Bedgood v. State

• Decision Date: 17 May 1985
• Docket Number: No. 583S182,583S182
• Parties: Willie BEDGOOD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 869

477 N.E.2d 869

Willie BEDGOOD, Appellant, v. STATE of Indiana, Appellee.

No. 583S182.

Supreme Court of Indiana.

May 17, 1985.

John J. Halcarz, Hammond, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from convictions of dealing in Pentazocine, a class C felony, Ind.Code Sec. 35-48-4-3, and dealing in Cocaine, a class B felony, Ind.Code Sec. 35-48-4-1. The case was tried before a jury. Appellant received concurrent twelve year sentences.

Appellant raises five issues on appeal: (1) whether the trial court erred in denying his motion for continuance in order to procure different defense counsel; (2) whether the trial court erred in permitting the State to present evidence without his presence; (3) whether the trial court erred in permitting the police officers to testify about conversations with a confidential informant; (4) whether the trial court erred in refusing to give a possession instruction; and (5) whether the trial court erred in admitting into evidence testimony about the search of his residence and the seizure of drugs on March 29, 1982.

These are the facts that tend to support the determination of guilt. On March 17, 1982, Officer Valsi of the Gary Police Department and a confidential informant went to appellant's residence in order to purchase certain drugs. Officer Valsi purchased tripelennamine and pentazocine, commonly known as "t's and blues," from appellant. On March 28, 1982, Officer Candiano and a confidential informant went to appellant's residence. Officer Candiano purchased cocaine from the appellant for twenty five dollars. After this purchase, he observed another individual purchase drugs from appellant. Officer Candiano followed the individual, stopped her vehicle, and arrested her for possession of talwin and pentazocine. On March 29, 1982, Officer Candiano obtained a search warrant to search appellant's residence. When he entered the residence he heard someone running, and observed appellant throwing "stuff" into the toilet. Cocaine, tripelennamine and pentazocine were confiscated from appellant's residence, and he was arrested.

I

Appellant contends that the trial court committed error in denying his motion for continuance of the trial. The motion was based upon the claim that he had never discussed his case with his court-appointed public defender and wished to obtain a private attorney. This is a non-statutory motion and as such must be supported by good cause. T.R. 53.4.

This motion was made on the first morning of trial. Continuance motions made at this point in time are not favored, because if granted they entail the waste of work done in preparing the case for trial. Magley v. State (1975), 263 Ind. 618, 335 N.E.2d 811. There was no justification offered for delaying this motion until the time of trial. The lack of contact between appellant and his counsel likewise did not raise the basis for the motion to the "good cause" level. The public defender was appointed to represent appellant six months before. He was thus known and readily available to appellant for consultation. Counsel made repeated fruitless efforts to contact his client. This six month long period also provided an ample opportunity to employ a private attorney to conduct the defense. Appellant simply did not avail himself of the opportunity to engage personally with the public defender in the preparation of the defense or to employ new counsel. There was a failure here to avail oneself of such opportunity at an appropriate stage of the proceeding. Atkins v. State (1977), 175 Ind.App. 230, 370 N.E.2d 985.

II

Appellant argues that the trial court erred in permitting the State to present evidence without his presence. Appellant arrived at the trial several hours after its commencement.

A defendant may waive his constitutional right to be present at his own trial by his failure to appear when he knows of his obligation to appear. Faison v. State (1981), Ind., 428 N.E.2d 784.

Here, appellant's attorney stated he had given notice of the trial's date and time to him. Also, appellant failed to notify the court and explain his delay. Furthermore, the trial court instructed the jury that his absence was not evidence of guilt and that he had the right to give up the rights to confront and to aid in the cross-examination of witnesses. It is clear that appellant voluntarily chose not to diligently exercise these rights and that the possible prejudice engendered by his choice was minimized by the trial court's instruction.

III

Appellant argues that the trial court erred in permitting the police officers to testify about conversations with a confidential informant. He contends that portions of the officers' testimony constituted hearsay.

Appellant, however, did not object at trial on this ground, so as to raise this issue. Harden v. State (1983), Ind., 441 N.E.2d 215. Grounds for objection must be specific and any grounds not raised in the trial court are not available on appeal. Brown v. State (1981), 275 Ind. 441, 417 N.E.2d 333.

IV

Appellant contends that the trial court erred in refusing to instruct the jury on the lesser included offense of possession. In dealing with a claim of this type, the court follows a two step analysis. Lawrence v. State (1978), 268 Ind. 330, 375 N.E.2d 208. The first step is to apply the traditional, general test to determine the relationship between the two offenses, namely whether it is impossible to commit the greater offense without first having...