Torrey Huston v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 18 2018, 6:49 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ellen M. O’Connor Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Torrey Huston, September 18, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-642
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia Gooden,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G21-1607-F3-28149
Robb, Judge.
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Case Summary and Issue
[1] After Torrey Huston failed to appear at his jury trial, the trial court tried him in
absentia. The jury found him guilty of possession of cocaine and dealing in
cocaine; the trial court entered judgment of conviction for dealing in cocaine
and sentenced him to twelve years. Huston appeals, raising only one issue for
our review: whether the trial court abused its discretion in finding that he
voluntarily waived his right to be present at trial and trying him in his absence.
Concluding Huston waived his right to be present and the trial court properly
tried him in his absence, we affirm.
Facts and Procedural History
[2] In July of 2016, officers with the Indianapolis Metropolitan Police Department
executed a valid search warrant on Huston’s house where they found eleven
people, including Huston. Officers discovered drug paraphernalia throughout
the house and needles, a book logging drug transactions, and other
paraphernalia in Huston’s bedroom. Huston was arrested and charged with
dealing in cocaine, a Level 3 felony, and possession of cocaine, a Level 5
felony.
[3] On November 21, 2017, Huston appeared in person and with counsel at a pre-
trial conference. At that time, the court set a final pre-trial conference for
January 24, 2018 and a jury trial for January 30, 2018. Huston also appeared in
person and with counsel at the final pretrial conference on January 24, 2018.
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During the conference, Huston, by counsel, moved to continue the jury trial
scheduled for the following Tuesday, January 30, 2018, in order to secure a
witness. Noting the age of Huston’s case, the trial court denied the motion to
continue and confirmed the trial date for January 30, stating the case should
“be ready to go on Tuesday.” Transcript, Volume II at 6.
[4] On the date of trial, Huston failed to appear. Huston’s counsel attempted to
contact him but was unsuccessful. While attempting to contact Huston,
counsel learned that there was an active warrant for Huston due to a
community corrections violation and noted that it was doubtful he would
appear for trial because of the warrant. The State requested the trial proceed in
his absence. Huston’s counsel objected and requested a continuance, arguing
that Huston had the right to be present at his trial. The trial court denied the
continuance and found that Huston knowingly and voluntarily waived his right
to be present at trial:
Alright. And, just for the record, um, the court did review
[Lampkins v. State, 682 N.E.2d 1268 (Ind. 1997) and] based on the,
um, language of that case which does as [counsel] state that a
defendant . . . has a constitutional right to appear, that is subject
to a knowing and voluntarily - - voluntary waiver, and the court
does find that he has - - that Mr. Huston has knowingly and voluntarily
waived his right to be present today. Um, as the best evidence that a
defendant has knowingly and voluntarily waived his or her right
to be present, as the defendant is present in court, or [sic] the date
of the matter set for trial. Mr. Huston, as the court already stated
was present in court on January 24th of 2018 at which time, um
the - - the court stated this matter was set for trial on today’s date,
obviously was previously set even before January 24th, which Mr.
Huston was aware of. Mr. Huston’s counsel moved for a
continuance on Mr. Huston’s behalf. The court denied that
continuance, and the matter was confirmed. The court finds that
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Mr. Huston has failed to appear at least at this point at 10:12 a.m.,
and then he’s knowingly and voluntarily waived his right to be
present, and the court will proceed in his absence.
Id. at 38-39 (emphasis added). The jury trial was held over the course of two
days, January 30 and 31, and Huston did not appear either day. At the
conclusion of the trial, the jury found Huston guilty as charged.
[5] Huston was arrested on a bench warrant and appeared in court on February 28
for sentencing, at which time he engaged in a colloquy with the court in which
he acknowledged that he was aware of the scheduling pattern of pre-trials and
jury trials, that he received written notice of the trial date, and that he was in
court on January 24 when the trial date was confirmed. The trial court
sentenced Huston to twelve years at the Indiana Department of Correction.
Huston now appeals.
Discussion and Decision
I. Standard of Review
[6] We evaluate whether the trial court erred in finding that Huston waived his
right to be present at his trial and subsequently trying him in absentia for an
abuse of discretion. Brown v. State, 839 N.E.2d 225, 231 (Ind. Ct. App. 2005),
trans. denied. A trial court abuses its discretion when its decision is “clearly
against the logic and effect of the facts and circumstances or if the decision is
contrary to law.” Garrett v. Spear, 24 N.E.3d 472, 473-74 (Ind. Ct. App. 2014).
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II. Right to be Present at Trial
[7] The Sixth Amendment to the United States Constitution and Article 1, section
13 of the Indiana Constitution provide a criminal defendant the right to be
present at all stages of his or her trial. Lampkins v. State, 682 N.E.2d 1268, 1273
(Ind. 1997). However, a defendant may waive this right and be tried in absentia
when the trial court determines that the defendant knowingly and voluntarily
waived that right. Id. When there is evidence that a defendant has knowledge
of the trial date, the trial court may find that the defendant knowingly and
voluntarily waived his or her right to be present and proceed in the defendant’s
absence. Fennell v. State, 492 N.E.2d 297, 299 (Ind. 1986). The burden of
showing the defendant waived this right rests with the State. Phillips v. State,
543 N.E.2d 646, 648 (Ind. Ct. App. 1989). The “best evidence” of a
defendant’s knowledge of the trial date is his or her “presence in court on the
day that the trial date was set.” Id. at 647. To determine whether a defendant
waived his or her right to be present, we consider the entire record, Holtz v.
State, 858 N.E.2d 1059, 1061 (Ind. Ct. App. 2006), trans. denied, as well as the
defendant’s explanation for his or her absence, Fennell, 492 N.E.2d at 299.
[8] Huston argues that he did not knowingly and voluntarily waive his right to be
present because he was confused about the trial date given his previous court
appearances had been on Wednesdays and his “confusion about the actual day
led to his failure to appear.” Appellant’s Brief at 15. He argues that he did not
actually hear the date at the pre-trial conference, but believed his trial was
January 31, not January 30. The State argues that Huston knowingly and
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voluntarily waived his right to be present because he received written notice of
the trial date in November 2017 and was present in court on January 24, where
he requested, by counsel, that the January 30 trial date be continued. The trial
court then denied the motion for a continuance and confirmed the trial date in
Huston’s presence. Huston subsequently failed to appear and did not contact
his attorney or the court to explain his absence. Even if Huston believed his trial
date to be January 31, he did not appear that day either despite his ongoing
trial. Huston acknowledges that perhaps he “should have read the case
management paper more closely or listened in court more intently, or come
later, [but] he did not.” Id. The record is clear. Huston was present in court on
January 24 when his trial date was confirmed, which is the “best evidence” that
he was aware of his trial date and knowingly and voluntarily waived his right to
be present at trial when he did not appear on that date. Phillips, 543 N.E.2d at
647.
[9] As for additional facts and circumstances, the State calls our attention to several
other details surrounding Huston’s absence to further illustrate that he
knowingly and voluntarily waived his right to be present. First, the State
contends that Huston was aware of the pattern of scheduling pre-trial
conferences on Wednesdays and trials on Tuesdays. Huston acknowledged this
pattern in his colloquy with the trial court at his sentencing hearing. Second,
Huston’s counsel acknowledged at trial that because there was an active
warrant for Huston due to his community corrections violation, it was perhaps
unlikely that he would appear for the trial, thus suggesting a possible
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explanation for his absence. Although Huston contends that the record is
unclear as to why he did not appear for trial, namely whether it was to resolve
the community corrections situation or to avoid arrest, neither explanation
negates the evidence demonstrating that Huston was aware of his scheduled
trial date.1
[10] Huston’s assertion that he has a constitutional right to be present at his trial is
correct. However, the evidence clearly establishes that Huston knowingly and
voluntarily waived his right to be present at trial. Therefore, we conclude that
the State met its burden of proving that Huston knowingly and voluntarily
waived his right to be present and thus, the trial court did not abuse its
discretion when it tried Huston in his absence.
Conclusion
[11] For the foregoing reasons, we conclude that the trial court did not abuse its
discretion in trying Huston in his absence. His conviction and sentence are
affirmed.
[12] Affirmed.
1
The trial court provided a final jury instruction regarding the effect of Huston’s absence from trial. On
appeal, Huston briefly claims the instruction was insufficient to overcome the prejudice caused by his absence
and corresponding inability to assist in his defense. However, the final jury instruction is not relevant to the
issue of whether Huston’s absence was knowing and voluntary and he does not make any other cogent
argument that the instruction was in error.
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Baker, J., and May, J., concur.
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