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

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.
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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
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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
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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.
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[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
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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
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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
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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.
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