Dishman v. Com.

• Decision Date: 21 September 1995
• Docket Number: No. 94-SC-392-MR,94-SC-392-MR
• Citation: 906 S.W.2d 335
• Parties: Karen DISHMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 335

906 S.W.2d 335

Karen DISHMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 94-SC-392-MR.

Supreme Court of Kentucky.

Sept. 21, 1995.

J. Gregg Clendenin, Jr., Frankfort, for appellant.

Chris Gorman, Attorney General, Samuel J. Floyd, Jr., Assistant Attorney General, Criminal Appellate Division, Frankfort, for appellee.

WINTERSHEIMER, Justice.

This appeal is from a judgment based on a jury verdict which convicted Dishman of trafficking in a controlled substance in the first degree and for criminal syndicate. She was sentenced to ten years for trafficking in a controlled substance and was sentenced to twenty years for criminal syndicate to be served consecutively for a total of 30 years.

Dishman raises six issues on appeal. The questions presented are whether she was denied due process when her motion for continuance was denied; whether she should have been granted severance from the other defendants at trial; whether a directed verdict should have been granted because the evidence was insufficient to show her involvement in drug trafficking on a continuing basis; whether conviction for both trafficking in cocaine and criminal syndicate is double jeopardy; whether the criminal syndicate statute is constitutional, and whether the jury instruction on criminal syndicate was proper.

In 1993, Dishman was among eleven other individuals who were indicted on various charges including trafficking in controlled substances, criminal syndicate, welfare fraud, failure to file state income tax and persistent felony offender charges. Dishman and her four codefendants, Smith, Brooks, Edmonds and Michael Ross, were tried together. All were convicted of various charges, but Ross's case is pending before the Court of Appeals. The arrest and trial of the defendants were the result of a two-year investigation of a group known as the "First Family," and its activities in the illegal drug trade. The principal evidence was presented by a police informant, undercover police officers and the sister of one of the defendants.

The charges against Dishman were based on four so-called "controlled buys" by a police informant who was equipped with an audio recorder and given cash to purchase cocaine. The fifth occasion was arranged by police as a "buy bust" where there was an arrest of the parties involved at the scene. The first purchase occurred on April 24, 1992 at Lynhurst Apartments in Fayette County. The second buy was on December 15, 1992 at 162 St. Margaret Drive in Fayette County. The third buy took place on February 4, 1993 at the St. Margaret Drive address. The fourth buy was on May 20, 1993, also at St. Margaret Drive. The final purchase of cocaine was called a "buy bust" in Oakwood Park in Fayette County.

The "buy bust" took place on August 20, 1993. An undercover detective met Smith in Lexington, but he sought to move the transaction to a Lexington apartment complex. When the informant refused, arrangements were made with a woman named "Karen" for the buy to take place at a small Lexington park. Afterwards, the informant, the undercover detective and Smith drove to the park where the police arrested Smith and Karen Burdell Wilson. The police seized over seven ounces of cocaine and found $4,500 in the trunk of Wilson's car.

Acting on information from Wilson, who stated that she knew the source of the cocaine, the police obtained a search warrant for 116 Hanley Lane, Apartment 6, in Frankfort, Kentucky. According to Wilson, this unit was rented by Brooks at the time the search warrant was executed. Cocaine, crack cocaine, marihuana and other evidence of drug trafficking were seized and several people including Brooks, Dishman and Edmonds were arrested.

At trial, John G. Bentley, Jr. testified that he was in the "First Family" along with Dishman, Brooks, Ross, Wilson and Smith. Codefendant Smith testified and admitted that he had purchased cocaine from the informant on August 20, 1993, but denied that he or the others were a part of an organized crime syndicate. Dishman and codefendants, Brooks and Edmonds, were arrested during a search of Brooks' apartment that same day. Karen Burdell Wilson testified that she was Sarita Brooks' sister and knew the organization referred to itself as the "First Family." She identified members of the organization as Dishman, Sarita Brooks, Virgil Young, John Bentley, Michael A. Ross, Shadrick Edmonds and Vandree Smith. She stated that she was also a member of the "First Family." Wilson detailed the operations of the crack cocaine manufacture that occurred in her apartment at 162 St. Margaret Drive in Lexington. She testified that she saw large amounts of cash and cocaine in the possession of all the individual members of the "First Family" and that she saw drug transactions take place at the St. Margaret Drive address. According to Wilson, Sarita Brooks was the head of the "First Family" and Dishman was the second in command with Vandree Smith third in rank.

Dishman was found guilty of trafficking in a controlled substance and criminal syndicate. This appeal followed.

I Continuance

Dishman's first claim of error is that she was denied due process because her motion for a continuance was overruled. We disagree because the circuit judge properly exercised his broad discretion in refusing a continuance in the circumstances of this case.

Three days prior to trial, Dishman moved for a continuance which was overruled. On the first day of trial, she again moved for a continuance and was again refused. She now claims that these rulings were an abuse of discretion by the trial judge.

At arraignment on October 29, 1993, Dishman was represented by the Public Defender Gene Lewter. Five months later, new counsel entered an appearance on her behalf. He told the trial judge that he had been retained after business hours "the day before yesterday." The trial judge overruled all the motions noting that the trial had been set since November of 1993, and ordered original counsel Lewter to assist new counsel in any way possible. Lewter was already representing codefendant Smith in the joint trial.

The trial judge has broad discretion in either granting or refusing a continuance. Pelfrey v. Commonwealth, Ky., 842 S.W.2d 524 (1993). A reviewing court will not reverse a criminal conviction unless the trial court abused its discretion in the denial of a continuance. Abbott v. Commonwealth, Ky., 822 S.W.2d 417 (1992). In order to obtain a continuance, a criminal defendant must show sufficient cause. Abbott, supra; RCr 9.04. Sufficient cause was not established here. A careful examination of the record in this case indicates that there was no abuse of discretion by the trial judge.

On appeal, Dishman contends that the hiring of new counsel three days before trial was based solely on the fact that her family could not raise the money to hire a private attorney until that time. The record indicates that counsel made no such claim of financial hardship before the trial judge. Dishman was arrested on August 20, 1993 and posted bond in the amount of $3,500. In the seven months between arrest and trial, there was no evident effort to obtain private counsel. There was no motion for a continuance alleging any dissatisfaction with her appointed counsel who was an experienced public advocate who represented another codefendant in the same trial. The record also indicates that Dishman failed to contact her appointed counsel, and there is no evidence of any good faith effort on her part to prepare for trial with either appointed counsel or retained counsel. Cf. Hunter v. Commonwealth, Ky., 869 S.W.2d 719 (1994).

The factors to be considered by a trial judge in deciding a motion for continuance on the basis of employing new counsel include the length of delay, previous continuances and inconvenience to the litigants, witnesses, counsel and the court. In addition, factors to be considered are whether the delay is purposeful or caused by the accused, availability of other competent counsel, complexity of the case, and whether denying the continuance will lead to identifiable prejudice. Snodgrass v. Commonwealth, Ky., 814 S.W.2d 579 (1991); Hunter, supra. When these standards are applied to this case, we believe that the trial judge properly exercised his discretion in denying a continuance. Dishman presented no legitimate basis for a delay of any length.

The claims by the defendant that there was prejudice, that the case was complex, that there was no availability of discovery, that there was no adequate defense and that there was no preparation by prior counsel available to the new trial counsel are unconvincing. The bald assertion that she was entitled to counsel of her choice must be balanced against the factors recited in Snodgrass and Hunter. The request for delay appears to have been contrived and not for the sake of valid trial preparation. The arguments presented to the trial judge were unsupported. Dishman fails to show any undue prejudice from the decision of the trial judge. Defense counsel had sufficient time to review the audio and video tapes to be introduced at trial, and he claimed to have worked on the case over the weekend prior to trial. The question of whether he was unable to obtain profiles of the prospective jurors and the opportunity to review the tapes was not presented to the trial judge in support of the motion for continuance. It was not reversible error for the trial judge to exercise his discretion in overruling the defense motion for a continuance.

II Severance

Dishman now argues that she sought a separate trial and that the failure to separate her from the other defendants caused her great prejudice. She had no prior felony convictions or drug related convictions. A careful examination of the record, and in particular the video tape, fails to show any motion made by defense counsel for a separate trial. During the bench conference, Dishman's counsel renewed her ...