Damine Lavelle Lewis v. State of Arkansas

ar04-877

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

DAMINE LAVELLE LEWIS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-877

March 16, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION

[NO. CR2004-50]

HON. JOHN W. LANGSTON,

JUDGE

AFFIRMED

John Mauzy Pittman, Chief Judge

After a jury trial, Damine Lewis was convicted of aggravated robbery, residential burglary, theft of property, and theft by receiving, and sentenced to consecutive terms of imprisonment totaling twenty-five years. On appeal, he argues that the trial judge erred in denying his pretrial motion for a continuance to secure private counsel. We affirm.

Appellant was represented by appointed counsel below, and there is no indication or allegation that appointed trial counsel was not able, diligent, and effective in his representation of appellant. The following motion was made on the morning of trial:

THE COURT: Defense ready?

DEFENSE COUNSEL: I'm ready, Your Honor. Mr. Lewis's family is on their way here. I spoke to them on the phone. They explained to me that they have retained an attorney, Jerome Green, who can't be here today because of a Federal trial. And they would like to - They asked to on Mr. Lewis's behalf to have this matter continued so that Mr. Green could represent him since they have retained him. And I told the family that I would explain the situation to the Court, but that a continuance in all likelihood could not be

granted for that reason. But I told them that I would ask for a continuance for that reason.

THE COURT: State wish to address that?

DEPUTY PROSECUTING ATTORNEY: State would object to a continuance, Your Honor, in this case.

THE COURT: Why hasn't this attorney made contact with this Court if he's been hired, counsel?

DEFENSE COUNSEL: I'm not certain. I don't know how long Mr. Green has been retained. I think it was a problem of Mr. Lewis's family coming up with the money. I don't know how long he's had this matter. I didn't ask them that.

THE COURT: If he got it yesterday, why didn't he contact this Court yesterday? Was he just hired this morning?

DEFENSE COUNSEL: I don't know. I don't know if he was hired yesterday or this - Do you know?

THE COURT: So at this point the only thing we have that says a new attorney's been hired is what your client tells you?

DEFENSE COUNSEL: No. I spoke to his family.

THE COURT: And what they tell you.

DEFENSE COUNSEL: Right.

THE COURT: And they're not here either.

DEFENSE COUNSEL: Not yet.

THE COURT: When do you expect them to appear?

DEFENSE COUNSEL: When I called, they said they were on their way, and I told them that the trial would start at 9:30, but they said that they were en route here. Okay. I believe that his family is here.

THE COURT: All right. You want to stand aside a moment to talk to them?

DEFENSE COUNSEL: I'll ask `em.

(RECESS TAKEN)

  THE CLERK: CR-2004-50, Damine Lewis.

DEFENSE COUNSEL: Your Honor, Mr. Lewis's family's here. I've spoken with them. Apparently Jerome Green was retained or hired yesterday. I don't know whether he is aware that this matter's set for a jury trial. At any rate, he's not going to be here. According to one of the family members I spoke to, Mr. Green had said that he would need to get this matter continued in order to be ready, and I guess that speaks for itself since he's not here. So, obviously he won't be ready today.

THE COURT: Has he made any contact with you, counsel?

DEFENSE COUNSEL: No. I have not had any contact with Mr. Green.

THE COURT: From what I understand, he hasn't made any contact with this Court that I'm aware of. So, if we continued this matter, it'd have to be continued for a resetting.

DEPUTY PROSECUTING ATTORNEY: Your Honor, if I could say one thing. And after being notified of Defense's request, I went and talked to my witnesses. One officer, Chief Robert Redford, this is not for certain, but I wanted to tell the Court he is attempting to get, sign a contract to go to Iraq to be a contractor over there. I asked him when that would happen if it did. He said that it would be 90 days from now and that's not for sure, but that might create a problem in the future for the State as far as a necessary witness.

THE COURT: All right. Anything further on the Motion to Continue?

DEFENSE COUNSEL: No, Your Honor.

THE COURT: Counsel, what I'm faced with is a trial that has been set for trial since February. We had an Omnibus Hearing in, or we had a bond hearing in February. In March we had an Omnibus Hearing in which we said we'd be ready to go to trial today, and on the day of trial the Defendant's family state that they have hired a new attorney. That attorney could not be here today. He's made no contact with the Court or contact with Defense attorney. This would have to be continued. Just to have, to contact this attorney to verify things and to set a new trial. Looking at all of these things, counsel, and the situation, the fact we've got the jury here. We've got all the witnesses here. Your Motion to Continue to hire a new attorney will be denied. All right. Any motions before we proceed to trial?

* * * *

THE COURT: Is there anything further we need to take up at this point?

DEFENSE COUNSEL: I, according to Mr. Lewis, I may have misstated some of the facts when I asked for the continuance about the family, and he'd asked if he could explain to the Court the situation about hiring the attorney.

THE COURT: All right, sir.

DEFENSE COUNSEL: Now that we've already ruled on that Motion.

THE DEFENDANT: It won't matter.

DEFENSE COUNSEL: Well, I mean, you can explain it if you want to.

THE DEFENDANT: Okay. Judge Langston, my cousin, right. I mean, I have a poor family. We don't have any money, right. Now, I was complaining about my attorney, you know, I hadn't talked to him and all that. So, I talked to my cousin, Michael Bailey. He said that he would get in touch with a attorney. And, he, you know, as soon as he get his, you know, money together he would hire him. Right? I been talking to him - I talked to him. I mentioned to him last, I think, what was it, Thursday when I saw you. I mentioned to him. He came and saw me in the county jail. I mentioned to him that - You know, he was saying he had, you know, was about to retain a attorney, right? Okay. He'll be here shortly. He can explain it better as to why the attorney didn't, you know, I guess, fill out the necessary paperwork or -

THE COURT: Who will be here shortly to -

THE DEFENDANT: My cousin, Michael Bailey.

DEFENSE COUNSEL: The person who hired the attorney.

THE COURT: All right.

THE DEFENDANT: And he, I mean, he talked. He talked to him on the phone, I guess, five, ten minutes ago he was telling me.

THE COURT: All right. Anything further on this Motion?

THE DEFENDANT: No, sir.

THE COURT: All right. That Motion's still denied.

A motion for a continuance is addressed to the sound discretion of the trial court and will not be reversed absent a clear abuse of that discretion amounting to a denial of justice. Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983). The burden is upon the appellant to demonstrate the trial court erred in denying a motion for continuance, Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666 (1983), and that the denial of a continuance constituted prejudice to his defense. Butler v. State, 339 Ark. 429, 5 S.W.3d 466 (1999). The fact that the motion is not made until the day of trial is an important consideration in determining whether there has been an abuse of discretion. Walls v. State, supra; Tyler v. State, 265 Ark. 822, 581 S.W.2d 328 (1979).

The right to counsel of one's choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient and effective administration of justice. Burns v. State, 300 Ark. 469, 780 S.W.2d 23 (1989). Once competent counsel is obtained, the request for a change in counsel must be considered in the context of the public's interest in the prompt dispensation of justice. Id.

Here the appellant can show neither an abuse of discretion nor prejudice resulting from denial of the requested continuance. The motion was made on the morning of trial; appellant was already represented by counsel who was prepared for trial; there was no showing that counsel at trial was derelict in his duties or otherwise incompetent; and a continuance could have resulted in the unavailability of a prosecution witness who was planning to leave for Iraq. Furthermore, because nothing in the record shows that the attorney appellant wanted to substitute actually had been retained and actually represented appellant, either at trial or afterward, he cannot show that the denial of his continuance motion was prejudicial to his defense.

Affirmed.

Gladwin and Vaught, JJ., agree.