Eguia v. State
| Decision Date | 19 September 1984 |
| Docket Number | No. 2-184A32,2-184A32 |
| Citation | 468 N.E.2d 559 |
| Parties | Frank EGUIA, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
James P. Quinn, R. Martin Hill, Buck, Berry, Landau, Breuning & Quinn, Indianapolis, for defendant-appellant.
Linley E. Pearson, Atty. Gen. of Ind., John D. Shuman, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
Frank Eguia appeals his conviction for possession of a controlled substance in violation of Indiana Code section 35-48-4-7. We affirm.
On June 1, 1980, Frank Eguia was arrested for public intoxication. When he arrived at the Adams County Jail for detention, a routine inventory search of his person revealed Eguia was in possession of some capsules and pills. Analysis revealed the drugs contained the substance diazepam, a controlled substance listed on schedule IV of Indiana Code section 35-48-2-10. On July 21, 1980, Eguia was charged with the possession of a controlled substance in violation of Ind.Code Sec. 35-48-4-7.
The defendant was scheduled to be arraigned for the possession charge on October 15, 1980, but appeared on that date without counsel. On November 17, 1980, he again appeared before the court without counsel and a plea of not guilty was entered on his behalf by the trial judge. On April 23, 1981, the defendant stated he desired counsel but could not afford an attorney and pauper counsel was assigned on May 1, 1981. At this point, Eguia's trial had been set for sometime in June and, due
to a scheduling conflict, defense counsel was granted an indefinite continuance on May 5, 1981. Subsequently, a new public defender was assigned to represent Eguia and entered his appearance on November 10, 1981. The next action taken in the case did not occur until November 23, 1982, when the prosecution moved to have a trial date set. Trial was set for April 26, 1983, and the defendant objected to this date as it was outside the one year period set by Indiana Rules of Procedure, Criminal Rule 4(C). This objection was overruled and the defendant's trial resulted in a conviction from which he now appeals. Other facts will be supplied as necessary.
The defendant raises the following issues in his brief.
1. Did the trial court err in denying defendant's Motion for Discharge filed December 23, 1982, at which time defendant alleged that his right to a speedy trial and due process of law had been violated.
2. Did the court err in denying defendant's Motion for Continuance made on August 23, 1983, which motion was based on prejudicial pretrial publicity.
3. Did the court err in denying defendant's counsel's Motion to withdraw made on the date of trial.
4. Did the court err in failing to grant the defendant's request to represent himself or alternatively act as co-counsel at the trial of this cause.
5. Did the court err in denying defendant's objections to the prosecuting attorney's attempts to instruct the jury in the matter of law during voir dire.
6. Did the court err in denying the defendant's Motion to Dismiss the Amended Information filed in this cause.
7. Did the court err in overruling the defendant's objection to testimony relating to the contents of the film container taken from the defendant by Officer Noack.
8. Did the court err in allowing the Indiana state police chemist to testify regarding her examination of the contents of a container since the state did not show an adequate chain of custody from the defendant to her.
9. Did the court err in denying the defendant's request for a recess of the trial until the following day made at the beginning of this case in chief for the reason that a witness for the defense was not present.
10. Did the court err in overruling the defendant's objection to the prosecutor's questions relating to unrelated convictions which the prosecuting attorney asked of the defendant's character witnesses.
11. Did the court err in determining the defendant's sentence herein prior to the September 21, 1983 sentencing date.
The Indiana Rules of Criminal Procedure provide that a criminal defendant must be brought to trial within one year from his arrest or the filing of an information against him. Noncompliance with C.R. 4(C) requires the trial court to discharge the defendant. The text of the rule states:
In the case at bar, the pertinent time period began July 21, 1980, the date the information was filed. Due to the defendant's failure to obtain counsel, of the period which elapsed from July 21, 1980, to May 5, 1981, the entire delay was chargeable to the defendant except for 74 days. Also, the continuance filed by defense counsel on May 5, 1981, indefinitely tolled the running of the one year time period since it is considered delay caused by the defendant. Dixon v. State, (1982) Ind., 437 N.E.2d 1318; Little v. State, (1981) Ind., 415 N.E.2d 44. While Eguia concedes this on appeal, he argues that once the appearance was filed by his new public defender on November 10, 1981, the delay could no longer be charged to him and the one year time period under C.R. 4(C) began running again. The defendant concludes that since the next docket entry did not appear until more than a year later the one year period elapsed and he was entitled to be discharged.
When a delay results from the defendant's request for an indefinite continuance, the defendant must subsequently take the initiative to start the period running again. "If the defendant requests an indefinite continuance and later becomes dissatisfied that his trial has not been reset, he must take some affirmative action to notify the court that he now desires to go to trial in order to reinstate the running of the time period." (Footnote omitted.) Moreno v. State, (1975) 166 Ind.App. 441, 455, 336 N.E.2d 675, 684. Once Eguia filed the May 5, 1981, continuance, it was his duty to show he was ready for trial. This duty was not discharged by the filing of the November 10, 1981, continuance as this did little more than indicate a change of counsel.
The state's motion filed November 23, 1982, to set the case for trial could have reinstated the running of the one year time limit. However, we believe the delay up to this date was all chargeable to the defendant except for 74 days. Therefore, even if we included the time from November 23, 1982, to the date which was set for trial, April 26, 1982, as delay charged against the state, the total number of days accrued would only be 228; far short of exceeding the one year limit. 1
Eguia argues in the alternative that even if he is not entitled to protection under C.R. 4(C) his case should have been dismissed under the constitutional guarantee of a speedy trial. 2 U.S. Const. amend. 6. Our analysis of a claimed constitutional deprivation of a speedy trial is controlled by the United States Supreme Court decision in Barker v. Wingo, (1972) 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The factors which must be balanced to determine whether Eguia's right to a speedy trial has been violated are the length of delay, the defendant's assertion of his right, the reasons for delay and prejudice to the defendant.
In regard to the length of delay, the time elapsed between Eguia's arrest and his trial was more than three years. This is a sufficient amount of delay to trigger an inquiry as to whether a constitutional violation occurred. See Terry v. State, (1980) Ind.App., 400 N.E.2d 1158, trans. denied.
However, it appears from the defendant's tardiness in asserting his right that he had no desire to have a speedy trial. After filing an indefinite continuance May 5, 1981, the defendant waited 19 months before making any indication that he should have been tried sooner. Furthermore, on two occasions when a trial date was set the defendant moved for a continuance. Record at 32-33; 50-51. We conclude the defendant did very little in regard to asserting his right.
Likewise, under our consideration of the reason for the delay, Eguia does not persuade us that the passage of time resulted only from the state's inaction. Prior to the defendant's motion for an indefinite continuance much of the delay was caused by Eguia's failure to either obtain counsel or request a public defender. The defendant complains that at least part of the delay which occurred after his continuance of May 5, 1981, was filed is attributable to the state. While the state may have been negligent by not moving to set a trial until November 23, 1982, such negligence is mitigated by the fact that the delay was triggered by the defendant's motion for an indefinite continuance. Eguia was responsible for much of the delay of which he now complains.
Finally, the defendant has failed to show he suffered any prejudice from the delay. Instead, Eguia's brief cites Scott v. State, (1984) Ind.App., 461 N.E.2d 141 for the proposition that we should presume prejudice. Scott is, however, completely distinguishable. In Scott the information was filed in 1975 but the defendant was not arrested until 1982. Id. at 143. Judge Shields concluded that when the time between the crime's occurrence and arrest exceeds the applicable statute of limitations, despite...
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