State v. Battista

517 So. 2d 1096, 1987 WL 895
CourtLouisiana Court of Appeal
DecidedOctober 7, 1987
DocketCR86-1284
StatusPublished
Cited by6 cases

This text of 517 So. 2d 1096 (State v. Battista) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Battista, 517 So. 2d 1096, 1987 WL 895 (La. Ct. App. 1987).

Opinion

517 So.2d 1096 (1987)

STATE of Louisiana, Plaintiff-Appellee,
v.
Mark BATTISTA, Defendant-Appellant.

No. CR86-1284.

Court of Appeal of Louisiana, Third Circuit.

October 7, 1987.

*1097 Tillman, Fontenot, Tony C. Tillman, Leesville, for defendant-appellant.

William C. Pegues, III, Dist. Atty., DeRidder, for plaintiff-appellee.

Before FORET, LABORDE and KNOLL, JJ.

KNOLL, Judge.

Defendant, Mark Battista, appeals his jury conviction for possession of methamphetamine, a violation of LSA-R.S. 40:967(C), and his adjudication as an Habitual Offender (Second), a violation of LSA-R.S. 15:529.1. Defendant was sentenced to serve eight years at hard labor with credit for time served. Defendant appeals, contending the trial court erred in: (1) denying his motion for continuance; (2) admitting the State's evidence without establishing a proper chain of custody; (3) finding him an habitual offender; (4) concluding defendant knowingly and intelligently waived his constitutional rights in pleading guilty to his first conviction which formed the basis for *1098 his adjudication as an habitual offender (Second); (5) disallowing defendant's testimony at the habitual offender hearing relative to his understanding of the constitutional rights he waived in connection with his first conviction; (6) using defendant's first criminal conviction when at that time the trial court failed to advise him that his guilty plea to this felony could subsequently be used to enhance a sentence under the habitual offender law; and (7) imposing an excessive sentence. We affirm.

MOTION FOR CONTINUANCE

Defendant contends that the trial judge erred in denying his motion for a continuance filed the day before his trial commenced. Defendant argues that he did not have adequate time to confer with his attorney and prepare his defense.

Applicable to this issue are the following codal provisions:

LSA-C.Cr.P. Art. 707

"A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial.
Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice."

LSA-C.Cr.P. Art. 712

"A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor."

LSA-C.Cr.P. Art. 713

"A motion for a continuance based upon peremptory grounds as provided by law shall be granted."

Defendant's written motion alleged no peremptory grounds for a continuance. Accordingly, pursuant to C.Cr.P. Art. 712 the granting of the motion was within the discretion of the trial judge. The denial of a motion for continuance is not grounds for reversal absent an abuse of discretion and a showing of specific prejudice. State v. Benoit, 440 So.2d 129 (La.1983).

The record reflects the following chronology: At arraignment on February 28, 1986, defendant declined the appointment of counsel and advised the court that he would retain counsel for his trial. On April 28, 1986, the initial trial date, defendant informed the trial court of his inability to secure counsel; accordingly, counsel was appointed and trial was rescheduled for the week beginning May 19, 1986. On May 21, 1986, the afternoon prior to the commencement of trial, appointed counsel filed a motion for continuance, alleging that because of the limited time between his appointment and trial, namely 21 days, and his participation in a manslaughter trial on May 19 through May 21, 1986, he had inadequate time for trial preparation. Furthermore, on the day of trial retained counsel appeared in court, seeking to enroll as counsel conditioned on the trial court granting a continuance.

In State v. Seiss, 428 So.2d 444 (La.1983), the Supreme Court stated:

"Defendant's right to the assistance of counsel is guaranteed by both the federal and state constitutions. U.S. Const. Amend. VI; La. Const. of 1974, art. I, § 13. Further, the right of a defendant to counsel of his choice has been implemented by C.Cr.P. 515, which provides:
`Assignment of counsel shall not deprive the defendant of the right to engage other counsel at any stage of the proceedings in substitution of counsel assigned by the court. The court may assign other counsel in substitution of counsel previously assigned or specially assigned to assist the defendant at the arraignment.'
This court has consistently held that this right cannot be manipulated to obstruct the orderly procedure of the courts and cannot be used to interfere with the fair administration of justice.... Defendant must exercise his right to counsel of his choice at a reasonable time, in a reasonable manner and at an appropriate stage of the proceedings.... Absent a justifiable basis, `[t]here is no constitutional *1099 right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications.' Once the trial date has arrived, the question of withdrawal of counsel largely rests with the discretion of the trial court, and his ruling will not be disturbed in the absence of a clear showing of abuse of discretion." (Citations omitted.)

The record preponderates that the impetus for appointed counsel's motion for continuance was the lack of contact with defendant. It is equally clear that defendant's own efforts in attempting to retain counsel was the reason for this lack of contact. Therefore, since defendant's own actions limited the time for preparation of a defense, we conclude that the trial court did not abuse its discretion in denying the motion for continuance.

Moreover, defendant failed, to establish any specific prejudice caused by denial of the motion. Defense counsel had 21 days to prepare for trial. Though no preliminary motions were filed, the record establishes that the State turned over its entire file for examination by appointed counsel. Accordingly, this assignment of error lacks merit.

CHAIN OF CUSTODY

Defendant next contends that the trial court erred in admitting physical evidence without first requiring the State to establish a proper chain of custody. In particular, defendant argues with reference to the introduction into evidence of items numbered 1, 3, 4, 8, 9, 15, 16, 17 and 18.

The failure to object to the introduction of evidence at the time it is offered operates as a waiver of any complaint on appeal. LSA-C.Cr.P. Art. 841; State v. Kinchen, 342 So.2d 174 (La.1977). Our review of the record establishes that Items 1, 3, 4, 8, 9, 15, 16 and 17 were admitted without objection. Accordingly, objections raised to these particulars are not now properly before this court for appellate review.

Item S-18 is a card which contains defendant's fingerprints taken in the Beauregard Parish Jail on the date of his arrest.

Defendant objected to the introduction of this evidence at trial on the grounds that the State failed to lay a proper foundation for its introduction.

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Bluebook (online)
517 So. 2d 1096, 1987 WL 895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-battista-lactapp-1987.