Stroud v. State, 71S00-0011-DP-00642.

CourtSupreme Court of Indiana
Citation809 N.E.2d 274
Docket NumberNo. 71S00-0011-DP-00642.,71S00-0011-DP-00642.
PartiesPhillip A. STROUD, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
Decision Date25 May 2004

Eric K. Koselke, Brent Westerfeld, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, James B. Martin, Deputy Attorney General of Indiana, Indianapolis, IN, Attorneys for Appellee. SULLIVAN, Justice.

Defendant Phillip A. Stroud was convicted by a jury of three murders, burglary, robbery, and attempted robbery. The jury recommended a sentence of death and the trial court imposed a death sentence for each of the three murders and twenty years for each of the other crimes. Defendant appeals his convictions and sentences. We affirm Defendant's convictions but vacate his sentences and remand the case to the trial court for new penalty and sentencing phases.


The bodies of Wayne Shumaker, Lynn Ganger, and Corby Myers were found on the afternoon of September 14, 2000, in a barn on the property of Arthur and Theresa Sears in Lakeville, Indiana. Shumaker, Ganger, and Myers had been building a loft in the Searses' barn. They were found lying face down on the barn floor, their hands tied behind their backs with duct tape, and all had died from gunshot wounds to the head. On September 18, 2000, the State charged Phillip A. Stroud, approximately age 21 at the time, with three counts of murder; three counts of felony murder; one count of burglary, a Class A felony; and three counts of robbery, all Class B felonies.

At trial, the State's main evidence against Defendant consisted of testimony from others involved in the incident, ballistics testimony, and shoeprint testimony. According to some witnesses, Phillip Stroud, Tyrome Wade, Kerel Seabrooks, and Ronald Carter went to the Searses' residence with the intent to steal from the place. They learned about the Searses' residence from Charity Payne, a former girlfriend of the Searses' son. Ronald Carter, who was also charged for the crimes and testified pursuant to a plea bargain with the State, said that Defendant shot the three men.

It appeared that four bullets had been fired, but it could not be determined conclusively whether all of the bullet fragments found at the scene were fired from the same gun. It is possible that the bullets were fired from an Intratec Tec-9 gun. Ronald Carter testified that Defendant carried a Tec-9 gun.

Shoeprint marks were found on pieces of lumber inside the barn, and they could have been made by a pair of Nike shoes taken from the apartment of Defendant's girlfriend when he was arrested. These same Nike shoes had some debris on them, which was compared to debris at the crime scene. A carpet fiber found on the shoes had the same class characteristics as carpet from the Searses' home. The Nike shoes also had animal feces on them, and an expert testified that the feces on the Nike shoes and the feces from the ground at the crime scene were likely from the same animal.

The defense did not put on any witnesses during the guilt phase of trial.

The jury found Defendant guilty of three counts murder and three counts felony murder, which the trial court merged; one count burglary, a Class B felony; two counts robbery, Class B felonies; and one count attempted robbery, a Class B felony. After the penalty phase of the trial in which the defense presented evidence of mitigating circumstances, the jury recommended that Defendant receive the death penalty. Judge Means, in his sentencing order, stated that he believed Indiana's amended death penalty statute required him to follow the jury's recommendation. If he were not so constrained, however, he said he would "be inclined to judicially override the jury recommendation for death." (Appellant's App. at 642.) He sentenced Defendant to death for each of the murders and to 20 years for each of the other four counts.

Pursuant to Indiana Appellate Rule 4(A)(1)(a), Defendant directly appealed his convictions and sentences to this Court. We affirm Defendant's convictions but vacate his sentences and remand the case to the trial court for new penalty and sentencing phases.



Defendant argues that he was improperly denied the right to represent himself under the United States and Indiana Constitutions. Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), held that the right of self-representation is implicit in the Sixth Amendment to the United States Constitution, and Article 1, § 13, of the Indiana Constitution also guarantees this right. A request to proceed pro se is a waiver of the right to counsel, and consequently, there are several requirements to invoking the right of self-representation successfully. A defendant's "request must be clear and unequivocal, and it must be [made] within a reasonable time prior to the first day of trial." Russell v. State, 270 Ind. 55, 64, 383 N.E.2d 309, 315 (1978); accord Sherwood v. State, 717 N.E.2d 131, 135 (Ind.1999)

. In addition, a defendant's choice to proceed pro se must be "knowing, intelligent, and voluntary." Jones v. State, 783 N.E.2d 1132, 1138 (Ind.2003); accord Sherwood, 717 N.E.2d at 134-35.

On three separate occasions, Defendant requested to represent himself. Defendant made his first request on September 19, 2000, at the initial hearing before a magistrate. At the time Defendant was charged in this case, two other cases involving drug dealing were pending against him. Defendant stated that he "would like to go pro se on these matters with standby counsel." (Tr. at 6 (magistrate).) The magistrate told Defendant that his case was being assigned to Judge Means, suggested that Defendant could "revisit that issue" then, and stated that he would appoint a public defender. (Id.) Defendant responded, "Okay." (Id.) Here, Defendant's right of self-representation was not violated, because the magistrate did not deny that right to Defendant. Rather, he told Defendant to raise the issue in a more appropriate forum, in front of the judge who would preside over his case. Defendant expressed no objection to this procedure.

When Defendant appeared before Judge Means on October 2, 2000, he did not raise the issue of representing himself. At that hearing, Defendant requested a delay in the drug dealing cases and a speedy trial in the murder case. A trial date of December 4, 2000, was set for the murder case and no ruling was made on Defendant's request for a delay in the other cases.

Defendant made his second request to represent himself at the next hearing in front of Judge Means, on October 26, 2000. At the time, the lawyers, the court, and Defendant were discussing the various cases pending against him. Defendant asked to have his other two cases delayed until the murder case was concluded. Judge Means said that at least as to one of those cases, which went back to July, 1999, he would deny a continuance and the case would proceed to trial. Defendant then responded, "I'm not ready. If it's like that, I'd like to enter my appearance as pro se on all of my matters." (Tr. at 11-12 (trial judge).) Judge Means denied Defendant's request, explaining that the trial date for this particular case was set for November 2, 2000. In this context, it is clear that the focus was on the case going to trial the following week and not on any of the other cases. Judge Means's response was to that case alone, and he properly denied that request for lack of timeliness. See Sherwood, 717 N.E.2d at 135

; Russell, 270 Ind. at 63-64,

383 N.E.2d at 315. Given this context, to the extent that Defendant was asking to represent himself in the murder case, if at all, his request was not clear and unequivocal. Moreover, the sincerity of Defendant's request seems questionable, for it appears that he only made the request to stall the upcoming trial. See Burton v. Collins, 937 F.2d 131, 133-34 (5th Cir.1991) (affirming trial court's denial of a request for self-representation based on the finding that defendant's request was unclear because it was "simply a spontaneous response offered at a point when Petitioner realized he was not going to get a new lawyer"), cert. denied, 502 U.S. 1006, 112 S.Ct. 642, 116 L.Ed.2d 660 (1991). Judge Means was in the best position to evaluate Defendant's sincerity and the clarity of his request. We find that his ruling in this situation was not unreasonable.

Defendant's final request1 occurred on February 11, 2002, at a hearing where Defendant's counsel filed a Motion to Proceed as Pro Se Counsel on behalf of Defendant. The court denied the motion because of the "grave circumstances of this particular type of proceeding." (Tr. at 122.) This time, Defendant appears clearly to have invoked his right of self-representation, and the appropriate course would have been for the trial court to hold a hearing to determine if Defendant's choice was knowing, intelligent, and voluntary. Jones, 783 N.E.2d at 1138; Sherwood, 717 N.E.2d at 134-35. Nevertheless, the overall circumstances lead us to conclude that Defendant waived his right to represent himself because he vacillated between representing himself and being represented by counsel.2 The first time Defendant appeared before Judge Means on the murder case, he did not request to represent himself. On November 16, 2000, when the State filed a Request for the Death Penalty and the court stated that new counsel would be named for Defendant under Criminal Rule 24, Defendant did not object nor did he ask to represent himself. On December 4, 2000, when James Korpal entered his appearance for Defendant, Defendant did not object. After that, over a year passed and the court held eight pretrial hearings before Defendant again requested to represent himself. During this time, he allowed the appointed attorneys to represent him. See Sherwood, 717 N.E.2d at 136

(emphasizing in finding a denial of defendant's right to represent himself that defendant "explicitly...

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