MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Feb 29 2016, 10:22 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Deborah Markisohn                                        Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lynn Wooden,                                             February 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1412-CR-574
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable John M.T. Chavis
Appellee-Plaintiff.                                      II, Judge
                                                         Trial Court Cause No.
                                                         49F15-1307-FD-46844



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-574 | February 29, 2016    Page 1 of 11
                                        Statement of the Case
[1]   Lynn Wooden (“Wooden”) appeals his conviction by jury of two counts of

      Class D felony resisting law enforcement1 and one count of Class A

      misdemeanor driving while suspended.2 His sole argument is that that he did

      not make a knowing, voluntary, and intelligent waiver of his right to counsel.

      Because the facts and circumstances of the case reveal that, among other things,

      Wooden was advised of the dangers and disadvantages of representing himself,

      we conclude that the waiver of his right to counsel was knowing, voluntary, and

      intelligent. We therefore affirm his convictions.


[2]   We affirm.


                                                      Issue
                 Whether Wooden’s waiver of his right to counsel was knowing,
                 voluntary, and intelligent.


                                                     Facts
[3]   On July 17, 2013, fifty-three-year-old Wooden made a left turn without using

      his turn signal. Indianapolis Metropolitan Police Department Officer

      Christopher Shaw (“Officer Shaw”) activated his lights and sirens, and Wooden




      1
       IND. CODE § 35-44.1-3-1. This statute was amended effective July 1, 2014, and Wooden’s offense would
      now qualify as a Level 6 felony. However, because Wooden committed this offense in 2013, we will apply
      the statute in effect at that time.


      2
          IND. CODE § 9-24-19-2.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-574 | February 29, 2016      Page 2 of 11
      pulled over. As Officer Shaw was walking to Wooden’s car, Wooden drove

      away. Officer Shaw and Officer John Schwerrs (“Officer Schwerrs”) pursued

      Wooden, who eventually stopped under an overpass. The officers got out of

      their cars with their guns drawn and yelled at Wooden to show his hands.

      Wooden, however, reached for the center console in his car. As the officers

      approached the car, Wooden rolled up the window and locked his doors while

      continuing to reach for the console. Officer Schwerrs broke the driver’s side

      window with his baton while another officer reached in the window, unlocked

      the door, and opened it. The officer grabbed Wooden’s arm and pulled him out

      of the car.


[4]   Wooden struggled with the officer and explained that “he was a member of the

      Moorish Nations, and that the laws of the State of Indiana or the United States

      [did not] apply to him, and [he was] allowed to travel as he please[d] without

      being stopped or bothered.” (Tr. 124-25). The officers discovered that

      Wooden’s driver’s license was suspended with prior convictions, and that he

      had two outstanding warrants in Marion County for driving while suspended.


[5]   At Wooden’s July 18, 2013, initial hearing, a master commissioner pointed out

      that Wooden had “been arrested a lot of times and convicted. So you know

      how the law works.” (Tr. 164). The commissioner also told Wooden that he

      had the right to be represented by counsel and encouraged Wooden to hire an

      attorney. When Wooden responded that he would not hire an attorney, the

      commissioner further explained as follows:



      Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-574 | February 29, 2016   Page 3 of 11
              [T]hat’s up to you. You absolutely have the right to make a bad
              decision about whether to be represented by counsel or not.
              When you go to court on Tuesday, there will be an attorney there
              called the prosecuting attorney whose job it is to enforce the law.
              . . . So if you change your mind between now and then, and
              seek to hire counsel to help you to make a defense against those
              charges . . . you have a right to do that, and I would encourage
              you to do that.


[6]   (Tr. 165-66).


[7]   Five days later, at Wooden’s first pretrial hearing, Wooden told the trial court

      that he did not plan to hire an attorney. The trial court responded that it would

      “highly recommend getting an attorney – you know, whether you get your own

      or you use Ms. Sanders [who had been appointed to represent Wooden]. Ms.

      Sanders is a highly capable attorney; she’s in my court more than most other

      lawyers are. She knows how I do things. So – I would recommend using her.”

      (Tr. 176). When Wooden asked about jurisdictional issues, the trial court

      explained, “that’s something you need to raise with your attorney, discuss with

      your attorney. Your attorney’s going to be equipped – somebody who’s gone to

      three years of law school and has also practiced in this court. The attorney will

      be equipped to evaluate the viability of your jurisdictional claims.” (Tr. 177).


[8]   The trial court further explained:


              Trust me when I say . . . [t]here’s some stuff I know that you
              don’t know about the law. . . . Ms. Collins has gone to law
              school, and she’s been practicing in the Prosecutor’s Office.
              She’ll make certain objections, and they might be viable
              objections that I grant that would not allow you to say stuff. And

      Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-574 | February 29, 2016   Page 4 of 11
              you may not know why you can’t say stuff. . . . The law may
              prohibit you from offering certain things into evidence . . . . I
              don’t want you to harm your case and any defenses you may
              have because you don’t know about . . . the law. . . . If you
              decide after all that, I still want to go pro se, that’s fine. . . . I
              won’t treat you any differently. But . . . that works both ways. I
              will treat you as somebody who’s gone to law school, who has
              read the Rules of Evidence, and who’s passed the Bar Exam. I’ll
              treat you the same way. Now, if you haven’t done all that – then
              you’re putting your case in jeopardy. . . . [D]id you not wish the
              Public Defender Agency to represent you?


      (Tr. 179-80). Wooden responded that he would “not accept benefits from the

      Public Defender – no benefits from this Court whatsoever.” (Tr. 180).


[9]   At a pretrial conference in April 2014, Wooden asked the trial court about

      obtaining a copy of a video from Langley Productions, the company that

      produces the television show, COPS, which was filming when Wooden was

      arrested. Wooden believed that the video had been purposely destroyed. The

      trial court responded to Wooden’s concerns as follows:

              Now – what you need to do is if you believe that somehow . . .
              they destroyed evidence, then you need to raise that issue at trial.
              . . . Maybe you can create some kind of negative or rebuttable
              presumption that somehow if that tape was available. . . . Now,
              I’m not going to educate you on what a lawyer would do because
              that’s not my job. I know what I would do if I was practicing
              law – which I did eighteen years before taking the bench. I know
              what I would do; I’m not telling you that, because that’s not my
              role. That’s the thing about having an attorney. But you’re free
              to represent yourself. But there might be a way that somebody
              could raise that issue at trial. Somebody who’s experienced in
              doing that could raise that issue at trial. Maybe somebody could

      Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-574 | February 29, 2016   Page 5 of 11
               create some kind of rebuttable presumption or adverse
               presumption that if that evidence were available, that evidence
               would be favorable to me, and not favorable to the State. I don’t
               know; I can’t give you that advice.


       (Tr. 280). The trial court also reminded Wooden that he could request an

       attorney any time before trial.


[10]   Wooden failed to appear for his scheduled jury trial on September 17, 2014. A

       few days later at the arrestee processing center, Wooden told a master

       commissioner that the police “hid the video from COPS.” (Tr. 371). The

       commissioner responded that she was sorry for Wooden’s frustration. She

       further explained Wooden’s need for an attorney as follows, “normally a person

       in your situation would be represented by an attorney. And an attorney would

       know the proper methods to go through, the proper avenues to go request all of

       that evidence. The Court normally doesn’t get evidence from people.” (Tr.

       371).


[11]   A few days later at a pretrial hearing, Wooden told the trial court that he did

       not ask for a trial or tell the court that he was going to represent himself. The

       trial court responded as follows:

               You wanted to represent yourself a long time ago – matter of
               fact, I appointed Ms. Anne Sanders, who’s an excellent . . .
               attorney. And she could have helped you on this matter. But
               you did not work with her, and then you said that you wanted to
               represent yourself. Now, if – if that has changed, we can revisit
               that issue. . . . I think it’s wise to have a representative –
               somebody who’s trained in the law, somebody who knows how

       Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-574 | February 29, 2016   Page 6 of 11
               to navigate the Rules of Evidence and what have you, to make
               sure that you don’t put your own head in the noose . . . . [W]e
               could revisit that issue.


       (Tr. 380). Wooden told the trial court that he just wanted the discovery

       materials he had requested so he could proceed, and the trial court responded as

       follows:

               We’ve gone through the discovery issue time and time again.
               We’re at the point where this case needs to go forward. . . . This
               case has got to be over a year old . . . . Now if you believe that
               you have an issue with discovery and what have you, that’s
               where the benefit of having a lawyer to represent you . . . she can
               . . . sift through it and find out what is legitimate and what is not.
               . . . [I]n my opinion, I believe that you should consider working
               with an attorney. That’s my opinion. . . . You’re free to do what
               you want to do . . . I believe that you have sufficient intelligence,
               knowledge, and education to represent yourself. The problem is,
               that’s from a basic standpoint; that’s not from a legal standpoint,
               in that you’re not going to know the rules of evidence. You’re
               not going to know certain case law and what have you germane
               to this case. So there could be something that you say or do – or
               there’s something that you don’t say or do – that could have an
               adverse impact on what happens to you. . . . I always think that
               one should be represented by somebody who’s trained to do this
               job.


       (Tr. 382-85).


[12]   At the final pretrial conference, the trial court granted the State’s motion to

       appoint standby counsel. The trial court held Wooden’s jury trial on October

       22, 2014. At a sidebar discussion, before the jury was selected, Wooden asked

       for assistance from his standby counsel “if me and her can come to an
       Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-574 | February 29, 2016   Page 7 of 11
       understanding.” (Tr. 31-32). However, before trial started, Wooden decided

       that he did not want Sanders’ assistance or to attend the trial. After telling the

       trial court that it was incompetent, Wooden left the court room, and the trial

       court held his trial without him.


[13]   A jury convicted him as charged, and the trial court sentenced him to 730 days

       with 606 days suspended for each conviction of resisting law enforcement, and

       365 days with 241 days suspended for driving while suspended. The trial court

       ordered all sentences to run concurrent to each other. Wooden appeals his

       convictions.


                                                   Decision
[14]   Wooden’s sole argument is that his waiver of counsel was not knowing,

       voluntary, and intelligent. The Sixth Amendment to the United States

       Constitution guarantees a criminal defendant the right to counsel. McBride v.

       State, 992 N.E.2d 912, 917 (Ind. Ct. App. 2013), reh’g denied, trans. denied.

       Implicit in the right to counsel is the right to self-representation. Drake v. State,

       895 N.E.2d 389, 392 (Ind. Ct. App. 2008). However, before a defendant waives

       his right to counsel and proceeds pro se, the trial court must determine that the

       defendant’s waiver of counsel is knowing, voluntary, and intelligent. Jackson v.

       State, 992 N.E.2d 926, 932 (Ind. Ct. App. 2013), trans. denied. We review de

       novo the trial court’s determination that a defendant waived his right to

       counsel. McBride, 992 N.E.2d at 917.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-574 | February 29, 2016   Page 8 of 11
[15]   “‘It is undeniable that in most criminal prosecutions defendants could better

       defend with counsel’s guidance than by their own unskilled efforts.’” Hopper v.

       State, 957 N.E.2d 613, 617-18 (Ind. 2011) (quoting Faretta v. California, 422 U.S.

       806, 807 (1975)). The defendant who waives his right to counsel and asserts his

       right to self-representation should therefore be informed of the dangers and

       disadvantages of doing so. Parish v. State, 989 N.E.2d 831, 838 (Ind. Ct. App.

       2013). The Indiana Supreme Court has explained that there are no specific

       “talking points” a trial court must follow when advising a defendant of the

       dangers and disadvantages of proceeding without counsel. Poynter v. State, 749

       N.E.2d 1122, 1126 (Ind. 2001). Rather, a trial court needs only to come to a

       “considered determination” that the defendant is making a knowing, voluntary,

       and intelligent waiver of his right to counsel. Id.


[16]   The Indiana Supreme Court has adopted four factors for a trial court to

       consider when determining whether a knowing, voluntary, and intelligent

       waiver has 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 content of the defendant’s decision to
               proceed pro se.


       Id. at 1127-28. When applying these factors, the trial court is in the best

       position to assess whether a defendant has made a knowing, voluntary, and

       intelligent waiver. Id. at 1128. The trial court’s decision will most likely be

       Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-574 | February 29, 2016   Page 9 of 11
       upheld where the court has made the proper inquiries, conveyed the proper

       information, and reached a reasoned conclusion. Id.


[17]   Here, our review of the transcript reveals that from the time of his initial

       hearing on July 18, 2013, until his jury trial on October 22, 2014, Wooden

       attended at least seventeen hearings where he was repeatedly advised of his

       right to counsel and the dangers and disadvantages of representing himself.

       Specifically, two commissioners and one trial court judge warned Wooden that

       not having counsel could harm his case and any possible defenses. In addition,

       the trial court told Wooden that even though he had the intelligence to

       represent himself, he had not gone to law school, read the rules of evidence, or

       passed the bar exam. Wooden was advised that he would be “legally

       outmatched” by the prosecutor. (State’s Br. 12).


[18]   Wooden was also advised of the advantages of having an attorney. For

       example, the trial court advised him that an attorney would have gone to law

       school and passed the bar exam. An attorney would have been able to evaluate

       Wooden’s discovery issues and jurisdictional claims and would have had

       courtroom experience.


[19]   With regard to the other Poynter factors, Wooden had experience with the law

       because he had been arrested and convicted in the past for similar charges.

       When Wooden was arrested for the current offenses, he had two outstanding

       warrants for driving while suspended. In addition, the State is correct that

       Wooden “made his reasons for rejecting representation clear.” (State’s Br. 12).


       Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-574 | February 29, 2016   Page 10 of 11
       As a member of the Moorish Nation, Wooden did not believe the laws of

       Indiana applied to him, and he did not think the trial court had jurisdiction over

       him. He also accused the trial court of being incompetent before choosing not

       to attend his trial.


[20]   Based on the foregoing, the trial court properly determined that Wooden’s

       waiver of his right to counsel was knowing, voluntary, and intelligent. We,

       therefore, affirm the trial court.


[21]   Affirmed.


[22]   Vaidik, C.J., and Robb, J., concur.




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