ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David B. LeBeau Jeffrey A. Modisett
Deputy Public Defender Attorney General of Indiana
Priscilla J. Fossum
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
COURTNEY C. DIXIE, )
Defendant-Appellant, )
)
v. ) 02S00-9904-CR-220
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-9804-CF-214
_________________________________________________
On Direct Appeal
March 31, 2000
DICKSON, Justice
The defendant-appellant, Courtney C. Dixie, was convicted of the
murder[1] of his former girlfriend, Vickey C. Gallespie, and adjudicated a
habitual offender[2] in a bench trial. The defendant appeals, claiming
that he did not intelligently and voluntarily waive his right to a jury
trial.
Both the United States Constitution[3] and the Indiana Constitution[4]
guarantee the right to trial by jury. A criminal defendant is presumed not
to waive this right unless he affirmatively acts to do so. Poore v. State,
681 N.E.2d 204, 207 (Ind. 1997). A defendant may waive his right if he
does so personally, intelligently, and voluntarily. Id. at 206. A
defendant's filing of a signed waiver of the right to a jury trial
constitutes an affirmative act necessary for waiver in the context of a
felony case and adequately reflects the defendant's personal desire to
waive this right. Id. at 207 (citing Kimball v. State, 474 N.E.2d 982
(Ind. 1985)). In this case, the defendant signed an agreement to waive his
right to a jury trial, acknowledging that he "waive[d] his constitutional
right to have this cause heard by a jury of his peers at each and every
stage of the proceedings." Record at 83.
The defendant does not challenge the sufficiency of the written waiver
to establish the affirmative act or his personal desire to waive the right,
but argues that it was not an intelligent waiver. The defendant claims
that some evidence indicated that he was unable to make strategic decisions
in his own best interests, and therefore the waiver was not "the product of
a will that has the capacity to understand." Brief of Defendant-Appellant
at 8 (quoting Reynolds v. State, 703 N.E.2d 701, 704 (Ind. Ct. App. 1999)).
Early in the proceedings, the defendant raised the defense of insanity and
underwent psychological evaluation with two independent psychologists. At
a status hearing on September 25, 1998, the trial court entered an order,
stating: "Based upon reports filed (from Dr. Ross, Dr. Rathbun) defendant
agrees there is no need for a competency hearing, as both Doctors find him
competent. Court therefore accepts Doctors reports in lieu of hearing and
finds the defendant competent to stand trial." Record at 58. The reports
are not included in the record. On September 28, 1998, the defendant wrote
the trial court, claiming, among other things, that he had received
ineffective assistance of trial counsel because his attorney "failed to
give [him] counsel regarding what to say and what not to say at psychiatric
examinations." Record at 59.
On October 29, 1998, defense counsel filed a notice of intent to waive
the defendant's right to a jury trial and a request for a hearing on the
matter. At a hearing on October 30, 1998, the trial court engaged in the
following colloquy with the defendant regarding the waiver:
COURT: Okay. Mr. Dixie, based on what your attorney has told me,
Sir, you do not wish to have your case decided by a jury?
THE DEFENDANT: Right.
COURT: You wish to waive jury and go to the bench . . . or to the
Court.
THE DEFENDANT: Right.
COURT: Alright. You understand, Mr. Dixie, that you have an absolute
constitutional right guaranteed to you by the United States as well as
the Indiana State Constitution to have a jury of your peers determine
your case?
THE DEFENDANT: Yes I do.
COURT: And you don't wish that to occur?
THE DEFENDANT: No.
Record at 96-97.
The trial court then held a bench conference with counsel to discuss
the defendant's earlier claims of ineffective assistance of his trial
counsel in relation to the waiver. In this conference, defense counsel
explained that the defendant's decision on the waiver was against his
advice. The trial court addressed the defendant: "[Y]our attorney has
indicated on the record, Mr. Dixie, that this isn't his idea to waive jury.
That this is your idea . . . . And I want to confirm again with you, Mr.
Dixie, that this is, in fact, something that you wish to do." Record at
102. The defendant responded, "Yes." Record at 102. The trial court
entered a finding that the waiver was knowing, intelligent, and voluntary.
Immediately before trial, the trial court again asked the defendant if he
wanted to waive his right to a jury trial and have the case tried by the
court, and the defendant replied affirmatively.
The defendant's claim that his decision was not the product of a will
that has the capacity to understand is not supported in the record. The
defendant cites to his own testimony regarding Dr. Rathbun's report to
support his argument. The trial court considered the Rathbun report when
it determined that the defendant was competent to stand trial, and,
according to the trial court's entry, Dr. Rathbun concluded that the
defendant suffered from a mood disorder, especially a persistent manic
state.
Other portions of the record also support the inference that the
defendant understood the proceedings and the choice that he was making.
The trial court asked the defendant more than once about his intentions,
and, although the defendant's responses were short, they were responsive
and express his awareness of the rights at issue and his understanding of
the trial court's questions. The defendant was not unfamiliar with
criminal procedure. He has a significant criminal history, including two
felony convictions for rape and battery, seven misdemeanor convictions, and
one juvenile adjudication. See Poore, 681 N.E.2d at 207 ("high level of
familiarity with judicial process," including five prior felony
convictions, supported finding of intelligent and voluntary waiver). The
defendant's familiarity with the judicial process is further evidenced by
his written communication with the trial court regarding his constitutional
rights, specifically the right to effective assistance of counsel, and his
use of case citation to support his argument. Likewise, on several
occasions, the defendant expressed his concerns to the trial court
regarding his trial counsel's performance.
We find that the record provides sufficient evidence of the
defendant's ability to know and understand what he was doing when he waived
his right to a jury trial. The trial court did not err in determining that
the defendant intelligently and voluntarily waived his right to a jury
trial.
The defendant next claims that even if he intelligently and
voluntarily waived his right to a jury trial as to the murder charge, he
did not intelligently and voluntarily waive this right as to the habitual
offender trial. The right to trial by jury applies to habitual offender
proceedings. See Ind. Code § 35-50-2-8. The defendant argues, based upon
Snyder v. State, 668 N.E.2d 1214 (Ind. 1996), that because the record is
silent as to any advisement of the right to a jury trial in the habitual
offender phase, he is entitled to a new habitual offender phase. In
Snyder, we addressed the advisement of rights required by Boykin v.
Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), when a
criminal defendant pleads guilty, including an advisement that the
defendant is waiving his right to a jury trial at the habitual offender
phase. Snyder, 668 N.E.2d at 1215-16. The defendant in this case did not
plead guilty, and the requirements of advisement under Boykin and Snyder
are not at issue.
Here, the defendant was charged in a multi-count information with
murder (count I, part I), being a habitual offender (count I, part II),
battery (count II, parts I and II), and being a habitual offender (count
II, part III). On more than one occasion before the trial, the defendant
waived his right to a jury trial, including in a written agreement that
encompassed all proceedings within the cause, which was signed by the
defendant and his attorney. At the same pre-trial proceeding in which the
defendant was asked for a second time whether he wanted to waive his right
to a jury trial, the State dismissed count II, in all three parts, and
stated that it was ready to proceed on count I, parts I and II. In
accepting the dismissal, the trial court stated that the trial would
proceed on count I, part I, and, if a habitual offender proceeding was
necessary, it would be conducted in a bifurcated proceeding.
The trial court did not err in accepting the defendant's written and
oral waivers of his right to a jury trial as to all proceedings within the
cause, including the habitual offender phase.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
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[1] Ind. Code § 35-42-1-1.
[2] Ind. Code § 35-50-2-8.
[3] U.S. Const. amend. VI.
[4] Ind. Const. art. I, § 13.