Covelli v. State, No. 20A03-9101-CR-25

Docket NºNo. 20A03-9101-CR-25
Citation579 N.E.2d 466
Case DateOctober 07, 1991
CourtCourt of Appeals of Indiana

Page 466

579 N.E.2d 466
Richard T. COVELLI, Appellant-Defendant Below,
v.
STATE of Indiana, Appellee-Plaintiff Below.
No. 20A03-9101-CR-25.
Court of Appeals of Indiana,
Third District.
Oct. 7, 1991.

Page 469

William J. Cohen, Elkhart, for appellant-defendant below.

Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff below.

STATON, Judge.

Richard T. Covelli appeals his conviction for dealing in cocaine, a Class A felony, presenting us with seven issues for our review, which we consolidate and rephrase as follows:

I. Whether Covelli was denied a speedy trial pursuant to Criminal Rule 4.

II. Whether Covelli received ineffective assistance of counsel for failure to raise a Fourth Amendment objection to the admission of cocaine and paraphernalia seized by the investigating police officers.

III. Whether the trial court erred in admitting evidence of a pre-trial statement given by Covelli to police officers.

IV. Whether the trial court erred in refusing to allow Covelli to cross-examine a police officer.

V. Whether the trial court gave an incorrect jury instruction on constructive possession.

We affirm.

Shortly after noon on May 1, 1989, a housekeeper at the Ramada Inn motel in Elkhart discovered what she believed to be drug paraphernalia in a room which had been registered to Covelli. She reported the find to her head housekeeper, who called the police. The police arrived between one and two p.m., and were admitted into the room by the housekeeper after they were told that the rental period for the room had expired the previous day at noon. The police officers discovered various instruments commonly used in the drug trade, including triple-beam scales, plastic baggies, razor blades, alcohol, spoons, screen, pipes, a "cutting agent", steel wool, an eyedropper, cotton balls, and measuring cups.

After the room was searched by police, the Ramada received a call from Covelli stating that he would return to the room later that evening with his girlfriend, Patricia Flood, and that they would stay another night. The police officers were informed of the call and set up surveillance on the room.

Covelli returned to the motel at 6:45 p.m. with Flood, each carrying several bags. As Flood unlocked the door, police officers identified themselves and subdued Covelli, who was resisting, outside the door of the hotel room. Another officer pushed Flood into the hotel room, informed her she was under arrest, and handcuffed her. The officer asked Flood for some identification, and was told that her I.D. was in one of the bags. The police officer searched the bags, and found approximately 205 grams of uncut cocaine. Flood and Covelli were arrested by the officers on suspicion of cocaine dealing.

Trial was held on September 18, 1990 and Covelli was convicted of dealing in cocaine. He appeals.

I.

Speedy Trial

Covelli argues that the trial court erred in failing to grant his motion for discharge pursuant to Criminal Rule 4, the speedy trial rule.

A. Criminal Rule 4(B)

Criminal Rule 4(B) provides that a defendant who moves for an early trial shall be discharged if not brought to trial within seventy (70) calendar days from the date of that motion, if no delays are charged to the defendant in the interim.

On December 11, 1989, Covelli filed a pro se motion to dismiss, alleging that he had sent a letter to the trial court dated May 31, 1989 requesting a speedy trial. The

Page 470

motion requested dismissal pursuant to Criminal Rule 4(B), and if the motion was denied, that "this Court will suspend any further proceedings on this cause and grant leave to file appeals in both State and Federal Court, while releasing Defendant on his own recognizance, pending the outcome of said appeals, pursuant to Indiana Rules of Criminal Procedure, Rule 4, Section (A)." Record, p. 21. The trial court noted that it had never received the alleged correspondence. It further noted that Covelli was represented by counsel, and treated the motion to dismiss as a motion for speedy trial. The court observed that Covelli's trial was set for February 13, 1990, which was within the statutory 70 days from the filing of Covelli's request for a speedy trial.

On January 2, 1990, a hearing was set on Covelli's various motions to the court. At the hearing, Covelli filed a "Statement by Defendant Presented to Court on January 2, 1990", wherein he stated his objections to the trial court's denial of his motion to dismiss, requested reconsideration of the issue, and renewed his request that the trial court certify the question for appeal. On January 9, 1990, Covelli filed his praecipe for the record. On January 15, a hearing was held on certification of the denial of the motion to dismiss, and the trial court indicated his intent to certify the order. On January 18, the trial court formally entered findings of fact and conclusions of law denying the motion to dismiss and certifying the appeal.

On January 26, Covelli appeared by counsel and informed the trial court that he would pursue his appeal, and all matters in the trial court were stayed pending resolution of the appeal. Covelli filed his application for an interlocutory appeal with this court, which was denied by order of the Chief Judge on June 26, 1990. The trial court received notice of the denial of the interlocutory appeal on June 29, 1990 and entered the following docket entry:

This cause set for TRIAL AS THE FIRST SETTING SEPTEMBER 18, 1990 AT 9:00 A.M. Final pre-trial conference set for, and all discovery ordered completed on or before, August 27, 1990 at 10:00 a.m. Copy to all counsel, Clerk to notify.

Record, p. 70. Defendant made no objection to the setting of the trial. On September 6, 1990, with Covelli present, defense counsel made an oral request for continuance, indicating that he had discussed the matter of a continuance with his client. On September 11, counsel filed a written motion to continue the trial, which was denied. On the day of trial, Covelli filed a motion to dismiss pursuant to Criminal Rule 4(B), which the trial court denied.

The delay occasioned by Covelli's pursuance of his interlocutory appeal is chargeable to him. See State ex rel. Cox v. Superior Court of Madison Cty. (1983), Ind., 445 N.E.2d 1367. Thus, the period of time from December 11, 1989, the filing of Covelli's motion to dismiss where he requests certification of an adverse ruling, to June 29, 1990, where the trial court received the order denying appeal, is not chargeable against the state. Covelli's request for certification set in motion the chain of events leading to the interlocutory appeal and therefore the time is chargeable to him.

On the same day the trial court received the order from this court, the trial court set the cause for trial on September 18. Notice of this date was sent to counsel. Covelli failed to object to the trial setting. A defendant who does not object when a trial court sets a trial date outside of the 70 day speedy trial period has failed to preserve his right to a speedy trial. Lewis v. State (1985), Ind., 486 N.E.2d 526, 527.

Moreover, on September 6, Covelli requested a continuance of the September 18, 1990 trial date. When a defendant makes a motion for speedy trial, he is required to maintain a position which is reasonably consistent with his request. Stone v. State (1988), Ind., 531 N.E.2d 191, 194. A motion for continuance is hardly consistent with a speedy trial request.

We conclude that the trial court did not err in denying Covelli's motion to dismiss pursuant to Criminal Rule 4(B).

Page 471

B. Criminal Rule 4(C)

Criminal Rule 4(C) provides that a criminal defendant shall not be held on recognizance for longer than one year from the later of the date that he is arrested or the date that he is charged unless delay results from his own act or congestion of the court calendar. Covelli was charged on May 2, 1989, and was tried on September 18, 1990. We have already held that the delay from December 11, 1989 to June 29, 1990 is chargeable to Covelli. Even if no other delays are chargeable to him, it is clear that the remaining period of time does not encompass one year. The trial court correctly denied his motion to dismiss.

II.

Illegal Search

Prior to trial, Covelli filed a motion to suppress the items obtained as a result of the police search of his room at the Ramada Inn. The motion was denied. On appeal, he challenges the admission into evidence of the products of the searches of both the room and the bags carried by Flood. While Covelli acknowledges that no objection was made at trial to the introduction of this evidence, he urges us to address these questions as fundamental error, or to hold that his counsel was ineffective for failure to object.

Our supreme court has held that the admission of evidence obtained in violation of the defendant's constitutional rights to be protected against unlawful searches and seizures does not elevate that issue to the status of fundamental error. Swinehart v. State (1978), 268 Ind. 460, 376 N.E.2d 486, 491. Therefore, we will not review Covelli's allegations as fundamental error.

Addressing his contention that he was denied effective assistance of counsel, we note our standard of review. Upon review, the assistance of counsel is measured against a "reasonably effective assistance" standard. Burr v. State (1986), Ind., 492 N.E.2d 306, 307-308. Thus, judicial scrutiny should be deferential and undistorted by hindsight, with "[i]solated poor strategy, inexperience, or bad tactics" not implying ineffectiveness; the appellant must show "strong and convincing evidence" to overturn a presumption of competence. Burr, supra, at 308, citing Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. When determining whether a defendant has received ineffective assistance of counsel, we engage in a two-step analysis. First, we must...

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27 practice notes
  • Buie v. State, No. 68S00-9202-CR-00109
    • United States
    • Indiana Supreme Court of Indiana
    • 11 April 1994
    ...arrest and his initial hearing. Frith v. State (1975), 263 Ind. 100, 110, 325 N.E.2d 186, 192; 12 Corvelli v. State (1991), Ind.App., 579 N.E.2d 466, 474. Delay in bringing a defendant before a judge for an initial hearing is, however, a factor in determining the voluntariness of a statemen......
  • Smith v. State, No. 49A02-9809-CR-767.
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 June 1999
    ...to the consent given, and a consensual search is reasonable only if it is kept within the bounds of that consent. Covelli v. State, 579 N.E.2d 466, 472 (Ind.Ct.App.1991) (citing United States v. Dichiarinte, 445 F.2d 126, 129-30 (7th Cir.1971)), trans. denied. "The Fourth Amendment is satis......
  • Carroll v. State, No. 48A04-9912-CR-564.
    • United States
    • Indiana Court of Appeals of Indiana
    • 14 December 2000
    ...error only when the instructions, taken as a whole, misstate the law or otherwise mislead the jury. Covelli 740 N.E.2d 1231 v. State, 579 N.E.2d 466, 475 (Ind.Ct.App. 1991), trans. The trial court noted that there was no pattern instruction on constructive possession and thus created an ins......
  • Townsend v. State , No. 71A05–1109–CR–471.
    • United States
    • Indiana Court of Appeals of Indiana
    • 29 May 2012
    ...secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed.” Covelli v. State, 579 N.E.2d 466, 472 (Ind.Ct.App.1991) (citing Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425 (1978), reh'g denied ), trans, denied. “Only those ......
  • Request a trial to view additional results
27 cases
  • Buie v. State, No. 68S00-9202-CR-00109
    • United States
    • Indiana Supreme Court of Indiana
    • 11 April 1994
    ...arrest and his initial hearing. Frith v. State (1975), 263 Ind. 100, 110, 325 N.E.2d 186, 192; 12 Corvelli v. State (1991), Ind.App., 579 N.E.2d 466, 474. Delay in bringing a defendant before a judge for an initial hearing is, however, a factor in determining the voluntariness of a statemen......
  • Smith v. State, No. 49A02-9809-CR-767.
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 June 1999
    ...to the consent given, and a consensual search is reasonable only if it is kept within the bounds of that consent. Covelli v. State, 579 N.E.2d 466, 472 (Ind.Ct.App.1991) (citing United States v. Dichiarinte, 445 F.2d 126, 129-30 (7th Cir.1971)), trans. denied. "The Fourth Amendment is satis......
  • Carroll v. State, No. 48A04-9912-CR-564.
    • United States
    • Indiana Court of Appeals of Indiana
    • 14 December 2000
    ...error only when the instructions, taken as a whole, misstate the law or otherwise mislead the jury. Covelli 740 N.E.2d 1231 v. State, 579 N.E.2d 466, 475 (Ind.Ct.App. 1991), trans. The trial court noted that there was no pattern instruction on constructive possession and thus created an ins......
  • Townsend v. State , No. 71A05–1109–CR–471.
    • United States
    • Indiana Court of Appeals of Indiana
    • 29 May 2012
    ...secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed.” Covelli v. State, 579 N.E.2d 466, 472 (Ind.Ct.App.1991) (citing Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425 (1978), reh'g denied ), trans, denied. “Only those ......
  • Request a trial to view additional results

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