Rose v. State, 4-785A200PS

• Decision Date: 12 February 1986
• Docket Number: No. 4-785A200PS,4-785A200PS
• Citation: 488 N.E.2d 1141
• Parties: Vester ROSE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1141

488 N.E.2d 1141

Vester ROSE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 4-785A200PS.

Court of Appeals of Indiana Fourth District.

Feb. 12, 1986.

Steven C. Litz, Nile Stanton & Associates, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

CONOVER, Judge.

Defendant-Appellant Vestor Rose (Rose) appeals his jury conviction for delivery of a controlled substance, a class B felony, IND. CODE 35-48-4-2. We affirm.

ISSUES

Rose raises three issues for our review. Restated, the issues are

1. whether the trial court erred in denying Rose's oral motion for change of judge made on the day of trial,

2. whether the court erred in denying Rose's motion to dismiss and motion for continuance, based on a claim the prosecutor interfered with his Sixth Amendment right to effective assistance of counsel, and

3. whether a State's exhibit was properly admitted into evidence following the testimony of an expert witness regarding the exhibit.

FACTS

On September 29, 1983, a State Police confidential informant went to Rose's home to make a "controlled buy" of illegal drugs. The State Police placed a transmitter on the informant which allowed them to record what had transpired in the house. The informant made the purchase and turned the contents (ten pills in a cellophane wrapper) over to Trooper Stephen Banks (Trooper Banks). Trooper Banks placed the substance in an evidence bag which he sealed, labeled and submitted to the State Police laboratory clerk on September 30. A police chemist then conducted an analysis of the pills and determined they contained lysergic acid diethylamide (LSD).

Rose was charged by information and an initial hearing was held on December 16, 1983. The following conversation transpired at the hearing:

AND THE JUDGE SAYS:

This is in the matter of the State of Indiana vs. Vester R. Rose, Number C-83-52, being an information for Dealing in a Controlled Substance. Uh, this--the initial hearing has been continued twice, uh, in order that Mr. Rose could employ an attorney, and, uh, do you have an attorney as yet?

A. Uh, I did have Mr. Greer, he'll notify--I've got a letter from him that he would notify you today that he'll not represent me.

Q. He'll not.

A. I've been to see Mr. Shaw already. I'd still like to enter a plea today of Not Guilty.

Q. Uh, huh. All right.

A. And I plan on having sufficient funds, but my mother's probably gonna go probably go down and get a loan (Inaudible).

Q. Well I think that's just great, that your mother has to go out and get a loan (Laughter).

A. I don't think it's great, sir.

Q. To defend you for drug sellin'. Oh my, if I was her I'd kill ya. So, all right, then we'll go ahead with the arraignment. You are advised that you have a right to have an attorney, and if you do not have the money or means with which to employ an attorney the Court must appoint an attorney for you at public expense, do you understand you have that right? [R. 176-177]

A. Yes sir. ¹

Attorney Peter Shaw (Shaw) entered an appearance on Rose's behalf on January 4, 1984. He filed a motion for continuance, claiming Trooper Banks was unavailable for deposition, on June 7, 1984. On June 18, 1984, the prosecutor wrote a letter to the court acknowledging Rose's case should be continued. At the bottom of the letter was a note which stated:

NOTE TO PETE SHAW ONLY:

Before the deposition of Trooper Banks, I will agree to six years, three suspended; but if you insist on the deposition, I will insist on the original plea bargain of six years, two suspended.

The court granted the motion for continuance and reset trial for October 15, 1984. Shaw thereafter filed another motion for continuance which was granted and the trial was rescheduled for November 7, 1984.

On October 31, 1984, Shaw filed a request for permission to withdraw as counsel which the court denied as untimely. The court saw Rose's request for other counsel, or to proceed pro se, as an attempt to manipulate a trial which had twice been continued.

On November 5, 1984, two days before trial, attorney Nile Stanton (Stanton) entered an appearance for Rose and filed a motion for continuance. The motion for continuance was denied. On the day of trial, Stanton filed a motion to dismiss, claiming (1) Rose had been denied due process, and (2) the State had interfered with Rose's Sixth Amendment right to effective assistance of counsel through the plea bargaining offer. The motion to dismiss was denied.

Before trial, Rose played a tape recording of the initial hearing to Stanton's associate, Attorney Steven Litz (Litz). Litz then made an oral motion for change of judge claiming the trial judge's statements to Rose "indicates a clear bias towards our client." No further evidence of bias was submitted. The judge denied the motion as untimely, further indicating the motion expressed no showing of cause.

At trial, the State Police chemist testified, without objection, about his analysis of the pills. His analysis showed the pills contained LSD. During the subsequent testimony of the confidential informant, the State submitted the pills and the cellophane wrapper into evidence. Rose raised a chain of custody objection to the exhibit based on an unexplained piece of scotch tape found on the cellophane wrapper. Trooper Banks testified the tape was not on the cellophane when he submitted the evidence bag to the police laboratory. The trial judge overruled the objection to the exhibit, finding the piece of tape to be "of no consequence." Rose subsequently was found guilty by the jury and now appeals.

DISCUSSION AND DECISION

I. Change of Judge

Rose claims the trial court erred in denying his oral motion for change of judge made on the day of trial. He claims because his second counsel was retained a week before trial and because his counsel became aware of the initial hearing tape only "moments before trial began" he should not have to fully comply with the requirements of Ind. Rules of Procedure, Criminal Rule 12. We disagree.

A ruling on a motion for change of judge in a criminal case is discretionary. Gary v. State (1984), Ind., 471 N.E.2d 695, 698. On appellate review, the burden is on the appellant to show a clear abuse of discretion. White v. State (1982), Ind., 431 N.E.2d 488, 490. (Emphasis supplied). The record must show actual bias and prejudice of the judge against the defendant before a conviction will be reversed on the ground the trial judge should have disqualified himself. Jones v. State (1981), Ind.App., 416 N.E.2d 880, 881.

Ind. Rules of Procedure, Criminal Rule 12 requires the showing of cause as a prerequisite for the discretionary granting of a motion for change of judge. State ex rel. Robinson v. Grant Superior Court (1984), Ind., 471 N.E.2d 302, 303. Following the explicit guidelines of C.R. 12, we find Rose's contention without merit. In Abdul-Musawwir v. State (1985), Ind.App., 483 N.E.2d 464, our Third District addressed a similar fact situation. After a "last minute" change of counsel, defendant filed a motion for continuance and motion for change of judge. Both were denied. In Abdul-Musawwir, supra, as here, the motion for change of judge was made after the rule's prescribed ten day period following a plea of not guilty. When such is the case, criminal rule 12 states in pertinent part:

Provided, however, that if the applicant first obtains knowledge of the cause for change of venue from the judge or from the county after the time above limited, he may file the application, which shall be verified by the party himself specifically alleging when the cause was first discovered, how it was discovered, the facts showing the cause for a change, and why such cause could not have been discovered before by the exercise of due diligence. Any opposing party shall have the right to file counter-affidavits on such issue within ten days, and after a hearing on the motion, the ruling of the court may be reviewed only for abuse of discretion.

In Abdul-Musawwir, Judge Staton said:

Thus, Criminal Rule 12 makes it clear that we will reverse the trial court's ruling only for an abuse of discretion, and that in order to qualify for a change of judge after the ten day period has elapsed, the rule's specific instructions must be followed.

Jamil's motion for a change of judge was raised beyond the ten day period referenced in Criminal Rule 12, and it is devoid of the necessary information mandated by the rule. Our conclusion then is that it was not an abuse of discretion to deny this motion. Petruso v. State (1982), Ind., 441 N.E.2d 446, 448 (failure to follow clear dictates of Criminal Rule 12 justified denial of a motion for change of venue); Crowe v. State (1983), Ind.App., 456 N.E.2d 439, 440-41 (change of venue from judge denied because of untimely and insufficient motion).

483 N.E.2d at 467. Because Rose failed to follow the guidelines of Criminal Rule 12, failure to grant his motion for change of judge was not an abuse of discretion.

II. Plea Bargain Offer

Rose next contends the trial court erred in denying his motion to dismiss and motion for a continuance. He claims the prosecutor's plea bargain offer interfered with his Sixth Amendment right to effective assistance of counsel. We disagree.

The granting of a motion for a continuance lies within the sound discretion of the trial judge, whose determination will be reversed only upon a showing of clear error. Woods v. State (1985), Ind., 484 N.E.2d 3, 8. A motion to dismiss is governed by the grounds provided in IND. CODE 35-34-1-4.

In the present case, the prosecutor wrote a note to Rose's attorney following the second continuance which clearly was a plea bargain offer. Rose's attorney was free to accept or reject the offer, which he apparently rejected because the case came to trial. We consider this a tactical move which counsel was free to make.

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