Washington v. State
| Decision Date | 06 March 2009 |
| Docket Number | No. 79A02-0806-CR-500.,79A02-0806-CR-500. |
| Citation | 902 N.E.2d 280 |
| Parties | Artillius WASHINGTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Teri A. Cummins, The Sandy Law Firm Lafayette, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Following a jury trial, Appellant-Defendant Artillius Washington appeals his conviction for Class B felony Dealing in Cocaine.1 Washington raises the following issues on appeal:
1. Whether the trial court abused its discretion and violated his Sixth Amendment right to the counsel of his choice by denying his request for a continuance on the morning of trial for the purpose of hiring private counsel;
2. Whether the evidence was sufficient to support his convictions;
3. Whether the deputy prosecuting attorney committed misconduct;
4. Whether the trial court abused its discretion in sentencing Washington;
5. Whether Washington's sentence is inappropriate; and
6. Whether the trial court's sentencing statement erroneously states that Washington was sentenced to eighteen years for his conviction of Class D felony possession of cocaine.
We affirm in part and remand to the trial court with instructions.
On November 4, 2004, Washington went to Tecumseh Middle School in Lafayette to recover his Majestic brand athletic jacket, which his nephew, J.R.,2 had worn to school because of cold weather. Washington indicated that the jacket was his and that he was there to recover it and the keys that he had left in one of the pockets. While waiting for his jacket, Lafayette Police Officer James Quesenbery stated that Tr. pp. 190-91.
J.R.'s teacher, Amy Howard, received notification that J.R.'s uncle was in the office requesting his jacket. Howard observed that J.R., who was emotionally disabled, was wearing the jacket and that it was four or five sizes too big for him. Howard asked J.R. if the jacket belonged to his uncle. After Howard inquired about the jacket, J.R. pulled a bag containing "crystal looking rocks" in individual plastic bags out of one of the jacket pockets. Tr. p. 93. Howard "immediate[ly] thought drugs," so she took the drugs and left her classroom to find John Townsend, the off-duty Lafayette police officer who was working at the school that day. Tr. p. 93. Upon discovery of the drugs, J.R. appeared to be frightened, and he told Officer Townsend that the drugs were not his. J.R. later told Officer Quesenbery that the jacket belonged to Washington.
After speaking with J.R., Officer Quesenbery questioned Washington about the drugs found in the jacket pocket. Washington avoided eye contact with Officer Quesenbery and stated that "he couldn't believe his 12 year old nephew was into drugs." Tr. p. 225. Officer Quesenbery informed Washington that J.R. would be released to a family member and sent home from school. Washington lied to Officer Quesenbery, stating that J.R.'s mother was currently in surgery and would not be able to pick him up. Officer Quesenbery described Washington's behavior as being evasive and deceptive. Soon after Washington left school property, J.R.'s mother arrived at the school.
On August 30, 2006, Washington was charged with Count 1, Dealing in Cocaine, Count 2, Possession of Cocaine, Count 3, Dealing in Cocaine, and Count 4, Possession of Cocaine. Counts 1 and 2 were unrelated to the events that occurred at Tecumseh Middle School on November, 4, 2004. On June 1, 2007, the trial court granted Washington's motion for a continuance of his upcoming jury trial scheduled for June 19, 2007. Washington's trial was rescheduled for September, 11, 2007. On September 7, 2007, the trial court granted the parties' agreed request for a continuance of Washington's upcoming jury trial, and rescheduled the trial for December 4, 2007. On November 16, 2007, the trial court granted the parties' second agreed request for a continuance of Washington's upcoming jury trial. The trial court rescheduled Washington's trial for January 22, 2008. On January 18, 2008, the trial court granted the parties' third request for a continuance of the upcoming jury trial, and rescheduled the trial for February 19, 2008. On February 19, 2008, Washington again requested a continuance of his jury trial, this time for the purpose of hiring private counsel. The trial court denied Washington's request, and the matter proceeded to trial.
At trial, Detective Brian Brown of the Lafayette Police Department, who was a member of the Tippecanoe County Drug Force from October of 2001 to January of 2008, testified to some common characteristics or indicators of dealing in narcotics. Detective Brown stated that some key indicators of dealing in narcotics would be:
[T]he sizes that the rocks of crack cocaine were cut up into and also the numerous baggie corners that are on the inside of this. Baggie corners are a typical packaging agent for drug dealers, whether it be methamphetamine, crack cocaine, cocaine, sometimes even pharmaceutical medication. But corner baggies, typically knotted, are a common way to transport, hang on to and distribute narcotics.
Tr. pp. 175-76. The evidence established that the bag of drugs recovered from Washington's jacket pocket contained nine rocks of crack cocaine that were individually packaged in "baggie corners," which Detective Brown believed to be indicative of an individual who was dealing in narcotics.
On February 20, 2008, the jury found Washington not guilty of Counts 1 and 2, but guilty of Counts 3 and 4, relating to the events at Tecumseh Middle School on November 4, 2004. Following a sentencing hearing on April 25, 2008, the trial court merged Washington's conviction for Count 4 into his conviction for Count 3 and sentenced Washington to eighteen years of incarceration in the Department of Correction. Washington now appeals.
Washington contends that the trial court abused its discretion and violated his Sixth Amendment right to the counsel of his choice when it denied his request for a continuance on the day of trial. Initially, we observe that continuances are not favored and as a general rule should be granted only when the continuance is necessary in the furtherance of justice on the showing of good cause. Welch v. State, 564 N.E.2d 525, 528 (Ind.Ct.App.1990).
Washington claims that the trial court abused its discretion in denying his request for a continuance on the morning of trial. It is well-established that the determination of whether to grant a defendant's request for a continuance for the purpose of hiring private counsel immediately before trial is a matter within the sound discretion of the trial court. Gilliam v. State, 650 N.E.2d 45, 50 (Ind.Ct. App.1995), trans. denied. The decision of the trial court will be reversed only for an abuse of that discretion. Stafford v. State, 890 N.E.2d 744, 750 (Ind.Ct.App.2008). An abuse of discretion occurs only where the decision is clearly against the logic and effect of the facts and circumstances. Id. We will not conclude that the trial court abused its discretion unless the defendant can demonstrate prejudice as a result of the trial court's denial of the motion for a continuance. Id. "`Motions for continuance to hire a new lawyer made on the morning of trial are particularly disfavored because granting them causes substantial loss of time for jurors, witnesses, lawyers, and the court.'" Gilliam, 650 N.E.2d at 51 (quoting Roberts v. State, 500 N.E.2d 197, 199 (Ind.1986)).
On the day of his trial, Washington requested a continuance for the purpose of hiring private counsel. Washington, however, did not appear personally to make his request and provided no information concerning why he waited until the morning of trial to notify the trial court of his desire to retain new counsel. Washington had previously requested one continuance, and had also, in agreement with the State, filed three joint requests for continuances, all of which had been granted by the trial court. Washington failed to notify the court, with any certainty, of the identity of his allegedly hired private counsel, and, as of the morning of trial, no attorney, other than his previously assigned public defender, had filed an appearance on Washington's behalf. In addition, Washington's public defender was prepared to, and did represent Washington at trial. Under these circumstances, Washington has not shown that his right to a fair trial was prejudiced. Therefore, we conclude that the trial court did not abuse its discretion in denying Washington's request for a continuance on the morning of trial.
Washington also claims that the trial court violated his constitutional right to the counsel of his choice in denying his request for a continuance on the morning of trial. The Sixth Amendment guarantees a criminal defendant's right "to have the Assistance of Counsel for his defence." U.S. CONST., amend. VI. A corollary of this right is the right to choose counsel when a defendant is financially able to do so, and a defendant should be afforded a fair opportunity to secure counsel of his own choice. Lewis v. State, 730 N.E.2d 686, 688-89 (Ind.2000); Barham v. State, 641 N.E.2d 79, 82 (Ind.Ct.App.1994). The right to privately retain counsel of choice derives from a defendant's right to determine the type of defense he wishes to present. Barham, 641 N.E.2d at 82. "In criminal cases, the right to...
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