Marshall v. State
Decision Date | 07 January 2022 |
Docket Number | Court of Appeals Case No. 21A-CR-1123 |
Parties | Jermaine Dewayne MARSHALL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
Court | Indiana Appellate Court |
Attorney for Appellant: Tyler D. Helmond, Voyles Vaiana Lukemeyer Baldwin & Webb, Indianapolis, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Tyler G. Banks, Supervising Deputy Attorney, General, Indianapolis, Indiana
[1] Jermaine Dewayne Marshall appeals his conviction for criminal trespass as a class A misdemeanor and asserts that his waiver of his right to counsel was not knowing, voluntary, and intelligent and that he was denied due process. We agree and reverse.
[2] On December 18, 2020, the State charged Marshall with criminal trespass as a class A misdemeanor and criminal mischief as a class B misdemeanor and the trial court held an initial hearing. The court informed Marshall of his rights, including the rights to be represented by an attorney and to be appointed an attorney if he could not afford one. Marshall indicated that he understood his rights and asked the court to appoint him counsel because he was going to lose his job "pretty soon" and could not afford the "$1,000.00 bond for the main Level 6." Transcript Volume II at 9. The prosecutor stated that he was going to recommend a $100 bond. Upon questioning by the court, Marshall indicated that he would be able to post that amount and the court set bond in the amount of $100. The court asked Marshall if he thought he would be able to return to work, if he wanted some time to hire someone, or if he was asking that the court appoint him counsel. Marshall asked the court to appoint him counsel "just in case." Id. at 11. The court indicated it would appoint a public defender and scheduled a hearing.
[3] On February 4, 2021, the court held a hearing. Marshall's counsel indicated that Marshall was held on a felony, Marshall did not want to discuss that case with him, and Marshall had posted bond in this case on December 23, 2020.
[4] On March 18, 2021, the court held a pretrial conference. Marshall's counsel stated that there had "been an offer made," he relayed the offer to Marshall, and Marshall had asked that counsel's appointment be rescinded and that he proceed pro se. Id. at 17. The court asked: "Is that correct, Mr. Marshall?" Id. Marshall answered affirmatively. The court discharged the public defender and asked Marshall how he would like to proceed. The following exchange then occurred:
[5] On May 13, 2021, the court held a bench trial. The prosecutor stated that he did not have enough witnesses on the criminal mischief charge and was going to proceed only on the trespass charge. The court asked Marshall if he was going to represent himself, and Marshall stated: Id. at 20. The court then stated:
I'm just back at the attorney part right now. We can talk about that other stuff in a minute. I'm going to go through this waiver of Counsel and declaration of the desire to proceed pro se. So that you understand, a Defendant who chooses to represent himself will not be given special consideration. A Defendant who chooses to represent himself cannot later make a claim that there was not the proper assistance of Counsel. And a person who represents himself is held to the same rules of evidence and rules of procedure as if he were a trained attorney. An attorney has skills, expertise, and training not possessed by a non-lawyer. The decision to represent yourself is almost always unwise. The defense of your case may be harmful to your case, more harmful than helpful to it. The State will be represented by an experienced professional legal attorney throughout the entire trial. Do you understand that you'll not receive any special treatment if you represent yourself? Do you understand that?
Id. at 20-21. Marshall answered affirmatively. The court stated: Id. at 21. Marshall answered affirmatively. The court stated:
So you'll be responsible for preparing and presenting a proper defense. This obligation extends to, but is not limited to the following. You have to prepare all the appropriate pleadings. You must investigate and interrogate witnesses if you chose to do so. Being in custody it's extremely difficult for you to investigate the case and interrogate witnesses in advance of the trial. You have to identify and gather all the appropriate evidence that may help with your case, if any exists. You're responsible for examining and cross-examining witnesses at the trial. And you're responsible for recognizing objectionable prejudicial evidence and testimony and you'll be responsible for making the objections thereto. The Court will not grant you a continuance during the trial so that you can have an attorney. Do you understand all of that?
Id. at 21. Marshall answered affirmatively. The court asked him if he still wished to proceed on his own, and he answered affirmatively.
[6] The court referenced the "preliminary matter" Marshall wanted to discuss and the following exchange occurred:
[7] The State presented the testimony of two witnesses. During closing argument, Marshall stated in part:
First off, the Defense would like to say that once again that I requested to have all evidence, all affidavits, and anything having to do, tangible evidence, items, to do with this case has not been given to me. Last Court proceeding that you told the Prosecution to give it to me at the jail, I did not get it.
[8] The prosecutor stated: Id. The prosecutor confirmed that the criminal mischief count was dismissed. The court then found Marshall guilty of criminal trespass as a class A misdemeanor and immediately sentenced him to 180 days executed in the Vanderburgh County Jail.
[9] Marshall argues that his waiver of his right to counsel was not knowing, voluntary, and intelligent, and that he was denied fundamental fairness and due process of law. He asserts that the trial court discharged his public defender and accepted his waiver of his right to counsel before giving any advisement under Faretta v. California , 422 U.S. 806, 95 S. Ct. 2525, 45 L.Ed.2d 562 (1975). He contends that he informed the court that he had not been provided necessary discovery and that the court's promise to provide him discovery went unfulfilled. He quotes Griffith v. State , 59 N.E.3d 947, 954 n.2 (Ind. 2016), in which the Indiana Supreme Court noted:
[10] Generally, the Sixth Amendment, applicable to the states through the Fourteenth Amendment, guarantees a criminal defendant the right to counsel before he may be tried, convicted, and punished. Hopper v. State , 957 N.E.2d 613, 617 (Ind. 2011). This protection also encompasses an affirmative right for a defendant to represent himself in a criminal case. Id. The relevant inquiry is whether a sufficient advisement was given at the time defendant sought to waive his right to counsel. See United States v. Balough , 820 F.2d 1485, 1489 (9th Cir. 1987) ( ). The Indiana Supreme Court has held that "[w]hen a defendant asserts the right to...
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