State v. Ford

24 So. 3d 249, 2009 La.App. 4 Cir. 0392, 2009 La. App. LEXIS 1849, 2009 WL 3387039
Louisiana Court of Appeal·Decided October 21, 2009·No. 2009-KA-0392·Published·Cited by 5 cases

Opinions

PAUL A. BONIN, Judge.

b The present appeal raises the issue of whether the trial court erred in denying defense’s untimely motion to continue, when that continuance was sought on the grounds that counsel had not yet consulted [251] with her client on the facts of the case. Appellant, Joseph L. Ford, was convicted on November 19, 2008, of possession of between twenty-eight and two hundred grams of cocaine, a violation of La. R.S. 40:967(F)(1). Immediately prior to trial, the defendant appeared in court with defense counsel, and the defense moved for a continuance due to the fact that Mr. Ford and his attorney had not yet discussed the facts of his case. After the court denied the defense’s motion to continue as untimely, a jury found Mr. Ford guilty as charged. Mr. Ford now urges that this court find that the trial judge erred in denying the motion to continue, because such denial forced his attorney to proceed to trial unprepared — “constructively” denying him the effective assistance of counsel at trial. We reject this argument and, for the reasons that follow, affirm Mr. Ford’s conviction and sentence.

FACTS

On May 6, 2008, New Orleans police officers executed two search warrants at 4117 Willow Street, which was described as a white, wood framed residence | «that was shaped like the letter “L.” The warrants, acquired by Detective Harry Stovall, permitted searches of the apartment in the front of the residence as well as the apartment at the back of the residence. Detectives Stovall and Roceaforte were part of the team (which included a canine unit) that executed the warrant to search the apartment at the back of the house. After entering the apartment, Detective Rocea-forte recovered a brown paper bag from inside an electrical panel. Inside the bag were three clear plastic bags — each containing several pieces of what he recognized to be crack cocaine. Detective Sto-vall recovered cocaine from the dresser drawer located in the bedroom of the apartment.

Mr. Ford arrived at the scene while the officers executed the warrant, and officers arrested him. He acknowledged that he lived in the rear apartment. After being informed of his rights, Mr. Ford made a statement that the guns and drugs found inside his apartment belonged to a man named Eric Smith, who purportedly lived in the front apartment at 4117 Willow Street.1

At trial, the parties stipulated that Sergeant O’Neal was an expert in the analysis and identification of controlled and dangerous substances. He testified that the substances seized from Mr. Ford’s apartment tested positive for cocaine. The sergeant also testified that the total weight of the cocaine seized was 34.7 grams. At the conclusion of the trial, a jury found Mr. Ford guilty of possession of between twenty-eight and two hundred grams of cocaine. This appeal followed.

ERRORS PATENT

A review of the record for errors patent reveals none.

| «ASSIGNMENT OF ERROR

Mr. Ford’s sole assignment of error alleges that the district court abused its discretion by denying counsel’s motion to continue the trial. Mr. Ford urges that the trial court’s denial of a continuance resulted in the constructive denial of counsel — or at least the ineffective assistance of counsel. Trial counsel sought a continuance either the morning of or the day before the trial on grounds that she had [252] never met with her client.2 A party may seek a motion for continuance pursuant to La. C. Cr. P. art. 707, which provides in part that such motion shall be filed at least seven days prior to the commencement of the trial. Because this continuance motion was not raised at least seven days prior to trial, the district court denied the motion as untimely.

The decision to grant or deny a continuance lies within “the sound discretion of the trial judge, and a reviewing court will not disturb such a determination absent a clear abuse of discretion.” State v. Johnson, 96-0950 (La.App. 4 Cir. 2/4/98), 706 So.2d 468, 478-79 (on rehearing); See also State v. Martin, 93-2085 (La.10/17/94), 645 So.2d 190, 197 (“The decision to grant or deny a motion for continuance lies within the wide discretion of the trial court.”). To demonstrate that the trial court erred in denying the continuance, a showing of specific prejudice is generally required. State v. Holmes, 590 So.2d 834 (La.App. 4 Cir.1991). Mr. Ford has not made such a showing. The trial court in this case acted within its wide discretion in denying the defense’s untimely motion for continuance.

To support its assertion that the trial court abused its discretion in denying the motion to continue, Mr. Ford argues that he was “constructively” denied |4counsel and cites State v. Laugand, 99-1124 (La.3/17/00), 759 So.2d 34. The Louisiana Supreme Court in Laugand found that the trial court erred in denying defense’s motion to continue on the basis that counsel was unprepared. The court reversed defendant’s conviction because the record clearly corroborated counsel’s claim that he was unprepared; the court particularly emphasized the fact that the trial court had to intervene to prevent counsel from pursuing matters that were directly adverse to the defendant’s interests, “which prompted an incendiary confrontation between counsel and [defendant] in open court.” Laugand, 759 So.2d at 36. Mr. Ford asserts that the record in this case similarly corroborates his claim that counsel was so unprepared as to constitute the “constructive” absence of counsel. We cannot agree.

The record in this case does not reveal errors that would lead this court to conclude that Mr. Ford was constructively denied counsel. In fact, the record shows that, prior to trial, his trial counsel had served on the case since shortly after his arraignment on July 15, 2008. Trial counsel represented Mr. Ford at a motion hearing on September 18, 2008 — during which, as the transcript indicates, counsel presented evidence and appeared well-prepared. Trial counsel was joined by another attorney at trial two months later, on November 19, 2008, during which the defense gave argument, made objections, and thoroughly questioned the state’s witnesses regarding the execution of the warrant, Mr. Ford’s arrest, and his statement. While trial counsel has a professional, ethical, and legal duty3 to confer [¡¡with her [253] client, her failure to do so prior to trial does not amount to a “constructive” denial of counsel. See, e.g., State v. Johnson, 04-0178 (La.App. 4 Cir. 12/8/04), 892 So.2d 28.

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State v. Ford, 24 So. 3d 249, 2009 La.App. 4 Cir. 0392, 2009 La. App. LEXIS 1849, 2009 WL 3387039 (La. Ct. App. 2009).

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