LAUDERDALE v. State of Ark.

• Court: Arkansas Court of Appeals
• Writing for the Court: JOHN MAUZY PITTMAN, Judge
• Citation: Lauderdale v. State, 2011 Ark. App. 269, CACR09-410, No. (Ark. App. Apr 13, 2011)
• Decision Date: 13 April 2011
• Docket Number: CACR09-410,No.
• Parties: KITAKA LAUDERDALE, APPELLANT V. STATE OF ARKANSAS, APPELLEE

2011 Ark. App. 269

KITAKA LAUDERDALE, APPELLANT

V.

STATE OF ARKANSAS, APPELLEE

No.

CACR09-410

ARKANSAS COURT OF APPEALS DIVISION I

Opinion Delivered April 13, 2011

APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT [NO. CR-2005-225]

HONORABLE JOHN N. FOGLEMAN, JUDGE

AFFIRMED

JOHN MAUZY PITTMAN, Judge

Appellant was convicted of two counts of possession of a controlled substance with intent to deliver (cocaine and methamphetamine) and sentenced to lengthy terms of imprisonment. On appeal, he argues that the trial court erred in denying his request for a continuance; in granting the State's motion to reconsider its grant of appellant's motion to suppress evidence; in ruling that police officers acted in good faith in relying on the search warrant; and in ruling that appellant was not illegally detained following the search. We affirm.

Appellant argues that the trial court erred in denying his eve-of-trial motion for a continuance so that he could terminate his retained attorneys and hire attorney John Wesley Hall, Jr., to replace them. A motion for continuance is addressed to the sound discretion ofthe trial court, whose judgment will not be reversed on appeal in the absence of a clear abuse of that discretion. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008). Appellant bears the burden of establishing such abuse: to do so, he must not only demonstrate that the trial court abused its discretion by denying the motion for a continuance, but must also show prejudice that amounts to a denial of justice. Id. We find no such error in this case.

The right to counsel of one's choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient, and effective administration of justice. Wilson v. State, 88 Ark. App. 158, 196 S.W.3d 511 (2004). Once competent counsel is obtained, the request for a change in counsel must be considered in the context of the public's interest in the prompt dispensation of justice. Id. Appellant had previously been granted nine continuances. Furthermore, on the very day he moved for a continuance to obtain new counsel, appellant filed a pleading stating that he was completely satisfied with the legal services provided by his present attorneys, and that they had represented him competently, diligently, adequately, and informatively. Finally, appellant's request for a continuance and change of counsel was made late on a Sunday afternoon, the day before trial was to begin. In light of these facts, we hold that the trial court did not abuse its discretion by denying appellant's motion. The right to counsel cannot be used to delay trial or be manipulated to play cat-and-mouse with the trial court. Wilson v. State, supra.

Following the suppression hearing, the trial court ruled that evidence seized pursuant to a search warrant was inadmissible because the warrant was defective. Subsequently, theState moved for reconsideration of this ruling. The trial court granted the motion and, upon reconsideration, ruled that the evidence was admissible because the police officers seized it in good-faith reliance on the warrant. Appellant argues that the trial court lacked authority to grant the State's motion for reconsideration of the order granting his suppression motion. We do not agree. A motion in limine is a threshold motion, and the trial judge is at liberty to reconsider his prior rulings during the course of a single trial. Estacuy v. State, 94 Ark. App. 183, 228 S.W.3d 567 (2006); see also Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003). We cannot say that the trial judge abused his discretion in reconsidering his earlier ruling on appellant's motion.

Appellant further argues that the police officers could not in good faith rely on the warrant issued by Judge Laser because it did not specifically indicate when the alleged criminal activity occurred. In reviewing a trial court's denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court and proper deference to the trial court's findings. Jackson v. State, 359 Ark. 297, 197 S.W.3d 468 (2004). The test for determining whether the good-faith exception enunciated in United States v. Leon, 468 U.S. 897 (1984), should be applied in a given case is whether it was objectively reasonable for a well-trained police officer to conclude that the search was supported by probable cause. Hampton v. State, 90 Ark. App. 174, 204 S.W.3d 572 (2005).

It is true that the time when the offense was committed must either be mentioned in the affidavit for a search warrant or be susceptible of being inferred from the information in the affidavit, e.g., by the use of the words "now" or "recently," the use of the present tense, or a statement that the issuance of the warrant is urgent....