MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                 Apr 05 2018, 7:52 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ronald J. Moore                                          Curtis T. Hill, Jr.
The Moore Law Firm, LLC                                  Attorney General of Indiana
Richmond, Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Frank James,                                             April 5, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         89A01-1709-CR-2110
        v.                                               Appeal from the
                                                         Wayne Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Gregory A. Horn, Judge
                                                         Trial Court Cause No.
                                                         89D02-1705-F5-62



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 89A01-1709-CR-2110 | April 5, 2018              Page 1 of 14
[1]   Frank James (“James”) was convicted after a jury trial of burglary1 as a Level 5

      felony and was adjudicated a habitual offender.2 The trial court sentenced him

      to an aggregate sentence of eight years executed. James appeals and raises the

      following restated issues for our review:


                 I.       Whether James knowingly and voluntarily waived his
                          right to counsel; and


                 II.      Whether the prosecutor committed prosecutorial
                          misconduct in voir dire when he asked the potential jurors
                          how they felt about a defendant who chooses to represent
                          himself.


[2]   We affirm.


                                       Facts and Procedural History
[3]   James and Bambi Runyon (“Runyon”) lived together in an apartment on Main

      Street in Richmond, Indiana. On May 11, 2017, at around 3:00 a.m., James

      and Runyon walked past Sander’s Jewelers on Main Street, both turning to

      look in the store window at a piece of jewelry as they walked by the store.

      Approximately fifteen minutes later, at 3:25 a.m., Runyon walked past on the

      other side of the street, and James returned to the jewelry store and stood in

      front of the store. For almost a minute, James carefully looked all around, and




      1
          See Ind. Code § 35-43-2-1.
      2
          See Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 89A01-1709-CR-2110 | April 5, 2018   Page 2 of 14
      at one point, he appeared to reach into his pocket. James then reared back and

      threw a rock through the store window. James reached inside the window and

      then walked away.3


[4]   The owner of the jewelry store was notified that the glass break detector at the

      store had been activated and that the alarm was going off. He drove to the store

      where he found the window had been shattered and a large rock was inside.

      The owner determined that a ladies’ moonstone ring, valued at $150.00 and

      located in the area where the window was broken, was missing. Several people

      familiar with James identified him as the person shown in the jewelry store

      surveillance video that captured the incident. Tr. at 108, 111, 125-27, 129, 135-

      36.


[5]   The State charged James with Level 5 felony burglary and alleged that he was a

      habitual offender. A jury trial was held, and at the start of the first day of trial,

      James expressed a desire to represent himself because he was dissatisfied with

      his attorney. Id. at 16-17. The trial court then inquired into James’s

      educational background and warned him that: (1) he would receive no special

      treatment and would be held to the same standards as an attorney; (2) the State

      would be represented by a skilled attorney; (3) his attorney had skills and




      3
       Although the angle of the surveillance video did not clearly show James reaching in through the glass,
      James can be seen on the video moving toward the window and making movements clearly consistent with a
      person reaching his arm through and trying to pull something out. The store owner also testified that the
      shattered glass in the window was pulled back toward the outside, which suggested that a hand had pulled
      back out through the opening. Tr. at 101.

      Court of Appeals of Indiana | Memorandum Decision 89A01-1709-CR-2110 | April 5, 2018         Page 3 of 14
      expertise and knew how to do many things that were necessary in a trial that

      James did not; and (4) it was not in James’s best interests to proceed pro se. Id.

      at 17-19. Despite hearing all this, James still maintained that he wanted to

      represent himself, and the trial court granted his request. Id. at 20. After the

      prosecutor questioned the first panel of jurors during voir dire, James informed

      the trial court that he had changed his mind and wished to have an attorney

      represent him. The trial court re-appointed counsel for James, and the

      appointed counsel handled the trial proceedings from that point forward,

      including the voir dire questioning for that first panel of jurors. At the

      conclusion of the trial, the jury found James guilty of burglary, and James

      admitted to being a habitual offender. The trial court sentenced James to an

      aggregate term of eight years executed. James now appeals.


                                      Discussion and Decision

                                 I.      Waiver of Right to Counsel
[6]   James contends that the trial court erred when it allowed him to proceed pro se

      during the voir dire portion of his trial because his waiver of the right to counsel

      was not knowing, intelligent, and voluntary. He asserts that his waiver of the

      right to counsel was equivocal because, although he was clear in his initial

      assertion of his desire to proceed pro se, he later waffled in that desire. James

      claims that his later statements show that he did not appreciate the dangers of

      self-representation. He further argues that he did not have the experience or

      education to proceed pro se, and the context of his request – namely, that he

      was upset with his appointed counsel and waited until the morning of trial to

      Court of Appeals of Indiana | Memorandum Decision 89A01-1709-CR-2110 | April 5, 2018   Page 4 of 14
      request to go pro se, which made him unprepared to continue – show that his

      request to represent himself should have been denied.


[7]   “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-

      18 (Ind. 2011) (citing Faretta v. California, 422 U.S. 806, 807 (1975)). This

      protection also encompasses an affirmative right for a defendant to represent

      himself in a criminal case. Milian v. State, 994 N.E.2d 342, 348 (Ind. Ct. App.

      2013), trans. denied. However, “in most criminal prosecutions, defendants

      ‘could better defend with counsel’s guidance than by their own unskilled

      efforts.’” Id. (quoting Hopper, 957 N.E.2d at 617-18). When a defendant

      waives his right to counsel and proceeds to trial unrepresented, the record must

      reflect that the right to counsel was voluntarily, knowingly, and intelligently

      waived. Hart v. State, 79 N.E.3d 936, 939 (Ind. Ct. App. 2017). Whether there

      has been an intelligent waiver depends on the particular facts and circumstances

      surrounding that case, including the background, experience, and conduct of

      the accused. Id. The defendant should be made aware of the dangers and

      disadvantages of self-representation, so that that the record will establish that

      “‘he knows what he is doing and his choice is made with eyes open.’” Hopper,

      957 N.E.2d at 618 (quoting Faretta, 422 U.S. at 835).


[8]   There is no particular formula or script that must be read to the defendant. Id.

      “The information that must be given ‘will depend on a range of case-specific

      factors, including the defendant’s education or sophistication, the complex or

      Court of Appeals of Indiana | Memorandum Decision 89A01-1709-CR-2110 | April 5, 2018   Page 5 of 14
       easily grasped nature of the charge, and the stage of the proceeding.’” Id.

       (quoting Iowa v. Tovar, 541 U.S. 77, 88 (2004)). In determining whether the

       right to counsel was validly waived, Indiana courts must consider: (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.

       Taylor v. State, 944 N.E.2d 84, 90 (Ind. Ct. App. 2011) (citing Poynter v. State,

       749 N.E.2d 1122, 1127-28 (Ind. 2001)).


[9]    We review the trial court’s conclusion that a defendant knowingly and

       voluntarily waived the right to counsel de novo. Hart, 79 N.E.3d at 940 (citing

       R.W. v. State, 901 N.E.2d 539, 543 (Ind. Ct. App. 2009)). It is the trial court

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

       intelligently waived counsel. Taylor, 944 N.E.2d at 90. Therefore, “‘we will

       most likely uphold the trial judge’s decision to honor or deny the defendant’s

       request to represent himself where the judge has made the proper inquiries and

       conveyed the proper information, and reaches a reasoned conclusion about the

       defendant's understanding of his rights and voluntariness of his decision.’” Id.

       (quoting Poynter, 749 N.E.2d at 1128). On appeal, we will review the record to

       evaluate the trial court’s inquiry and reasoning in reaching its conclusion. Id.


[10]   In the present case, James was not pleased with his counsel over issues related

       to the preparation of his defense, and their relationship was very contentious.

       Tr. at 12-13. James told the trial court that he felt “strongly” that he wished to

       Court of Appeals of Indiana | Memorandum Decision 89A01-1709-CR-2110 | April 5, 2018   Page 6 of 14
       proceed without his appointed counsel and would rather “go pro se,” and he

       felt that he could do a better job “all by himself.” Id. at 16. The trial court

       warned James that his requested speedy trial was going to start that day and

       that he was not going to receive another attorney, but James stated that he still

       wished to proceed on his own. Id. at 16-17. The trial court then inquired into

       James’s educational background. Id. at 17. The trial court warned James that

       he might conduct a defense to his own detriment, that he would not receive any

       special treatment from the court, that he would be subject to the same standards

       as an attorney, and that the State would be represented by the prosecutor, who

       was a “very good trial attorney” and “well versed in the law.” Id. at 17-18.


[11]   The trial court further advised James that his appointed counsel was prepared

       for the trial and had skills and expertise in preparing and presenting a defense

       and going to trial that James did not possess. Id. at 18. The trial court further

       informed James that his attorney knew how to do things like examine and

       cross-examine witnesses, call favorable witnesses, file motions, tender jury

       instructions, make proper objections, and present effective opening and closing

       arguments, all of which James had no background or experience in doing. Id.

       at 18. After hearing all of this, James responded that he understood. Id. The

       trial court also warned James how difficult it was to go to trial with no legal

       background or experience, which were things that attorneys go to school for

       years to learn, but James still insisted he wanted to proceed pro se and that if he

       was going to be found guilty, he preferred to “do it on my own,” rather than

       have an attorney who “I don’t trust that he would help defend me and get me


       Court of Appeals of Indiana | Memorandum Decision 89A01-1709-CR-2110 | April 5, 2018   Page 7 of 14
       found not guilty.” Id. at 18, 19. The trial court acknowledged that James had

       the right to represent himself, but advised him that it wanted to impress on

       James “the reality of the situation,” which was that “nearly all instances it is

       not in your best interest to proceed pro se.” Id. at 19. The trial court then

       inquired whether James still wished to waive his right to have an attorney

       represent him even after hearing everything the trial court had just told him. Id.

       at 20. James answered affirmatively and confirmed to the trial court that he

       was making this choice “voluntarily and of [his] own volition.” Id. The trial

       court then “reluctantly” granted James’s request to waive counsel and proceed

       pro se. Id.


[12]   As to the factors to be considered, the first two factors set forth in Poynter focus

       on whether the defendant had sufficient information about the dangers and

       disadvantages of self-representation, either through the trial court’s inquiry or

       through any other evidence in the record. Taylor, 944 N.E.2d at 90. Here, the

       trial court had a thorough discussion with James about the pitfalls and

       disadvantages of proceeding pro se and made a full inquiry into his decision to

       represent himself. The trial court advised James that, by proceeding pro se, he

       ran the risk of conducting a defense to his own detriment, he would not receive

       any special treatment from the court, and he would be held to the same

       standards as an attorney, who had special schooling and experience in

       participating in a trial. The trial court additionally informed James of all of the

       aspects of a trial that an attorney was experienced in doing and that it was

       probably not in his best interest to represent himself. James still insisted that he


       Court of Appeals of Indiana | Memorandum Decision 89A01-1709-CR-2110 | April 5, 2018   Page 8 of 14
       wished to proceed pro se. The record demonstrates that the trial court fully

       explained the advantages of having counsel represent him and the possible

       dangers and disadvantages of self-representation and that James understood

       these warnings.


[13]   The third Poynter factor concerns whether a defendant has the background and

       experience necessary to make a knowing, voluntary, and intelligent waiver of

       his right to counsel. Id. In the present case, the trial court inquired into James’s

       education level and emphasized James’s lack of legal education. Although

       James lacked extensive formal education, he was still clearly aware that he had

       the right to an attorney. See id. at 91 (finding a valid waiver of counsel in part

       because Taylor was “no stranger to the criminal justice system” based on his

       “relatively extensive criminal history”). The record shows that James was very

       experienced with the criminal justice system as he had accumulated twenty

       prior misdemeanor convictions and five prior felony convictions and had also

       had numerous other charges that were dismissed. Conf. App. at 70-75. James

       was, therefore, familiar with his right to counsel, with the services that an

       attorney could provide and the advantages of having an attorney in a criminal

       prosecution, and with the consequences that flow from a criminal conviction.

       Thus, the record shows that James had the background and experience

       necessary to make a knowing, voluntary, and intelligent waiver of his right to

       counsel.


[14]   The fourth Poynter factor examines the context of the defendant’s decision to

       proceed pro se. If a defendant’s decision to proceed pro se appears tactical,

       Court of Appeals of Indiana | Memorandum Decision 89A01-1709-CR-2110 | April 5, 2018   Page 9 of 14
       then this factor weighs in favor of finding a knowing, voluntary, and intelligent

       waiver. Poynter, 749 N.E.2d at 1128 n.6. In the present case, James was upset

       with his appointed counsel over issues related to the preparation of his defense,

       and he told the trial court that he would rather “go pro se,” and he felt that he

       could do a better job “all by himself.” Id. at 12-13, 16. Based on the

       contentious relationship between James and his counsel, he believed

       representing himself was to his strategic advantage because he preferred to “do

       it on my own,” rather than have an attorney that “I don’t trust that he would

       help defend me and get me found not guilty.” Id. at 18, 19. Therefore, at the

       time that James voiced his desire to represent himself, he considered it a tactical

       decision because he did not believe that he could receive a favorable defense by

       continuing with his appointed counsel.


[15]   Under the facts and circumstances of this case, we conclude that James made a

       knowing, voluntary, and intelligent waiver of his right to counsel. The trial

       court conducted a thorough inquiry into James’s desire to represent himself and

       informed him of the dangers and disadvantages of proceeding pro se, which

       James stated that he understood. Additionally, although James did not have

       much formal education, he had a lengthy criminal history that demonstrated

       that he was familiar with the trial process and the advantages of having the

       assistance of counsel. Further, James’s desire to represent himself stemmed

       from his belief that he wanted to proceed on his own and thought he could a

       better job without counsel. We, therefore, find that James was not denied his

       right to counsel.


       Court of Appeals of Indiana | Memorandum Decision 89A01-1709-CR-2110 | April 5, 2018   Page 10 of 14
[16]   James argues that his assertion of his desire to represent himself was not

       unequivocal and clear because, while he told the trial court that he wanted to

       represent himself, he also told the trial court that he was not prepared to

       proceed to trial immediately. However, everything James cites to in support of

       this claim occurred after he had requested to proceed pro se and after the trial

       court had granted his request to represent himself. Additionally, at no point

       during that additional discussion with the trial court did James ever waver

       about his desire to represent himself. Instead, during this discussion with the

       trial court, James complained about the fact that the trial was going to begin

       immediately, without allowing him more time to prepare his defense. Id. at 21-

       25. He never indicated during that dialogue with the trial court that he had

       changed his mind about representing himself nor did he ask to have his attorney

       re-appointed at that time. Moreover, before the trial court granted his right to

       represent himself, it had cautioned him that the trial was going to begin that

       day, and the court again reminded him of this when he complained about

       beginning the trial that day. Id. at 16-17, 21. This argument by James does not

       change our conclusion that he made a knowing, voluntary, and intelligent

       waiver of his right to counsel.


                                   II.      Prosecutorial Misconduct
[17]   James argues that the State committed prosecutorial misconduct when, during

       the first pass at voir dire, the prosecutor asked questions of the potential jurors

       about what they thought about James representing himself. He maintains that

       the questions posed to the jurors were irrelevant and that the answers were

       Court of Appeals of Indiana | Memorandum Decision 89A01-1709-CR-2110 | April 5, 2018   Page 11 of 14
       prejudicial to him and chilled his constitutional rights. James contends that

       such answers chilled his ability to assist in his own defense because he was cast

       as stupid and making bad choices in representing himself.


[18]   In reviewing a claim of prosecutorial misconduct properly raised in the trial

       court, we determine (1) whether misconduct occurred, and if so, (2) “‘whether

       the misconduct, under all of the circumstances, placed the defendant in a

       position of grave peril to which he or she would not have been subjected’”

       otherwise. Stettler v. State, 70 N.E.3d 874, 881-82 (Ind. Ct. App. 2017) (quoting

       Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014)), trans. denied. Whether a

       prosecutor’s argument constitutes misconduct is measured by reference to case

       law and the Rules of Professional Conduct. Lowden v. State, 51 N.E.3d 1220,

       1225 (Ind. Ct. App. 2016), trans. denied. “The gravity of peril is measured by

       the probable persuasive effect of the misconduct on the jury’s decision rather

       than the degree of impropriety of the conduct.” Id. To preserve a claim of

       prosecutorial misconduct, the defendant must -- at the time the alleged

       misconduct occurs -- request an admonishment to the jury, and if further relief

       is desired, move for a mistrial. Id. at 1224. Failure to request an

       admonishment or to move for mistrial results in waiver. Id.


[19]   Here, James did not object to the questions that the prosecutor posed to the

       potential jurors during voir dire. Our review is different where a claim of

       prosecutorial misconduct has been waived. Id. The defendant must (1)

       establish the grounds for prosecutorial misconduct and (2) establish that the

       prosecutorial misconduct constituted fundamental error. Id. at 1224-25.

       Court of Appeals of Indiana | Memorandum Decision 89A01-1709-CR-2110 | April 5, 2018   Page 12 of 14
[20]   James contends that the prosecutor committed misconduct in the questions he

       posed to jurors during the first round of voir dire. In questioning one juror, the

       prosecutor asked, “Mr. James has chosen to represent himself which he’s

       constitutionally entitled to do. What do you think about that?” Tr. at 49. The

       juror responded “gutsy” and elaborated that he did not know if it was for

       money reasons “or maybe just sayin’ forget it.” Id. at 50. When questioning

       another juror, the prosecutor asked, “What do you think about Mr. James

       representing himself here?” Id. at 52. The juror responded, “I think it’s

       stupid,” and when asked why the juror thought this, she elaborated that James

       “could have had somebody represent him as a defense attorney. And I don’t

       see, I don’t know what he’s trying to prove by doing it himself.” Id. at 52-53.

       The first juror was seated on the jury, but the second one was not. Appellant’s

       App. Vol. II at 60.


[21]   The purpose of voir dire is to ascertain whether prospective jurors can render an

       impartial verdict based upon the law and the evidence and “weed out” those

       who show they cannot be fair to either side. Gibson v. State, 43 N.E.3d 231, 238

       (Ind. 2015), cert, denied, 137 S. Ct. 54 (2016). “Thus, the parties may ‘inquire

       into jurors’ biases or tendencies to believe or disbelieve certain things about the

       nature of the crime itself or about a particular line of defense.’” Id. (quoting

       Hopkins v. State, 429 N.E.2d 631, 634-35 (Ind. 1981)).


[22]   Here, the prosecutor asked two jurors what they thought of James representing

       himself during the trial. This was a proper subject to address in voir dire, and it

       was appropriate for the prosecutor to determine if potential jurors had a bias

       Court of Appeals of Indiana | Memorandum Decision 89A01-1709-CR-2110 | April 5, 2018   Page 13 of 14
       regarding the situation of an unrepresented defendant. Such an inquiry

       explored whether jurors had any potential biases surrounding that circumstance

       or whether it would affect the way they viewed the trial or the evidence. This

       line of questioning could uncover whether the potential jurors harbored

       sympathy toward James due to the fact that he was a lone person facing off

       against the State or whether they held any bias against the State because of the

       situation. Additionally, the prosecutor’s questions served the purpose of

       uncovering any potential bias against James due to his proceeding pro se, such

       as viewing it as evidence of guilt. Therefore, instead of prejudicing James, the

       questions by the prosecutor actually worked to James’s advantage. We,

       therefore, conclude that the prosecutor did not commit misconduct when he

       asked two jurors during voir dire about what they thought about James

       representing himself. Because we determine that no misconduct occurred, we

       also conclude that any such alleged misconduct did not constitute fundamental

       error.


[23]   Affirmed.


       Baker, J., and Bradford, J., concur.




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