MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Jun 29 2017, 8:35 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr. Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ronald D. Billingsley-Smith, June 29, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1612-CR-2769
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D06-1604-F5-102
Mathias, Judge.
[1] Following a jury trial in Allen Superior Court, Ronald Billingsley-Smith
(“Smith”) was convicted of Level 5 felony carrying a handgun without a license
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and Class A misdemeanor possession of marijuana. Smith appeals and presents
two issues, which we restate as: (1) whether the trial court erred by denying
Smith’s morning-of-trial request to represent himself, and (2) whether the trial
court committed fundamental error when it admitted evidence seized during an
inventory search of the vehicle Smith was driving. Concluding that Smith’s
request to represent himself was per se untimely, and that the trial court did not
commit fundamental error, we affirm.
Facts and Procedural History
[2] On the night of April 2, 2016, Sergeant Gary Hensler (“Sgt. Hensler”) of the
Fort Wayne Police Department was among the police officers watching
Foster’s bar, an establishment with a history of criminal activity. The police
observed a man, later determined to be Smith, standing next to an automobile
in the bar’s parking lot. Before the man went inside the bar, Sgt. Hensler
observed him lean into his car and appear to place something in the back seat.
Since Foster’s had a policy of prohibiting firearms, Hensler suspected that the
man had placed a gun in his car. Sgt. Hensler ran the license plate of the car
through his computer system, which revealed that the car was owned by Smith,
who matched the description of the man seen next to the car, and whose
driver’s license was suspended. Smith stayed inside the bar for approximately
half an hour, then left in the car.
[3] Knowing that the registered owner of the car, whose description matched
Smith, had a suspended license, the police decided to pull the car over. Fort
Wayne Police Detective Matthew Foote (“Detective Foote”) activated the
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emergency lights on his patrol car. Instead of stopping, however, Smith
continued to drive. Detective Foote then activated his siren, but Smith still
continued to drive, observing the speed limit and using his turn signals when
appropriate. Smith later explained that he did not immediately stop because he
wanted to get to an area with better lighting, where others could witness the
stop.
[4] After driving for approximately one minute, Smith pulled into a gas station.
The police ordered Smith out of the car at gunpoint in a procedure they termed
a “high risk traffic stop,” because Smith had not immediately stopped his
vehicle. Tr. p. 40. Smith complied with the officer’s orders and was taken into
custody without incident. Because Smith’s license was suspended, the police
decided to impound the vehicle. Before doing so, they performed an inventory
search of the car and found a bag of marijuana in the center console. The police
also found a 9 mm handgun located in the pocket on the back side of the front
passenger’s seat. Smith denied knowing that the gun and marijuana were in the
car and denied that they belonged to him. Unconvinced, the police arrested
Smith.
[5] On April 6, 2016, the State charged Smith with Level 5 felony carrying a
handgun without a license, Level 6 felony resisting law enforcement by fleeing
in a vehicle, and Class A misdemeanor possession of marijuana. A jury trial
was held on October 12 and 13, 2016. The jury found Smith guilty of carrying a
handgun without a license and possession of marijuana but was unable to reach
a unanimous verdict on the charge of resisting law enforcement. The trial court
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held a sentencing hearing on November 15, 2016, at the conclusion of which it
imposed a sentence of four years on the conviction for carrying a handgun
without a license and a concurrent one-year sentence on the conviction for
possession of marijuana. Smith now appeals.
I. Smith’s Request to Represent Himself
[6] Smith first argues that the trial court erred when it denied his request to
represent himself. On the morning of the first day of trial, Smith’s attorney
informed the trial court that Smith wished to represent himself. In response, the
trial court questioned Smith to determine whether he was knowingly waiving
his right to counsel. After being advised of all of the rights he would be
foregoing by representing himself, Smith still indicated that he wished to
proceed pro se. The trial court then questioned Smith regarding his capabilities
to act as his own counsel. Smith conceded that he had no formal legal training
but claimed that he had been informally studying the law since he had been
released from incarceration on a prior conviction. Smith indicated that he could
read and write the English language and had one year of college education.
Howver, Smith had no trial experience, no experience selecting a jury, and had
no familiarity with the Indiana Rules of Evidence
[7] When the trial court indicated that it was prepared to deny Smith’s request to
represent himself, Smith interjected, “I don’t think that’s a fair trial.” Tr. p. 14.
The trial court responded as follows:
Well, here’s the problem, Mr. Billingsley-Smith: If you would
have told me this six or eight weeks ago, we would have had—
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you would have had more time to get ready for trial. You’re
telling me day of trial that you want to represent yourself. I’ve
already found that you’re not capable of representing yourself
day of trial, I’m not gonna continue this trial for that reason. You
don’t know how to do what—the basics of trial [are], so you have
a very able attorney that you have hired to represent you. He is
perfectly capable of representing you and will give you a fair
defense. It is not the practice of this Court nor any court to do
hybrid representation, so you have an attorney—again, if you
would have told me this several weeks ago or several months ago
that you wanted to represent yourself, you would have had
plenty of time at that point to get familiar with the things that
you need to get familiar with to represent yourself, but you didn’t
do that and here we are day of trial, so your attorney is going to
be representing you, sir. Are we all on the same page with that?
Tr. p. 14. Smith repeated his objection, claiming that forcing counsel on him
was a violation of his Sixth Amendment rights, but the trial court still rejected
his request to proceed pro se, again noting Smith’s lack of experience and
qualifications.
[8] On appeal, Smith argues that the trial court’s ruling denying his request to
represent himself denied him his Sixth Amendment rights. A criminal
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. 2009)
(citing Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963)). Implicit in this right
to counsel is the right of a defendant to self-representation. Id. (citing Faretta v.
California, 422 U.S. 806, 819 (1975)). The accused must knowingly and
intelligently forgo the many benefits he gives up by waiving the right to counsel.
Id. Thus, when a defendant asserts his right to self-representation, the trial court
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should advise the defendant of the dangers and disadvantages of self-
representation. Id.
[9] The right to self-representation also must be asserted within a reasonable time
prior to the first day of trial. Id. (citing Campbell v. State, 732 N.E.2d 197, 204
(Ind. Ct. App. 2000); Olson v. State, 563 N.E.2d 565, 570 (Ind. 1990)). Our
supreme court has long held that a request to proceed pro se on the morning of
trial is per se untimely, and denial of a request to proceed pro se on the ground
of untimeliness is permissible. Id. (citing Moore v. State, 557 N.E.2d 665, 669
(Ind. 1990)).
[10] Our supreme court first held that morning-of-trial requests to represent oneself
are per se untimely in Russell v. State, 270 Ind. 55, 62, 383 N.E.2d 309, 314
(1978). Since then, the court has never wavered from its holding. See Stroud v.
State, 809 N.E.2d 274, 279 (Ind. 2004) (citing Russell in concluding that
defendant’s requests to represent himself were untimely); Moore, 557 N.E.2d at
669 (rejecting defendants morning-of-trial request to represent himself and have
counsel act as his legal advisor); Broadus v. State, 487 N.E.2d 1298, 1304 (Ind.
1986) (affirming trial court’s decision to deny request of defendant during trial
to represent himself); Smith v. State, 474 N.E.2d 973, 979 (Ind. 1985) (citing
Russell in rejecting defendant’s claim that trial court erred by denying his request
to proceed pro se); Dixon v. State, 470 N.E.2d 728, 730 (Ind. 1984) (noting in
post-conviction appeal that defendant’s request for self-representation had been
made on the morning of trial and was therefore untimely); Hunt v. State, 459
N.E.2d 730, 733-34 (Ind. 1984) (affirming trial court’s summary denial of
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defendant’s request, on morning of trial, to represent himself); Dixon v. State,
437 N.E.2d 1318, 1321 (Ind. 1982) (affirming trial court’s denial of defendant’s
request to represent himself made on the morning of trial during jury voir dire);
[11] Smith acknowledges the holding of Russell and the cases that follow it.
However, he argues that Russell was decided incorrectly, referring to the dissent
in that case and to other state and federal court decisions that have declined to
follow the rule espoused in Russell. After discussing those cases, Smith
concludes:
Simply put, no good reason exists for the continued adherence to
Russell. It represents a statement of law that is out of step with
literally every other American jurisdiction. It is premised upon
concerns which this case shows are either overstated, or non-
existent. As Justice DeBruler stated [in his dissent in Russell], it
“sanction[s] constitutional error.” This Court should so find,
should adopt an approach to day-of-trial requests for self-
representation that is recognized by at least one other American
jurisdiction, and should remand this case for a new trial where
Smith’s Sixth Amendment rights can be preserved.
Appellant’s Br. at 17.
[12] Even if we were inclined to agree with Smith’s position, there exists a very good
reason for our continued adherence to Russell: it remains the controlling
precedent of our supreme court. We have explained before that
we are bound by the decisions of our supreme court. Supreme
court precedent is binding upon us until it is changed either by
that court or by legislative enactment. While Indiana Appellate
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Rule 65(A) authorizes this Court to criticize existing law, it is not
this court’s role to “reconsider” supreme court decisions.
Dragon v. State, 774 N.E.2d 103, 107 (Ind. Ct. App. 2002) (citations omitted),
trans. denied.
[13] Unless and until our supreme court (or the Supreme Court of the United States)
overrules the rule espoused in Russell, this court, as an intermediate appellate
court, must continue to apply it. Under this rule, Smith’s request to represent
himself, which was made on the morning his trial was set to begin, was per se
untimely, and it was wholly within the discretion of the trial court to deny this
untimely request. See Stroud, 809 N.E.2d at 279; Moore, 557 N.E.2d at 669;
Broadus, 487 N.E.2d at 1304; Hunt, 459 N.E.2d at 734; Dixon, 437 N.E.2d at
1321; Russell, 270 Ind. at 62, 383 N.E.2d at 314.
II. Admission of Evidence
[14] Smith also argues that the trial court committed fundamental error in the
admission of the evidence found in the inventory search of his car. Generally
speaking, decisions regarding the admission of evidence are entrusted to the
sound discretion of the trial court. Bell v. State, 29 N.E.3d 137, 141 (Ind. Ct.
App. 2015), trans. denied. We review the trial court’s decision only for an abuse
of this discretion. Id. The trial court abuses its discretion only if its decision is
clearly against the logic and effect of the facts and circumstances before it, or if
the court misinterprets the law. Id.
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[15] Smith admits that he made no contemporaneous objection to the admission of
the evidence he now claims was improperly admitted. A contemporaneous
objection is required to preserve evidentiary error on appeal, and the failure to
object waives the issue for purposes of appellate review. Hastings v. State, 58
N.E.3d 919, 922 (Ind. Ct. App. 2016). To avoid this waiver, Smith argues that
the admission of the evidence seized from his car was fundamental error.
[16] A claim that has been waived by a defendant’s failure to raise a
contemporaneous objection can be reviewed on appeal if the reviewing court
determines that a fundamental error occurred. Brown v. State, 929 N.E.2d 204,
207 (Ind. 2010). The fundamental error exception is “extremely narrow, and
applies only when the error constitutes a blatant violation of basic principles,
the harm or potential for harm is substantial, and the resulting error denies the
defendant fundamental due process.” Id. (quoting Mathews v. State, 849 N.E.2d
578, 587 (Ind. 2006)). “The error claimed must either ‘make a fair trial
impossible’ or constitute ‘clearly blatant violations of basic and elementary
principles of due process.’” Id. (quoting Clark v. State, 915 N.E.2d 126, 131 (Ind.
2009)). Thus, the fundamental error exception is available only in “egregious
circumstances.” Id. (quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)).
[17] The Brown court explained that the fundamental error exception, as applied to a
claim of the admission of evidence that is alleged to have been the subject of an
unconstitutional search and seizure, is very limited:
[A]n error in ruling on a motion to exclude improperly seized
evidence is not per se fundamental error. Indeed, because
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improperly seized evidence is frequently highly relevant, its
admission ordinarily does not cause us to question guilt. That is
the case here. The only basis for questioning Brown's conviction
lies not in doubt as to whether Brown committed these crimes,
but rather in a challenge to the integrity of the judicial process.
We do not consider that admission of unlawfully seized evidence ipso
facto requires reversal. Here, there is no claim of fabrication of evidence or
willful malfeasance on the part of the investigating officers and no
contention that the evidence is not what it appears to be. In short, the
claimed error does not rise to the level of fundamental error.
Brown, 929 N.E.2d at 207 (emphasis added); see also Mamon v. State, 6 N.E.3d
488, 490 (Ind. Ct. App. 2014) (noting that, absent a claim of fabricated evidence
or willful malfeasance on the part of the police and no showing that the
evidence is not what it appears to be, the claimed error in admission is not
fundamental).
[18] Nor is this rule new to Indiana law. Almost forty years ago, our supreme court
held that, even if evidence was obtained in violation of constitutional
protections against unlawful searches and seizures, its introduction at trial
“does not elevate the issue to the status of fundamental error that may be raised
for the first time on appeal.” Swinehart v. State, 268 Ind. 460, 466-467, 376
N.E.2d 486, 491 (1978). Under this rule, Smith has not established fundamental
error.
[19] There is no suggestion of the fabrication of evidence or willful malfeasance on
the part of the police who searched Smith’s car. Smith claims that his own
testimony that he was unaware of the existence of the marijuana and handgun
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“may very well be sufficient to show that the evidence is not what it appears to
be.” Appellant’s Br. at 24. We disagree. Smith’s own testimony claimed only
that he did not know that the gun and marijuana were in his car; his testimony
in no way suggests that the gun and the marijuana were not what they appeared
to be, i.e. an illicit substance and a handgun for which he did not have a permit.
[20] Accordingly, the admission of the evidence seized from the car was not
fundamental error. See Mamon, 6 N.E.3d at 490 (rejecting claim of fundamental
error where defendant argued only that police officer misunderstood the traffic
law that was the basis of the stop of defendant’s vehicle and defendant did not
dispute the truth of the officer’s testimony and related exhibits); Rhodes v. State,
996 N.E.2d 450, 454-55 (Ind. Ct. App. 2013) (holding that no fundamental
error occurred where defendant did not make any claims of fabricated evidence
or willful malfeasance and instead merely asserted that the evidence was
improperly admitted as the result of an unconstitutional search); Brown, 929
N.E.2d at 208 (holding no fundamental error occurred where defendant did not
make any claim of fabricated evidence or willful malfeasance on the part of the
police and instead argued only that the evidence at issue was the product of an
unconstitutional search and seizure); Covelli v. State, 579 N.E.2d 466, 471 (Ind.
Ct. App. 1991) (holding that the admission of evidence obtained in violation of
the defendant’s constitutional rights to be protected against unlawful searches
and seizures did not elevate that issue to the status of fundamental error).
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Conclusion
[21] Based on the controlling precedent of our supreme court in Russell, Smith’s
eleventh-hour request to represent himself was per se untimely, and the trial
court acted within its discretion to deny Smith’s belated request. Smith’s claim
of error regarding the admission of evidence fares no better, in light of the
extremely narrow fundamental error exception, under which the admission of
evidence seized as a result of an allegedly unconstitutional search is not
fundamental error absent evidence of fabrication of evidence, willful
malfeasance, or a showing that the evidence at issue is not what it appears to
be. As this is not the case here, Smith’s claim of fundamental error also fails.
[22] Affirmed.
Kirsch, J., and Altice, J., concur.
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