Drake v. State
| Citation | 895 N.E.2d 389 |
| Decision Date | 28 October 2008 |
| Docket Number | No. 77A04-0803-CR-158.,77A04-0803-CR-158. |
| Parties | Adam DRAKE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
John Pinnow, Special Assistant to the State, Public Defender, Greenwood, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Arturo Rodriguez II, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-defendant Adam Drake appeals his conviction and sentence for Battery,1 a class D felony. Specifically, Drake argues that his Sixth Amendment2 right to counsel was violated because he did not knowingly and intelligently waive that right when the trial court granted his request to proceed pro se. Concluding that Drake did not make a knowing and intelligent waiver of his right to counsel, we reverse and remand for new trial.
On December 19, 2007, Kristen Copeland, Drake's ex-fiancé, tried to retrieve some of her belongings from Drake's residence. Drake told her to get the assistance of State Troopers Fitzgerald and Hilton. Neither Trooper Fitzgerald nor Trooper Hilton was on duty, but Deputy Joshua Cary agreed to assist Copeland, and the deputy secured assistance from Trooper Joseph Robinson.
After arriving at Drake's residence, Deputy Cary began to load Copeland's belongings into her truck. During this time, Drake asked Trooper Robinson about his involvement in an incident that had occurred several nights earlier at the residence of Drake's father. Trooper Robinson responded that he knew nothing about the incident. Right after Deputy Cary placed the last of Copeland's belongings into her truck, Drake mumbled something to the effect of "this is for your friends from the other night" or "this is for the other two." Tr. p. 150, 163. Drake then lunged at Trooper Robinson, using his right arm and elbow to strike Trooper Robinson in the lower lip and knocking him down. Deputy Cary tackled Drake, and the officers handcuffed him.
Drake was charged with battery, a class D felony, and resisting law enforcement, a class A misdemeanor. At the initial hearing on December 21, 2007, the trial court advised Drake that he had the right to appointed counsel. Drake informed the court that he wanted to represent himself, and the following colloquy ensued:
The trial court appointed standby counsel to assist Drake. Standby counsel withdrew a few weeks later, and Michael Slagle was appointed as Drake's new standby counsel. Under the mistaken impression that he was Drake's appointed attorney and counsel of record, Slagle filed a motion to evaluate Drake's competency to stand trial. This motion was granted; however, Drake requested that the motion be withdrawn and renewed his request for a speedy trial. Slagle expressed his concern about Drake's mental competency, but the trial court granted Drake's request to have the motion withdrawn.
At the final pretrial conference on February 22, 2008, the trial court advised Drake that some of his subpoena requests were untimely and would not be served. The trial court also informed Drake that he could file a motion for continuance, but he refused.
Drake's trial began on February 26, 2008. At that time, Drake moved to dismiss the case, alleging that he was being forced to choose between a speedy trial and his constitutional right to have witnesses subpoenaed on his behalf. During the discussion regarding his motion, Drake reaffirmed his desire to proceed pro se despite the trial court's warning that he could not simultaneously represent himself and insist that he had no idea what was going on. Id. at 66-67. The trial court denied Drake's motion to dismiss.
During voir dire, Slagle questioned the prospective jurors. Drake delivered his opening statement and made numerous objections during the State's case-in-chief. In addition, Drake called eleven witnesses and delivered his closing argument. The jury found Drake guilty of class D felony battery and not guilty of resisting law enforcement. Drake was fined $100 plus costs and sentenced to three years imprisonment. Drake now appeals.
Drake argues that his conviction must be set aside because his decision to waive his right to counsel was not knowing and intelligent. A criminal defendant's Sixth Amendment right to counsel is essential to the fairness of a criminal proceeding. Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Implicit in the right to counsel is the right to self-representation. Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Because a criminal defendant gives up many benefits when the right to counsel is waived, "the accused must `knowingly and intelligently' forgo those relinquished benefits." Id. at 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (quoting Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). Furthermore, when a defendant asserts his or her right to self-representation, the trial court should advise the defendant of the "dangers and disadvantages of self-representation." Id.
Our Supreme Court has stated that there are no specific "talking points" when advising a defendant of the dangers and disadvantages of proceeding without counsel, and that a trial court needs only to come to a "considered determination" that the defendant is making a knowing, voluntary, and intelligent waiver of his or her right to counsel. Poynter v. State, 749 N.E.2d 1122, 1126 (Ind.2001). Furthermore, when making its determination, the trial court should be mindful that "the law indulges every reasonable presumption against a waiver of this fundamental right." Id.
Our Supreme Court has adopted four factors to consider when determining whether a knowing and intelligent waiver occurred:
"(1) the extent of the court's inquiry into the defendant's decision, (2) other evidence in the record that establishes whether the defendant understood the dangers and disadvantages of self-representation, (3) the background and experience of the defendant, and (4) the context of the defendant's decision to proceed pro se."
Id. at 1127-28 (quoting United States v. Hoskins, 243 F.3d 407, 410 (7th Cir.2001)). The trial court is in the best position to assess whether the defendant has made a knowing and intelligent waiver, and the trial court's finding will most likely be upheld "where the judge has made the proper inquiries and conveyed the proper information, and reaches a reasoned conclusion." Id. at 1128 (citations omitted). Nevertheless, the trial court's conclusion whether the defendant knowingly and voluntarily waived the right to counsel is reviewed de novo. Miller v. State, 789 N.E.2d 32, 37 (Ind.Ct.App.2003) (citing Balfour v. State, 779 N.E.2d 1211, 1216 (Ind.Ct.App.2002)).
The first two factors set forth in Poynter focus on whether the defendant had sufficient information about the dangers and disadvantages of self-representation, one through the trial court's inquiry, and the other through any other evidence in the record. Drake argues that the trial court's inquiry was insufficient. Specifically, Drake asserts that he should have been advised of the advantages that counsel could provide him. In addition, Drake argues that he should have been told that he would have to follow the same rules as an attorney.
In Miller, this court held that the defendant had not made a knowing and intelligent waiver of his right to counsel. Id. at 38. In addressing the first Poynter factor, this court reasoned that the trial court's inquiry, which focused on the defendant's right to court-appointed counsel and whether the defendant thought he needed counsel was insufficient for the trial court to make a "reasoned inquiry" into the defendant's decision to waive this important right. Id. at 37-38.
In analyzing the second Poynter factor, the Miller court acknowledged that the trial court warned the defendant that he may incriminate himself by the types of questions that he may ask, but noted that the defendant was not advised of any other dangers or...
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