Daryl Newman v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 07 2018, 8:24 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Lisa M. Johnson Curtis T. Hill, Jr. Brownsburg, Indiana Attorney General of Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Daryl Newman, June 7, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-285 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Stanley Kroh, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G03-1710-F2-39272

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-285 | June 7, 2018 Page 1 of 11

Case Summary [1] Daryl Newman (“Newman”) appeals his conviction for burglary as a Level 2

felony.1 He raises one issue on appeal which we restate as whether the trial

court committed clear error when it allowed him to waive legal counsel and

represent himself. [2] We affirm.

Facts and Procedural History [3] On October 6, 2017, Jeffrey Cummings (“Cummings”) was at his residence in

Indianapolis, loading items into his vehicle that was parked in his detached

garage. The large garage door was closed and Cummings used the service door

to access the garage. Cummings left the service door of the garage open and

went into his house to shower. As he was shaving, Cummings heard a signal

from his home security system, indicating that the back door to his house,

which faced the garage, had been opened. Cummings went downstairs and,

when he stepped out of his back door, he saw a man standing inside the

doorway of his garage. The man, later identified as Newman, had short hair

and wore khaki pants and a black shirt.

1 Ind. Code § 35-43-2-1.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-285 | June 7, 2018 Page 2 of 11 [4] Newman then walked towards Cummings and Cummings noticed a scar on

Newman’s face. Newman said, “I don’t want any problems.” Tr. Vol. II at

150. Newman then walked onto the patio, and, when he was about two feet

away from Cummings, he pulled out a gun and said, “I don’t want any f---ing

problems.” Id. Cummings said, “Just go,” and then ran inside the house and

locked the back door. Id. [5] Cummings ran upstairs and called 9-1-1. He then went back downstairs and

saw that his patio door was opening. Newman, while holding a gun, walked

into Cummings’s house through the patio door and said, “I came back to take

care of a f---ing problem.” Id. at 154-55. Cummings ran out the front door and

to the home of his next-door neighbor, Linda Anderson (“Anderson”).

Anderson was on the phone with 9-1-1, and she handed Cummings the phone.

The police arrived a few minutes later. Cummings described Newman to the

officers as a black male wearing loose fitting khaki pants and a loose fitting

black shirt, and he said that he had confronted Newman inside Cummings’s

house. The police went through all three floors of the house but did not see

Newman. [6] While the police were at Cummings’s house, Robert Olson (“Olson”), who

lived one street away from Cummings, called 9-1-1 about a suspicious person

who he described as a black male with a black shirt. Olson had seen the man,

later identified as Newman, jump over a neighbor’s fence, approach the house,

and try to open the door. Then, while on the phone with the police, Olson

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observed Newman sit down on the curb of the street behind a parked white

Jeep. [7] The two officers drove from Cummings’s house to Olson’s house, and Olson

directed them to where Newman was sitting on the curb. The police

handcuffed Newman and then located a gun on top of the rear, passenger-side

tire of the Jeep next to which Newman had been sitting. The police took

Cummings to Newman’s location, a block behind Cummings’ house, and

Cummings identified Newman as the individual he had seen inside his house

with a gun. Later, Newman’s fingerprints were found on the gun and the

window frame of the vehicle that was in Cummings’s garage. [8] On October 12, 2017, the State charged Newman with burglary as a Level 2

felony; carrying a handgun without a license, as a Class A misdemeanor; 2 and

pointing a firearm, as a Level 6 felony.3 On October 12, 2017, the court

appointed a public defender to represent Newman. Newman requested a

speedy trial, and the court scheduled a trial for December 14, 2017. Public

defender, Phillip Riley (“Attorney Riley”), entered an appearance on October

13, 2017. [9] On December 11, 2017, Attorney Riley withdrew, and Attorney Daniel Grove

(“Attorney Grove”) entered his appearance as conflict counsel. The same day,

2 I.C. § 35-47-2-1. 3 I.C. § 35-47-4-3.

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at a status hearing, Attorney Grove advised the trial court that he had received

Newman’s file that morning and that he did not have sufficient time to prepare

for the December 14 trial. Attorney Grove requested a continuance and the

State joined in that request due to outstanding discovery issues. Newman, who

was present at the hearing, stated that he objected to a continuance and that he

wished to represent himself if Attorney Grove could not be prepared for the

December 14 trial. Newman stated that he waived his right to counsel, that he

invoked his “Faretta”4 rights, and that he was “more than capable” of

representing himself. Tr. Vol. II at 6. [10] The trial court advised Newman that he had the right to be represented by

counsel and that if he could not afford one, one would be appointed for him.

The court also stated that Newman had “a very good and experienced lawyer”

sitting next to him and that he should reconsider his speedy trial request in light

of the fact that his attorney was not ready for trial. Id. The trial court stated

that “[i]f this was a misdemeanor, that might be one thing,” but because this

was a Level 2 felony, Newman’s “exposure [was] significant.” Id. at 6-7. The

trial court advised Newman that, although he had the right to represent himself,

it was in his best interest to have the benefit of a lawyer who had experience

and training and could protect his legal rights.

4 Faretta v. Cal., 422 U.S. 806 (1975) (holding a criminal defendant’s Sixth Amendment right to counsel includes a right to waive assistance of counsel and represent oneself).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-285 | June 7, 2018 Page 5 of 11 [11] The trial court then advised Newman that, if he represented himself, he would

be solely responsible for jury selection, making opening and closing statements,

arguments, objections, and motions, and that he would be responsible for

issuing subpoenas for witnesses. The court further advised Newman that he

would have to comply with the Indiana Rules of Evidence and that he would be

responsible for preserving issues for appeal. The court also stated that Newman

would be at a disadvantage because the State was represented by an attorney

and that it would be awkward for Newman to elicit testimony from himself.

The court appointed standby counsel but explained to Newman that standby

counsel could only participate in the trial actively if the court so ordered and

that standby counsel might not be prepared to take over the case if Newman

changed his mind. [12] The trial court asked Newman if he was aware of the penalty range, and

Newman said that he was. The court also advised Newman that there could be

lesser-included offenses or mitigating circumstances. Finally, the trial judge

advised Newman that he had never seen self-representation work out well.

However, Newman stated that he did not want to be in jail until the next trial

setting, and he expressed frustration with past trial delays in different criminal

proceedings in the same court. He stated that, based on the pattern of trial

delays in his past and current criminal cases, he “believe[d] in [his] heart that

this is some kind of trickery,” involving defense counsel working with the State.

Tr. Vol. II at 15.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-285 | June 7, 2018 Page 6 of 11 [13] After receiving additional encouragement from the court to accept legal

counsel, Newman still maintained that he wanted to go to trial on December

14, and represent himself. Newman stated that he had a GED and some

college education. He also stated that no one had threatened him or done

anything to make him go to trial representing himself. Newman added that he

was not willing to sit in jail on a $100,000 bond for something he had not done.

He informed the judge that all he needed was the ability to use the law library at

the jail. After numerous additional warnings from the trial court about the risks

of self-representation, Newman stated again that he wanted to go to trial on

December 14. The trial court gave Newman a written advisement regarding

self-representation, and Newman stated that he understood it. [14] On December 14, the trial court again discussed the advisements of the

document Newman had previously reviewed, styled “The Court Order

Regarding Defendant’s Request to Proceed Pro Se,” and again advised

Newman that Attorney Grove was there in a standby counsel capacity only and

could not participate actively in the trial. Newman testified that he understood

the advisements of the court. The trial court again went through lengthy

advisements about the pitfalls of self-representation, told Newman the range of

penalties he faced, and advised him that the State had an eyewitness who saw

him inside the house with a firearm. Newman testified that he was not

currently suffering from any mental disability and that he had never been

treated for any such disability. Newman also stated that he had not been in

special education at school. The trial judge stated that he thought Newman

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might be in denial about his case and once again asked Newman if he was sure

he wished to represent himself. Newman again stated that he still wished to

represent himself. [15] Newman’s case then proceeded to the jury trial, with Newman representing

himself. The jury found Newman guilty as charged. On January 9, 2018, the

trial court sentenced Newman to twenty years on the burglary count and

vacated the other convictions. This appeal ensued.

Discussion and Decision [16] Newman contends the trial court violated his rights under the federal and state5

constitutions when it allowed him to waive counsel and represent himself.6 A

defendant’s Sixth Amendment right to counsel is essential to the fairness of a

criminal proceeding. Drake v. State, 895 N.E.2d 389, 392 (Ind. Ct. App. 2008)

5 Article 1, section 12 of the Indiana Constitution, cited by Newman, requires the same due process analysis as a federal due process claim. Gingerich v. State, 979 N.E.2d 694, 710 (Ind. Ct. App. 2012), trans. denied. And Article 1, section 13 of the Indiana Constitution, also cited by Newman, provides “no broader right to self-representation of mentally impaired persons” than that guaranteed by the Sixth Amendment. Edwards, 902 N.E.2d at 828. 6 Newman also alleged a violation of Article 1, section 37, of the Indiana Constitution (“Slavery and involuntary servitude prohibited”), but developed no corresponding argument; therefore, that claim is waived. Ind. Appellate Rule 46(A)(8). In addition, Newman contends that the trial court erred by failing to conduct a competency hearing under Indiana Code Section 35-36-3-1. However, that statute’s specific procedural requirements relate to competency to stand trial, not competency to waive counsel and represent oneself. See Campbell v. State, 732 N.E.2d 197, 202 (Ind. Ct. App. 2000) (citing Brewer v. State, 646 N.E.2d 1382, 1384 (Ind. 1995)) (holding a competency hearing is required under the statute only when the trial court has reasonable grounds to believe that the defendant lacks “the ability to consult rationally with counsel and factually comprehend the proceedings against him”).

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(citing Gideon v. Wainwright, 372 U.S. 335, 344–45 (1963)). Implicit in the right

to counsel is the right to self-representation. Faretta, 422 U.S. at 819. [17] However, the right of self-representation is not absolute. “[A] trial court may

deny a defendant’s request to act pro se when the defendant is mentally

competent to stand trial but suffers from severe mental illness to the point where

he is not competent to conduct trial proceedings by himself.” Edwards v. State,

902 N.E.2d 821, 824 (Ind. 2009) (citing Indiana v. Edwards, 554 U.S. 164

(2008)). The trial court’s determination of competence to act pro se will be

reviewed under the clearly erroneous standard.7 Id. “Clear error is that which

leaves us with a definite and firm conviction that a mistake has been made.”

Austin v. State, 997 N.E.2d 1027, 1040 (Ind. 2013). In reviewing for clear error,

we neither reweigh the evidence nor determine the credibility of witnesses, but

consider only the probative evidence and reasonable inferences supporting the

judgment. Id. [18] Mental competency is not a static condition; accordingly, it is to be determined

at the time of trial. Edwards, 902 N.E.2d at 827. “[I]f a defendant is so impaired

that a coherent presentation of a defense is unlikely, fairness demands that the

court insist upon representation.” Id. at 829. Thus, in Edwards v. State, for

example, the defendant was found to be incompetent to represent himself—

even though he was competent to stand trial—when several psychiatric

7 The parties mistakenly rely on earlier cases which formulated the standard as abuse of discretion. See id. at 824, n.2.

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evaluations concluded that he suffered from severe and pervasive mental illness,

and that he was competent to stand trial only if he had the assistance of legal

counsel. Id. at 826-27. [19] Here, the record reveals no indication that Newman suffered from “severe

mental illness” that made him incompetent to represent himself. Id. at 834.

There is no evidence8 that Newman was ever evaluated for mental illness, much

less found to suffer from mental illness, and Newman himself testified that he

did not have a mental disability and had never been treated for one in the past.

Moreover, Newman’s behavior during court proceedings did not indicate that

he suffered from severe mental illness. Newman repeatedly asserted that he

understood all the court’s advisements9 and that he was capable of, and wished

to, represent himself. And while he may have “lacked a realistic view of his

case,” Appellant’s Br. at 15, and made some odd assertions, that is not

sufficient evidence of a severe mental illness rendering him incompetent to

represent himself. See Sturdivant v. State, 61 N.E.3d 1219, 1225 (Ind. Ct. App.

2016) (“While some of Sturdivant’s statements were undeniably strange, and

she clearly lacked the legal skills of an experienced criminal defense attorney,

8 Newman points out that the trial judge said he believed Newman was “in denial” about the strength of the State’s case against him, and that the court wondered aloud at one point whether Newman was “of sound mental capacity.” Tr. Vol. II at 42-43. However, those statements of the court were not evidence. 9 Newman does not challenge the adequacy of the trial court’s advisements regarding the dangers of self- representation and the benefits of counsel.

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this is not the stuff of ‘severe mental illness’ under Indiana v. Edwards.”), trans.

denied. [20] The trial court was in the best position to observe Newman’s demeanor and

behavior in making its ultimate determination that he was competent to

represent himself, and we will not reweigh the evidence or judge witness

credibility, as Newman urges us to do. Austin, 997 N.E.2d at 1040. The trial

court’s decision to allow Newman to waive counsel and represent himself was

not clearly erroneous. [21] Affirmed.

Crone, J., and Brown, J., concur.

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