Opinion
23A-CR-1922
05-23-2024
Eddie Terrell Mullings, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm, P.C. Lafayette, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Steven J. Hosler Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Tippecanoe Superior Court The Honorable Randy J. Williams, Judge Trial Court Cause No. 79D01-1902-F2-7
ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm, P.C. Lafayette, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Steven J. Hosler Deputy Attorney General Indianapolis, Indiana
Chief Judge Altice and Judge Mathias concur.
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Eddie Mullings appeals his convictions for Dealing in Cocaine, as a Level 2 felony, and Possession of a Controlled Substance, as a Level 6 felony. We affirm.
I.C. § 35-48-4-7.
Issues
[¶2] Mullings presents three issues for review:
I. Whether his waiver of the right to a jury trial was entered knowingly, intelligently, and voluntarily;
II. Whether the trial court abused its discretion by refusing to permit Mullings to withdraw his waiver; and
III. Whether sufficient evidence supports his conviction for Dealing in Cocaine. Facts and Procedural History
[¶3] In 2018, Mullings was in community corrections and executed a consent to allow community corrections officers to randomly enter and search his residence. On February 18, 2019, Tippecanoe County Community Corrections officers arrived at Mullings's residence in Lafayette to conduct a compliance search. Mullings greeted the officers and stated that only he and his children were present in the residence. However, when the officers entered the residence, they observed another adult male pass through the living room. The officers decided to conduct a protective sweep.
[¶4] During the initial search, a woman arrived to take custody of the children and the unidentified male left the premises. In the kitchen, the corrections officers found a scale with white powder residue on it; in the trash, they found plastic bags with corners cut off. A laundry hamper contained a black nitrile glove that had something appearing to be cocaine inside it. At that point, the corrections officers called the Lafayette Police Department.
[¶5] Mullings identified which bedroom was occupied by himself and his girlfriend. Inside that bedroom closet, officers found an orange jacket with pills, razor blades, and a key in the pocket. The key opened a small safe which contained packages of a powder substance, later identified as cocaine. Mullings claimed ownership of the jacket but not the safe. Initially, Mullings said that the safe belonged to his girlfriend; later, he said that it belonged to his girlfriend's friend. The police search ultimately yielded $1,620.00 in cash, two digital scales, four packages of cocaine aggregating to 48.53 grams, and 38 Tramadol tablets.
[¶6] On February 25, 2019, the State charged Mullings with Dealing in Cocaine, Possession of Cocaine, as a Level 3 felony, Unlawful Possession of a Legend Drug, a Level 6 felony, and Possession of a Controlled Substance, as a Level 6 felony. On January 31, 2020, Mullings appeared with counsel and waived his right to a jury trial. On April 23, 2021, appearing with successive counsel, Mullings moved to withdraw his jury trial waiver. The motion was denied.
I.C. § 35-48-4-6.
I.C. § 16-42-19-13.
I.C. § 35-48-4-7.
[¶7] On March 10, 2022, Mullings appeared for his bench trial and the State moved to dismiss the charge of Unlawful Possession of a Legend Drug. At the conclusion of the trial, Mullings was found guilty of the remaining charges. Due to double jeopardy concerns, the trial court vacated the conviction for Possession of Cocaine. The trial court then sentenced Mullings to twenty-four years on the Dealing in Cocaine count and imposed a concurrent sentence of two years for Possession of a Controlled Substance. Four years were suspended to probation. Mullings now appeals.
Discussion and Decision
Voluntariness of Jury Trial Waiver
[¶8] Mullings contends that the record does not show his knowing and voluntary waiver of his right to be tried by a jury. A criminal defendant must personally and of record waive his or her right to a jury trial, as explained by our Indiana Supreme Court:
A fundamental linchpin of our system of criminal justice is the right to a trial by jury. See U.S. Const. amend. VI; Ind. Const. art. 1, § 13. Although this right may be waived, we have concluded that the statutory requirement that a defendant assent to a waiver of his right to jury trial "mean[s that] an assent by [the] defendant [be] personally reflected in the record before the trial begins either in writing or in open court." Good v. State, 267 Ind. 29, 366 N.E.2d 1169, 1171 (1977). This is to assure that the waiver is "made in a knowing, intelligent, and voluntary manner, with sufficient awareness of the surrounding circumstances and the consequences." Doughty v. State, 470 N.E.2d 69, 70 (Ind. 1984). Thus, it is the duty of the trial court "to assume in a criminal case that the defendant will want a trial by jury," unless the defendant personally indicates a contrary desire in writing or verbally in open court. Perkins v. State, 541 N.E.2d 927, 928 (Ind. 1989). This waiver must be made part of the record "so that the question of an effective waiver can be reviewed even though no objection was made at trial." Doughty, 470 N.E.2d at 70.Kellems v. State, 849 N.E.2d 1110, 1112 (Ind. 2006).
[¶9] According to Mullings, he received "inadequate" advice as to the "consequences of waiving trial by jury" in that "the trial court did not inquire as to whether Mullings understood that waiver of trial by jury would mean that the judge alone would weigh the evidence and make all factual determinations." Appellant's Brief at 18-19. He suggests that the trial court should have discussed with him "the pros and cons" of his decision. Id. at 19.
[¶10] At a status hearing conducted on January 31, 2020, defense counsel notified the trial court that Mullings would be waiving his right to a jury trial. The trial court advised Mullings that he possessed rights to: a public and speedy trial by jury; confront and cross-examine witnesses; present defense witnesses, including by subpoena; remain silent; and have the State prove the charges beyond a reasonable doubt. Mullings, under oath, affirmatively responded that he understood each of those rights and wished to waive his right to a jury trial.
The advisement was followed by a colloquy:
Court: You understand that all the other rights, which I just went through with you, they still apply in a trial to the Court. You understand that?
Mullings: Yes, sir.
Court: And you have had the opportunity to speak with Mr. Patel as to whether you are going to waive jury [trial] or not?
Mullings: Yes, sir. Court: And do you have any other questions for him?
Mullings: No.
Court: You understand that the decision as to whether you take it to a jury or take it to the bench is ultimately yours.
Mullings: Yes, sir.
Court: And you believe you have had the opportunity to consider the pros and cons about going either to a jury or to the court, is that correct?
Mullings: Yes, sir.
Court: And based upon all of that, it is your wish and you are advising the Court that you are waiving your right to a jury trial in this case, is that correct?
Mullings: Yes, sir. Court: Okay. Counsel are you satisfied with that line of questions?
Defense Counsel: Yes, Your Honor.(Tr. Vol. II, pgs. 7-8.)
[¶11] Mullings, who had prior experience with the criminal justice system and the contemporaneous assistance of counsel together with appropriate advisements, unequivocally indicated that he wished to waive his right to a jury trial. There is nothing of record to suggest that his waiver was coerced or involuntary. Although Mullings observes that there was no explicit discussion of the pros and cons of a bench trial in his particular circumstances, he points to no authority requiring the trial court to engage in such a discussion. Indeed, the trial court is to remain a neutral arbiter as opposed to an advocate for a party. See Owens v. State, 750 N.E.2d 403, 409 (Ind.Ct.App. 2001) (clarifying that, in an adversarial process, "the judge is to serve as neutral and passive arbiter and counsel are to act as zealous advocates."). Mullings has not shown that his waiver of the right to jury trial should be set aside due to insufficient advisements.
Motion for Withdrawal of Jury Trial Waiver
[¶12] Once the constitutional right to a trial by jury has been effectively waived, withdrawal of the waiver rests within the discretion of the court. Robey v. State, 555 N.E.2d 145, 148 (Ind. 1990). The State observes that an abuse of discretion in this context has rarely been found. In Stevenson v. State, 324 N.E.2d 509, 512 (Ind.Ct.App. 1976), this Court held that a trial court abused its discretion in refusing to permit withdrawal of a waiver entered by a defendant at his arraignment while he was essentially unrepresented because he had not had the opportunity to speak with counsel. Also, a panel of this Court held that a defendant should have been permitted to withdraw his waiver of jury trial due to State action thwarting a plea agreement. See Williams v. State, 307 N.E.2d 880, 885 (Ind.Ct.App. 1974) (where the jury trial waiver had been made in the context of a plea agreement, but the agreement was never consummated because the police officer refused to sign the second affidavit).
[¶13] Here, the circumstances involve neither a deprivation of rights nor a change in position due to the conduct of a State actor. Mullings retained private counsel, who was replaced by other private counsel, then replaced by appointed counsel; four different attorneys sequentially represented him. As his basis for the motion to withdraw his jury trial waiver, Mullings argued that his third attorney had disagreed with the "legal strategy and a particular position that [the second counsel] had." (Tr. Vol. II, pg. 61.) Mullings's prior counsel had reportedly been optimistic that a motion to suppress evidence would be granted and a trial would be unnecessary - apparently before discovery was complete. However, successive counsel was provided with the report of a handwriting expert and the deposition of Mullings's cohabitant and apparently concluded that the charges would proceed to trial. Counsel preferred to try the case before a jury. Without more, we are not persuaded that the divergence of strategy between attorneys is a circumstance of such significance that the trial court abused its discretion here.
Sufficiency of the Evidence - Dealing in Cocaine
[¶14] To convict Mullings of Dealing in Cocaine, as charged, the State was required to prove beyond a reasonable doubt that he knowingly possessed with the intent to deliver or finance the delivery of at least ten grams of pure or adulterated cocaine. I.C. § 35-48-4-1; App. Vol. II, pg. 42. Mullings specifically challenges the element of possession, observing that he did not own or have exclusive control over the searched premises.
[¶15] Because Mullings cohabitated with the lessee of the searched premises, the State proceeded on the theory that Mullings had constructive possession of the cocaine. Possession of contraband may be either actual or constructive. See Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004). A person actually possesses an item when he has direct physical control over it. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). But when the State cannot show actual possession, a conviction for possessing contraband may rest upon proof of constructive possession. Id. A person constructively possesses something when the person has the capability to maintain dominion and control over the item and the intent to maintain dominion and control over it. Id.
[¶16] When a possessory interest is not exclusive, the State must show additional circumstances as to the defendant's knowledge of the presence and the nature of the item. Id. Some possible, non-exclusive examples include: (1) a defendant's incriminating statements; (2) a defendant attempting to leave or making furtive gestures; (3) the location of contraband like drugs in settings suggesting manufacturing; (4) the item's proximity to the defendant; (5) the location of contraband within the defendant's plain view; and (6) the mingling of contraband with other items the defendant owns. Id. at 175. "[F]inding contraband hidden from plain view on premises in which a defendant has a nonexclusive possessory interest when the defendant was not even present will not, without more, support a conviction on a theory of constructive possession." Id.
[¶17] Inside the bedroom that Mullings identified as that of him and his girlfriend, there was a closet containing men's clothing. Inside the pockets of an orange jacket that Mullings identified as his were pills, razor blades, and a key to a document safe. The safe yielded a large quantity of cocaine. Mullings initially claimed that the safe belonged to his girlfriend and then claimed that it belonged to a friend of his girlfriend. The State presented sufficient evidence from which the factfinder could find that Mullings constructively possessed cocaine.
[¶18] When a possessory offense is elevated based upon intent to deliver:
the State must prove that appellant had the intent to deliver in order to gain a conviction of possession of [contraband] with intent to deliver. Because intent is a mental state, and because it is often the case that an actor does not verbally express intent, the trier of fact must usually resort to reasonable inferences based on examination of the surrounding circumstances to determine the existence of the requisite intent.Chandler v. State, 581 N.E.2d 1233, 1237 (Ind. 1991).
[¶19] Here, the search yielded a large quantity of cocaine, which an expert witness testified was inconsistent with personal use. The search also yielded a large amount of cash, multiple scales, baggies with cut-off corners, and multiple cell phones. A text message recovered from Mullings's phone indicated his willingness to "hook up" a customer with "weed." (Tr. Vol. II, pg. 176.) The State presented evidence from which the factfinder could reasonably determine that Mullings had intent to deliver. Sufficient evidence supports his conviction for Dealing in Cocaine.
Conclusion
[¶20] The record discloses that Mullings's waiver of his right to a jury trial was made knowingly, intelligently, and voluntarily. He has not shown that the trial court abused its discretion in refusing to allow the withdrawal of that waiver. Sufficient evidence supports the conviction for Dealing in Cocaine.
[¶21] Affirmed.
Altice, C.J., and Mathias, J., concur.