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.
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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.
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[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).
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[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.
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[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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