittingly violated. Pennington's conviction for failure to appear was reversed because, at the time of his release, he was not advised by the court of his duty to appear at a specified time and place. In addition, during plea negotiations, the state stipulated in writing that the cause for which Pennington later failed to appear would be dismissed. We note the diversity between Pennington and the present case.

Here, Jamil was personally instructed by the court at the time of his release to appear at a specified time and place. In addition, the circumstances Jamil claims to account for his confusion do not in any way approximate those in Pennington. Jamil knew that he must appear on September 10th, he even called his attorney at 8:30 that morning to confirm the court appearance he was under a duty to make. Jamil's confusion, which he cites as the reason for his failure to appear, was caused by the influence of intoxicants and a mistake regarding the time of his appearance. Unlike the confusion in Pennington, where the state's promise to dismiss the case contributed to Pennington's failure to appear, Jamil was solely responsible for his non-attendance on the day in question.

The obvious purpose of the failure to appear statute is to thwart the intentional frustration of the administration of criminal justice. Id., at 410. We believe that the evidence most favorable to the state is sufficient to sustain the jury's verdict, and Jamil's only contention is that the evidence regarding his intentional failure is insufficient. Our conclusion on this issue is aptly supported by the decision reached in Haskett v. State (1979), 179 Ind.App. 655, 386 N.E.2d 1012. There Haskett knew he was to appear on a certain date, called the sheriff to inform him he would not show up until the next day, but failed to appear until some time later. The Haskett court concluded that in the absence of extenuating circumstances or lack of adequate notice, an intent not to appear may be presumed. Id., 386 N.E.2d at 1015. Armed with this presumption, and unencumbered by any extenuating circumstances, our course is dictated by our standard of review. We affirm the jury's verdict.

II. Change of Judge

On September 24, 1984, a preliminary plea of not guilty to the failure to appear charge was entered for Jamil. The case was assigned to Judge Swartz at that time, and the Public Defender was appointed as Jamil's counsel. The Public Defender entered his appearance on September 26, 1984, and filed a motion for discovery. On November 10, 1984, the Public Defender was granted permission by the court to withdraw as Jamil's counsel because Jamil had retained private counsel. Jamil's trial on the failure to appear charge was set for December 7, 1984.

On December 4, 1984, private counsel withdrew. The same Public Defender who had previously represented Jamil was reappointed. The next day, Jamil's Public Defender filed a motion for continuance and a motion for a change of judge. At a hearing on these motions, held on December 6, 1984, both motions were denied.

Jamil, citing Wilson v. State (1984), Ind.App., 472 N.E.2d 932, complains that his motion for a change of judge was denied without a meaningful opportunity for him to be heard. The State responds by arguing that there was no error here because Jamil's motion was untimely. We agree with the State.

Ind.Rules of Procedure, Criminal Rule 12, in pertinent part, explicitly provides:

"In any criminal action, no change of judge or change of venue from the county shall be granted except within the time herein provided.

An application for a change of judge or change of venue from the county shall be filed within ten days after a plea of not guilty, or if a date less than ten days from the date of said plea, the case is set for trial, the application shall be filed within five days after setting the case for trial. Provided, that where a cause is remanded for a new trial by the Supreme Court, such application must be filed not later than ten days after the party has knowledge that the cause is ready to be set for trial.

Provided, however, that if the applicant first obtains knowledge of the cause for change of venue from the judge or from the county after the time above limited, he may file the application, which shall be verified by the party himself specifically alleging when the cause was first discovered, how it was discovered, the facts showing the cause for a change, and why such cause could not have been discovered before by the exercise of due diligence. Any opposing party shall have the right to file counter-affidavits on such issue within ten days, and after a hearing on the motion, the ruling of the court may be reviewed only for abuse of discretion."

(emphasis supplied.)

Thus, Criminal Rule 12 makes it clear that we will reverse the trial court's ruling only for an abuse of discretion, and that in order to qualify for a change of judge after the ten day period has elapsed, the rule's specific instructions must be followed.

Jamil's motion for a change of judge was raised beyond the ten day period referenced in Criminal Rule 12, and it is devoid of the necessary information mandated by the rule. Our conclusion then is that it was not an abuse of discretion to deny this motion. Petruso v. State (1982), Ind., 441 N.E.2d 446, 448 (failure to follow clear dictates of Criminal Rule 12 justified denial of a motion for change of venue); Crowe v. State (1983), Ind.App., 456 N.E.2d 439, 440-41 (change of venue from judge denied because of untimely and insufficient motion).

III. Continuance

Jamil next contends that it was an abuse of discretion for the trial court to deny his request for a continuance because the Public Defender was reappointed on December 4th and his trial was set for December 7th. He argues that forcing the Public Defender to proceed to trial deprived him of the right to effective counsel. Specifically, he claims that the denial prevented him from offering evidence to negate the intentional element of the crime for which he was convicted.

To bolster his...