State v. Spradley

• Decision Date: 06 November 1998
• Docket Number: No. 97 KA 2801.,97 KA 2801.
• Parties: STATE of Louisiana v. Kenneth SPRADLEY.
• Court: Court of Appeal of Louisiana — District of US

722 So.2d 63

STATE of Louisiana v. Kenneth SPRADLEY.

No. .

Court of Appeal of Louisiana, First Circuit.

November 6, 1998.

Rehearing Denied December 16, 1998.

Ali Z. Shields, Office of District Attorney, Plaquemine, for State of Louisiana.

Edward N. Engolio, Plaquemine, for Kenneth Spradley.

Before LeBLANC, FOGG and PARRO, JJ.

LeBLANC, J.

The defendant, Kenneth Spradley, was charged by bill of information with two counts of distribution of cocaine, violations of La. R.S. 40:967(A)(1), two counts of distribution of cocaine as a principal, violations of La. R.S. 40:967(A)(1) and 14:24, and one count of distribution of counterfeit cocaine as a principal, a violation of La. R.S. 40:967(A)(2) and 14:24. Subsequently, one count of distribution of cocaine as a principal (count three) and one count of distribution of counterfeit cocaine as a principal (count five) were notprossed. The defendant pled not guilty to the remaining counts and, after trial by jury, was found guilty of two counts of distribution of cocaine, and one count of attempted distribution of cocaine. The defendant was sentenced to thirty years at hard labor on each conviction of distribution of cocaine and fifteen years at hard labor for his conviction of attempted distribution of cocaine. The sentences were ordered to be served consecutively. The defendant has appealed, urging seven assignments of error.

FACTS:

On February 17, 1994, in Iberville Parish, the defendant distributed crack cocaine to an undercover officer. On September 15, 1994, in Iberville Parish, the defendant attempted to distribute cocaine to an undercover officer. Again, on September 15, 1994, in Iberville Parish, the defendant distributed cocaine to an undercover officer. All three transactions were videotaped.

ASSIGNMENTS OF ERROR NUMBERS ONE, TWO, AND THREE:

In his first assignment of error, the defendant contends that the trial court erred in denying his request to employ private counsel and, thus, he was denied his constitutional right to counsel and due process of law. In his second assignment of error, the defendant contends that, although the court assigned a public defender to his case, the record fails to reflect any participation in the trial by a qualified defense attorney, thus, the defendant had no assistance of counsel. In assignment of error number three, the defendant contends that being forced to represent himself amounted to ineffective counsel. In his brief to this court, the defendant argues that the trial court erred in denying him a continuance in order to allow him to hire private counsel. He contends that although the venire was present, it could have been used on one of the other pending trials. According to the defendant, he lost confidence in his defense counsel because he had been in prison for seventeen months prior to the trial and had only conversed with the public defender on two occasions, one of which was to offer him a plea bargain of fifteen years. He further contends that the Public defenders expressed an unwillingness to represent the defendant, thus forcing him to be represented by someone who did not want to represent him, which amounted to a gross denial of effective assistance of counsel. He further contends that the public defender who was appointed as his assistant did not help him in any way.

Initially, we note that a motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based. La.Code Crim. P. art. 707. The granting or denial of a motion for continuance rests within the sound discretion of the trial court, and its ruling shall not be disturbed on appeal absent a showing of a clear abuse of discretion. State v. Spencer, 444 So.2d 354, 356 (La.App. 1st Cir.1983), writ denied, 488 So.2d 694 (La.1986). Whether refusal of a motion for continuance is justified depends on the circumstances of the case. Generally, the denial of a motion for continuance is not reversible absent a showing of specific prejudice. State v. Bourque, 622 So.2d 198, 224 (La.1993), cert. denied sub nom, Bourque v. Louisiana, ___ U.S. ___, 118 S.Ct. 1514, 140 L.Ed.2d 667 (1998), overruled on other grounds sub nom., State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16.

An oral motion for continuance leaves nothing for review on appeal. However, where the occurrences that allegedly make the continuance necessary arise unexpectedly, and defense counsel had no opportunity to prepare a written motion, an appellate court may review the denial. State v. Francis, 597 So.2d 55, 58 (La.App. 1st Cir.1992).

Presumably, the defendant was aware of the problems he had with his attorneys prior to the beginning of trial and he had sufficient opportunity to file a written motion for a continuance. Nevertheless, even assuming that the failure to file a written motion could be excused due to some misunderstanding, lack of communication, or disagreement on strategy between the defendant and the public defender, for the reasons which follow, we conclude that the trial court did not abuse its discretion in denying the defendant's oral motion for a continuance.

The right to counsel cannot be manipulated to obstruct the orderly procedure of the courts and cannot be used to interfere with the fair administration of justice. State v. Seiss, 428 So.2d 444, 447 (La.1983). While the right to counsel of choice in a criminal trial is guaranteed by the United States and the Louisiana Constitutions, there is no constitutional right to make a new choice on the date a trial is scheduled to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases. State v. Leggett, 363 So.2d 434, 436 (La.1978). The right to counsel of choice must be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system of which it is a part. State v. Lee, 364 So.2d 1024, 1028 (La.1978). Once the day of trial has arrived, the question of withdrawal of counsel rests largely within the discretion of the trial court. The Louisiana Supreme Court has frequently upheld the trial court's denial of motions for a continuance made on the day of trial when the defendant is dissatisfied with his present attorney but had ample opportunity to retain private counsel. State v. Leggett, 363 So.2d at 436.

According to the minutes, on July 6, 1995¹, the defendant was informed of his right to an attorney. The defendant stated that he did not have an attorney and could not afford to hire one. The court then appointed the indigent defender's office to represent him. The defendant's trial did not start until March 12, 1997. On the date that trial was to start, the defendant was present in court with three² defense attorneys appointed by the Indigent Defender Board (IDB). The defendant asked for a continuance of the trial in order to hire his own attorney; the trial court denied the motion after two defense attorneys addressed the court and the prosecutor argued that the defendant had had sufficient time to retain private counsel. Subsequently, during voir dire, the defendant made a motion that the court allow him to represent himself. The court granted the defendant's motion allowing him to represent himself with the assistance of an attorney from the IDB.

Concerning the defendant's claim of ineffective assistance of counsel, we note that a claim of ineffective counsel is more properly raised by an application for post-conviction relief in the district court where a full evidentiary hearing may be conducted. State v. Hicks, 554 So.2d 1298, 1306 (La.App. 1st Cir.1989), writs denied, 559 So.2d 1374-75 (La.1990) and 604 So.2d 1297 (La.1992). However, where the record discloses evidence needed to decide the issue of ineffective assistance of counsel and that issue was raised by assignment of error on appeal, the issue may be addressed in the interest of judicial economy. State v. Bourgeois, 451 So.2d 172, 174 (La.App. 1st Cir.), writ denied, 457 So.2d 18 (La.1984).

The United States Supreme Court has established a two-part test for review of a convicted defendant's claim that his counsel's assistance was so defective as to require reversal of a conviction. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court stated:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687, 104 S.Ct. at 2064.

In evaluating the performance of counsel, the "inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

An accused who chooses to represent himself is precluded from complaining on appeal that his self-representation was inadequate. State v. Battieste, 597 So.2d 508, 515 (La.App. 1st Cir.), writ granted in part and judgment vacated in part on other grounds, 604 So.2d 960 (La.1992). Although a defendant does not have a constitutional right to be both represented and representative, the district court has the discretion to appoint an attorney to...