Siniard v. StateSiniard v. State
Thе appellant was convicted of first degree burglary in violation of
I
The appellant maintains that the trial court erred to reversal in denying his August 27, 1984, motion for a cоntinuance. It is well established law that a motion for continuance is addressed to the sound discretion of the trial court. Dawkins v. State, 455 So.2d 220 (Ala.Cr.App. 1984). Unless there is a clear showing of abuse of discretion, its ruling will not be disturbed on appeal. Carroll v. State, 445 So.2d 952 (Ala.Cr.App. 1983).
The record in the present case indicates that the appellant was arrested and charged with first degree burglary on January 9, 1984. He was indicted on April 3 of that year and entered a plea of not guilty on April 27, 1984. On July 31, 1984, the appellant appeared in court and told the judge that he had been unаble to retain counsel. The appellant stated, however, that he could afford to hire an attorney and requested additional time to procure legal representation. Pursuant to the appellant‘s request, his trial was postponed until August 27, 1984. As a reminder, written notice of the trial date was mailed to the appellant on August 7, 1984. On the day scheduled for trial, the appellant once again appeared in court without a lawyer. The appellant informed the court that he had hired an attorney, but that the attorney was unable to appear in court that day. The court agreed to postpone trial until the next day. Later that afternoon, the aрpellant‘s trial attorney, who stated that he had been hired only that day, filed a motion for continuance on the grounds that he had not had adequate time to preрare for trial and had not had an opportunity to subpoena necessary witnesses. The motion was denied and the case was tried on August 28, 1984. Appellant now contеnds that the trial court‘s refusal to grant a continuance deprived him of his constitutional right to effective assistance of counsel.
A similar argument was made in United States v. Gates, 557 F.2d 1086, 1087 (5th Cir. 1977), cert. denied, 434 U.S. 1017, 98 S.Ct. 737, 54 L.Ed.2d 763 (1978). During the three months between appellant Gates‘s arrest and the date of trial, he had repeatedly requested additional time to secure legal representation. On the day of trial, Mr. Gates agаin asked for a continuance on the grounds that he had been unable to obtain a lawyer. The trial court denied the motion and proceeded to trial with Gates rеpresenting himself. On appeal, Gates argued, as does the appellant herein, that he was “denied his constitutionally guaranteed right to the assistance of counsel when the trial court refused a continuance to permit his counsel to make adequate preparations.” Gates, 557 F.2d at 1088. The Fifth Circuit Court of Appeals affirmed the trial сourt‘s denial of the motion, holding that by engaging in delaying tactics, appellant Gates had waived his right to counsel. Under similar circumstances, the Second Circuit Court of Apрeals held in United States v. Arlen, 252 F.2d 491, 494 (2d Cir. 1958):
“We think it clear that although a defendant able to retain counsel is entitled
to a reasonable time to secure counsel, he may not indefinitely postpone trial by continued applications for more time to seek representation. Whether additional time should be granted is within the sound discretion of the trial cоurt. Further, where a defendant able to retain counsel has been advised by the court that he must retain counsel by a certain reasonable time, and where there is nо showing why he has not retained counsel within that time, the court may treat his failure to provide for his own defense as a waiver of his right to counsel and require such defendant to proceed to trial without an attorney.”
Accord, United States v. Terry, 449 F.2d 727 (5th Cir. 1971); see, also, United States v. Fowler, 605 F.2d 181, 183 (5th Cir. 1979), rehearing denied, 608 F.2d 1373, cert. denied, 445 U.S. 950, 100 S.Ct. 1599, 63 L.Ed.2d 785 (1979); State v. Tarumoto, 62 Haw. 298, 614 P.2d 397 (1980) (“[t]he right to assistance of counsel, cherished and fundamental though it be, may not be put to service as a means of delaying of trifling with the court“); Neal v. State, 689 S.W.2d 420 (Tx.Cr.App. 1984) (“[a]n accused in a criminal case may not use his constitutional right to counsel so as to manipulate the commencement of his trial to suit his convenience and pleasure“).
The appellant herein had almost eight months from the time of his arrest until the date of his trial to procure legal representation. Furthermore, the trial judge personally informed the appellant on July 31, 1984, that his case would be tried August 27, 1984. Written notice of the trial date was also mailed to the appellant three weeks prior to trial. Even after the appellant appeared in court without an attorney on August 27, 1984, the court once again allowed the trial to be postponed until the next day. We find no abuse by the trial court in refusing to allow a longer delay. Indeed, we believe that the court exhibited patience in allowing the appellant an additional day in which to retain an attorney, particularly after it appeared that he was using the right of counsel as a sword instead of a shield. Whеre a defendant has been given a reasonable amount of time to hire an attorney, but fails to do so, the trial court will not be put in error for refusing to grant him a continuаnce unless the defendant‘s failure to obtain counsel was justified. Gosha v. State, 442 So.2d 138 (Ala.Cr.App. 1983); Whitehead v. State, 409 So.2d 894 (Ala.Cr.App. 1981); Pettiford v. State, 8 Md. App. 560, 261 A.2d 216 (1970); People v. Augustine, 265 Cal.App.2d 317, 71 Cal.Rptr. 384 (1968); People v. Byoune, 65 Cal.2d 345, 54 Cal.Rptr. 749, 420 P.2d 221 (1966); 22A C.J.S. Criminal Law § 502 (1961). In the present case, the appellant offered no justification for his delay in hiring an attorney except for his own neglect. When asked at his sentence hearing whether he had anything to say, the appellant replied:
“It was my own fault. I blame myself for not being prepared when I came in the courtroom. I thought justice would prevail but it didn‘t.”
We hold that the appellant waived, or rather forfeited, his right to counsel.1 The trial court did not, therefоre, err in denying the appellant‘s motion for a continuance.
II
The appellant also contends that he is entitled to a new trial on the basis of newly discoverеd evidence. To establish a right to a new trial based on newly discovered evidence, a defendant must show that the evidence is of such a nature as will probably chаnge the result if a new trial is granted, that it has been discovered after completion of the trial, that it could not have been discovered before the trial by
AFFIRMED.
All The Judges Concur.