State v. Miller

• Decision Date: 16 November 1979
• Docket Number: No. 50867,50867
• Citation: 602 P.2d 553,4 Kan.App.2d 68
• Parties: STATE of Kansas, Appellee, v. Carl E. MILLER, Appellant.
• Court: Kansas Court of Appeals

Page 553

602 P.2d 553

4 Kan.App.2d 68

STATE of Kansas, Appellee, v. Carl E. MILLER, Appellant.

No. 50867.

Court of Appeals of Kansas.

Nov. 16, 1979.

Review Denied Jan. 29, 1980.

Syllabus by the Court

1. The trial court's decision to grant or deny a continuance will not be disturbed on appeal, absent a showing of abuse of discretion which has prejudiced the substantial rights of the defendant in a criminal proceeding.

2. The trial court is not compelled to grant a continuance in all criminal cases for the sole reason that defendant might not otherwise be represented by counsel.

3. While a defendant in a criminal proceeding must be afforded sufficient time to retain and consult with counsel of his own choice, or to obtain and receive assistance from appointed counsel, a continuance in order to obtain other counsel to represent him need not be granted if the request was necessitated due to inexcusable dilatory conduct on the part of the defendant.

4. While a defendant in a criminal trial must be afforded the opportunity to hire and consult with his own counsel, the exercise of this right may not adversely interfere with the orderly disposition of criminal cases.

5. In a misdemeanor prosecution where the defendant was represented by retained counsel who had adequate time to prepare the defense, the prosecution and defense witnesses were subpoenaed and present on the scheduled trial date, as they had been on the previously scheduled trial date, and the testimony of one of the key prosecution witnesses had been secured and preserved by deposition, affording the originally retained counsel the opportunity to cross-examine the witness, it is Held that the trial court did not err by refusing to grant the defendant's request for a continuance to obtain new legal counsel made on the day of the trial, thereby forcing the defendant to proceed to trial pro se.

Clark V. Owens II, Wichita, for appellant.

Geary N. Gorup, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before FOTH, C. J., and SWINEHART and MEYER, JJ.

SWINEHART, Judge:

The defendant appeals from a verdict of the district court of Butler County finding him guilty of one count of driving while under the influence of intoxicating liquors and/or drugs as defined by K.S.A. 1978 Supp. 8-1567; one count of transporting an open container as defined by K.S.A. 41-804; and one count of operating a motor vehicle in violation of a restricted driver's license as defined by K.S.A. 8-245(D ). Defendant also appeals from an additional conviction in a consolidated case of one count of operating a motor vehicle in violation of a restricted driver's license as defined by K.S.A. 8-245(D ).

Defendant alleges the trial court erred by failing to grant defendant's motion for a continuance in order to obtain legal counsel made on the date of his trial, thereby forcing defendant to proceed to trial without an attorney.

On October 5, 1978, the defendant was ticketed in case No. 78-CR-579 for driving a motor vehicle while under the influence of intoxicating liquors or drugs, transporting an open container of alcohol in the motor vehicle, driving a motor vehicle while his operator's license had been suspended, and resisting an officer in the discharge of his official duty. This latter offense was subsequently dropped. On October 6 he appeared for arraignment in the district court of Butler County. During the arraignment the defendant was not represented by counsel. The court informed the defendant that if he qualified, counsel would be appointed for him. The defendant at first stated that he did not want an attorney appointed for him. However, he did request that the court appoint a Mr. White to represent him. The court declined to honor this request but asked the defendant to complete the necessary indigency papers, which defendant did. The defendant's affidavit of indigency showed that he possessed a $17,750 automobile which was heavily mortgaged, a $950 bank account and an income of $450 (presumably per month, although the record is not clear on this point). Therefore, the court refused to appoint counsel for him on the ground that his income was too high. At the arraignment the defendant pleaded not guilty to the charges against him.

On November 6, 1978, the trial was continued to December 8, at 9:00 a. m. The record does not reflect the reason for this continuance.

Prior to the scheduled trial date, however, the defendant was arraigned on November 29, 1978, for a new charge in case No. 78-CR-674 arising out of a separate incident. At his arraignment the defendant appeared without an attorney and pleaded not guilty to one count of driving a motor vehicle in violation of a restricted driver's license, contrary to K.S.A. 8-245(D ). At that time the defendant notified the trial court that John White was his attorney in his other case, but White had not yet entered his appearance. The court consolidated case No. 78-CR-674 with 78-CR-579 and notified defendant that trial was set for December 8. Defendant stated that he did not believe his attorney could appear on that date.

In a letter dated December 1, 1978, attorney White notified the trial court that he was representing the defendant and included a motion for a continuance stating that he would be unable to appear on December 8 because he was involved in a jury trial in another county. The court granted a continuance and trial was rescheduled for January 18, 1979. Before the case went to trial, the deposition of Sheriff David Williams, one of the State's main witnesses, was taken because this witness would be at the FBI Training Academy in Washington, D.C., during the trial. Both the prosecuting attorney and defendant's counsel, John White, were present and examined the witness.

On January 18, 1979, the defendant and John White appeared before the court. The defendant sought another continuance on the ground that medical problems required immediate attention. He further explained that he and White had had a disagreement and White did not think he could continue to represent defendant. Therefore, defendant had discharged White and had attempted to hire another attorney. However, as the disagreement had occurred only two days before the trial, the new attorney secured by the defendant was not able to appear on January 18. The trial judge verified that an attorney had contacted him by telephone the previous day providing substantially the same information. The court then stated:

"Carl, you know, now we're back to the same problem. We're We're set for trial today and I've talked to you several times and I told you that regardless of what happened we were going to go to trial. Are you prepared today? I see you've got some people with you. Are those your witnesses?"

The court also informed defendant that he had told defendant's new attorney that the case was getting quite old and it would be heard on the 18th whether or not a new attorney could appear. The defendant, of course, objected to the proceedings.

The court then instructed the defendant as to the procedures that would be followed for trying the case, and defendant told the judge that he understood them. The prosecution presented its evidence, including the deposition of Sheriff Williams. The defendant cross-examined four of the witnesses and presented two witnesses of his own. Both parties agree that the substance of the evidence is irrelevant to the question on appeal. The trial court found the defendant guilty of the remaining charges in both cases and scheduled the matters for sentencing.

In case No. 78-CR-579, the defendant was fined $500 and sentenced to one year in the Butler County jail for driving while under the influence. In addition, he was fined $50 and sentenced to thirty days in the Butler County jail for transporting an open container and fined $100 and sentenced to thirty days in the Butler County jail for driving in violation of a restricted license. The latter two sentences were to run concurrently. In case No. 78-CR-674, defendant was sentenced to thirty days in the Butler County jail for driving in violation of a restricted driver's license. The sentence was to run concurrently with the sentences imposed in No. 78-CR-579. Sentences were imposed on February 1, 1979, and the amended journal entry embodying the judgment and the sentencing was filed on February 26, 1979. The defendant's notice of appeal was filed on January 26, 1979.

The precise issue for determination is whether the trial court erred by refusing to grant defendant's request for a continuance made on the regularly scheduled trial date after learning that defendant's new attorney could not be available for trial at that time. Implicit in this question is the extent of the defendant's Sixth Amendment right to counsel.

A continuance may be granted to either party for good cause. K.S.A. 22-3401; State v. Holt, 221 Kan. 696, 561 P.2d 435 (1977). The trial court must exercise its sound discretion in deciding whether to grant or deny a continuance in a criminal proceeding. State v. Williams, 226 Kan. 82, 595 P.2d 1104 (1979); State v. Watie, Heard and Heard, 223 Kan. 337, 574 P.2d 1368 (1978); State v. Holt, 221 Kan. 696, 561 P.2d 435. Absent a showing of abuse of discretion which has prejudiced substantial rights of the defendant, the ruling will not be disturbed on appeal. State v. Nelson, 223 Kan. 251, 573 P.2d 602 (1977); State v. Hemminger, 203 Kan. 868, 870, 457 P.2d 141 (1969), Cert. denied 396 U.S. 1045, 90 S.Ct. 696, 24 L.Ed.2d 689 (1970). See State v. Bentley, 218 Kan. 694, 695, 545 P.2d 183 (1976).

When a defendant's Sixth Amendment right to effective assistance of counsel is involved, careful scrutiny must be afforded the trial court's action. In Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921, Rehearing denied 377 U.S. 925, 84 S.Ct. 1218, 12 L.Ed.2d 217 (1964), a lawyer cited for contempt was denied a continuance when his request was...