Hammond v. State
| Decision Date | 30 June 1992 |
| Docket Number | No. 18A05-9201-CR-8,18A05-9201-CR-8 |
| Citation | 594 N.E.2d 509 |
| Parties | Stancel HAMMOND, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Geoffrey A. Rivers, Muncie, for appellant-defendant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.
Following a bench trial Defendant-Appellant Stancel Hammond was found guilty of conspiracy to deal in cocaine as a Class B felony 1 and possession of cocaine as a Class D felony. 2 Hammond now appeals his conviction raising four issues for our review which we rephrase as follows:
1) Did the trial court err in finding that Hammond had waived his right to a trial by jury?
2) Did the trial court err in denying Hammond's motion to suppress evidence?
3) Did the trial court err in denying Hammond's motion for a mistrial?
4) Was the evidence sufficient to sustain the convictions?
We affirm.
On March 25, 1991, Officers James Gilliam and Anthony Mench ("the Officers") of the Muncie/Delaware County Drug Task Force were working as undercover narcotics agents in Muncie, Indiana. On that date the Officers were sitting in an unmarked squad car which was parked in the lot of a convenience store.
Stancel Hammond approached the car and asked the Officers if they wanted anything. Gilliam told Hammond they wanted cocaine and gave Hammond $20.00 to purchase a "rock" of the drug. Hammond agreed to obtain the cocaine and left. Shortly thereafter Hammond returned and advised the Officers his supplier was selling rocks of cocaine for $30.00 and $50.00.
As Hammond and the Officers were arguing over price, a female identified as Grace Reynolds approached the squad car. She was familiar with both Gilliam and Mench. Reynolds whispered into Hammond's ear and he immediately began walking away from the car. The police officers then arrested Hammond and transported him to the Delaware County Jail. At the jail Hammond was searched and a cellophane wrapper containing a white powdery substance was discovered in his wallet. The substance was later identified as cocaine in the aggregate weight of .11 grams.
On March 26, 1991, an information was filed against Hammond charging him with conspiracy to deal in cocaine and possession of cocaine. On April 8, 1991, Hammond filed a written request for substance abuse treatment in lieu of prosecution pursuant to Ind.Code Sec. 16-13-6.1-16. 3 The request included the following language: "The defendant, by making this request ... waives his right to trial by a jury and consents to trial by the Court." Record at 29 (italics in original). After a pre-trial hearing, the trial court determined that Hammond was eligible for treatment and ordered the Department of Mental Health to evaluate him. After the evaluation the Department declined to accept Hammond for treatment based on its determination that he was unlikely to be rehabilitated. The trial court then denied Hammond's request for treatment and Hammond moved for a jury trial. The motion was denied and over Hammond's objection, the court set this cause for bench trial on August 28, 1991.
At trial the State introduced evidence of the cocaine discovered in Hammond's possession. The trial court denied Hammond's oral motion to suppress the evidence and admitted it over Hammond's objection.
As the trial proceeded, Hammond's mother recognized the trial judge as an attorney who had represented Hammond in various criminal matters during the 1970's, and informed the defense attorney of her recollection. At the conclusion of the State's case, and after the trial court denied Hammond's motion for judgment on the evidence, Hammond moved for a mistrial based on the judge's prior representation. The trial court denied the motion. Hammond was found guilty on both counts and this appeal ensued. Additional facts are recited below where relevant.
Hammond first contends the trial court erred in denying his request for a jury trial. According to Hammond, his purported waiver to trial by jury, which was contained in his Request For Treatment In Lieu Of Prosecution, was made for the sole purpose of obtaining substance abuse treatment. Hammond concludes the waiver was rendered void when the Department declined to accept him for treatment. The State concedes the argument on this issue and joins Hammond in his demand for retrial. We must reject both Hammond's argument and the State's concession.
It is true that the right of a criminal defendant to a jury trial is a fundamental right in the American scheme of justice. Woodson v. State (1986), Ind., 501 N.E.2d 409, 411, reh. denied, citing Duncan v. Louisiana (1968), 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, reh. denied. However, it is equally true the right to a jury trial may be waived if the waiver is made knowingly, intelligently, and voluntarily. Robey v. State (1990), Ind., 555 N.E.2d 145. Once the right to a jury trial has been effectively waived, withdrawal of the waiver resides in the sound discretion of the trial court. Id.
Admittance into a substance abuse treatment program as an alternative to prosecution is not an automatic result for all eligible criminal defendants who make the request. An otherwise eligible substance abuser will not be admitted to treatment unless the Department agrees to undertake the supervision. 4 Moreover, in order to avail himself of the opportunity to request treatment in lieu of prosecution a defendant must waive his right to a jury trial. Indiana Code Sec. 16-13-6.1-17(a)(5) provides in pertinent part:
[I]n offering an individual an opportunity to request treatment, the court shall advise him that: ... (5) to make such a request he must waive a jury trial and consent to a trial by the court....
In the case before us, Hammond's written request specifically indicated that he was waiving his right to trial by a jury. Further, at a hearing on his request for treatment Hammond orally renewed his jury trial waiver in a colloquy with his attorney:
Q. You also understand you waive your right to have a trial by jury and be tried by the bench or the Court alone. It would be the Judge alone without a jury. Do you understand that?
A. Yes, I do.
Q. And you still wish to ask for Treatment in Lieu of Prosecution, is that correct?
A. Yes.
Later in the hearing, the State also examined Hammond concerning his waiver:
Q. Mr. Hammond, do you understand that by making this Request you're giving up your right to a speedy trial?
A. Yes. I want help.
Q. You understand that if the Court refers you for an examination by the Department of Mental Health that you're giving up your right to a jury trial?
A. Yes.
Q. And nevertheless, you're willing to take those--to give up those two (2) rights and go ahead and ask for treatment?
A. Yes. I want treatment.
Q. Do you know that even if the Department of Mental Health won't take you, you've give [sic] up those rights?
A. I don't know but I need help.
Q. You still want to, even knowing that, do you still want help?
A. Yes.
Q. Are you still asking the Court for treatment?
Q. Yes.
Hammond's waiver of his right to trial by jury is clear. There has been no suggestion made, nor does the record reflect, that Hammond did not understand his right to a jury trial or the effect of his waiver in light of his request for treatment. Hammond not only waived his right to a jury trial in his written request for treatment, but at the hearing as well. The record shows Hammond understood he was waiving his right to a jury trial even if the Department did not accept him for substance abuse treatment.
In support of his argument Hammond cites Williams v. State (1974), 159 Ind.App. 470, 307 N.E.2d 880. In that case Williams waived his right to trial by jury as part of a plea bargain agreement which was never completed. When the State was unable to fulfill the plea bargain, Williams sought to withdraw his waiver, but the trial court refused to allow him to do so. He was found guilty after a bench trial. On appeal, we reversed holding the trial court abused its discretion in failing to consider whether the waiver was based upon a promise by the prosecutor. We also determined the trial court should have permitted Williams to withdraw his waiver of jury trial.
Hammond argues the facts in Williams are analogous to the facts in the case before us. Hammond insists Williams' waiver of jury trial was prompted by a desire to enter a plea agreement which ultimately did not materialize and in this case Hammond's waiver of jury trial was prompted by a desire to obtain treatment in lieu of prosecution which also did not ultimately materialize.
We have no quarrel with Williams; however, its rationale does not apply here. In that case the determinative factor concerned Williams' waiver being induced by the State's unfulfilled promises. Here, Hammond was never promised treatment, but only advised that he was eligible for treatment and would be evaluated by the Department. Pursuant to statute, Hammond's waiver of a jury trial was not a royal road to such treatment but, rather, a statutorily required precondition for Hammond to enter the administrative process which might lead to treatment. The plain meaning of the language of I.C. Sec. 16-13-6.1-17(a)(5), "to make such a request he must waive a jury trial," admits of no other conclusion.
Hammond's waiver of his right to trial by jury was made knowingly, intelligently and voluntarily. The trial court did not abuse its discretion in refusing to allow Hammond to withdraw the waiver. We find no error.
Hammond next contends the trial court erred in denying his motion to suppress as evidence the cocaine seized from his wallet. According to Hammond, undercover officers did not have sufficient probable cause to arrest him. Therefore, concludes Hammond, the evidence discovered during the jail search was the...
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