Wadlington v. State
| Decision Date | 27 May 1975 |
| Docket Number | No. 2--474A103,2--474A103 |
| Citation | 164 Ind.App. 255,328 N.E.2d 458 |
| Parties | Cliff R. WADLINGTON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
Frederick B. Robinson, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant Cliff R. Wadlington (Wadlington) appeals from a trial court conviction of possession of a narcotic drug, claiming insufficient evidence, and that the trial court erred in overruling his motion for trial by jury.
We affirm.
The evidence and facts most favorable to the State are as follows:
Pursuant to an informan's tip that a Negro male named Domino was selling heroin in the vicinity of Talbot and 22nd Streets, Indianapolis, Indiana, three officers of the Indianapolis Police Department conducted a surveillance of the area at approximately 9:30 p.m., May 7, 1973.
Sergeant Glenn Morgan (Morgan) spotted the suspect (later identified as Wadlington) talking to a group of people at that location. After fifteen or twenty minutes, Wadlington proceeded to his car parked at 22nd and Pennsylvania Streets.
As the auto left the parking lot it almost struck a partol car driven by police officer Sergeant Paul Harden (Harden), who then followed Wadlington to 21st and Pennsylvania Streets. There he observed Wadlington conversing with several persons parked in a car at that location and then observed him hand the car occupants an unidentifiable object and return to his own automobile.
Tires screeching, Wadlington then drove recklessly and at a high rate of speed south on Pennsylvania and was ultimately apprehended by Harden with the help of Morgan (who had also observed these events).
Harden approached the apprehended vehicle, ordered Wadlington out and requested identification.
While Harden was examining Wadlington's driver's license, Detective Charles Ezell (Ezell), the third police officer involved in the surveillance and subsequent chase, standing six feet from Wadlington, observed him turn slightly to the left and throw a cigarette pack to the ground. Ezell immediately retrieved the object and gave it to Morgan who found two aluminum foil packages ('bindles') containing a white powdery substance inside the wadded-up cigarette pack. (The substance was later determined to be a derivative of opium.) Wadlington was thereupon arrested, searched, informed of his rights, and taken into custody.
At the trial, all three police officers positively identified Wadlington as the suspect they independently observed under surveillance and whom they later apprehended with heroin in his possession.
The procedural facts relative to denial of Wadlington's Motion for Jury Trial are set forth in the Decision.
The trial court found Wadlington guilty as charged, sentencing him to imprisonment for a period of not less than two (2) nor more than ten (10) years. Wadlington appeals that verdict.
Wadlington's Motion to Correct Errors raises nine issues, three of which he was not argued in his brief and are therefore waived (Appellate Rule 8.3(A) (7)). The remaining six specifications of error he has combined into two issues which he does argue.
ISSUE ONE. Did the trial court err in overruling Wadlington's motion for a trial by jury?
ISSUE TWO. Was there sufficient evidence to sustain Wadlington's conviction of illegal possession of heroin?
As to ISSUE ONE, Wadlington contends that, although he initially waived his right to jury trial, his subsequent Motion for Jury Trial on the day of trial should have been granted by the trial court because of the important constitutional right involved.
The State responds by reminding Wadington that he filed a written waiver of jury trial in open court, witnessed and approved by his own counsel, and did not move for a jury trial until the day of the trial itself, and the denial thereof was not an abuse of the court's discretion.
As to ISSUE TWO, Wadlington argues that there were certain conflicts in the testimony of the three police officers, specifically as to the reason he was apprehended, stopped, and subsequently arrested by them.
The State contends that this Court may not weigh the evidence or question the credibility of witnesses and the differing motives for the initial stopping of Wadlington, and the fact that he was never charged with speeding or reckless driving does not detract from the overwhelming evidence supporting his conviction.
CONCLUSION--It is our opinion that the trial court did not abuse its discretion by denying Wadlington's motion for a trial by jury.
The additional pertinent procedural facts are these:
Wadlington waived arraignment on May 11, 1973, and was released on bond. After he was granted several continuances, he filed on October 11, 1973, in open court, with his counsel present, a written waiver of jury trial, witnessed by his counsel.
'And afterwards towit Thursday, October 11, 1973, of said Court, before the Honorable John T. Davis, Judge Presiding, the following further proceedings were had herein towit:
'Defendant files Waiver of Jury Trial in open Court, which reads as follows:
'I waive trial by jury
'DEFENDANT /s/ Clifton Wadlington
'WITNESS /s/ E. J. Ryan'
After securing a further continuance Wadlington sought on November 15, 1973, the day of trial, to withdraw his waiver and moved for a jury trial. At the beginning of the trial his counsel stated:
The court then denied the Motion.
An accused has a constitutional right to a jury trial (Ind.Const., Art. 1, § 13; United States Constitution, 6th and 14th Amendments), which right may be waived if done so in a voluntary, knowing and intelligent manner. See, Brady v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; Estrada v. United States, 457 F.2d 255 (7th Cir. 1972); Lewis v. State (1972), Ind., 288 N.E.2d 138; Stevenson...
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