Opinion
24A-CR-543
10-30-2024
George D. Jones, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Matthew J. McGovern Fishers, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Daylon L. Welliver 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Vanderburgh Circuit Court The Honorable Celia Pauli, Magistrate Trial Court Cause No. 82C01-2309-F6-5705
ATTORNEY FOR APPELLANT
Matthew J. McGovern Fishers, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana
Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
MAY, JUDGE
[¶1] George D. Jones, Jr. appeals following his conviction of Level 6 felony criminal trespass. He raises one issue for our review, which we revise and restate as whether Jones's waiver of his right to counsel was knowing, intelligent, and voluntary. We affirm.
Ind. Code § 35-43-2-2(b)(2) (2023).
Facts and Procedural History
[¶2] On September 12, 2023, Detective Zachary Oxford of the Evansville Police Department was working off-duty as a security guard at Deaconess Hospital in Evansville. Hospital staff informed him that Jones had been discharged as a patient but was continuing to loiter in the emergency room. When Detective Oxford approached Jones, he was initially "cooperative" and walked with Detective Oxford to the exit doors. (Tr. Vol. 2 at 105.) However, Jones did not exit the hospital. Detective Oxford told Jones that he needed to leave, but Jones refused. Jones told Detective Oxford that "you're just going to have to take me to jail," and Detective Oxford "tried to talk him out of that." (Id.) William Wangler, a full-time Deaconess Hospital security officer, also asked Jones to leave. Nonetheless, Jones continued to refuse to leave the hospital, and Detective Oxford called for a police vehicle to come to the hospital to transport Jones to jail. After Detective Oxford handcuffed Jones, Jones "collapse[d]" and "laid on the ground," and Detective Oxford "had to almost drag him to the vehicle at that point." (Id. at 106.) Jones was then transported to jail.
[¶3] On September 14, 2023, the State charged Jones with Level 6 felony criminal trespass in an information that alleged Jones committed criminal trespass at Deaconess Hospital after having been convicted of trespassing on the same property. The trial court held Jones's initial hearing on September 18, 2023. At that hearing, Jones explained that he wished to represent himself, and the following colloquy occurred:
THE COURT: Okay. I have to ask you some questions before you can do that okay, so I'm going to ask you to answer these questions. So, you do have the right to represent yourself at trial just as you have the right to have counsel represent you and to have court appointed counsel for trial if you can't afford an attorney. Before you make that decision I want you to understand what you will be giving up. You may have a number of defenses which apply to your case in which an attorney is trained to know. Like I just told you, the possible penalties for this case are six months to two and a half years in custody and there are factors which the Court can consider in increasing your sentence or decreasing your sentence within that range, and these are factors that an attorney would know about. An attorney has developed certain skills to assist you in presenting a defense to the charge against you, these include investigating your case, interrogating witnesses against you, and finding favorable witnesses and obtaining their testimony, explaining charges and any lessor [sic] included offenses, gathering documents and other kinds of written evidence, preparing and filing motions before trial such as motions for speedy trial, motions for discovery or motions to keep unfavorable information from being received as evidence, examining and cross examining witnesses at trial, recognizing objectionable and unfavorable evidence and
promptly objecting to its use, presenting favorable sentencing information and attacking unfavorable sentencing information. In jury trials presenting favorable opening and closing statements, preparing appropriate written jury instructions, and selecting a jury as well as training[,] knowledge[,] and skill at properly preserving the record of the case for purposes of an appeal. Can you get an order for pro se cases printed that we can give to Mr. Jones before he leaves?
COURT REPORTER: Okay.
THE COURT: So, an attorney also can evaluate the strength or weaknesses of the case against you and give you expert advice on whether you should attempt to seek a plea agreement with the State of Indiana which may result in the dismissal of some of the charges and a recommendation for a favorable sentence in return for your plea of guilty. You must understand that if you decide not to have an attorney you will not receive any special treatment with your defense. Do you understand that?
THE DEFENDANT: (no audible response)
THE COURT: I need you to answer out loud?
THE DEFENDANT: Yes.
THE COURT: Okay, thank you. You will have to follow all the same rules of procedures [sic] in your case as an attorney would have to. The State will be represented by an attorney and will have the advantage that an attorney presents. If you decide to represent yourself and the result turns out badly you need to know that you will not be able to complain that you were not an affective [sic] attorney in your own defense; do you understand that?
THE DEFENDANT: Yes.
THE COURT: As I've told you, you have the right to decide against having an attorney but you must be aware that deciding not to have an attorney can turn out to be a very bad decision. Experiences [sic] lawyers almost always decide to be represented by another lawyer in a criminal case. So, there are some things that you should consider before you appear at trial without an attorney and I want to ask you about them now. So, what skills or knowledge do you think you have that would be helpful to you if you represent yourself?
THE DEFENDANT: Well, I've been in numerous trials.
THE COURT: Where you've represented yourself?
THE DEFENDANT: No, I just know what I'm doing.
THE COURT: Okay, have you represented yourself before?
THE DEFENDANT: No. Yeah, I have; yes.
THE COURT: Okay, what was the result of that?
THE DEFENDANT: Count 1 was dismissed and I don't know how but they found me guilty of Count 2.
THE COURT: Okay. So, you represented yourself one time before?
THE DEFENDANT: Yes.
THE COURT: In a felony matter?
THE DEFENDANT: Yes.
THE COURT: Okay, and it resulted in -
THE DEFENDANT: Count 1 dismissed, domestic battery was dismissed. Count 2 -
THE COURT: Dismissed or you were found not guilty?
THE DEFENDANT: No, it was dismissed.
THE COURT: Got it; okay. Okay.
THE DEFENDANT: It's on the record.
THE COURT: Okay, how much education have you had?
THE DEFENDANT: Some college.
THE COURT: Okay, how much college?
THE DEFENDANT: I think like two or three semesters, I did University of Phoenix online.
THE COURT: And I'm not trying to be rude, I just have to ask you these questions okay so that way you know that you're making a bid [sic] decision to represent yourself; okay. I'm not trying to be rude.
THE DEFENDANT: It's cool, I got it.
THE COURT: Okay, so you've had one trial where you've represented yourself?
THE DEFENDANT: No, I had one case, I didn't go to trial.
THE COURT: You've had one case where you've represented yourself?
THE DEFENDANT: Yeah.
THE COURT: Have you ever represented yourself at a trial?
THE DEFENDANT: No, it doesn't seem to be that hard.
THE COURT: Okay. You have experience with the criminal justice system?
THE DEFENDANT: Yeah, I've been to trial five times.
THE COURT: Five times okay, but you've never represented yourself?
THE DEFENDANT: No.
THE COURT: Okay. You've had an attorney each time?
THE DEFENDANT: Yes.
THE COURT: Okay, are you able to read and write well?
THE DEFENDANT: Yes.
THE COURT: Okay, do you think you're a good speaker and you would be able to convey your message to the jury?
THE DEFENDANT: Yes.
THE COURT: Can you quickly become familiar with [a] large number of rules and procedures and use them in a high-pressure situation such as your trial?
THE DEFENDANT: Yes.
THE COURT: And you understand you'll have the obligation to preserve any record for appeal, so making objections to preserve that?
THE DEFENDANT: Yes.
THE COURT: Okay. Has anyone made any promises or suggestions that you will receive special treatment or a milder sentence if you don't have an attorney?
THE DEFENDANT: No.
THE COURT: Has anyone threatened you?
THE DEFENDANT: No.(Tr. Vol. 2 at 5-10.) After this exchange, Jones asked for a copy of the probable cause affidavit, and he asked about discovery. The trial court also appointed standby counsel for Jones.
[¶4] Jones filed several motions in the months between his initial hearing and his trial. Jones filed a motion to suppress seeking to prohibit hearsay, a motion for change of venue, a motion to be transported from jail to the courthouse, a motion for discovery, a motion for reduction of his bond, and a motion in limine seeking to prohibit the State from commenting on his prior convictions. The trial court granted Jones's motion to be transported to the courthouse for the motions hearing. It also instructed the State to produce items Jones mentioned in his motion for discovery. The trial court denied Jones's motion to suppress but noted Jones could raise hearsay objections at trial. It also denied his motion for change of venue and motion for reduction in bond. The State agreed not to mention Jones's prior convictions except during the enhancement phase or if Jones opened the door to such evidence, and the trial court granted the motion.
[¶5] The trial court held Jones's jury trial on January 12, 2024, and conducted the trial in two phases. The first phase concerned whether Jones trespassed at Deaconess Hospital on September 12, 2023, and the second phase concerned whether Jones had a prior conviction of trespass at Deaconess Hospital. Jones was late to court on the day of his trial, and jail staff reported that he was "uncooperative and combative, argumentative, this morning including flushing his t-shirt or his dress shirt down the toilet[.]" (Id. at 44.) During voir dire, Jones stated in front of the prospective jury panel that he had been on probation twice previously. When the trial court asked Jones if he wanted to strike any prospective jurors from the panel, Jones stated: "I don't even need no strikes, I mean it don't matter what I got." (Id. at 85.)
[¶6] Prior to the State calling Detective Oxford as its first witness, Jones stated: "I don't give a fuck at this point. He's a liar." (Id. at 101.) During Jones's cross-examination of Detective Oxford, Jones elicited testimony from Detective Oxford that he had interacted with Jones "many times" and that Jones was known among the Evansville Police Department as a "track star" because of his ability to run fast while fleeing police. (Id. at 111-12.) He explained he knew Jones "well enough to know that [Jones had] been trespassed multiple times from Deaconess." (Id. at 115.) Detective Oxford also testified during Jones's cross-examination of him that Jones appeared to be "high" during the incident and that Jones normally appeared "high" when Detective Oxford had interacted with Jones in the past. (Id. at 125.)
[¶7] During closing argument at the conclusion of the trial's first phase, Jones repeatedly interrupted the State and at one point, commented: "It's over anyway, who's got to do deliberations." (Id. at 180.) During his closing argument, Jones quoted case law, statutes, and the Indiana constitution. After deliberation, the jury found Jones guilty of criminal trespass.
[¶8] Jones then exercised his right to have a jury decide whether the enhancement applied. When the trial court asked Jones if he wished to offer an opening statement at the beginning of the second phase of his trial, he stated:
No, I mean I really don't know what to say, I'm just at aww [sic], I mean I don't know, I'm just like confused about this whole ordeal, it's confusing to me. I don't even know who I am right now. (inaudible) say something.(Id. at 195.) The State presented certified court records demonstrating Jones had been convicted in 2018 under cause number 82D06-1806-CM-004380 of criminal trespass for refusing to leave Deaconess Hospital. The jury found Jones had a prior conviction of criminal trespass at the same property, and the trial court entered a judgment of conviction of Level 6 felony criminal trespass. On February 2, 2024, the trial court sentenced Jones to a term of two years in the Indiana Department of Correction.
Discussion and Decision
[¶9] Jones contends the trial court erred "when it permitted him to proceed pro se without determining whether his waiver of his right to counsel was knowingly and voluntarily made." (Br. of Appellant at 8.) The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." Likewise, Article 1, section 13 of the Indiana Constitution states: "In all criminal prosecutions, the accused shall have the right . . . to be heard by himself and counsel[.]" The Indiana Constitution generally offers greater protection than the Sixth Amendment because the Indiana Constitution's right to counsel attaches prior to the filing of formal charges against the defendant. Sweeney v. State, 886 N.E.2d 1, 9 (Ind.Ct.App. 2008), reh'g denied, trans. denied, cert. denied, 129 S.Ct. 506 (2008). However, the purpose behind both constitutional provisions is to "guarantee the right to counsel at any 'critical stage' of the prosecution where the absence of counsel might derogate from the accused's right to a fair trial." Esmond v. State, 20 N.E.3d 213, 215 (Ind.Ct.App. 2014) (quoting Hall v. State, 870 N.E.2d 449, 460 (Ind.Ct.App. 2007)). "The right to the assistance of counsel is so essential that prejudice is presumed when there is actual or constructive denial of the assistance of counsel." Hernandez v. State, 761 N.E.2d 845, 849 (Ind. 2002), reh'g denied.
[¶10] "Accordingly, when a criminal defendant waives his right to counsel and elects to proceed pro se, we must decide whether the trial court properly determined that the defendant's waiver was knowing, intelligent, and voluntary." Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 2003). "We review a trial court's finding that a defendant waived his right to counsel under a de novo standard of review." Bowie v. State, 203 N.E.3d 535, 543 (Ind.Ct.App. 2023), trans. denied. Yet, as our Indiana Supreme Court has recognized, a "trial court is uniquely situated to assess whether a defendant has waived the right to counsel." Wright v. State, 168 N.E.3d 244, 254 (Ind. 2021), cert. denied, 142 S.Ct. 1204 (2022). Consequently, "we will review the record and will most likely uphold the trial court's ruling on the defendant's request to proceed pro se if the trial court judge made the proper inquiries, conveyed the proper information, and reached a reasoned conclusion about the defendant's waiver of counsel." Bowie, 203 N.E.3d at 543.
[¶11] We generally look to four factors to determine whether a defendant validly waived his right to counsel:
(1) the extent of the court's inquiry into the defendant's decision, (2) other evidence in the record that establishes whether the defendant understood the dangers and disadvantages of self-representation, (3) the background and experience of the defendant, and (4) the context of the defendant's decision to proceed pro se.Poynter v. State, 749 N.E.2d 1122, 1127-28 (Ind. 2001) (italics in original). "There is no particular formula or script that must be read to the defendant. The information that must be given 'will depend on a range of case-specific factors, including the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.'" Hopper v. State, 957 N.E.2d 613, 618 (Ind. 2011) (quoting Iowa v. Tovar, 124 S.Ct. 1379, 1387 (2004)).
[¶12] Jones asserts the trial court's inquiry before allowing him to represent himself was deficient because "there was too little investigation or inquiry into his experience with the legal system or his education." (Appellant's Br. at 14.) However, we disagree because Jones's answers to the trial court's questions indicated that Jones was educated, believed he could adequately represent himself, and had experience with the criminal justice system. Jones immediately expressed his desire to represent himself. During the trial court's subsequent inquiry, Jones indicated he could read and write and explained he had taken college-level classes for a few semesters. He also expressed confidence in his ability to covey messages to the jury and "quickly become familiar with [a] large number of rules and procedures and use them in a high-pressure situation such as [his] trial[.]" (Tr. Vol. 2 at 9.) Jones had been to trial as a criminal defendant five times previously and stated representing someone at trial "doesn't seem to be that hard." (Id.) Jones also explained he had represented himself in a criminal case once, and the State had dismissed one of the charges against him in that case. Moreover, as the State notes, criminal trespass is "a relatively uncomplicated charge," and Jones "had at least a passing knowledge of the charge, as he had previously been charged and convicted of it." (Appellee's Br. at 14.)
[¶13] In addition, the trial court warned Jones about the "dangers and disadvantages of self-representation." See Drake v. State, 895 N.E.2d 389, 392 (Ind.Ct.App. 2008) ("[W]hen a defendant asserts his or her right to self-representation, the trial court should advise the defendant of the dangers and disadvantages of self-representation.") (internal quotation marks omitted). The trial court explained the various skills attorneys develop to assist their clients including finding favorable witnesses and gathering documents, preparing and filing motions before the court, negotiating potential plea agreements with the State, examining and cross-examining witnesses at trial, recognizing objectionable material and raising appropriate objections, and advocating for the defendant at sentencing. The trial court also made sure Jones understood that he would not receive any special treatment by proceeding without an attorney and that he would not be able to later claim ineffective assistance of trial counsel. The trial court also made sure that no one had threatened Jones or made any promises to him to persuade him to waive his right to counsel. Thus, we hold Jones's waiver of his right to counsel at his initial hearing was knowing, intelligent, and voluntary. See, e.g., Bowie, 203 N.E.3d at 544-45 (holding defendant's waiver of his right to counsel was knowing, intelligent, and voluntary when the trial court warned the defendant about the disadvantages of proceeding without counsel and questioned the defendant regarding his educational background and experience with the criminal justice system).
[¶14] Jones also contends the trial court should not have allowed him to continue as his own counsel because of his "conduct and behavior both before and during trial." (Appellant's Br. at 15.) He explains that his "performance as his own attorney was devastating." (Id.) Jones notes that he delayed the start of his trial because he threw the shirt he received to wear during his trial into the toilet. Jones referenced his own criminal history during voir dire, elicited damaging information from Detective Oxford during his cross-examination of the detective, objected to a hearsay statement he asked a witness to read, repeatedly interrupted the State and the trial court, and cursed throughout his trial. Jones also asserts "during voir dire, Jones expressed his belief that a conviction was a foregone conclusion . . . a fatalism he reexpressed [sic] throughout trial." (Id.)
[¶15] However, Jones never asked the court to replace him as counsel and standby counsel was present throughout his trial to assist him. In Wright, our Indiana Supreme Court explained longstanding United States Supreme Court precedent holds that a court cannot force an attorney on a defendant who represents himself:
Under Faretta v. California, the seminal case on the right to self-representation, a state may not "constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense." [422 U.S. 806, 807, 95 S.Ct. 2525, 2527 (1975).] Respect for individual choice is the "lifeblood of the law," the Court reasoned, and the state must honor that choice, even if the accused "may conduct his own defense ultimately to his own detriment." Id. at 834, 95 S.Ct. 2525 (quotation marks omitted). Of course, few people would disagree "that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts." Wallace v. State, 172 Ind.App. 535, 540, 361 N.E.2d 159, 162 n.3 (1977). But unless the defendant acquiesces to representation, any "advantage of a lawyer's training and experience can be realized, if at all, only imperfectly." Id. After all, to "force a lawyer on a defendant can only lead him to believe that the law contrives against him." Id.168 N.E.3d at 255-56.
[¶16] Jones had the right to represent himself at trial, and he exercised that right. While Jones characterizes his performance as his own counsel as "disastrous," (Appellant's Br. at 8), he displayed some capability while acting as his own counsel. He filed several pretrial motions and asked the State for discovery. He also quoted case law and statutes before the jury, and he raised successful objections challenging two of the State's questions. We agree with the State that Jones's performance "did not show that he was unable to understand the consequences of choosing self-representation[.]" (Appellee's Br. at 17.) While Jones also made comments that could be interpreted as fatalistic, the comments could just as easily be interpreted as expressions of frustration with the legal process and recognition of the significant evidence of his guilt. Despite the deficiencies in Jones's performance as his own counsel, the trial court was not required to force counsel upon Jones or prevent him from acting as his own counsel after he knowingly and voluntarily waived his right to counsel. See, e.g., Sturdivant v. State, 61 N.E.3d 1219, 1225 (Ind.Ct.App. 2016) (holding defendant knowingly and voluntarily waived her right to counsel and affirming the trial court's decision to allow the defendant to proceed pro se despite the defendant making several "undeniably strange" statements), trans. denied.
Conclusion
[¶17] Before allowing Jones to proceed pro se, the trial court asked him questions regarding his education, abilities, and experience with the legal system. The trial court also warned Jones about the disadvantages and pitfalls of self-representation. From this inquiry, we conclude Jones knowingly, intelligently, and voluntarily waived his right to counsel. Despite his unorthodox tactics, Jones performed the functions of counsel throughout his trial, and the trial court did not err by not sua sponte forcing counsel on him. Accordingly, we affirm Jones's conviction.
[¶18] Affirmed.
Brown, J., and Pyle, J., concur.