MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Nov 07 2018, 9:43 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan Shipley Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Roderick Whitney, November 7, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-223
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Christina R.
Appellee-Plaintiff. Klineman, Judge
The Honorable Marshelle
Broadwell, Magistrate
Trial Court Cause No. 49G17-
1709-F6-37530
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-223 | November 7, 2018 Page 1 of 10
STATEMENT OF THE CASE
[1] Appellant-Defendant, Roderick Whitney (Whitney), appeals his conviction for
resisting law enforcement, a Class A misdemeanor, Ind. Code § 35-44.1-3-
1(a)(1).
[2] We affirm.
ISSUE
[3] Whitney presents us with two issues on appeal, which we consolidate and
restate as: Whether he validly waived his right to a jury trial on a misdemeanor
charge of resisting law enforcement.
FACTS AND PROCEDURAL HISTORY
[4] On September 29, 2017, Officer Michael Price (Officer Price) of the
Indianapolis Metropolitan Police Department responded to a call of domestic
violence at an apartment in Marion County. When Officer Price arrived at the
home of the putative victim, she informed Officer Price that she wanted
Whitney out of the apartment. Officer Price encountered Whitney in the
bedroom of the apartment and eventually handcuffed him prior to leading him
out of the bedroom. Whitney became increasingly angry during this encounter.
Officer Price held Whitney by his left arm as he escorted Whitney out of the
apartment building. Upon reaching the exterior landing of the apartment
building, Whitney forcefully jerked his shoulder away from Officer Price and
turned so that he was facing the officer. Officer Price’s grip on Whitney was
broken. Officer Price warned Whitney that he would be forced to place
Court of Appeals of Indiana | Memorandum Decision 18A-CR-223 | November 7, 2018 Page 2 of 10
Whitney on the ground if he continued to resist. Officer Price then escorted
Whitney to his police car.
[5] On September 29, 2017, the State charged Whitney with domestic battery as a
Level 6 felony, domestic battery as a Class A misdemeanor, and resisting law
enforcement as a Class A misdemeanor. On October 2, 2017, the trial court
conducted Whitney’s initial hearing. During the initial hearing, the trial court
orally advised Whitney that he had a right to a trial by jury. Whitney signed a
written copy of his initial hearing rights which provided in relevant part as
follows:
You have the right to a trial by jury. If you are charged with a
misdemeanor and you wish to have a trial by jury, you must
make a request for a jury trial at least ten (10) days prior to your
trial setting. If you do not request a jury trial at least ten (10)
days prior to your trial setting, you waive your right to a trial by
jury. If you want a jury trial, you must make a timely request
even if you do not have an attorney.
(Appellant’s App. Vol. II, p. 27). 1 Whitney confirmed with the trial court that
he had signed the copy of his initial rights form because he understood the
rights contained in it. The trial court appointed Whitney a public defender, and
the matter was set for a pre-trial conference.
1
All Appendix citations are to the Public Access Appendix.
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[6] During the discovery process, Whitney’s defense counsel served the putative
domestic battery victim with two subpoenas, one for October 30, 2017, and
another for November 13, 2017, seeking to take a recorded statement. She did
not appear in response to either subpoena. On November 28, 2017, the State
filed a Notice of Discovery Compliance which indicated that the 911 dispatch
audio recording had been requested and would be available for review upon
receipt and that a copy of the Certified CAD/Event History Detail would be
forwarded to the defense upon receipt. At a November 30, 2017, pre-trial
hearing, Whitney’s defense counsel moved to exclude the putative victim’s
testimony based on the fact that she had failed to appear in response to
Whitney’s subpoenas. The trial court granted Whitney’s motion.
[7] The trial court then asked the State if it was planning to proceed:
Prosecutor 1: Uh, we plan to proceed on Count Three (3), your
Honor.
Trial Court: Okay, and that’s Resisting Law Enforcement as a
Class-A misdemeanor?
Prosecutor 1: Yes, your Honor.
Trial Court: Do we want to set this for a [b]ench [t]rial at this
time?
Prosecutor 1: Uhm, I plan to offer a plea in this matter.
Defense Counsel: Uhm, your Honor, we would ask to set this
matter for a trial at this time.
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Trial Court: Okay, so a trial rather than a pre-trial?
Defense Counsel: Uhm, your Honor, my client has informed me
that he does not want to enter into the plea agreement.
Trial Court: Okay. We’ll set this for January Eleventh (11th) at
8:30 a.m. Sir, are you still going to have the same school
schedule next, next January, or no?
Whitney: Yes. I go to school from 9:00 a.m. to 4:00 p.m.
Trial Court: Okay, but you’re going to have to be present for that
date, okay?
Whitney: Okay. I will, but I’ll just need an excuse. That’s it.
Just to show I was here.
Prosecutor 2: And is that a jury?
Trial Court: Bench trial.
Prosecutor 2: For an F6?
Trial Court: Well, I think the felony is going to be dismissed.
That’s my understanding. [Prosecutor 1], are you dismissing the
felony and the second misdemeanor?
Prosecutor 1: I can, your Honor.
Trial Court: Count three (3) is only a misdemeanor. Is that
okay? If it’s not let me know.
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Prosecutor 2: I think it’s fine. If we need to file something, we’ll
file something. But, it’s [Prosecutor 1]’s case, and I was
wondering if we were setting it for a jury or a bench trial since the
underlying matter is a felony.
Trial Court: Well, I was going to set it for a bench trial just
because the motion to exclude as to the first two (2) counts.
Prosecutor 2: That’s fine.
Defense Counsel: And, uhm, when [Prosecutor 1] stated that she
would proceed with the third count and dismiss the first two (2),
since the third count is a misdemeanor. That’s why we’d like to
set it for a bench trial.
Trial Court: Okay. We’ll set it for January Eleventh (11th) for a
[b]ench [t]rial.
(Transcript Vol. II, pp. 26-27). On December 15, 2017, the State filed a notice
of supplemental discovery compliance indicating that it had provided an audio
records request and CAD report to the defense, the 911 call associated with the
records request and CAD report was available for review upon request, and that
a tape research investigator for the Marion County Sheriff’s Office may be
called as a State witness.
[8] Whitney’s bench trial took place on January 11, 2018. At the beginning of the
trial, the State moved to dismiss the domestic battery charges, and the trial
court granted the motion. The trial court found Whitney guilty of resisting law
enforcement and proceeded to sentence him to time served, which amounted to
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fourteen days. After trial and sentencing was concluded, the State filed a
written motion to dismiss the domestic battery charges.
[9] Whitney now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[10] Whitney contends that his conviction for resisting law enforcement must be
reversed because he did not validly waive his state and federal rights to a jury
trial. The validity of a jury trial waiver is a question of law, which we review de
novo. Horton v. State, 51 N.E.3d 1154, 1157 (Ind. 2016).
[11] A trial by jury is a fundamental principle of our criminal justice system which is
guaranteed by the United States and Indiana Constitutions. Kellems v. State, 849
N.E.2d 1110, 1112 (Ind. 2006). A waiver of the Sixth Amendment jury trial
right must be “express and intelligent.” Horton, 51 N.E.3d at 1158 (quoting
Patton v. United States, 281 U.S. 276, 312 (1930)). A waiver of our state
constitutional jury trial right must be “knowing, voluntary[,] and intelligent.”
Id. (quoting Perkins v. State, 541 N.E.2d 927, 928 (Ind. 1989)).
[12] In Indiana, a defendant who is charged with a felony must personally
communicate the waiver of his jury trial right to the trial court. Id. at 1160; see
also Ind. Code § 35-37-1-2 (“The defendant and prosecuting attorney, with the
assent of the court, may submit the trial to the court. All other trials must be by
jury.”). A failure to confirm a defendant’s jury trial waiver to a felony charge
constitutes fundamental error. Id. Waiver of the jury trial right in a
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misdemeanor case in Indiana is governed by Criminal Rule 22 which provides,
in relevant part:
A defendant charged with a misdemeanor may demand trial by
jury by filing a written demand therefor not later than ten (10)
days before his first scheduled trial date. The failure of a
defendant to demand a trial by jury as required by this rule shall
constitute a waiver by him of trial by jury unless the defendant
has not had at least fifteen (15) days advance notice of his
scheduled trial date and of the consequences of his failure to
demand a trial by jury.
[13] The gravamen of Whitney’s argument on appeal is that his case remained a
felony case until his January 11, 2018, trial date and that he never personally
waived his jury trial right. Thus, in order to credit that argument, we would
first have to determine that this matter remained a felony case until January 11,
2018.
[14] Our examination of the record does not support that conclusion. At the
November 30, 2017, pre-trial hearing, Whitney’s counsel was successful in
having the putative domestic battery victim’s testimony excluded. The State
then informed the trial court and the defense that it would proceed only on the
misdemeanor resisting law enforcement charge, which the trial court
acknowledged. Indiana Code section 35-34-1-13 provides that a prosecutor
may move the trial court to dismiss the information at any time before
sentencing, either on the record or in writing, provided that the prosecutor
states the reason for doing so. The trial court may not deny such a motion.
Malone v. State, 702 N.E.2d 1102, 1103 (Ind. Ct. App. 1998), trans. denied.
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Although the State did not explicitly move to dismiss the felony and
misdemeanor domestic battery charges, its colloquy with the trial court
regarding the fact that it would proceed only on the misdemeanor resisting law
enforcement charge after its witness to those offenses was excluded was the
functional equivalent of a motion to dismiss. Whitney’s counsel then
acknowledged that the State had dismissed the domestic battery charges and
requested that the matter be set for a bench trial on the remaining misdemeanor
resisting law enforcement charge.
[15] Whitney contends that his case remained a felony case until trial because there
was no legal barrier to the State proceeding on the domestic battery charges
until the State made a more explicit motion to dismiss on the record at the
beginning of his trial. However, the applicable statute explicitly provides that
the State may make an oral motion to dismiss, and the trial court was obligated
to grant that motion. Although the State made another oral motion to dismiss
at the beginning of Whitney’s trial and filed a written motion to dismiss after
trial and sentencing was concluded, these subsequent motions did not negate
the validity of the State’s actions at the November 30, 2017, pre-trial
conference. Whitney’s assertion that his case retained its felony case status
because the State filed a discovery notice after the November 30, 2017, pre-trial
conference is no more persuasive. This supplementary notice merely addressed
matters which had previously been discovered by the State and did not
represent a renewed effort to prosecute the felony domestic battery charge.
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[16] The effect of the State’s dismissal of the domestic battery charges was to render
this a misdemeanor case as of November 30, 2017. Whitney was informed of
the procedure for invoking his misdemeanor jury trial rights through the copy of
his initial hearing rights that he confirmed to the trial court he had read, signed,
and understood. Those procedures became applicable to Whitney’s case as of
November 30, 2017, when Whitney’s counsel advised the trial court that
Whitney wished to proceed with a bench trial. By January 11, 2017, which was
his first scheduled trial date, Whitney had more than fifteen days’ notice of his
scheduled trial date and of the consequences of his failure to demand a trial by
jury. He did not invoke his right to a jury trial on the resisting law enforcement
charge within ten days of his trial date, and, thus, Whitney validly waived his
jury trial right.
CONCLUSION
[17] Based on the foregoing, we conclude that Whitney validly waived his right to a
jury trial on the misdemeanor charge of resisting law enforcement.
[18] Affirmed.
[19] Vaidik, C. J. and Kirsch, J. concur
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