Patience Hall v. State of Indiana (mem. dec.) ( 2019 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                       FILED
    regarded as precedent or cited before any                              Dec 30 2019, 11:09 am
    court except for the purpose of establishing
    CLERK
    the defense of res judicata, collateral                                 Indiana Supreme Court
    Court of Appeals
    estoppel, or the law of the case.                                            and Tax Court
    ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
    Christopher Price                                       Curtis T. Hill, Jr.
    Marion County Public Defender Agency                    Attorney General of Indiana
    Indianapolis, Indiana
    Samantha M. Sumcad
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Patience Hall,                                          December 30, 2019
    Appellant-Defendant,                                    Court of Appeals Case No.
    19A-CR-1514
    v.                                              Appeal from the Marion Superior
    Court
    State of Indiana,                                       The Honorable Elizabeth Christ,
    Appellee-Plaintiff.                                     Judge
    The Honorable Ronnie Huerta,
    Magistrate
    Trial Court Cause No.
    49G24-1808-F6-026837
    Pyle, Judge.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1514 | December 30, 2019               Page 1 of 9
    Statement of the Case
    [1]   Patience Hall (“Hall”) appeals, following a bench trial, her conviction for Level
    6 felony possession of cocaine.1 Hall argues that the trial court abused its
    discretion by denying her oral motion, made on the day of trial, to continue the
    bench trial. Concluding that there was no abuse of discretion, we affirm Hall’s
    conviction.
    [2]   We affirm.
    Issue
    Whether the trial court abused its discretion by denying Hall’s
    oral motion to continue the bench trial.
    Facts
    [3]   Around 3:00 a.m. on August 12, 2018, Hall asked a guy from the
    neighborhood, Keith Woodruff (“Woodruff”), to take her to Cedric Barnes’
    (“Barnes”) house. Woodruff, with Hall in the front passenger seat, drove to
    Barnes’ house on 30th Street in Marion County. When Woodruff pulled up to
    the curb, he “imped[ed] the flow of traffic on the eastbound lane of 30th Street”
    prompting Indianapolis Metropolitan Police Department Officer Abdessamed
    Boudaia (“Officer Boudaia”) to initiate a traffic stop. (Tr. Vol. 2 at 7). Officer
    Boudaia got identification from Hall and Woodruff, and he discovered that
    1
    IND. CODE § 35-48-4-6.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1514 | December 30, 2019   Page 2 of 9
    Hall had an outstanding warrant. Officer Boudaia approached the passenger
    side of the car, had Hall step out of the car, removed the purse that she had on
    her shoulder, and placed her in handcuffs. As part of a search incident to arrest,
    Officer Boudaia searched Hall’s purse and discovered 0.17 grams of cocaine.
    Woodruff, who had a valid license and no warrants, was released from the
    scene.
    [4]   On August 15, 2018, the State charged Hall with Level 6 felony possession of
    cocaine. The following day, the trial court appointed counsel for Hall and that
    counsel represented Hall throughout the proceeding. Thereafter, Hall posted
    and was released on bond. During the ten months leading up to the trial, the
    trial court held eight pretrial conferences. Hall failed to appear for the fourth
    and fifth conferences, and the trial court issued a warrant for her arrest after
    each failure to appear.
    [5]   The trial court held a bench trial on June 4, 2019. Prior to commencing the
    trial, the trial court asked Hall if she was ready for trial. Hall’s counsel initially
    responded, “Yes, Judge.” (Tr. Vol. 2 at 4). However, after the State had
    confirmed that it was ready to proceed with the bench trial, Hall’s counsel
    stated that Hall was not actually ready. Hall’s counsel indicated that Hall had
    sent counsel “a few emails over the weekend and informed [counsel] of the first
    and last name of a witness” who Hall thought “might come testify[.]” (Tr. Vol.
    2 at 4). Hall’s counsel stated that Hall had not given counsel an address, so
    counsel had “not filed anything in advance.” (Tr. Vol. 2 at 4). The trial court
    treated counsel’s statement as a request to continue the bench trial and denied
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1514 | December 30, 2019   Page 3 of 9
    Hall’s continuance request. Hall then asked the trial judge, “I don’t get to call .
    . . any witnesses for me?” (Tr. Vol. 2 at 4). The trial court responded:
    No ma’am, no. Today is the date of your trial. The State is
    ready. Everybody is here ready to proceed. You have had plenty
    of time to let your attorney know. You didn’t file anything in
    time. You are not going to get to call that witness for this trial,
    sorry.
    (Tr. Vol. 2 at 4-5). Hall’s counsel told the trial court that they were ready, and
    the trial court commenced the bench trial.
    [6]   The State presented testimony from Officer Boudaia, who testified about
    conducting the traffic stop and then arresting Hall for an outstanding warrant.
    Officer Boudaia specifically testified that when he had Hall step out of the car
    to arrest her, she had a purse on her shoulder. A search of the purse incident to
    arrest revealed that there was 0.17 grams of cocaine in this purse.
    [7]   Here, Hall testified on her own behalf, and her defense was that the purse
    containing the drugs did not belong to her. Hall testified that she “had no purse
    on [her]” and that she “didn’t have no drugs this time.” (Tr. Vol. 2 at 33). She
    also testified that she did not own a purse and had never owned a purse. As for
    Hall’s explanation regarding how Officer Boudaia had gotten the purse, she
    testified that Woodruff, upon his release from the scene, had driven down the
    street, put his car in reverse, backed up, and then handed a purse to the officer.
    Hall also told the trial court that she had been arrested over thirty times and
    that she had never had a purse when she had been arrested. Hall indicated, not
    in response to a question, that she had Barnes’ address in her phone and that
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1514 | December 30, 2019   Page 4 of 9
    Barnes “could have been a witness if [she] would have know that [she] . . . was
    able to have witnesses.” (Tr. Vol. 2 at 25). Hall stated that Barnes had been
    “outside on his porch” and had “witnessed everything that [had] happened.”
    (Tr. Vol. 2 at 25). She added that she did not know about the ability to have
    witnesses because she was “not an attorney[.]” (Tr. Vol. 2 at 25).
    [8]    After Hall had completed her testimony, she asked the trial court, “Why can’t I
    have witnesses?” (Tr. Vol. 2 at 34). The trial court responded, “Ma’am, you
    just told the Court that you were arrested several times and now you are telling
    me that you don’t know anything about how the process works?” (Tr. Vol. 2 at
    34). Hall then replied, “I’ve always signed a plea for possession of cocaine or
    whatever so I c[ould] get out of jail so I could go get high.” (Tr. Vol. 2 at 34).
    The trial court, apparently treating Hall’s question about witnesses as a renewed
    request for a continuance, denied Hall’s request to continue the trial.
    [9]    The State then called Officer Boudaia for rebuttal testimony. Officer Boudaia
    confirmed that Hall had had the purse on her shoulder when she got out of the
    car. The trial court found Hall guilty as charged, noting that it had found
    Officer Boudaia’s testimony to be “most credible.” (Tr. Vol. 2 at 46). The trial
    court imposed a sentence of 730 days with forty (40) days executed and 690
    days suspended. Hall now appeals.
    Decision
    [10]   Hall argues that the trial court abused its discretion by denying her oral motion
    to continue the bench trial.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1514 | December 30, 2019   Page 5 of 9
    [11]   Our standard of review for reviewing a trial court’s ruling on a motion to
    continue is well settled:
    The Indiana Trial Rules provide, in relevant part, that “[u]pon
    motion, trial may be postponed or continued in the discretion of
    the court, and shall be allowed upon a showing of good cause
    established by affidavit or other evidence.” Ind.Trial Rule 53.5.
    The standard for review for a trial court’s denial of a Motion for
    Continuance is well established. When a defendant’s motion for
    continuance is made due to the absence of material evidence,
    absence of a material witness, or illness of the defendant, and the
    specially enumerated statutory criteria are satisfied, then the
    defendant is entitled to the continuance as a matter of
    right. [S]ee [I.C.] § 35-36-7-1. . . . When a motion for
    continuance does not meet the specially enumerated
    requirements, the trial court’s decision is given substantial
    deference and is reviewable only for abuse of discretion. It is
    important to emphasize, however, that there is always a strong
    presumption that the trial court properly exercised its discretion.
    A continuance sought on non-statutory grounds is within the
    discretion of the trial court and we will not disturb the trial
    court’s decision absent a clear demonstration of an abuse of that
    discretion.
    Elmore v. State, 
    657 N.E.2d 1216
    , 1218 (Ind. 1995) (emphasis in original;
    internal case citations omitted).
    [12]   On the day of the bench trial, Hall’s counsel told the trial court that Hall was
    not ready to proceed because Hall had sent counsel “a few emails over the
    weekend and informed [counsel] of the first and last name of a witness” who
    Hall thought “might come testify[.]” (Tr. Vol. 2 at 4). Hall’s counsel
    acknowledged that she had “not filed anything in advance” because Hall had
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1514 | December 30, 2019   Page 6 of 9
    not given counsel the potential witness’s address. (Tr. Vol. 2 at 4). Counsel did
    not provide the trial court with the name of the potential witness nor any details
    about the witness’s potential testimony. The trial court denied Hall’s oral
    continuance request, noting that Hall had had “plenty of time” to inform her
    counsel of any witnesses. (Tr. Vol. 2 at 4).
    [13]   On appeal, Hall does not argue that she was entitled to a continuance as a
    matter of right, and she contends that her continuance motion was not based on
    statutory grounds (i.e., absence of a witness or evidence). Instead, she asserts
    that her continuance motion was based on non-statutory grounds. Accordingly,
    we will review the trial court’s denial of Hall’s oral continuance motion for an
    abuse of discretion. See Elmore, 657 N.E.2d at 1218; see also Arhelger v. State, 
    714 N.E.2d 659
    , 667 (Ind. Ct. App. 1999) (explaining that when a motion to
    continue is made on non-statutory grounds or the motion fails to meet the
    statutory criteria, the decision to grant or deny the motion is within the
    discretion of the trial court). “We will not disturb the trial court’s decision
    absent a clear demonstration of abuse of discretion resulting in prejudice.”
    Blackburn v. State, 
    130 N.E.3d 1207
    , 1211 (Ind. Ct. App. 2019). “Whether the
    trial court properly exercised its authority includes a review of whether the
    competing interests of the parties were properly evaluated and compared, and if
    not, whether prejudice to the movant from maintaining the schedule of events
    occurred.” 
    Id.
     (internal quotation marks and citation omitted).
    [14]   Hall has failed to show that she was prejudiced by the trial court’s denial of her
    oral motion to continue the bench trial. Neither at trial nor on appeal, has Hall
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1514 | December 30, 2019   Page 7 of 9
    shown the content of her potential witness’s testimony. At trial, when Hall’s
    counsel initially moved for the continuance, she offered no specific information
    about the potential witness other than that Hall had thought that the unnamed
    witness “might come testify[.]” (Tr. Vol. 2 at 4). Additionally, during Hall’s
    testimony, when she had identified Barnes by name, she merely stated that
    Barnes had “witnessed everything that [had] happened.” (Tr. Vol. 2 at 25).
    There was no indication that Hall had subpoenaed Barnes or that Hall or her
    counsel had even spoken to him about being a witness. Additionally, the
    record reveals that Hall had had the same counsel during the ten-month
    pendency of her case and that she had had numerous pretrial conferences. As
    the trial court noted, Hall had had “plenty of time” to let her counsel know
    about potential witnesses, but she failed to do so. (Tr. Vol. 2 at 4).
    Furthermore, Hall testified on her own behalf and presented her defense that
    she did not have a purse at the time of her arrest. While Hall seems to suggest
    that Barnes’ testimony would have corroborated her testimony, “there’s no real
    way to know that it would have.” See Blackburn, 130 N.E.3d at 1211.
    Nevertheless, Hall was able to present her defense to the trial court for its
    consideration. Because Hall has failed to show prejudice and the parties’
    competing interests were evaluated by the trial court, we affirm the trial court’s
    denial of Hall’s oral motion to continue the bench trial. See, e.g., id. (affirming
    the trial court’s denial of a defendant’s motion to continue based on the absence
    of an alibi witness where the defendant had failed to show prejudice and the
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1514 | December 30, 2019   Page 8 of 9
    claimed substance of the witness’s testimony had reached the jury through the
    defendant’s testimony).2
    [15]   Affirmed.
    May, J., and Crone, J., concur.
    2
    We note that Hall attempts to expand her motion-to-continue argument into an exclusion-of-evidence
    argument, suggesting that the trial court abused its discretion by excluding her defense witness and violated
    her Sixth Amendment right to present a witness. To support her argument, she compares her case to Barber v.
    State, 
    911 N.E.2d 641
    , 646 (Ind. Ct. App. 2009). In addition to the facts of her case being distinguishable
    from Barber, Hall did not raise any constitutional or exclusion of evidence arguments to the trial court and
    has, therefore, waived any such arguments on appeal. See Flowers v. State, 
    738 N.E.2d 1051
    , 1056 (Ind. 2000)
    (explaining that an appellant may not make an argument on appeal that was not raised before the trial court),
    reh’g denied. Moreover, Hall has waived any evidentiary argument by failing to make an offer of proof in
    relation to her potential witness’s testimony. See Wiseheart v. State, 
    491 N.E.2d 985
    , 991 (Ind. 1986)
    (explaining that “[w]hen a defendant does not make an offer of proof, [s]he has not adequately preserved the
    exclusion of witness’ testimony as an issue for appellate review”). Waiver notwithstanding, while a
    defendant has the fundamental right to present witnesses in his or her own defense, this right is not absolute.
    Tolliver v. State, 
    922 N.E.2d 1272
    , 1282 (Ind. Ct. App. 2010), trans. denied. Indeed, when exercising this right,
    a defendant “must comply with established rules of procedure and evidence designed to assure both fairness
    and reliability in the ascertainment of guilt and innocence.” 
    Id.
     (internal quotation marks and citations
    omitted). Here, Indiana Trial Rule 53.5, the trial rule pertaining to continuances, requires the party moving
    for the continue to make “a showing of good cause [for the continuance] established by affidavit or other
    evidence. . . .” Aside from failing to file an affidavit, Hall did not provide any evidence regarding her
    potential witness that would provide good cause for the continuance.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1514 | December 30, 2019                    Page 9 of 9
    

Document Info

Docket Number: 19A-CR-1514

Filed Date: 12/30/2019

Precedential Status: Precedential

Modified Date: 4/17/2021