Wilson v. State

Decision Date02 February 1993
Docket NumberNo. 49A02-9205-CR-210,49A02-9205-CR-210
PartiesBroderick WILSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Belle T. Choate, Choate Visher & Haith, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana and Cynthia L. Ploughe, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Broderick Keith Wilson appeals his conviction for dealing in cocaine, 1 a class A felony.

We affirm.

ISSUES

1. Did the trial court err in denying Wilson's motions for discharge under Ind.Crim.Rule 4(C)?

2. Did the trial court err by admitting utility bills discovered during the execution of a search warrant which permitted the search of a residence for cocaine?

3. Is the evidence sufficient to sustain Wilson's conviction?

FACTS

On February 28, 1989, Indianapolis Police Officer Steven Swarm obtained a warrant to search the residence of 2341 N. Sheridan Avenue, Indianapolis, and the persons of "Keith" and "Randy" for cocaine. The warrant was based on the assertions of a confidential informant who had purchased six grams of cocaine at the Sheridan Avenue residence.

Late that evening, the search warrant was served and Officer Swarm found Wilson, Randy Cheshier, and another man in the living room of the residence. In front of Wilson was a box containing a test tube of cocaine, along with other paraphernalia used in smoking and cutting cocaine. Under a dog bed mattress, police discovered five clear plastic baggies containing approximately fifteen grams of cocaine, packaged in two-to-three gram packets. Twelve hundred dollars in cash was also found in the dog bed, and, of this amount, $450 were the marked bills given to the informant earlier in the day.

In another part of the house, police found 4.5 grams of cocaine, along with a triple beam scale and inositol powder, a common cutting agent. During the search for cocaine, police discovered utility bills bearing Wilson's name and listing his address as that of the residence searched.

On December 4, 1991, following a bench trial, Wilson was found guilty of dealing cocaine and possessing cocaine. The trial court properly entered judgment of conviction on only the dealing cocaine count. Wilson appeals. Additional facts relating to Wilson's motions for discharge will be included, as needed, in section I below.

DISCUSSION
I.

Wilson argues the trial court erred in denying his motions for discharge under Crim.R. 4(C) because he was not brought to trial within the one year limitation of that rule. We do not agree.

Under Crim.R. 4(C), the State has an affirmative duty to bring a criminal defendant to trial within one year, and that one-year limit commences to run on the latter of either the filing of charges against the defendant or his arrest. See Burdine v. State (1987), Ind., 515 N.E.2d 1085, 1090. The one-year period is extended by any delay caused by a continuance had on the defendant's motion, or any delay caused by the defendant's act, or by congestion of the court calendar. Bates v. State (1988), Ind.App., 520 N.E.2d 129, 131, trans. denied. If a defendant accepts a plea agreement, any delay resulting from the State's preparation of the agreement and the defendant's subsequent withdrawal from that agreement is attributable to the defendant. Vaughn v. State (1984), Ind., 470 N.E.2d 374, 377, trans. denied.

In this case, the one-year limitation period began to run on March 2, 1989, when charges against Wilson first were filed. On May 2, 1989, the trial court set a July 17, 1989, trial date. On July 11, the State filed a Motion for Continuance because a key witness, Police Officer Steven Swarm, was out of state and not available to testify until August 2, 1989. Wilson did not object. The court granted the motion and, on August 25, 1989, set a new trial date of October 23, 1989, well within the one-year limitation period.

On October 18, 1989, Wilson filed a motion to continue the October 23, 1989 trial date. The court granted the continuance on October 23, 1989, and set a pre-trial conference for November 14, 1989. Thus, up until the October 23 trial date, all the elapsed time was chargeable to the State because neither Wilson nor a congested calendar had caused any delay. Bates, 520 N.E.2d at 131. 2

The next entry following the entry setting the pre-trial conference for November 14, 1989, is Wilson's motion to continue a guilty plea hearing which he alleges was set for February 16, 1990. Hence, the record is silent as to what happened to or at the November 14 pre-trial conference, and delay that is not accompanied by a record which charges it to the defendant does not toll the running of the one-year time limitation. See Morrison v. State (1990), Ind., 555 N.E.2d 458, 461 (delay attributable to missed trial date cannot be charged to defendant where record devoid of any continuance by defendant or by the court); Staples v. State (1990), Ind.App., 553 N.E.2d 141, 143-44 (trial court has duty to make docket entry explaining why defendant was not tried on date scheduled and any delay occasioned by trial court not making entry cannot be charged to defendant because defendant has no duty to remind the trial court of duty to make entry). Therefore, the only time not chargeable to the State is the twenty-two days between October 23, 1989, 3 the date of the trial which Wilson continued, and November 14, 1989, when a pre-trial conference was set but apparently not held.

Wilson's motion to continue a February 16, 1990, guilty plea hearing was granted and the guilty plea hearing reset for March 20, 1990. The March 20, 1990, hearing resulted in the plea agreement being rejected. At that same hearing, the court set a trial date of April 18, 1990. The motion to continue, filed February 15, 1990, resulted in a sixty-one day delay which was caused by, and is attributable to, Wilson from February 16, 1990, the date of the continued guilty plea hearing, to April 18, 1990, when the record reflects that the trial court granted the State's motion to dismiss the cause. Thus, on April 18, 1990, 329 days of the 365 available days had elapsed.

The State refiled the charges against Wilson on April 19, 1990; however Wilson was not arrested on these charges until March 4, 1991. As of that time, the State had 36 days remaining, that is, until April 9, 1991, within which to commence Wilson's trial. Young v. State (1988), Ind., 521 N.E.2d 671, 673 (State is charged only with time when [defendant] was held "to answer a criminal charge" and not charged with period between dismissal and refiling of charges (quoting Bentley v. State (1984), Ind., 462 N.E.2d 58, 60)); see also Gamblin v. State (1991), Ind.App., 568 N.E.2d 1040, 1044.

On March 6, 1991, still within the Crim.R. 4(C) period, the trial court set the cause for trial on May 20, 1991. This trial date of May 20, 1991, was beyond the limitation period of Crim.R. 4(C). However, when the trial court set this trial date Wilson did not object and, consequently, is deemed to have acquiesced in that trial date. Woods v. State (1992), Ind.App., 596 N.E.2d 919, 920.

The May 20, 1991, trial date was later reset for May 8, 1991, pursuant to Wilson's motion for speedy trial. However, on April 29, 1991, Wilson filed a motion for continuance which the trial court granted; the trial was reset for July 10, 1991. On July 2, 1991, Wilson asked for a continuance of the July 10, 1991, trial date. The motion was granted and the trial reset for September 23, 1991. Thus, the May 8, 1991, trial date, as well as the subsequent trial settings of July 10, 1991, and September 23, 1991, were continued on Wilson's motions; he cannot take advantage of the delay occasioned by his acts.

The September 23 trial date was vacated by the trial court on September 17, 1991, for the reason that Wilson failed to appear at a pre-trial conference scheduled for that date because he was awaiting a ruling by the trial court on a motion for discharge he had filed on August 9, 1991. Subsequently, the trial court properly denied Wilson's motion because Wilson had acquiesced in the then pending September 23, 1991, trial date. Therefore, Wilson's motion and his failure to appear were the cause of the delay of the September 23, 1991, trial date, and he cannot benefit from that delay. The trial court promptly reset a trial date of December 4, 1991, the date on which Wilson's trial commenced.

Because Wilson both acquiesced in trial dates beyond the one year limitation and occasioned the delay of trial dates in which he had acquiesced, the December 4, 1991, trial was within the limitation period set by Crim.R. 4(C), and the trial court did not err when it denied Wilson's Motion for Discharge pursuant to Crim.R. 4(C) on August 9, 1991, and October 23, 1991.

II.

The search warrant which authorized a search of Wilson's residence specified that the subject of the search was cocaine. During the search, in addition to the cocaine, the police found and seized utility bills bearing Wilson's name and the address of the searched residence. Wilson argues that the trial court erred in denying his motion to suppress this evidence and, over his objection, 4 admitting the utility bills into evidence.

At the suppression hearing, held during trial, Wilson asserted that the warrant was invalid because the State could not produce the informant upon whose statements the warrant was issued, and thus the defense could not examine the reliability and credibility of the informant. However, in his brief, Wilson argues that his motion to suppress should have been granted because the seizure of the utility bills is outside the scope of the "permissible limits of the search warrant." Appellant's Brief at 17. Appellant may not state one ground for his position at trial and state another ground on appeal, Jester v. State (1990), Ind., 551 N.E.2d 840, 843; Daniel v. State (1988), Ind., 526 N.E.2d...

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  • Hornaday v. State
    • United States
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    ... ... 4(C), the speedy-trial clock is stopped during the period between dismissal and refiling. Young at 673; Bentley at 60. 8 Accordingly, the clock begins running where it left off when new charges are filed. Id. This district recently reiterated these holdings in Wilson v. State (1993) 2d Dist.Ind.App., 606 N.E.2d 1314, and we now apply it to Crim.R. 4(B). The State dismissed the charges here on February 2, 1987, with forty-two days left on the speedy-trial clock ...         Ordinarily, the forty-two days would be tolled between the dismissal and the ... ...
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