Austin v. State
| Citation | 980 N.E.2d 429 |
| Decision Date | 21 December 2012 |
| Docket Number | No. 20A03–1112–CR–588.,20A03–1112–CR–588. |
| Parties | Patrick AUSTIN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Court of Appeals of Indiana |
Adam Lenkowsky, Tasha Roberts, Roberts & Bishop, Indianapolis, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Patrick Austin appeals his conviction of and sentence for two counts of possession of cocaine as Class A felonies.1 Austin argues: the trial court erred by denying his motion for discharge under Criminal Rule 4 ; the trial court abused its discretion by admitting contested evidence; the trial court abused its discretion by rejecting his tendered jury instruction regarding constructive possession; and the sentence assigned by the trial court was both an abuse of discretion and inappropriate based on Austin's character and offenses. We affirm.
On April 28, 2011, State trooper Joseph White stopped Austin on the Indiana Toll Road. Austin was driving a semi-tractor and trailer, and Trooper White stopped Austin because he thought a trailer like Austin's would normally be pulled by a pickup truck and not a semi-tractor.2 When Trooper White inspected Austin's logbooks and shipping papers, he noted Austin had been off duty for the past seven days. That made Trooper White suspicious, because he believed truck drivers do not make money if they are not working. There were some errors in Austin's paperwork, and although Austin said he was headed for a trailer parts store in Elkhart, Austin did not know the name and address of the store. Nor was Elkhart listed as a destination in Austin's logbooks.
Because of his suspicions, Trooper White called the El Paso Intelligence Center (EPIC) and learned Austin "had been involved in a bulk cash seizure" (Tr. at 17) in Michigan.3 Trooper White finished his inspection of Austin's records, then asked for Austin's consent to search the truck. Austin declined and Trooper White told Austin he was free to go.
Trooper White contacted a state police detective, who asked Trooper Mick Dockery to go to the Toll Road and wait for Austin's vehicle. "Surveillance officers" (id. at 734) were following Austin and were in contact with Trooper Dockery. Trooper Dockery stopped Austin after he saw two traffic violations.4 He obtained Austin's logbook and shipping documents, and noted Austin had not logged the prior stop by Trooper White; "therefore, his logbook was not current." (Id. at 739.) He characterized Austin as "nervous," (id .), and was concerned because a shipping document for a car Austin was hauling indicated the vehicle was not to be picked up until the following month. Austin's bill of lading was handwritten, and typically such forms from "businesses that are conducting legitimate business" will be typed. (Id. at 742,) Austin's truck had "a very high DOT number," (id. ), which could indicate the trucking company was new or could indicate "it could be a company that has been in trouble before; and they switch names now, they are carrying a new DOT number." (Id. at 744.)
Trooper Dockery had a drug-sniffing dog with him, and the dog indicated it detected the odor of illegal drugs in Austin's trailer. There were two cars inside the trailer, a Mercedes and a Rolls–Royce, and the police obtained a warrant to search them. They found a number of vacuum-sealed "bricks" in both cars, some of which were tested and found to be cocaine. Documents in the cars listed fictitious names for the owner of the Mercedes and the lessor of the Rolls–Royce. GPS data from the Rolls–Royce showed that car and Austin had been at the same hotel on a number of occasions and that the Rolls–Royce had been at Austin's residence in March of 2011.
The State charged Austin with two counts of Class A felony dealing in cocaine. On June 6, 2011, Austin asked for a speedy trial, so the seventy-day period during which the State was obliged to bring him to trial ended August 15, 2011. His case was set for trial August 8, but on July 27 the State moved to continue the trial due to court congestion. The trial court granted the motion and rescheduled Austin's trial to September 26. On August 17, Austin filed a motion for discharge, which the trial court denied.
The congestion on which the trial court premised its continuance from August 8 to September 26 was a trial for another incarcerated criminal defendant, Harmon, whose case was older than Austin's. Harmon had also asked for a speedy trial, but his request was made later than was Austin's.
Austin's trial commenced September 26, and he was found guilty of both Class A felony counts. He was sentenced to forty years on each count, to be served concurrently.
The right of an accused to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by Article I, Section 12 of the Indiana Constitution. Otte v. State, 967 N.E.2d 540, 544–45 (Ind.Ct.App.2012), trans. denied. Indiana Criminal Rule 4 implements the defendant's speedy trial right. Id. at 545. Rule 4(B)(1) provides:
If any defendant held in jail on an indictment or 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, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as set forth in subdivision (A) of this rule. 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.
The Rule requires that, on a motion for a speedy trial, a defendant must be tried within seventy days unless the defendant caused the delay or the court's calendar is congested. Otte, 967 N.E.2d at 545. Austin asked for a speedy trial on June 6, 2011, and the seventy-day period ended August 15. Austin was not tried until September 26.
Criminal Rule 4(D) provides:
If when application is made for discharge of a defendant under this rule, the court be satisfied that there is evidence for the state, which cannot then be had, that reasonable effort has been made to procure the same and there is just ground to believe that such evidence can be had within ninety (90) days, the cause may be continued, and the prisoner remanded or admitted to bail; and if he be not brought to trial by the state within such additional ninety (90) days, he shall then be discharged.
A trial court may grant the State a continuance when it is satisfied that (1) there is evidence for the State that cannot then be had; (2) reasonable effort has been made by the State to procure the evidence; and (3) there is just ground to believe that such evidence can be had within ninety days. Otte, 967 N.E.2d at 545. Any exigent circumstances may warrant a reasonable delay beyond the limitations of Criminal Rule 4. Id. The reasonableness of such delay must be judged in the context of the particular case. Id.
In reviewing Criminal Rule 4 appeals, we review the trial court's legal conclusions de novo but exercise deference with respect to its factual findings. Id. A trial court's finding of congestion is presumed valid. Wilkins v. State, 901 N.E.2d 535, 537 (Ind.Ct.App.2009), trans. denied. A defendant challenging that finding must demonstrate that, at the time it was made, the finding was factually or legally inaccurate. Id. The trial court's explanations are accorded reasonable deference, and we will not grant relief unless a defendant establishes the finding of congestion was clearly erroneous. Id. The reasonableness of the trial court's finding of congestion is judged in the context of the particular circumstances of the case. Id.
When an incarcerated defendant asks for a speedy trial, Criminal Rule 4(B) requires "particularized priority treatment." Clark v. State, 659 N.E.2d 548, 551–52 (Ind.1995). That means a meaningful trial date must be set within the time prescribed by the rule; if necessary, the trial must take priority over trial dates previously designated for civil cases and even criminal cases in which Criminal Rule 4 deadlines are not imminent. Id.
The court congestion on which the trial court premised its continuance from August 8 to September 26 was a trial for an incarcerated criminal defendant, Harmon, whose case was older than Austin's. The Harmon trial began August 8, a Monday, and lasted three days. Austin argues he could have been tried on August 15, the last day in the seventy-day period.
The trial court did not abuse its discretion in continuing Austin's trial. In Gill v. State, 267 Ind. 160, 368 N.E.2d 1159 (1977), the trial calendar was full when Gill made his early trial motion, and the court could accommodate no further settings. Gill contended that calendar did not show "congestion" within the meaning of that term in the rule, because it was made up of a mixture of civil and criminal settings.
Gill noted civil settings must give way to criminal settings as required by our speedy trial rule.
In Gill, as in the case before us, there was congestion because "the continuance of civil cases set for trial during the seventy day period would not necessarily have accommodated the trial of [Gill's] case." Id. at 165, 368 N.E.2d at 1162. The continuance of civil matters would not guarantee a courtroom and jury for Gill's trial, so "it was not necessary for the trial judge to set off previously scheduled civil matters at the...
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Austin v. State
...sentence for each, to be served concurrently. Austin appealed on a number of fronts.4 The Court of Appeals affirmed. Austin v. State, 980 N.E.2d 429 (Ind.Ct.App.2012). We granted transfer to address the police actions leading to the discovery of the cocaine in Austin's trailer and the appli......
- Austin v. State