                                                                       FILED
                                                                  Sep 28 2016, 8:29 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Steven Knecht                                              Gregory F. Zoeller
Vonderheide & Knecht, P.C.                                 Attorney General of Indiana
Lafayette, Indiana
                                                           Angela N. Sanchez
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Susan E. Sturdivant,                                       September 28, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           08A02-1601-CR-186
        v.                                                 Appeal from the Carroll Superior
                                                           Court
State of Indiana,                                          The Honorable Kurtis Fouts,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           08D01-1408-F6-19



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 08A02-1601-CR-186 | September 28, 2016               Page 1 of 15
                                           Case Summary
[1]   Charged with possession of methamphetamine and other offenses, Susan

      Sturdivant told the trial court—at multiple pretrial hearings over the course of

      fourteen months—that she wanted to waive her right to counsel and represent

      herself. The court allowed her to do so, and a jury convicted her on all charges.

      Now represented by an attorney, Sturdivant claims that she is mentally ill and

      that the trial court should have denied her request for self-representation under

      Indiana v. Edwards, 554 U.S. 164 (2008), which recognized the authority of trial

      courts to insist upon representation by counsel for those defendants who “suffer

      from severe mental illness to the point where they are not competent to conduct

      trial proceedings by themselves.” Because the trial court was in the best

      position to judge Sturdivant’s competency and there is no evidence that

      Sturdivant was suffering from “severe mental illness,” we affirm the trial court’s

      decision to allow her to conduct her own defense.



                        Facts and Procedural Background
[2]   Early one morning in August 2014, a Delphi police officer stopped Sturdivant’s

      pickup after Sturdivant twice failed to use a turn signal. Other officers arrived

      at the scene, and Sturdivant’s behavior—“yelling and screaming,” “talking

      extremely fast,” “licking her lips constantly,” “fidgeting a lot,” 10/27/15 Tr. p.

      27-30—led to a dog sniff of her pickup. The dog alerted to the presence of

      drugs, and the officers found marijuana and a clear baggie containing a white

      powdery substance that tested positive for methamphetamine. An officer then

      Court of Appeals of Indiana | Opinion 08A02-1601-CR-186 | September 28, 2016   Page 2 of 15
      obtained a warrant to test Sturdivant’s blood, which revealed the presence of

      methamphetamine. Sturdivant was charged with possession of

      methamphetamine, possession of marijuana, operating while intoxicated, and

      operating with a controlled substance in her body.

[3]   At the initial hearing on August 25, 2014, Sturdivant and the other defendants

      present were advised as follows with regard to the right to counsel:

              Each of you have the right to be represented by an attorney in all
              stages of the proceedings including trial and appeal. If you
              intend to employ an attorney, you should do so within twenty
              days of this initial hearing if you are charged with a felony or
              within ten days if you are charged with a misdemeanor. The
              reason for that is [] that there are deadlines for raising defenses
              and filing motions and if those deadlines are missed then the
              legal issues and the defenses that you could have raised would be
              waived. If you don’t have the money, means, or property to
              employ your own attorney, you have the right to have an
              attorney appointed for you at no expense to you. You are not
              required to have an attorney. You do have a constitutional right
              to represent yourself. But before you do that you should realize
              that you may conduct a defense as to your own detriment.
              Meaning you could do yourself more harm than good. You
              won’t uh receive any special favors or indulgences from the
              Court just because you don’t have a lawyer. You’ll have to abide
              by the same standards as a lawyer as to the law and procedure.
              And the State will be represented by an experienced professional
              legal counsel. And at today’s hearing that is Mr. Bean seated to
              my left and your right today. Uh an attorney’s experience,
              knowledge of the law, possible defenses, and technical rules or
              procedures and evidence would be valuable in evaluating,
              negotiating, preparing, and presenting your case.



      Court of Appeals of Indiana | Opinion 08A02-1601-CR-186 | September 28, 2016   Page 3 of 15
      8/25/14 Tr. p. 4-5. Later, as the court discussed Sturdivant’s specific charges

      and potential penalties with her, Sturdivant said, “The Constitution of the

      citizens rights state a person cannot pass or bridge any law to violate a person’s

      constitutional right. It’s wrote on eight and a half by eleven, a legal

      documentation, it’s eight and a half by fourteen, to the clerk . . . .” Id. at 12.

      Nonetheless, Sturdivant eventually stated that she understood the charges

      against her. The court then asked, “[D]id you want to be represented by a

      lawyer?” Id. at 18. Sturdivant responded, “No I do not.” Id.


[4]   At a pretrial conference held in October 2014, the trial court noted its concern

      with Sturdivant’s self-representation:

              Court:            Ms. Sturdivant are [you] still intending to uh
                                represent yourself?


              Sturdivant: Yes sir.


              Court:            Alright. I’m concern[ed] about that. But it’s your
                                right.


              Sturdivant: It is my right.


      10/8/14 Tr. p. 4. The court also addressed various discovery and scheduling

      issues with Sturdivant.


[5]   The next pretrial conference was held on March 26, 2015, five days before

      Sturdivant’s trial was to begin. The trial court began by explaining to

      Sturdivant how jury trials typically proceed, including jury selection,

      Court of Appeals of Indiana | Opinion 08A02-1601-CR-186 | September 28, 2016   Page 4 of 15
preliminary instructions, opening statements, examination and cross-

examination of witnesses, exhibits, the defendant’s decision whether to testify,

closing arguments, final instructions, the ultimate burden of proof on the State,

and jury deliberations. After Sturdivant indicated her understanding of the

process, the court stated, “It sounds simple now but it’s not.” 3/26/15 Tr. p. 9.

Sturdivant replied, “I know it’s not.” Id. Nonetheless, the court revisited the

right to counsel, and Sturdivant agreed to the appointment of an attorney:

        Court:            [Y]ou have a right to have a lawyer. If you don’t
                          have the money, means, or property to afford to
                          employ your own lawyer, uh that you have a right
                          to have one appointed for you at no expense to you.
                          Uh you’re not required to have a lawyer. You do
                          have a constitutional right to represent yourself.
                          You know that.


        Sturdivant: Yes.


        Court:            But I need to advise you before you do that, that
                          you could conduct a defense as to your own
                          detriment. Means you could do yourself more harm
                          than good. You will receive no special indulgences
                          from the Court just because you don’t have a
                          lawyer. You will have to abide by the same
                          standards as a lawyer as to the law and procedure.
                          And the State is going to be represented by
                          experienced professional lawyer [sic], which is Mr.
                          Bean. Uh yes.


        Sturdivant: I will take a lawyer if you’ll still give me one.


        Court:            Oh, okay.
Court of Appeals of Indiana | Opinion 08A02-1601-CR-186 | September 28, 2016   Page 5 of 15
[6]   Id. at 10. The court appointed an attorney, who then requested and was

      granted a continuance of the trial.

[7]   When the parties returned to court for a pretrial conference on June 26, 2015,

      Sturdivant’s attorney filed a motion to withdraw from the appointment, citing a

      “breakdown in communication.” 6/26/15 Tr. p. 4. When Sturdivant agreed

      and indicated her desire to go forward without an attorney, the court gave her

      the same right-to-counsel advisement it had given her at the initial hearing,

      adding:

              [A]n attorney has skills and expertise in preparing for and
              presenting a proper defense that you do not possess. These
              include among other things, investigating and interrogating
              witnesses, gathering appropriate documentary evidence,
              obtaining favorable defense witnesses, preparing and filing
              pretrial motions, preparing appropriate written instructions for
              the jury, presenting favorable opening and closing statements,
              examining and cross examining witnesses at trial, and
              recognizing objectionable, prejudicial evidence and testimony
              and proper objections.


      Id. at 5-6. Sturdivant said that she understood the advantages of having counsel

      but that she nonetheless wanted to represent herself.

[8]   At a pretrial conference on September 17, 2015, the court and the parties

      discussed preliminary jury instructions and various discovery issues, the State’s

      witness list, jury selection, and opening statements. In objecting to the jury

      instructions, Sturdivant asserted that “you can’t use State laws to run your

      courtroom,” that “state laws are prohibited I believe by a couple of the

      Court of Appeals of Indiana | Opinion 08A02-1601-CR-186 | September 28, 2016   Page 6 of 15
      amendments, of the Bill of Rights,” and that “Indiana can’t have a

      constitution.” 9/17/15 Tr. p. 5, 7. The court later asked Sturdivant if she

      wanted standby counsel. When Sturdivant declined, the court sought to clarify

      the role of standby counsel: “Are you sure? Because I’d like to[;] they won’t

      have to sit there and do anything other than just be there for questions.” Id. at

      18. Sturdivant insisted that she wanted to proceed without counsel.

[9]   The final pretrial conference was held on October 26, 2015, the day before trial.

      The prosecutor, at Sturdivant’s request, summarized the expected testimony of

      each of the State’s witnesses. The court also discussed various evidentiary

      matters with Sturdivant and returned to the issue of counsel:

              Court:            Ms. Sturdivant I’m, I guess just one last time here.


              Sturdivant: No I do not want, no no no, no I do not want a plea
                          ...


              Court:            I’m going to ask . . .


              Sturdivant: I know what you’re going to ask me; no I don’t
                          want one of these counselors.


              Court:            Well let me just make a record as I did before.
                                Because . . . I pretty well knew that’s what you
                                would say.


              Sturdivant: You better believe it.




      Court of Appeals of Indiana | Opinion 08A02-1601-CR-186 | September 28, 2016     Page 7 of 15
       10/26/15 Tr. p. 12-13. The court gave Sturdivant the same right-to-counsel

       advisements that it had given her previously, and Sturdivant confirmed that she

       understood her rights and that she still wished to proceed without counsel or

       standby counsel. Sturdivant then asked, “If I’m found guilty, am I going to be

       executed?” Id. at 15. The court told her that she would not be and explained to

       her once again the charges she was facing. Before adjourning, the court

       reminded Sturdivant how jury selection would proceed.


[10]   On the morning of trial, the court repeated the right-to-counsel advisements a

       final time, and Sturdivant indicated her understanding. Sturdivant then

       objected to the entire proceeding based on “Mayberry vs. Madison”

       (presumably a reference to the United States Supreme Court’s 1803 decision in

       Marbury v. Madison) and argued that “judicial immunity [is] unconstitutional.”

       10/27/15 Tr. p. 9-10. The court rejected these claims, and the trial proceeded

       as scheduled. Sturdivant lodged several invalid objections to the State’s

       evidence, asked many puzzling questions of witnesses, made certain damaging

       mistakes and admissions in front of the jury, and pressed various flawed legal

       theories. At one point, Sturdivant informed a testifying officer that “treason is

       punishable by death.” Id. at 57. The jury found Sturdivant guilty on all counts.

       In sentencing Sturdivant, the trial court stated its belief that “there may be some

       undiagnosed mental illness” and found this to be a mitigating circumstance.

       11/23/15 Tr. p. 15.

[11]   Sturdivant now appeals.



       Court of Appeals of Indiana | Opinion 08A02-1601-CR-186 | September 28, 2016   Page 8 of 15
                                  Discussion and Decision
[12]   Sturdivant contends that the trial court should not have allowed her to represent

       herself, despite the fact that she had a constitutional right to do so and the fact

       that she explicitly and repeatedly expressed her desire to exercise that right.

       She notes that a prerequisite to self-representation is a knowing, intelligent, and

       voluntary waiver of a closely related right—the right to be represented by an

       attorney—and she argues that her waiver of that right in this case was not

       knowing and intelligent (she concedes that it was voluntary). Unlike most

       defendants who make such a claim, Sturdivant does not challenge the adequacy

       of the trial court’s advisements regarding the dangers of self-representation and

       the benefits of counsel. See, e.g., United States v. Moya-Gomez, 860 F.2d 706, 733

       (7th Cir. 1988) (“When the district court permits the defendant to proceed pro

       se, the appeal, like the one presently before this court, inevitably will focus on

       whether the court adequately informed him of the dangers and disadvantages of

       self-representation.”), reh’g denied. Nor does she deny that she consistently

       indicated to the trial court that she understood its advisements. Instead, she

       asserts that she also made “bizarre statements” and “incorrect and unusual legal

       arguments” that should have led the trial court to conclude that she was too

       mentally ill to represent herself and therefore wholly incapable of making a

       knowing and intelligent waiver—regardless of the clarity of the court’s

       advisements and her acknowledgements in response. Appellant’s Reply Br. p.

       11.




       Court of Appeals of Indiana | Opinion 08A02-1601-CR-186 | September 28, 2016   Page 9 of 15
[13]   Sturdivant’s argument highlights a conflict that confronts trial courts whenever

       defendants announce an intention to represent themselves. We have

       recognized “the tension between the right to counsel and the right of self-

       representation, and the difficult position in which this places the trial court.”

       Dowell v. State, 557 N.E.2d 1063, 1066 (Ind. Ct. App. 1990), trans. denied.

       “Because these rights are reciprocal, to assert one necessitates a waiver of the

       other.” Id. “If the trial court allows the defendant to proceed pro se, it may

       have denied the defendant the right to counsel, and if the trial court appoints

       counsel, it may have violated the defendant’s right to proceed pro se.” Id. As

       such, no matter what decision the trial court ultimately makes—whether to

       honor the defendant’s request to represent herself or to deny it—the defendant

       is likely to appeal if convicted. Moya-Gomez, 860 F.2d at 732-33.


[14]   The United States Supreme Court has described the fundamental nature of the

       right to self-representation:

               It is undeniable that in most criminal prosecutions defendants
               could better defend with counsel’s guidance than by their own
               unskilled efforts. But where the defendant will not voluntarily
               accept representation by counsel, the potential advantage of a
               lawyer’s training and experience can be realized, if at all, only
               imperfectly. To force a lawyer on a defendant can only lead him
               to believe that the law contrives against him. Moreover, it is not
               inconceivable that in some rare instances, the defendant might in
               fact present his case more effectively by conducting his own
               defense. Personal liberties are not rooted in the law of averages.
               The right to defend is personal. The defendant, and not his
               lawyer or the State, will bear the personal consequences of a
               conviction. It is the defendant, therefore, who must be free

       Court of Appeals of Indiana | Opinion 08A02-1601-CR-186 | September 28, 2016   Page 10 of 15
               personally to decide whether in his particular case counsel is to
               his advantage. And although he may conduct his own defense
               ultimately to his own detriment, his choice must be honored out
               of that respect for the individual which is the lifeblood of the law.


       Faretta v. California, 422 U.S. 806, 834 (1975) (citation omitted).


[15]   That said, the right of self-representation, like most constitutional rights, is not

       absolute. In Indiana v. Edwards, the Supreme Court held that a trial court can

       insist upon representation by counsel for those defendants who “suffer from

       severe mental illness to the point where they are not competent to conduct trial

       proceedings by themselves.” 554 U.S. 164, 178 (2008). Sturdivant argues that

       her statements and overall performance in representing herself should have led

       the trial court to conclude that she belonged in this category of defendants and

       to appoint an attorney against her wishes.

[16]   In making this argument, Sturdivant faces an uphill battle. On remand from

       Indiana v. Edwards, the Indiana Supreme Court held that determining whether a

       particular defendant is too mentally ill to conduct her own defense involves “a

       fact-sensitive evaluation of the defendant’s capabilities that the trial court is

       best-situated to make.” Edwards v. State, 902 N.E.2d 821, 824 (Ind. 2009); see

       also Jackson v. State, 868 N.E.2d 494, 503 (Ind. 2007) (explaining that trial court

       “is in the best position to assess whether a defendant has knowingly and

       intelligently waived counsel”). As such, we will overturn a trial court’s decision

       in this regard only if it is clearly erroneous—if it is “unsupported by the facts




       Court of Appeals of Indiana | Opinion 08A02-1601-CR-186 | September 28, 2016   Page 11 of 15
       and circumstances before the trial court together with any reasonable inferences

       to be drawn therefrom.” Edwards v. State, 902 N.E.2d at 824.


[17]   Sturdivant contends that the trial court should have found her to be severely

       mentally ill for purposes of Indiana v. Edwards based on her “bizarre statements

       as well as incorrect and unusual legal arguments” before and during trial,

       including those noted above: “The Constitution of the citizens rights state a

       person cannot pass or bridge any law to violate a person’s constitutional right.

       It’s wrote on eight and a half by eleven, a legal documentation, it’s eight and a

       half by fourteen, to the clerk,” 8/25/14 Tr. p. 12; “you can’t use State laws to

       run your courtroom,” “state laws are prohibited I believe by a couple of the

       amendments, of the Bill of Rights,” and “Indiana can’t have a constitution,”

       9/17/15 Tr. p. 5, 7; “If I’m found guilty, am I going to be executed?” 10/26/15

       Tr. p. 15; objecting to the proceeding based on “Mayberry [Marbury] vs.

       Madison” and arguing that “judicial immunity [is] unconstitutional,” 10/27/15

       Tr. p. 9-10; and pointing out to a testifying officer that “treason is punishable by

       death,” id. at 57.


[18]   While some of Sturdivant’s statements were undeniably strange, and she clearly

       lacked the legal skills of an experienced criminal defense attorney, this is not the

       stuff of “severe mental illness” under Indiana v. Edwards. In that case, in which

       the trial court’s insistence on representation by counsel was ultimately affirmed

       by the Indiana Supreme Court, the evidence showed:

               Edwards was evaluated by several mental health professionals
               from 1999 through 2004 and was diagnosed at various points in
       Court of Appeals of Indiana | Opinion 08A02-1601-CR-186 | September 28, 2016   Page 12 of 15
                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.


       Edwards v. State, 902 N.E.2d at 827. Here, there was no such evidence before

       the trial court. Most notably, there is no evidence Sturdivant has ever been

       evaluated by a mental-health professional, let alone diagnosed with a mental

       illness. And to the extent that there were some indicators of mental illness, they

       certainly were not sufficient to outweigh Sturdivant’s explicit and repeated

       requests to waive counsel and represent herself.1

[19]   Sturdivant also argues that even if her odd statements and legal arguments did

       not demonstrate severe mental illness that rendered her incompetent to

       represent herself, they were sufficient to prompt a further inquiry by the trial

       court—especially in light of the fact that the trial court itself later expressed its

       belief that “there may be some undiagnosed mental illness.” 11/23/15 Tr. p.




       1
        Sturdivant notes that she lacked “the knowledge and skills necessary to conduct a trial defense.”
       Appellant’s Br. p. 33. If she is suggesting that the trial court should have appointed counsel for her on this
       basis, she is incorrect. A court cannot deny a defendant the right of self-representation based on the
       defendant’s lack of legal skills, experience, or knowledge. See, e.g., Faretta, 422 U.S. at 835 (“We need make
       no assessment of how well or poorly Faretta had mastered the intricacies of the hearsay rule and the
       California code provisions that govern challenges of potential jurors on voir dire. For his technical legal
       knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend
       himself.”).

       Court of Appeals of Indiana | Opinion 08A02-1601-CR-186 | September 28, 2016                      Page 13 of 15
       15. She contends that the trial court would have learned that she was court-

       ordered to undergo psychiatric evaluations in two previous criminal cases—at

       the State’s request in the first case, at her own attorney’s request in the

       second—and that this additional information would have caused the trial court

       to insist on representation by counsel in this case.

[20]   We agree that, under the circumstances, some further probing by the trial court

       would have been appropriate. See Dowell, 557 N.E.2d at 1067 (explaining that

       trial court should inquire into defendant’s mental capacity “if there is any

       question as to the defendant’s mental state”). However, even assuming that the

       trial court would have discovered the existence of the prior court orders, we

       cannot agree that knowledge of those orders would have led the trial court to

       find Sturdivant incompetent to represent herself. First, those orders were issued

       in late 2005 and early 2006, more than eight years before the filing of the

       charges at issue here. Second, the ordered evaluations were never actually

       conducted, so there is no way of knowing what they would have revealed. And

       third, if the court would have found out about the orders in those cases, it also

       would have learned that the first case was eventually dismissed based on

       Sturdivant’s pro se motion to suppress and that the court in the second case

       vacated the evaluation order at Sturdivant’s request. In short, Sturdivant was

       not prejudiced by the trial court’s failure to inquire into her background.

[21]   We stress once again that trial courts are in the best position to assess the

       competency of criminal defendants and the knowingness and intelligence of

       waivers of the right to counsel and that we can only reverse a trial court’s

       Court of Appeals of Indiana | Opinion 08A02-1601-CR-186 | September 28, 2016   Page 14 of 15
       determination if it was clearly erroneous. See Edwards v. State, 902 N.E.2d at

       824; Jackson, 868 N.E.2d at 503. Here, the trial court had numerous

       opportunities to converse with and observe Sturdivant during more than a year

       of pretrial hearings. Sturdivant does not direct us to any facts that the trial

       court knew or could have discovered that would have supported a finding of

       severe mental illness. Therefore, we cannot say that the trial court’s decision to

       allow Sturdivant to represent herself was clearly erroneous.

[22]   Affirmed.

       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Opinion 08A02-1601-CR-186 | September 28, 2016   Page 15 of 15
