ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael R. Fisher Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Thomas M. Fisher
Solicitor General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Mar 17 2009, 8:23 am
Indiana Supreme Court
_________________________________ CLERK
of the supreme court,
court of appeals and
tax court
No. 49S02-0705-CR-202
AHMAD EDWARDS,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________
On Remand from the Supreme Court of the United States
No. 07-208
_________________________________
March 17, 2009
Boehm, Justice.
We hold that the record supports a finding by the trial court that the defendant suffered
from a severe mental illness to the point where he was not competent to conduct trial
proceedings by himself. The denial of the defendant’s request to act pro se at trial therefore did
not violate either his federal or state constitutional right to self-representation.
Facts and Procedural History
The facts of this case are recited at length in Indiana v. Edwards (Edwards), 128 S. Ct.
2379 (2008), and Edwards v. State, 866 N.E.2d 252 (Ind. 2007).
Defendant Ahmad Edwards was tried twice in connection with a 1999 theft and shooting
in downtown Indianapolis. His first trial resulted in convictions of criminal recklessness and
theft but a hung jury on charges of attempted murder and battery. At his retrial for attempted
murder and battery, Edwards sought to proceed pro se. The trial court found Edwards mentally
competent to stand trial under the standard set forth in Dusky v. United States, 362 U.S. 402
(1960) (per curiam),1 but nevertheless denied Edwards’s request to represent himself. Edwards
was convicted on both charges.
Edwards appealed and the Court of Appeals reversed, holding that Edwards’s Sixth
Amendment right to counsel included the right to represent himself. We granted transfer and
noted that ―the trial court’s conclusion that Edwards was incapable of adequate self-
representation was, at a minimum, reasonable.‖ 866 N.E.2d at 260. However, we agreed with
the Court of Appeals that United States Supreme Court precedent required that a defendant found
mentally competent to stand trial be permitted to proceed pro se, and we invited the Supreme
Court to consider this issue. Id. The Supreme Court granted the State’s petition for writ of
certiorari and vacated our judgment reversing the convictions. The Supreme Court held that
the Constitution permits judges to take realistic account of the particular
defendant’s mental capacities by asking whether a defendant who seeks to
conduct his own defense at trial is mentally competent to do so. That is to say,
the Constitution permits States to insist upon representation by counsel for those
competent enough to stand trial under Dusky but who still suffer from severe
mental illness to the point where they are not competent to conduct trial
proceedings by themselves.
Edwards, 128 S. Ct. at 2387–88. The case was remanded to us for further disposition. Id. at
2388. We now reconsider the issue in light of Edwards.
1
In Dusky, the United States Supreme Court held that a defendant is competent to stand trial if he has
―sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding‖
and has a ―rational as well as factual understanding of the proceedings against him.‖ 362 U.S. at 402.
2
Standard of Review
Determinations of competency to stand trial under Dusky are reviewed under the clearly
erroneous standard, reversed on appeal only if unsupported by the facts and circumstances before
the trial court together with any reasonable inferences to be drawn therefrom. See McManus v.
State, 814 N.E.2d 253, 260–61 (Ind. 2004); Brewer v. State, 646 N.E.2d 1382, 1385 (Ind. 1995);
Ferry v. State, 453 N.E.2d 207, 212 (Ind. 1983); United States v. Magers, 535 F.3d 608, 610 (7th
Cir. 2008).2
Although it is now clear that the Dusky competency determination is separate and distinct
from the Edwards competency determination, both involve a fact-sensitive evaluation of the
defendant’s capabilities that the trial court is best-situated to make. Indeed, the Supreme Court
noted in Edwards that ―the trial judge, particularly one such as the trial judge in this case, who
presided over one of Edwards’ competency hearings and his two trials, will often prove best able
to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances
of a particular defendant.‖ 128 S. Ct. at 2387. We conclude that the trial court’s determination
of competence to act pro se is best reviewed under the clearly erroneous standard.
I. The Sixth Amendment Claim
We understand Edwards to announce the following rule of law: 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. In this case, Edwards was found mentally competent to stand trial, but
the trial court denied his request to proceed pro se. The questions we face on remand, therefore,
are whether the trial court found that Edwards suffered from a severe mental illness such that he
was not competent to conduct trial proceedings on his own, and, if so, whether the record
supports this finding.
2
Earlier cases formulated the standard as ―abuse of discretion,‖ see Barnes v. State, 634 N.E.2d 46, 49
(Ind. 1994); Bramley v. State, 543 N.E.2d 629, 633 (Ind. 1989), which may in practical effect be
substantially equivalent to ―clearly erroneous.‖
3
Mental competency determinations—at least where competency to be tried is at issue—
are ordinarily made following evidentiary hearings conducted by the trial court. In Indiana this
procedure is mandated by statute. See Ind. Code § 35-36-3-1 (2004). If the trial court has reason
to believe that the defendant is not competent to stand trial, the court must appoint two or three
disinterested mental health physicians to examine the defendant and testify at a hearing to the
defendant’s ability to understand the proceedings and assist in the preparation of a defense. Id. §
35-36-3-1(a). Edwards had three such hearings in August 2000, March 2002, and April 2003.
The second of these was conducted by the judge who would preside over his two trials.
Edwards first moved for leave to represent himself on the first day of the first trial in June
2005. This motion was denied because Edwards was not prepared to proceed and a continuance
would have been required. Edwards renewed his request the week before the scheduled start of
his retrial in December 2005. The trial court did not hold an evidentiary hearing specifically
addressing Edwards’s competence to represent himself as an issue distinct from competency to
stand trial. The court entertained brief arguments on the first day of Edwards’s retrial, and
denied Edwards’s request after reviewing the existing psychiatric evaluations and the court’s
own conclusions from prior hearings, and also Edwards’s correspondence with the court.
Our alternatives are only two: either resolve the issue on the record before us or remand
for a hearing in which the issue is Edwards’s mental illness as of December 2005 when his
second trial was held. In the first place, an evaluation of Edwards’s mental illness over three
years ago is inherently problematic. For this reason, retrospective competency hearings are
generally disfavored.3 A nunc pro tunc competency determination is nevertheless permissible
3
See Drope v. Missouri, 420 U.S. 162, 183 (1975) (―Given the inherent difficulties of such a nunc pro
tunc determination under the most favorable circumstances . . . , we cannot conclude that such a
procedure would be adequate here.‖); Dusky, 362 U.S. at 403 (noting the ―difficulties of retrospectively
determining the petitioner’s competency‖); Pate v. Robinson, 383 U.S. 375, 387 (1966) (same). But see
Smith v. State, 443 N.E.2d 1187, 1191 (Ind. 1983) (remanding for retrospective competency
determination); Mato v. State, 429 N.E.2d 945, 947 (Ind. 1982) (―Unquestionably, there are difficulties
with retrospective determinations of competency such as fading memories, and changing conditions . . . .
Nevertheless, depending upon the data that is available, trustworthy determinations can be made
retrospectively.‖); Schuman v. State, 265 Ind. 586, 590–93, 357 N.E.2d 895, 898–99 (1976) (affirming a
―retroactive determination of competency‖); Evans v. State, 261 Ind. 148, 161, 300 N.E.2d 882, 889
(1973) (remanding case ―for a hearing to determine whether appellant was competent to stand trial at the
time of his trial‖ and instructing trial court ―to certify its determination following the hearing to this Court
for final disposition‖ of the appeal); State v. Tinsley, 260 Ind. 577, 584–85, 298 N.E.2d 429, 433–34
4
―whenever a court can conduct a meaningful hearing to evaluate retrospectively the competency
of the defendant.‖ Maynard v. Boone, 468 F.3d 665, 674–75 (10th Cir. 2006). Courts typically
consider the following factors in determining the feasibility of retrospective competency
hearings:
(1) [T]he passage of time, (2) the availability of contemporaneous medical
evidence, including medical records and prior competency determinations, (3) any
statements by the defendant in the trial record, and (4) the availability of
individuals and trial witnesses, both experts and non-experts, who were in a
position to interact with defendant before and during trial, including the trial
judge, counsel for both the government and defendant, and jail officials.
Id. at 675. In the instant case three years have passed and evaluations demonstrate that
Edwards’s condition has fluctuated over even short periods. There is no psychological evidence
as of 2005, and the earlier evidence was considered by the trial court in its 2005 ruling denying
Edwards’s request to proceed pro se. Statements by Edwards were also considered in detail by
the trial court at that time, and the trial court had its own observations from the prior trial. Under
these circumstances we believe that the trial court’s findings as to Edwards’s competency to act
pro se, as well as the substantial body of evidence that was available for the trial court’s
consideration, obviate any need for a retrospective competency hearing.
The issues are whether the trial court found that Edwards was mentally ill to the point
that he was not competent to conduct trial proceedings, and if so, whether the record supports
this finding. The trial court did not have the benefit of the Supreme Court’s analysis in Edwards.
We therefore have no specific findings formulated in the language of Edwards. We nevertheless
(1973) (same); see also United States v. Giron-Reyes, 234 F.3d 78, 83 (1st Cir. 2000) (remanding for
potential retrospective competency determination); United States v. Auen, 846 F.2d 872, 878 (2d Cir.
1988) (same); United States v. Jones, 336 F.3d 245, 260 (3d Cir. 2003) (same); United States v. Mason,
52 F.3d 1286, 1293 (4th Cir. 1995) (same); Wheat v. Thigpen, 793 F.2d 621, 630–32 (5th Cir. 1986)
(affirming retrospective competency determination); Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir.
1995) (―The Sixth Circuit recognizes that a retrospective [competency] determination may satisfy the
requirements of due process provided it is based on evidence related to observations made or knowledge
possessed at the time of trial.‖), abrogated on other grounds by Thompson v. Keohane, 516 U.S. 99
(1995); United States v. Savage, 505 F.3d 754, 758 (7th Cir. 2007) (recognizing viability of retrospective
competency determinations); Reynolds v. Norris, 86 F.3d 796, 802–03 (8th Cir. 1996) (remanding for
retrospective competency hearing); McMurtrey v. Ryan, 539 F.3d 1112, 1131–32 (9th Cir. 2008)
(describing framework for analyzing feasibility of retrospective competency determinations); Maynard v.
Boone, 468 F.3d 665, 674–75 (10th Cir. 2006) (affirming retrospective competency determination); Watts
v. Singletary, 87 F.3d 1282, 1286–87 n.6 (11th Cir. 1996) (recognizing viability of retrospective
competency determinations).
5
conclude that this record is sufficient to affirm the judgment of the trial court, including its
conclusion that Edwards was not able to represent himself. Specifically, the trial court found
Edwards competent to stand trial but not competent to defend himself. The court addressed
Edwards’s request for self-representation following pretrial argument and explained as follows:
I spent some time going over Doctor Richard Sena’s report of July 27, 2004;
Doctor Sena’s report of May 28, 2004; Doctor Dwight Schuster’s report of
December 31st, 2002; Doctor Philip Coons’s report of November 26th, 2002;
Doctor Ned Masbaum’s report of October 3, 2001; and Doctor Steven Berger’s
report of February 27, 2001; and finally Doctor Lance E. Trexler’s report of
February 23, 2000. . . . Each and every report where a . . . neurological exam was
performed found either delusions, a delusional disorder of the grandiose type or
schizophrenia of an undifferentiated type . . . . Several of the reports refer to
rambling writings as an indication of an inability to stay focused. The report upon
which we relied in finding that Mr. Edwards was competent was the report of
Doctor Robert Sena from July 27, 2004, from Logansport, still found that there
was schizophrenia of an undifferentiated type; found that Mr. Edwards
acknowledged his need for counsel; found that Mr. Edwards was able to plan a
legal strategy in cooperation with his attorney. . . . With these findings, he’s
competent to stand trial but I’m not going to find he’s competent to defend
himself. So the request to proceed pro se will be denied.
The trial court also explained that Edwards’s ―voluminous writings‖ substantiated ―what some of
the doctors were saying and if you’ll remember, the finding of competency was conditioned by
the doctors on the assistance of counsel.‖
We believe these conclusions collectively constitute a finding by the trial court that
Edwards suffered from severe mental illness to the point where he was not competent to conduct
trial proceedings by himself. We also conclude that the trial court’s determinations are
supported by the record. Edwards was evaluated by several mental health professionals from
1999 through 2004 and was diagnosed at various points in time with schizophrenia of an
undifferentiated type, disorganized type schizophrenia, a delusional disorder, and a personality
disorder. Edwards’s psychiatric evaluations reveal that he experienced hallucinations and
delusions, and that he manifested disorganized thought processes and impaired verbal
communication. Several psychiatric reports concluded that Edwards was not competent to stand
trial in the first instance, let alone represent himself. And as the trial court pointed out, Edwards
produced a litany of disorganized and incoherent motions that support the physicians’
observations as well as the conclusion that Edwards was not competent to conduct trial
proceedings on his own. The court’s ruling was thus based on an extensive record of psychiatric
6
evaluations that were already produced in connection with Edwards’s competency proceedings,
as well as a number of self-authored motions that Edwards submitted to the trial court in the
course of these proceedings. The trial court was also in a position to observe Edwards’s
behavior and demeanor in the first trial, the two pretrial pro se request arguments, and Edwards’s
2002 competency hearing.
The evidence is not without conflict. At least one of Edwards’s evaluations found that he
was ―free of psychosis, depression, mania, and confusion‖ and that he was able to ―think
clearly,‖ ―answer questions appropriately,‖ and ―carry on a normal conversation.‖ The most
recent competency evaluation indicated that Edwards was taking medication and receiving
therapy for his psychosis, that Edwards reported no longer experiencing hallucinations,
delusions, and ideas of reference, and that he ―demonstrated an excellent understanding of
courtroom procedures.‖ And although the record contains numerous pleadings written by
Edwards that are virtually incomprehensible, several of his motions and in-court colloquies
demonstrate lucidity, cooperativeness, and at least a rudimentary understanding of trial practice.
The evaluations on which the trial court relied were performed between 1999 and July
2004, and Edwards’s retrial did not take place until December 2005. Mental competency is not a
static condition and is to be determined ―at the time of trial.‖ See Burt v. Uchtman, 422 F.3d
557, 568 (7th Cir. 2005) (citing Drope v. Missouri, 420 U.S. 162, 181 (1975); Pate v. Robinson,
383 U.S. 375, 387 (1966)); see also Evans v. State, 261 Ind. 148, 160–61, 300 N.E.2d 882, 888
(1973) (where appellant was tried in April of 1959, the issue was ―not appellant’s mental state in
May of 1959, but his ability to stand trial in April of that year‖); State v. Tinsley, 260 Ind. 577,
585, 298 N.E.2d 429, 434 (1973) (―The ultimate and relevant issue is not the state of Tinsley’s
mental health in 1956, but his abilities to function at his trial in 1971.‖). In this case,
approximately eighteen months elapsed between the time of Edwards’s most recent psychiatric
evaluation and the time of his retrial. Several experts testified at Edwards’s competency
hearings that his disorders could be managed and treated using psychotropic medication.
Moreover, Edwards’s psychiatric evaluations reflect the positive progression and ―marked
improvement‖ coincident with pharmacological and psychological therapy necessary to find
Edwards competent to stand trial.
7
Having said that, we remain mindful of the standard of review and believe the totality of
the evidence adequately supports the trial court’s findings. Edwards’s psychiatric evaluations at
times disagree, but they overwhelmingly confirm that Edwards has suffered from severe and
pervasive mental illness. And though the trial court did not rely on any psychiatric evaluations
completed after July of 2004, the trial judge had the opportunity to observe Edwards at his July
trial. The trial court also had the lengthy record of Edwards’s mental disorders and the
discordant motions that Edwards submitted, some immediately preceding his retrial. Finally, the
trial court had before it the record of erratic performance that gave no confidence that whatever
Edwards’s state as of a given moment, it might be a transient condition. Taken together, these
circumstances support the trial court’s determination that Edwards suffered from severe mental
illness such that he was not competent to represent himself. We therefore affirm the judgment of
the trial court.
II. The Indiana Constitutional Claim
Edwards urges us to find broader self-representation rights under the Indiana Constitution
than those afforded by the federal constitution. Edwards contends that there is a ―firmer
foundation‖ for the right of self-representation under article I, section 13 which guarantees an
accused the right ―to be heard by himself and by counsel.‖4
Section 13 does provide broader rights than the Sixth Amendment. But each of these
expanded rights dealt with the right to counsel, and none addressed the right of self-
representation. Compare Malinski v. State, 794 N.E.2d 1071, 1079 (Ind. 2003) (section 13
guarantees the right to be notified that hired counsel is present at police station and wishes to
consult with the accused) with Moran v. Burbine, 475 U.S. 412, 428–32 (1986) (Sixth
Amendment guarantees no such right); compare Ajabu v. State, 693 N.E.2d 921, 928 n.4 (Ind.
1998) (under some circumstances, section 13 right to counsel attaches prior to the filing of
formal charges) and Pirtle v. State, 263 Ind. 16, 29, 323 N.E.2d 634, 640 (1975) (person who is
4
The State argues that Edwards waived his section 13 claim by failing to provide independent state
constitutional analysis in his original appellate brief. In Edwards’s original direct appeal, we found that
Edwards had made no separate argument under the Indiana Constitution and we decided the case solely
on federal constitutional grounds. 866 N.E.2d at 254–55 n.1. But following the Supreme Court’s ruling
in Edwards, we solicited supplemental briefing from the parties on remand. Edwards has since provided
independent state constitutional analysis, so we will address his section 13 claim.
8
asked to give consent to search while in police custody is entitled to the presence and advice of
counsel prior to making the decision whether to give such consent) with United States v.
Gouveia, 467 U.S. 180, 187–88 (1984) (Sixth Amendment right to counsel does not attach until
the initiation of adversary judicial proceedings).
We think that the right to self-representation of mentally impaired persons under section
13 is no broader than that guaranteed by the Sixth Amendment as interpreted in Edwards. Our
precedents respecting self-representation have tracked federal standards. See, e.g., Stroud v.
State, 809 N.E.2d 274, 279 (Ind. 2004) (drawing no distinction between state and federal
constitutional requirements for waiving counsel); Jones v. State, 783 N.E.2d 1132, 1138 (Ind.
2003) (same). Moreover, we have found that the Indiana Constitution assumes and demands
fundamental fairness in all judicial proceedings. Sanchez v. State, 749 N.E.2d 509, 515 (Ind.
2001). Denial of self-representation is admittedly an intrusion into the defendant’s right to direct
his own affairs and to make his own decisions in conducting his defense. But if a defendant is so
impaired that a coherent presentation of a defense is unlikely, fairness demands that the court
insist upon representation. We are persuaded that a defendant’s mental illness may preclude
competent self-representation in the interest of a fair trial, and therefore conclude that the Indiana
Constitution gives no broader rights than the Sixth Amendment as explained in Edwards.
We acknowledge the textual distinction between the Sixth Amendment and section 13.
Section 13 guarantees the accused the right ―to be heard by himself.‖ We have also observed
that the ―Indiana Constitution places a unique value upon the desire of an individual accused of a
crime to speak out personally in the courtroom and state what in his mind constitutes a predicate
for his innocence of the charges.‖ Biddinger v. State, 868 N.E.2d 407, 412 (Ind. 2007) (quoting
Vicory v. State, 802 N.E.2d 426, 429 (Ind. 2004)). But these expressions have addressed the
right of the defendant to present evidence, Sanchez, 749 N.E.2d at 520–21, to testify at trial,
Phillips v. State, 673 N.E.2d 1200, 1201–02 (Ind. 1996), or to make statements in allocution at
sentencing. Vicory, 802 N.E.2d at 429. None specifically dealt with whether the defendant or
counsel was to take these steps. The constitution, in guaranteeing the right to be heard ―by
himself and by counsel,‖ does not express a preference for either. We have frequently held that
where the defendant is represented by counsel, some actions must be taken by counsel. See
Underwood v. State, 722 N.E.2d 828, 832 (Ind. 2000) (―[O]nce counsel [i]s appointed, [a
9
d]efendant sp[eaks] to the court through counsel.‖); Vance v. State, 620 N.E.2d 687, 689 (Ind.
1993) (when a defendant is represented by counsel, it is within the trial court’s discretion to
entertain or strike pro se motions). We do not consider the accused’s right ―to be heard by
himself‖ as an unlimited right to conduct all trial proceedings on his own.
Finally, the State encourages us to adopt a section 13 standard allowing courts to ―deny a
criminal defendant the right to represent himself at trial where the defendant cannot
communicate coherently with the court or jury.‖ The State argues that ―[r]ather than focusing on
whether a defendant has any particular mental diagnosis or any particular level of mental
cognition, the State’s proposed rule relates directly to the basic functional demands that having a
trial necessarily places on the defendant.‖ The federal constitution establishes rights that the
states may choose to expand, but the Supremacy Clause precludes any state doctrine that restricts
a federal constitutional right. Edwards describes a limitation on the general federal constitutional
right to self-representation, and the Supreme Court expressed uncertainty as to how the State’s
proposal would ―work in practice‖ and declined to adopt it as a federal standard. 128 S. Ct. at
2388. It remains to be seen whether the State’s proposal, or any attempt to refine the Edwards
language, will be found to violate the Sixth Amendment right to self-representation. We
therefore decline in the absence of experience under the current Edwards language to attempt to
tinker with it.
Conclusion
The trial court’s denial of Edwards’s request to proceed pro se was justified by the record
and did not violate Edwards’s right to self-representation under either the Sixth Amendment or
article I, section 13. Edwards’s convictions of attempted murder and battery are affirmed.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.
10