Lewis v. State

• Citation: 730 N.E.2d 686
• Decision Date: 28 June 2000
• Docket Number: No. 49S00-9904-CR-241.,49S00-9904-CR-241.
• Parties: Mark LEWIS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Supreme Court of Indiana

730 N.E.2d 686

Mark LEWIS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 49S00-9904-CR-241.

Supreme Court of Indiana.

June 28, 2000.

Patricia Caress McMath, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

BOEHM, Justice.

Mark Lewis was convicted of murder, felony murder, and three counts of attempted robbery. In this direct appeal Lewis contends that (1) he was deprived of his right to counsel of his choice when the trial court denied his motion for continuance to hire private counsel on the morning of trial; and (2) the trial court erred in admitting an x-ray that was not properly authenticated. We affirm the trial court.

Factual and Procedural Background

In the early morning hours of February 6, 1998, Demiris Kerr, Shawn Tyler, and James Phillips were sleeping in the living room of a home in Indianapolis when two men with bandanas over their faces broke into the house. The intruders were carrying guns and one announced a robbery. Kerr identified one of the intruders as Lewis. While the two intruders were in the house, a shotgun blast came through a window and more shots were fired from outside as the shooter moved to other windows. Lewis was struck in the arm and leg by the shotgun. As Lewis and the other intruder fled the house, Lewis fired two shots. One of these struck Tyler, killing him.

Lewis and two other men were charged with several counts and tried separately. A jury convicted Lewis of murder, felony murder, and three counts of attempted robbery. The trial court merged the murder and felony murder counts and sentenced Lewis to fifty-five years for murder to be served concurrently with ten years on each attempted robbery count.

I. Denial of Continuance to Retain Private Counsel

Lewis contends that the trial court violated his right to counsel of his choice by denying a motion for continuance to hire private counsel on the morning of trial. Lewis was arrested on May 10, 1998, and at his May 12 initial hearing stated that he intended to hire private counsel. A public defender was appointed three weeks later, and despite three continuances, Lewis never retained private counsel in the ensuing eight months. On the morning of trial, the trial court stated that Lewis' case was the oldest case with an individual in custody set for trial on that day and asked whether the parties were ready for trial. The deputy prosecutor stated that she was ready for trial, and Lewis' public defender also stated she was ready but requested a continuance "on behalf of Mr. Lewis." She explained that Lewis was "under the belief that he will be able to retain different counsel" and that as of the preceding Friday afternoon she and Lewis "were not communicating very well." Lewis then expressed dissatisfaction with his public defender, but after a brief colloquy the trial court stated that Lewis' public defender

has been a defense counsel for quite sometime. I've had cases with her where she's presented jury trials in front of me, and I find that she has performed very competently and professionally. Therefore, her telling me she's ready for trial, I'm going to trust her as an officer of this court and we're going to go to trial today.

The trial court then went off the record in Lewis' case to continue the other cases set for trial on that day. Upon reconvening Lewis' case the trial court engaged in a brief exchange with a private attorney who had appeared on Lewis' behalf. The attorney stated that he would not enter an appearance unless a continuance was granted. Because he had been informed that a continuance had already been denied, he stated that he was going to leave. The trial court observed that Lewis had been in custody for more than eight months and could have hired private counsel during that time; there had been two previous continuances of the case at Lewis' request; and defense counsel stated she was prepared to go to trial that morning. The trial court reaffirmed its denial of Lewis' motion for continuance.

The Sixth Amendment guarantees a criminal defendant's right "to have the assistance of counsel for his defense."¹ A corollary of this right is the right to choose counsel when a defendant is financially able to do so. See Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932)

("It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice."); cf. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989) ("The [Sixth] Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts."). However, the right to counsel of choice is not absolute. United States v. Richardson, 894 F.2d 492, 496 (1st Cir.1990). It is well settled that the right to counsel of choice must be exercised "at the appropriate stage of the proceeding." Parr v. State, 504 N.E.2d 1014, 1016 (Ind.1987) (quoting Morgan v. State, 397 N.E.2d 299, 300 (Ind.Ct.App.1979)); Collins v. State, 274 Ind. 619, 623, 413 N.E.2d 264, 267 (1980) (quoting Atkins v. State, 175 Ind. App. 230, 235, 370 N.E.2d 985, 989 (1977)). As this Court observed in Perry v. State, 638 N.E.2d 1236, 1241 (Ind.1994), "[c]ontinuances sought shortly before trial to hire a new attorney are disfavored because they cause substantial loss of time for jurors, lawyers, and the court." Indeed, this Court has held a number of times that it is within a trial court's discretion to deny a last-minute continuance to hire new counsel. See id. (one day before trial); Beadin v. State, 533 N.E.2d 144, 145-46 (Ind.1989) (two days before trial); Dickson v. State, 520 N.E.2d 101, 105 (Ind.1988) (one day before trial); Vacendak v. State, 431 N.E.2d 100, 104-05 (Ind.1982) (morning of trial); Collins, 274 Ind. at 622-23,

413 N.E.2d at 267 (morning of trial).²

The State points to Dickson and contends that the same result should obtain here. In Dickson, a motion for continuance was renewed the day before trial when the defendant moved to replace his public defender with private counsel who would accept the case only if a continuance was granted. 520 N.E.2d at 105. The motion for continuance was denied, and this Court found no abuse of discretion on appeal. Id. Although Lewis agrees in his reply brief that the facts of that case are "very similar," he asserts that it should not control because Dickson merely asserted trial court error in denying his motion for continuance and did not allege a violation of his constitutional right to counsel of choice. If this is a distinction, it is plainly not one of any consequence, as the same result obtains in either circumstance. In Parr, when reviewing an allegation of error in denying a continuance coupled with a contention that the defendant had "a right to counsel of his choosing," we observed that a "trial court, in the exercise of its discretion, may refuse to allow an accused to replace counsel during or immediately before trial because such a substitution would require the court to grant a continuance." 504 N.E.2d at 1016 (quoting Morgan, 397 N.E.2d at 300). The denial of a continuance is reviewed for an abuse of discretion, see Perry, 638 N.E.2d at 1241,

and the denial of the right to counsel of choice, even under Lewis' formulation, is reviewed to determine whether the trial court acted unreasonably and arbitrarily, see Barham v. State, 641 N.E.2d 79, 82 (1994) (quoting United States v. Collins, 920 F.2d 619, 625 (10th Cir.1990)). Evaluated under either standard, Lewis is not entitled to a new trial.

As a final point Lewis asserts that after private counsel appeared in court the trial court should have "at a minimum" determined how long a continuance was needed. He contends that "[t]he need for a short continuance should not stand in the way of the defendant's constitutional right to counsel of his own choosing." We have never held that a trial court must inquire as to the length of a desired continuance under these circumstances and see no reason why we should now impose this burden on trial courts. If newly retained counsel appear prepared to proceed in a specified time, they can do so, and tell that to the court. In the absence of such an offer, there is no obligation on the trial court to inquire.

The trial court observed on the morning of trial that Lewis' case was the oldest case on the docket with an incarcerated defendant and accordingly continued the other cases also set for that date. Not until after these cases had been continued did private counsel appear in the courtroom. Granting Lewis a continuance at this juncture, regardless of the length of the continuance, would have meant that no case would have been tried on that day. The courtroom would have sat vacant, and the time of dozens of prospective jurors summoned for the trial would have been wasted. There was no error.

II. Authentication of X-Ray

In September of 1998, the State filed a Motion for Leave to X-Ray Defendant. The motion alleged that a witness in a co-defendant's trial had testified that Lewis said he had been shot with a shotgun. The witness also observed blood on one or both of Lewis' arms. The State sought x-rays to determine whether pellets from the shell remained in Lewis' torso. The trial court granted the motion. On October 27, x-rays of Lewis were taken at Wishard Hospital. The State sought admission of one of these x-rays, State's exhibit fifty-eight, at trial through firearms examiner Mickey French. When asked at trial how he recognized the exhibit, French responded that he had placed the name, case number, his initials, and the...