Opinion
24A-CR-852
12-17-2024
Billy Gene Luke, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Courtney Staton 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Dearborn Superior Court The Honorable Sally A. McLaughlin, Judge Trial Court Cause No. 15D02-2310-F6-357
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Brown, Judge.
[¶1] Billy Gene Luke appeals his conviction, following a jury trial, for intimidation as a level 6 felony. The jury also found him to be an habitual offender. He contends that the trial court violated his due process rights and denied him his right to self-representation. He also asserts the State presented insufficient evidence to support his intimidation conviction. We affirm.
Facts and Procedural History
[¶2] The evidence most favorable to the jury's verdict indicates that on September 22, 2023, Jeffrey Little was working in the law library at the Pendleton Correctional Facility ("PCF"). On that date, Luke, an inmate at PCF, submitted a remittance slip to Little to send a legal mail letter to attorney Alan Miller ("Attorney Miller"). Attorney Miller had previously represented Luke in a criminal matter in August of 2012.
[¶3] The remittance slip contained Luke's signature, his DOC inmate number, and Attorney Miller's address. The slips are used to verify that the inmate will cover the cost of the postage from the "money off their books." Transcript Volume II at 175. Little scanned the mail to ensure it did not contain contraband, weighed the envelope, and provided the postage. The envelope cost $11.17 to send as certified mail and that amount was deducted from Luke's "books" to cover the postage cost. Id. at 181.
[¶4] On September 28, 2023, Kristina Daughtery was working as a legal assistant at Miller Flannery Law in Lawrenceburg. A certified envelope addressed to
Attorney Miller arrived that afternoon. The return address on the envelope provided the name "Billy Luke" and included Luke's DOC identification number and his address at PCF. Exhibits Volume I at 94. Daughtery signed for the letter, opened the envelope, and scanned its contents. The lengthy handwritten letter provided in relevant part:
Mr. Miller you committed a crime against me, so I am allowed to commit a crime against you. Mr. Miller you need to understand something above all, if you defy my command and do not file this belated appeal within the next 30 days as sure as the sun rises and as sure as the sun sets I will have the mother of your children's skull smashed. You have helped your inbred hillbilly, pedophile/rapist, wife-beating, homosexual, drug dealing, thieving blasphemous friends in that phony courthouse in Dearborn County rob me of my freedom for over ten years now. Knowing what I know now its quite obvious what you did. Yeah you layed down at trial in 2012 and you even told a jury I was guilty instead of defending me .... Mr. Miller its mandatory that you are physically punished by me, you just have to decide whether you want your loved ones physically punished as well for your sins. I do not hurt children, but its my understanding that you have juvenile offspring that will be reaching adulthood in roughly six years .... Mr. Miller and I swear you are getting a lot of broken bones for your hand in these crimes committed, crimes you committed against me .... Mr. Miller you are going to now come clean and fix this or your offspring's body will be broken. Every bone in your child's mother's body will be broken as well .... Mr. Miller you are going to take full responsibility for your wrongdoing or your offspring and their mother takes the full disciplinary ramifications, take your pick you coward. Mr. Miller make no mistake about it I am and have been keeping you safe all these years because I need your testimony, yes I will eventually be getting you in a deposition. Keep in mind I don't need the mother of your offspring safe and sound .... Mr.
Miller do not think I cannot reach you from prison. Its just one phone call on a cell phone that technically does not exist to send one of my guys to your house. Taking some dumbass self defense class, pepper spray, and/or concealed carry permit will not keep you or any of your loved ones safe.Id. at 96-101. The letter ended with "so saith justice" and was signed by "Billy Luke 15-41 Dillsborough's Finest." Id. at 101. Included with the six-page letter were an additional forty pages of documents pertaining to Luke's 2012 conviction for public indecency, a case in which Attorney Miller represented him, and his claims that he is entitled to a belated appeal.
[¶5] When Daughtery realized the letter contained threats against Attorney Miller and his family, she notified Attorney Miller. He came to the office, read the letter, called his wife, and called the police. Soon thereafter, he had security cameras installed at his house because he did not feel that he or his family was safe due to Luke's threats.
[¶6] On October 10, 2023, the State charged Luke with three counts of intimidation as level 6 felonies. The State subsequently alleged that Luke was an habitual offender. On December 6, 2023, Luke filed a notice of intent to proceed self-represented, a demand for a speedy trial, and a "Notice of Defense of Outrageous Government Conduct and Selective Prosecution." Appellant's Appendix Volume II at 53. On January 2, 2024, Luke filed, among other motions, a motion requesting public funds to conduct depositions of twenty-five potential witnesses. The court held a hearing on January 9, 2024, following which it granted Luke's request to represent himself and appointed stand-by counsel, also at Luke's request, to assist him with legal research.
[¶7] On January 24, 2024, Luke filed a request for court assistance to issue thirty subpoenas for discovery depositions. The individuals requested to be served with subpoenas included United States President Joseph R. Biden, United States Attorney General Merrick Garland, Federal Bureau of Investigation Director Christopher Wray, Indiana Governor Eric Holcomb, Indiana Attorney General Theodore Rokita, Indiana State Police ("ISP") Superintendent Doug Carter, various other federal and state officials, and certain ISP and DOC employees. The State filed a motion to quash the issuance of twenty-nine of the requested subpoenas. As argued by the State, none of the individuals had any information regarding the letter Luke sent to Attorney Miller or any evidence relevant to his claim that he did not author the letter. The State also filed a pretrial motion in limine seeking to prevent Luke from raising the defense of selective prosecution or outrageous government conduct. The State argued that the claim of selective prosecution is akin to an "application to the court for dismissal" which Luke had not filed with the court, and that a claim of outrageous government conduct was not recognized under Indiana law. Appellant's Appendix Volume III at 82. On February 5, 2024, the State amended the charging information to proceed with a single count of intimidation as a level 6 felony.
[¶8] On February 5, 2024, Luke requested the court to issue twenty trial subpoenas and he supplemented his request on February 6 to include an additional thirteen subpoenas. The trial subpoena list again included the United States President, Attorney General, and FBI Director, as well as the Indiana Governor, Attorney General, and ISP and DOC employees. The State filed motions to quash those subpoenas on February 7 and 8, 2024, pursuant to Ind. Trial Rule 26(C) and Ind. Evidence Rule 401.
[¶9] On February 7 and 9, 2024, the court held hearings to consider Luke's discovery and trial subpoenas and the State's motions to quash. Thereafter, the court issued a pretrial order noting that Luke "withdrew [his] request for discovery depositions and withdrew [his] plan to request dismissal based on selective prosecution and outrageous government conduct." Id. at 184. The court granted the State's motions to quash twenty of the requested trial subpoenas explaining that the majority of Luke's anticipated witnesses pertained to "an alleged government conspiracy" and that Luke "failed to demonstrate any of the subpoenas requested for trial will provide relevant and/or admissible testimony." Id. at 185, 188. The court noted that the subpoenas were "overburdensome," and that Luke's primary purpose in seeking them was to "undermine the legal system and harass[] those called to testify." Id. at 188. The court noted that Luke's behavior in seeking such inadmissible testimony caused the court concern that he would be unable to "follow Court procedures" during trial. Id. The court indicated it would reconsider the requested trial subpoenas for DOC employees if Luke could "provide a written statement of expected testimony that is relevant and admissible to the instant criminal offense." Id. at 189. On February 12, 2024, Luke filed "Defendant's Response in Opposition to Trial Court's 2-9-24 Order on Multiple Issues." Id. at 191.
The record indicates that Luke subsequently coordinated with the State to secure the attendance at trial of multiple DOC employees to testify on his behalf.
[¶10] A jury trial began on February 13, 2024. Luke represented himself during the trial. The State presented the testimony of four witnesses including Little, Daughtery, Attorney Miller, and Dearborn County Sheriff's Department Detective Gena Allen. Luke presented the testimony of four DOC employees, a Sheriff's Department employee, and himself, to support his theory that his mail was tampered with at PCF and that someone else authored the letter sent to Attorney Miller. At the conclusion of the evidence, the jury found Luke guilty of intimidation as a level 6 felony. The parties recessed for the weekend before proceeding with the habitual offender phase of the trial which was set to commence the following Monday.
[¶11] The habitual offender phase began on February 16, 2024. At the outset the court found that Luke had forfeited his right to self-representation and asked stand-by counsel to proceed on his behalf. The court explained both in open court and by written order that, as demonstrated by his voluminous pretrial filings and his behavior during trial, Luke had abused his pro se status by failing to follow court procedure and judicial orders, referring to facts not in evidence, and repeatedly advising the jury to disregard court instructions. The court determined that Luke had demonstrated an unwillingness "to abide by rules of procedure" and that he continued "to abuse the dignity of the courtroom and the judicial process." Transcript Volume 4 at 94. Stand-by counsel represented Luke during the habitual offender phase, at the conclusion of which the jury found Luke to be an habitual offender. The court imposed a 910-day sentence enhanced by four years based on Luke's habitual offender status, for an aggregate sentence of six and one-half years.
Discussion and Decision
I.
[¶12] Luke contends the trial court deprived him of "his due process right to discovery and presentation of a defense." Appellant's Brief at 16 (capitalization and emphasis omitted). Specifically, he challenges the trial court's "refusal to allow his discovery depositions for the purpose of challenging outrageous government conduct and selective prosecution that occurred in this case." Id.
[¶13] We begin by noting that, with discovery matters, our review is typically limited to determining whether the trial court abused its discretion. Church v. State, 189 N.E.3d 580, 586 (Ind. 2022). It is well established that Indiana's statutory right to take depositions in criminal cases has never been absolute. Id. Under our Trial Rules, and explicitly referenced in Ind. Code § 35-37-4-3, courts can limit a criminal defendant's discovery privileges-including depositions-if they find "the defendant ha[s] no legitimate defense interest . . . or that the State ha[s] a paramount interest to protect." Id. (quoting Murphy v. State, 265 Ind. 116, 119, 352 N.E.2d 479, 481-482 (1976)). Indeed, Ind. Trial Rule 26(C) explicitly allows a trial court to prohibit a deposition "when justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense."
[¶14] Aside from discovery privileges, our federal and state constitutions guarantee criminal defendants a meaningful opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146 (1986); Sanchez v. State, 749 N.E.2d 509, 515 (Ind. 2001). The United States Supreme Court has observed:
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923 (1967).
[¶15] "Nevertheless, the right to present a defense is not absolute." Schermerhorn v. State, 61 N.E.3d 375, 379 (Ind.Ct.App. 2016), trans. denied. "The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Id. (quoting Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 653, (1988)). Both a defendant and the prosecutor "must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Id. (quoting Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049 (1973)). "One of the rules of evidence is the requirement of relevance." Sanchez, 749 N.E.2d at 521 (citing Ind. Evidence Rule 401). A defendant has no constitutional right to present irrelevant evidence. Id.
[¶16] Regarding Luke's claim that the trial court deprived him of his discovery rights, the record reveals that at a hearing on February 7, 2024, Luke withdrew his assertions of selective prosecution and outrageous government conduct, stating that due to his "speedy trial date" he understood he would not have time to conduct the requested discovery depositions or prepare a proper motion for dismissal stating, "I've decided just to elect to go around all this stuff . . . I'm not going to be talking about the selective prosecution and outrageous government [conduct] - - in a direct sense." Transcript Volume II at 63. Accordingly, Luke abandoned his request for the discovery depositions prior to the court's ruling on the State's motions to quash both the discovery and trial subpoenas. Luke has not demonstrated that the trial court deprived him of his right to discovery.
[¶17] Even assuming the trial court limited Luke's ability to conduct the requested discovery depositions, the court acted within its discretion in doing so. The record indicates that the subpoenas Luke requested would not have secured relevant testimony or lead to the discovery of admissible evidence. The witnesses, the majority of whom Luke believed could testify regarding an alleged mass government conspiracy against him, would not have provided relevant or admissible evidence regarding his alleged intimidation of Attorney Miller or his claim of mail tampering at PCF. The trial court did not abuse its discretion in granting the State's motion to quash the discovery subpoenas.
[¶18] To the extent Luke claims the trial court's grant of the State's motion to quash twenty of the requested trial subpoenas deprived him of his right to present a complete defense, Luke has not demonstrated reversible error. When considering a defendant's claim that he was deprived of the constitutional right to present a defense, we consider: 1) whether the trial court arbitrarily denied the Sixth Amendment rights of the person calling the witness, and 2) whether the witness was competent to testify and his testimony would have been relevant and material to the defense. Washington, 388 U.S. at 19, 87 S.Ct. at 1923. Here, the trial court did not arbitrarily deny Luke's requests as the record reveals the court heard extensive argument on the matter before issuing a thorough and thoughtful decision regarding the proposed witnesses. Second, the court found that the majority of Luke's requested witnesses would not provide testimony relevant or material to the defense, and it explicitly permitted Luke to secure the attendance of certain DOC employees and an ISP investigator who could indeed offer relevant and material evidence. Based upon the record, Luke has not demonstrated a constitutional violation or that reversal is warranted.
II.
[¶19] Luke next contends the trial court deprived him of his right to self-representation. Specifically, he challenges the trial court's February 16, 2024 order in which the court found that Luke had forfeited his right to self-representation.
[¶20] Whether the trial court violated a defendant's "right to self-representation is a question of law that we review de novo." Hill v. State, 773 N.E.2d 336, 342 (Ind.Ct.App. 2002), trans. denied. In a prior unrelated appeal in which Luke made a similar claim that he was denied his right to self-representation, this Court explained:
A defendant in a criminal case has a constitutional right under the Sixth Amendment to proceed without the assistance of counsel. Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (holding that "[t]he Sixth Amendment . . . implies a right of self-representation"). This right may be overridden if a defendant is not "able and willing to abide by rules of procedure and courtroom protocol." McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). The trial court is in the best position to assess whether a defendant has the ability and willingness to proceed pro se. See Edwards v. State, 902 N.E.2d 821, 824 (Ind. 2009); Poynter v. State, 749 N.E.2d 1122, 1128 (Ind. 2001).
* * * * *
[T]he United States Supreme Court has noted that "the right of self-representation is not a license to abuse the dignity of the courtroom." Faretta, 422 U.S. at 835 n.46, 95 S.Ct. 2525. The Indiana Supreme Court has likewise found that part and parcel of a defendant's right to represent himself is "the state's interest in preserving the orderly processes of criminal justice and courtroom decorum." Russell v. State, 270 Ind. 55, 383 N.E.2d 309, 312 (1978) (citing Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); German v. State, 268 Ind. 67, 373 N.E.2d 880 (1978)). In other words, a trial court may terminate
self-representation by a defendant who deliberately engages in serious or obstructionist misconduct, German, 373 N.E.2d 880, or where the record shows that the defendant was abusing his pro se status as a means to engage in dilatory tactics or to distort the conduct of the trial. State v. Whalen, 192 Ariz. 103, 961 P.2d 1051, 1058 (Ariz.Ct.App. 1997) ....
In denying a defendant his right to self-representation, care should be taken to "ensure that the record reflect respect for all of defendant's rights" and, "to the extent possible, prevent the manipulative defendant from fashioning a record which seems to reflect an unconstitutional denial" of the right to counsel/self-representation. See Russell, 383 N.E.2d at 312.
We do not find this to require that a trial court conduct a special inquiry, but nevertheless note that making a record to support the decision to terminate a defendant's self-representation would be beneficial for appellate review. We will review and consider the entire record to make sure the defendant's right to selfrepresentation has not been violated.Luke v. State, 214 N.E.3d 1013, 1015-1017 (Ind.Ct.App. 2023) (quoting Love v. State, 113 N.E.3d 730, 738-39 (Ind.Ct.App. 2018), trans. denied.), trans. denied.
[¶21] Our review of the record reveals that Luke's right to self-representation has not been violated. Rather, the record supports the trial court's determination that Luke was abusing his pro se status and was unable or unwilling to abide by rules of procedure and courtroom protocol. In its order, the court explained that since January 10, 2024, Luke, acting pro se, filed alleged "discovery" with the court that included multiple letters written to Governor Holcomb accusing him of "criminal conduct," as well as letters written to the FBI and ISP accusing both organizations of "loving child molesters," and alleging that a Dearborn County Judge was a "pedophile." Appellant's Appendix Volume IV at 6. The court further explained that, during the guilt phase of trial, Luke made numerous inflammatory and irrelevant comments, repeatedly misstated and referred to facts not in evidence, accused witnesses of committing misconduct, and advised and encouraged jurors to disregard the court's instructions. We cannot say the trial court erred in determining that Luke had forfeited his right to self-representation.
[¶22] Luke suggests, without further explanation, that it is problematic that the trial court waited "until the conclusion of the guilt phase in the underlying charge before revoking [his] constitutional right," and he further argues that the conduct complained of in the court's order "was not commiserate [sic] with the conduct" cited by this Court in his prior case in which we similarly concluded the trial court did not err when it found that he had forfeited his right to selfrepresentation. Appellant's Brief at 22 (citing Luke, 214 N.E.3d 1013).Regardless of Luke's conduct in his prior case, the trial court's judgment here is 2 grounded in and supported by the record of Luke's behavior in this case. He has not demonstrated grounds for reversal.
In the prior case, this Court noted:
Luke, acting pro se, filed seven motions in August 2022 followed by more than 400 pages of miscellaneous documents in September. Luke also submitted a witness list with 135 named individuals, including President Biden and other federal and state officials. In his filings, Luke repeatedly made threats, disparaged the trial judge and others, and alleged a federal, state, and local conspiracy against him. The relevance of the 400-plus pages of miscellaneous documents in particular is not clear. What is clear, however, is that Luke's submissions reflect dilatory tactics and an intent to distort the State's Level 4 felony stalking and Level 6 felony invasion of privacy charges against him. Accordingly, the trial court did not err when it concluded that Luke had forfeited his right to self-representation and appointed counsel for him.Luke, 214 N.E.3d at 1016-1017.
III.
[¶23] Luke contends that the State presented insufficient evidence to support his intimidation conviction. When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh'g denied. We look to the evidence and the reasonable inferences therefrom that support the verdict. Id. The conviction will be affirmed if there exists evidence of probative value from which a reasonable jury could find the defendant guilty beyond a reasonable doubt. Id.
[¶24] A person commits intimidation as a level 6 felony when he communicates a threat with the intent that another person be placed in fear that the threat will be carried out and the threat is to commit a forcible felony. Ind. Code § 35-45-2-1(a)(4); (b)(1)(A). A forcible felony is statutorily defined as a felony "that involves the use or threat of force against a human being, or in which there is imminent danger of bodily injury to a human being." Ind. Code § 35-31.5-2138. A threat is defined as "an expression, by words or action, of an intention to," among other things: "(1) unlawfully injure the person threatened or another person, or damage property; (2) unlawfully subject a person to physical confinement or restraint; or (3) commit a crime." Ind. Code § 35-45-2-1(c)(1)-(3). Luke's sole challenge on appeal is to the sufficiency of the State's evidence that he was the person who wrote the letter that communicated a threat to commit a forcible felony against Attorney Miller.
[¶25] The State presented evidence that Attorney Miller received a letter with Luke's return address on the envelope providing both his DOC identification number and his address at PCF. The postage stamp on the envelope indicated that the letter was sent on September 25, 2023, and that it was sent certified mail from PCF to Attorney Miller's law office for a cost of $11.17. Little, who works at the law library at PCF, testified that on September 22, 2023, Luke provided him with a "request for remittance" slip that contained his signature, his DOC inmate number, and Attorney Miller's address. Exhibits Volume I at 85. Little testified that he weighed the sealed envelope and that $11.17 was taken from Luke's prison account to cover the postage cost. The content of the letter provides that it is from "Billy Luke," and discussed a specific legal matter including the underlying facts of a case in which Attorney Miller represented Luke. Id. at 96. The letter is signed "so saith justice, Billy Luke 15-41 Dillsborough's Finest." Id. at 101. The State presented a series of letters admittedly written by Luke to the court for comparison which also included the same verbiage. Finally, Attorney Miller testified that he believed Luke authored the threatening letter, and Detective Allen testified that, after reading over 100 letters written by Luke, she believed the threatening letter received by Attorney Miller was consistent with Luke's "unique writing style." Transcript Volume III at 83. A reasonable jury could conclude from this evidence that Luke was the person who wrote and sent the threatening letter to Attorney Miller.
Despite the ample probative evidence from which the jury could conclude that Luke wrote and sent the threatening letter to Attorney Miller, Luke complains that the State did not present the testimony of a handwriting analyst/expert to establish his identity as the author of the letter. However, he cites no authority that such testimony is required to sustain his conviction. Rather, he relies on Ind. Evidence Rule 901 and appears to suggest that the State failed to properly authenticate the letter. On appeal, Luke challenges the sufficiency of the evidence to sustain his conviction and he does not challenge the trial court's evidentiary ruling regarding admission of the letter. Accordingly, we decline to address this issue further.
[¶26] For the foregoing reasons, we affirm Luke's conviction.
[¶27] Affirmed.
Mathias, J., and Kenworthy, J., concur.