 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 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.                        Apr 14 2014, 9:28 am




ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:
KIMBERLY A. JACKSON                                 GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    IAN MCLEAN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

DONALD WILLIAM MYERS, III,                          )
                                                    )
       Appellant-Defendant,                         )
                                                    )
           vs.                                      )      No. 76A03-1305-CR-173
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )

                     APPEAL FROM THE JOHNSON CIRCUIT COURT
                           The Honorable Allen Wheat, Judge
                             Cause No. 76C01-0404-FA-411


                                          April 14, 2014
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Donald Myers (“Myers”) was convicted in Steuben Circuit Court of four counts of

Class A felony attempted murder and sentenced to an aggregate term of 120 years

incarceration. Myers appeals and presents five issues, which we restate as the following

three dispositive issues: (1) whether the jury clearly erred in rejecting Myers’s insanity

defense; and 2) whether the trial court abused its discretion in admitting evidence of

Myers’s post-arrest silence and request for counsel to prove Myers’s sanity. We hold that

in the absence of any admissible evidence of probative value that even inferred sanity at

the time of the crimes, the jury clearly erred in rejecting Myers’s insanity defense. We

further hold that the trial court abused its discretion in allowing the State to present

evidence of Myers’s post-arrest silence and request for counsel as alleged proof of his

sanity. For these reasons we reverse Myers’s convictions.

                             Facts and Procedural History

       Myers has suffered from serious mental health issues since he was nineteen or

twenty years old. In 2000, he was diagnosed with schizophrenia and placed on a regimen

of anti-psychotic medications. From 2001 to 2004, Myers was periodically hospitalized

when he decompensated, or failed to take his medications. Sometime in April 2004,

Myers again decompensated.       On April 28, 2004, Myers’s mother, Judy Weininger

(“Weininger”), with whom Myers shared a mobile home in the Silver Lake Trailer Court

in Steuben County, called Myers’s psychiatrist to report that Myers had stopped taking

his medications. In response, Myers’s psychiatrist authorized a bed for Myers at a local

mental health center. However, when Weininger attempted to persuade Myers to get into

her car to go to the mental health center, Myers refused.

                                             2
       On the evening of the following day, April 29, 2004, David Brown (“Brown”), his

wife, Vickie, and their grandson were driving through the Silver Lake Trailer Court when

they heard a loud gunshot. Brown looked around the trailer park and observed a man,

later identified as Myers, standing between two trailers and holding a long gun, later

identified as a shotgun. Brown accelerated his car quickly out of the trailer park and onto

the adjacent U.S. Highway 20. As he drove away and called 911, Brown saw the man

running alongside U.S. 20, still carrying the gun. The man again pointed the gun at

Brown’s car, and Brown heard the sound of a second gunshot. Brown later noticed a

small indentation on the side of his car and a white substance on the back window of his

car. No one in Brown’s car was injured.

       That same evening, around 9 p.m., Desmond Augenstein (“Augenstein”) was

driving westbound on U.S. 20, near the Silver Lake Trailer Court, when he passed a man,

later identified as Myers, walking east in the middle of the highway. Augenstein thought

that the man had been struck by another car, so he turned around to drive back toward the

man. As Augenstein approached, however, he saw that the man was holding a long gun.

Augenstein turned his car back around to escape. When he looked in his rearview mirror,

he saw the man aim the gun at Augenstein’s car. The man fired two shots. Neither of the

shots hit Augenstein’s car, but Augenstein heard the pellets “zipping” past his window.

Tr. pp. 236-37. Augenstein called 911 to report the incident.

       Indiana State Police Trooper Lionel Smith (“Trooper Smith”) received a radio

dispatch about a man shooting a gun at motorists on U.S. 20. Trooper Smith drove his

marked police cruiser along U.S. 20 until he spotted Myers on the shoulder of the road.

                                            3
As Trooper Smith approached Myers in his cruiser, Myers lifted his gun and fired

towards the driver’s side window of Trooper Smith’s car. The pellets from Myers’s gun

struck the cruiser’s driver’s side door and window, the exterior of the car’s roof, and the

car’s light bar. Trooper Smith was not injured and the only damage to his car was caused

by two pellets lodged in the rubber sill above the driver’s side window. Smith parked his

cruiser across the highway to block traffic, retrieved his service shotgun, and positioned

himself behind his car. He ordered Myers to drop his weapon, but Myers ignored

Trooper Smith and began to walk in the opposite direction. With his shotgun drawn,

Trooper Smith pursued Myers on foot.

       Steuben County Sheriff’s Department Sergeant Phillip Knott (“Sergeant Knott”)

also heard the radio dispatch about gunshots in the trailer court and along U.S. 20. As he

drove towards the scene, he received an additional radio message from Trooper Smith

reporting that a man had fired a gun at Smith’s car. Sergeant Knott soon arrived at the

location of Trooper Smith’s car, parked his own vehicle next to Smith’s car, and joined

Smith’s foot pursuit of Myers.

       Indiana State Police Trooper Terry Ghent (“Trooper Ghent”), who had also heard

the initial 911 dispatch regarding the gunfire, soon arrived in the area through which

Trooper Smith and Sergeant Knott were pursuing Myers. When he realized that Myers

was positioned between himself and the other responding officers, Trooper Ghent

positioned his cruiser across the highway to block traffic. As Myers walked towards

Ghent, still carrying the shotgun, Ghent ordered Myers to stop. Myers ignored Trooper

Ghent and continued to walk towards him. Ghent fired his service pistol at Myers,

                                            4
striking him in the shoulder. Trooper Smith also fired two shots at Myers, and Sergeant

Knott fired four to five shots at Myers. Myers then ran away from the road, down an

embankment, and into a nearby wooded area.

      The officers moved their vehicles to the area in which Myers had disappeared and

turned on their headlights to illuminate the brush. They fanned out on foot to attempt to

locate Myers and prevent his escape. A SWAT team arrived shortly thereafter, and, for

the next several hours, a police negotiator attempted to persuade Myers to surrender.

Myers’s younger brother also urged Myers to surrender. However, Myers remained

hidden in the brush. At one point, the officers could see the burning tip of a cigarette as

Myers smoked.

      The officers deployed six cans of tear gas into the area where Myers was located,

but he still refused to surrender. Eventually, the police drove an armored Humvee into

the wooded area, stopped several feet from Myers, and ordered him to raise his hands in

the air. Shortly after midnight, about three hours after he had entered the wooded area,

Myers surrendered. He had suffered gunshot wounds to the shoulder and groin. The 20-

guage shotgun Myers had been carrying was recovered. Five shotgun shells fired from

his gun were found in Myers’s vest, along with an unfired shotgun shell.

      Myers was taken into custody and transported to a local hospital where he

underwent surgery for his wounds. Tr. pp. 298, 306, 308. An officer was posted outside

Myers’s hospital room while he was recovering.         During this time, police officers

attempted to obtain a statement from Myers, but Myers refused. While he was in the

hospital, Myers told his mother that he wanted a lawyer.

                                            5
      The day after the incident, April 30, 2004, the State charged Myers with Class D

felony criminal recklessness and six counts of Class A felony attempted murder.

Approximately two weeks later, on May 11, 2004, the trial court conducted an initial

hearing. At the hearing, Myers refused to answer the trial court’s questions.

      On June 1, 2004, Myers filed a notice of defense of mental disease or defect. The

trial court appointed two physicians, Dr. David Lombard and Dr. John Rathbun, to

evaluate Myers’s competency to stand trial. Later that month, both physicians reported

that Myers was not competent to stand trial. On August 20, 2004, the trial court found

Myers to be incompetent and remanded him to the care and custody of the Division of

Mental Health and Addiction Services for placement in a mental health care facility.

Myers was placed in the Isaac Ray Unit of the Logansport State Hospital.

      Less than eight months later, on April 5, 2005, the superintendent of the

Logansport State Hospital certified that Myers “will not attain the ability to understand

the proceedings and assist in the preparation of his defense in the foreseeable future.”

Appellant’s App. p. 71. The hospital’s conclusion as to Myers’s incompetence was based

on a forensic interview with Myers, his medical records, a review of the police reports

from April 29, 2004, and a review of Myers’s previous competency evaluation. The

hospital’s report concluded, “Mr. Myers continues to be delusional and psychotic and

continued long-term treatment will be needed at this point,” and, further, due to his

delusions and psychosis, “it is highly questionable” that he would be able to assist his

attorney in his own defense. Appellant’s App. pp. 253-54. The same day, the trial court

issued an order for the commencement of regular commitment proceedings and removed

                                            6
the case from the court’s docket, subject to reinstatement if Myers ever regained

competency to stand trial.

       Some four years later, on June 2009, the Logansport State Hospital reported to the

trial court that Myers had regained competency to stand trial. Thereupon, the trial court

ordered Myers to be transferred from the hospital to the Steuben County jail.

       On April 1, 2010, Myers filed a notice of intent to assert insanity defense and

request for evaluation. On April 8, 2010, the trial court appointed two physicians, Dr.

David Lombard and Dr. Herbert Trier to evaluate Myers’s competency to stand trial and

to determine whether Myers suffered from a mental disease or defect at the time of the

alleged offense. On July 14, 2010, Myers filed a pro se motion for dismissal. In his

motion, he argued that his right to a speedy trial had been violated. The trial court denied

Myers’s motion “due to its then set trial date of June 28, 2010.” On July 29, 2010, the

trial court issued an order remanding Myers to the Division of Mental Health and

Addiction Services and noting that both Dr. Lombard and Dr. Trier had determined that

Myers was incompetent to stand trial. Myers was returned to the Logansport State

Hospital.

       On November 19, 2010, the Logansport State Hospital filed a report with the trial

court indicating that Myers had not regained competency to stand trial and requesting that

the trial court extend Myers’s commitment for ninety days so that Myers could receive

additional psychiatric services. The trial court granted the hospital’s request. Then, on

February 1, 2011, the Logansport State Hospital’s interim superintendent certified that

Myers would not attain competency to stand trial in the foreseeable future, just as the

                                             7
Logansport superintendent had done some six years earlier. At this time, the hospital

commenced regular commitment proceedings.

       One year later, on February 29, 2012, Myers was transferred to Richmond State

Hospital.     Four months after that, on June 21, 2012, Richmond State Hospital’s

superintendent reported to the trial court that Myers had regained competency to stand

trial, noting that Myers had been on a regime of anti-psychotic medications for over a

year and “has been stable on it.” Appellant’s App. p. 282.

       On April 9, 2013, the State filed a motion to dismiss Count I, criminal

recklessness, and Counts V and VI, attempted murder. The trial court granted the motion

on the same day. Myers’s three-day jury trial began a week later, on April 16, 2013.

During the trial, Myers testified in his own defense. He stated that he was a Marine, that

he had worked at the Pentagon, and that he was friends with former President George W.

Bush. He further testified that he worked with the “NSA” and the “SIG” to eradicate

“some groups of devil worshipers who entered into the service called Koi [and the]

Magic Cult.” Tr. p. 492. He stated:

       And Koi would demand that we all be gay with each other or come and be
       gay with them. And they didn’t want to be gay because they would be
       guilty under the law of Magic. So, ah, they would fight each other all the
       time . . . they had this strange belief that anybody that smoked marijuana
       was going to go to hell if they died. So they would kill people who smoke
       marijuana and [steal] all their drugs and take ‘em out of there and put, like,
       robot in place for a couple of days so they could get more drugs and money
       and kill a few more people and then they burn the place down, collect
       insurance on it, and get out of town.

Tr. p. 493.



                                             8
      He testified that on April 29, 2004, he heard voices that told him he deserved to

“go to hell for killing people who practice magic.” Tr. p. 495. Myers denied carrying a

gun or ammunition on the night of the offenses. Instead, he claimed, he possessed a fake

gun called a “blast” which was used by the NSA in “war games.” Tr. p. 489. He stated

that he was “on duty” that night and was shot by the police ten times while he was

walking to a McDonald’s restaurant. He stated that a police officer stopped him as he

walked, asked for identification, told him that he could leave, and then shot him. He

believed that he was being shot by the police in an assassination attempt. Myers also

claimed that he was stabbed in the arm and groin area with two different knives. He

testified that, while he was in the hospital following his arrest, he was tortured with a

Taser gun by the DEA and FBI.

      At trial, Dr. Trier testified that, based on his June 2010 interview with Myers, his

review of Myers’s hospital records, his review of the notes of other psychiatrists and

psychologists who had evaluated Myers, and his review of the probable cause affidavit,

he had determined that Myers was legally insane and did not appreciate the wrongfulness

of his conduct on April 29, 2004. Dr. Lombard, a clinical psychologist employed by the

State of Indiana, testified that based on his clinical interviews with Myers, psychological

testing, and his review of the probable cause affidavit, he had also determined that Myers

was insane on April 29, 2004.       He further testified that the psychological testing

conducted on Myers was designed to detect malingering or feigned mental health

symptoms and that the results indicated that Myers was not feigning his delusions.



                                            9
       Despite this unanimous professional medical testimony, indeed in four different

reports by three different psychiatrists over a period of nine years during which Myers

was hospitalized in the State’s mental health system, and Myer’s own nonsensical

testimony at trial, the jury rejected Myers’s insanity defense and returned verdicts of

guilty but mentally ill on all four counts of attempted murder. On April 29, 2013, exactly

nine years after Myers’s offense, the trial court held a sentencing hearing. At the hearing,

Myers requested that the court consider as mitigating factors that he had not injured any

person and that he had a long history of mental illness. The trial court ordered Myers to

serve four consecutive terms of thirty years, with credit for 3,287 days of pre-sentence

incarceration, for an aggregate sentence of 120 years.

       Myers now appeals.

                                Discussion and Decision

                                 I. The Insanity Defense

       “The existence of a scienter requirement is customarily an important element in

distinguishing criminal from civil statutes.” Wallace v. State, 905 N.E.2d 371, 381 (Ind.

2009) (quoting Kansas v. Hendricks, 521 U.S. 346, 362 (1997)). The conviction of an

individual who acts without the necessary mens rea “strikes squarely against the

principles of fairness and due process.” Greer v. State, 643 N.E.2d 324, 326 (Ind. 1994).

Insanity at the time of the crime negates the element of scienter or intention needed to

convict one of a crime. Truman v. State, 481 N.E.2d 1089, 1089-90 (Ind.1985).

       Myers argues that the jury clearly erred “in finding Myers guilty but mentally ill,

rather than not responsible by reason of insanity at the time of the crime.” Appellant’s Br.

                                            10
at 31. He claims that “the evidence in this case leads to only one conclusion—that Myers

was legally insane at the time of the offenses.” Id. at 32.

         Even where the State meets the burden of proving each element of the charged

offense beyond a reasonable doubt, a defendant can avoid criminal responsibility by

successfully raising and establishing the “insanity defense,” which results in the

defendant being found not responsible by reason of insanity. See Ind. Code §§ 35-41-3-

6(a); 35-36-2-3-4. The defendant bears the burden of establishing the insanity defense by

a preponderance of the evidence. See Ind. Code § 35-41-4-1(b). To meet this burden, the

defendant must establish that (1) he suffers from a mental illness and (2) the mental

illness caused him to be unable to appreciate the wrongfulness of his conduct at the time

of the offense. When a defendant is found to be not guilty by reason of insanity, Indiana

Code section 35-36-2-4 requires that the prosecuting attorney file a written petition for

commitment with the court and that the trial court hold a commitment hearing. Double

jeopardy principles from the Fifth Amendment of the U.S. Constitution bar a second trial

for such a defendant. State v. Berryman, 796 N.E.2d 741 (Ind. Ct. App. 2003) trans.

granted, opinion aff’d in part, vacated in part.1

         Whether a defendant appreciated the wrongfulness of his or her conduct at the

time of the offense is a question for the trier of fact. Thompson v. State, 804 N.E.2d

1146, 1149 (Ind. 2004). Therefore, a finding that a defendant was not insane at the time


1
   Myers has been and remains institutionalized in a secure facility within Indiana’s mental health system.
Unless new psychotropic medications sufficient to treat his serious mental illness are developed, he will
likely remain institutionalized for the rest of his life.
2
    See Galloway v. State, 938 N.E.2d 699, 714 (Ind. 2010) (“[D]emeanor evidence before and after a
                                                    11
of the offense warrants substantial deference from reviewing courts. See id. This court

will not reweigh evidence, assess witness credibility, or disturb reasonable inferences

made by the trier of fact. Thompson, 804 N.E.2d at 1149-50. However, although the

standard of review is very deferential, the defendant’s conviction will be set aside “when

the evidence is without conflict and leads only to the conclusion that the defendant was

insane when the crime was committed.” Thompson, 804 N.E.2d at 1149.

       Indiana Code section 35-36-2-2 provides for the use of expert testimony to assist

the trier of fact in determining the defendant’s insanity. Such expert testimony, however,

is advisory, and even unanimous expert testimony is not necessarily conclusive on the

issue of the defendant’s sanity. Cate v. State, 644 N.E.2d 546, 547 (Ind. 1994). The trier

of fact may disregard the unanimous testimony of experts and rely instead on the

conflicting testimony of lay witnesses. Barany v. State, 658 N.E.2d 60, 63 (Ind. 1995).

Even where there is no conflicting lay testimony, the trier of fact is free to disregard or

discredit the expert testimony. Thompson, 804 N.E.2d at 1149.

       In the present case, both of the mental health experts who testified at trial had

evaluated Myers at the request of the trial court. The experts not only repeatedly found

Myers to be incompetent to stand trial, even after years of psychiatric treatment and

hospitalization, but they both unwaveringly and unanimously concluded, based on their

meetings with Myers as well as their review of his medical records and the probable

cause affidavit, that he was not able to appreciate the wrongfulness of his behavior on the

night of April 29, 2004. Both experts further testified that Myers has a long history of

serious mental illness, including delusions and paranoid schizophrenia. Dr. Lombard

                                            12
testified that the psychiatric testing he conducted on Myers was designed to detect

malingering or feigning of psychiatric symptoms, and that the results revealed that Myers

was not feigning his mental illness.

       Importantly, the testimony of Dr. Lombard and Dr. Trier was not in conflict with

the facts of the case. Myers’s mother testified as to Myers’s history of mental health

problems, his hospitalizations, and his periodic failures to take his prescribed anti-

psychotic medications, which had again occurred at the time of the offense. Myers’s

mother further testified that Myers was “not in his right mind” on the day of the offenses.

Tr. p. 458. None of the victims or responding officers offered any testimony indicating

that Myers was sane. Myers shot at a marked police car, and when he was struck with

police bullets, he fled into the brush, where he later lit a cigarette, thus revealing his

location. He refused to surrender, even though he had suffered multiple gunshot wounds

and even when assaulted with tear gas. There was no evidence of a plan or motive. He

reported that he was “on duty” that night, that he was shot, stabbed, and beaten by the

police in an assassination attempt, and he denied carrying a gun. Appellant’s App. p. 239.

Myers’s demeanor and testimony at trial—where he stated that he had been a member of

the military since birth, that he had been subjected to brainwashing, torture, and

assassination attempts, that he was friends with President George W. Bush, that he had

heard voices, and that he was working with intelligence groups to eradicate imaginary

cults—provided further evidence of the depth of his mental illness. See Manuel v. State,

535 N.E.2d 1159, 1162 (Ind. 1989) (per curiam) (noting that a defendant’s demeanor

during court proceedings is probative evidence of sanity with regard to his or her

                                            13
competence to stand trial). Simply said, there was no testimony, lay or otherwise, that

contradicted the testimony of two psychiatrists that Myers was insane at the time of his

crime.

                           II. Admission of Myers’s Mother’s Testimony

         Furthermore, there was no properly admitted evidence that Myers was sane

immediately prior to or following his crime.2 At Myers’s trial, during cross-examination

of Myers’s mother, and outside the presence of the jury, the State elicited testimony that

Myers had refused to speak with police officers while he was in the hospital recovering

from his gunshot wounds and that, when speaking with his mother, he had requested an

attorney. Over defense counsel’s objection, the trial court admitted the evidence, stating,

“We’ll permit the State to make enquiry [sic] of the defendant’s request for an attorney in

hearing the issue of his, ah, mental state on or about the time at issue in this case.” Tr. pp.

472-73. On cross-examination, the State questioned Myers’s mother as to the nature of

Myers’s desire for counsel. She answered, “To sue ‘em. To sue them for shootin’ at him

because he asked me why did they shoot me Mom, they knew me, who I was.” Tr. p. 473.

When the jury returned, the following exchange occurred between the State and Myers’s

mother:

         Q: And Donnie told you at time that he wanted a lawyer, isn’t that also
         true? Is that true?

         A: After he started getting better I came down . . .

2
   See Galloway v. State, 938 N.E.2d 699, 714 (Ind. 2010) (“[D]emeanor evidence before and after a
crime is of more limited value than the defendant’s demeanor during the crime” because “[t]he insanity
defense concerns the defendant’s mental state at the time of the crime.”).


                                                 14
       Q: Did Donnie tell you at the time that he wanted a lawyer?

       A: I probably ask’d [sic] him if he wanted a lawyer.

       Q: Did Donnie tell, did Donnie tell you at the time that he wanted a lawyer?

       A: I’m sure that when I asked him if he wanted a lawyer he said yes. He
       didn’t want to talk to the police.

       Q: He didn’t want to talk to the police, he wanted a lawyer, correct?

       A: I would assume that’s, yeah.

Tr. pp. 474-75.

       During closing arguments, the prosecutor commented on Myers’s refusal to speak

with police and his request for an attorney, stating:

       He been to places before, he knew he was mentally ill, and he, and he knew
       he could use this cause he had the ability to know that. He told his mother,
       I, this is one (1) of the questions she really didn’t want to answer, and I
       asked her three (3) or four (4) times, he told his mother he wanted to lawyer.
       This is just in the hospital sometime shortly after the shooting down at
       Parkview. Because he didn’t want to talk to the police. Okay. And I think
       Ms., Ms. Wagoner came back on cross and, and, and, and, and, and well
       was it really for some type of civil suit? Well, that’s not what the mother
       said, she agreed with that then, of course, but that’s not what she said. He
       wasn’t wanting to talk to the police. What does that tell ya? That, that
       gives us a little glimpse into the, because this is an issue, right, his mind,
       this is at issue that he, he, he doesn’t wanna make a statement, he doesn’t
       wanna make a statement to the police. Because maybe he’s aware of what
       he did was wrong, right?

Tr. p. 577.

       The Fifth Amendment of the United States Constitution provides that “[n]o person

. . . shall be compelled in any criminal case to be a witness against himself[.]” U.S.

Const. amend. V. In Miranda v. Arizona, 384 U.S. 436, 468 n. 37 (1966), the United


                                             15
States Supreme Court held that, pursuant to the Fifth Amendment, “it is impermissible to

penalize an individual for exercising his Fifth Amendment privilege when he is under

police custodial interrogation.”

       Ten years after issuing its opinion in Miranda, the United States Supreme Court

decided Doyle v. Ohio, 426 U.S. 610, 619 (1976). In Doyle, the Court held that “the use

for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving

Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” The

Court explained, “while it is true that the Miranda warnings contain no express assurance

that silence will carry no penalty, such assurance is implicit to any person who receives

the warnings.” Id. at 618.

       In Wainwright v. Greenfield, 474 U.S. 284 (1986), the United States Supreme

Court ruled that the government’s use of the accused’s post-Miranda silence as evidence

of his sanity violated the due process clause of the Fourteenth Amendment. Justice

Stevens, writing for seven members of the Court, was persuaded that the reasoning in

Doyle prohibiting the State from using a defendant’s post-Miranda silence to impeach the

defendant’s exculpatory testimony was also applicable when the State used the

defendant’s silence as evidence of the defendant’s sanity.

       Like the United States Supreme Court, the Indiana Supreme Court has found

violations of the rule in Doyle where the jury hears evidence of the defendant’s silence

and that evidence is used to belie a claim of insanity. See Lynch v. State, 632 N.E.2d

341, 341 (Ind. 1994) (Doyle violation where trial court instructed jury that tape of

defendant’s initial police interrogation was to be used for the limited purpose of

                                            16
establishing defendant’s state of mind soon after the crime and where tape showed

discussions regarding defendant’s Miranda rights and defendant’s invocation of his right

not to be questioned without an attorney); Wilson v. State, 514 N.E.2d 282, 283 (Ind.

1987) (finding a Doyle violation where detective testified that defendant indicated he

wanted to talk to a lawyer before continuing interview and prosecutor referred to those

statements in closing argument to rebut insanity defense: “Shows you that he knew, he

understood what [the detective] was saying.”).

      In its appellate brief, the State emphasizes that there is no evidence that Myers

received a Miranda warning after his arrest and prior to his refusal to speak with police

and his request for counsel. The State further contends that Myers’s request for counsel

was made to his mother, not a government agent, and, thus, the rules set forth in Doyle

and Wainwright do not apply. We disagree. It is apparent that Myers invoked his right

to remain silent and made his request for counsel while he was in custody. Having been

arrested at the scene, and with a police officer standing guard outside his hospital room,

no reasonable person would have felt free to leave the hospital.        See Berkemer v.

McCarty, 468 U.S. 420, 440 (1984) (holding that the safeguards prescribed by Miranda

become applicable as soon as a suspect’s freedom of action curtailed to a “degree

associated with formal arrest”). Indeed, at least two officers testified that Myers was

“taken into custody” immediately after Myers surrendered. Tr. pp. 298, 306, 308.

      The United State Supreme Court has held that “[t]he warnings mandated by

[Miranda are] a prophylactic means of safeguarding Fifth Amendment rights,” but they

are not the genesis of those rights. Doyle, 426 U.S. at 617, 96 S.Ct. 2240 (emphasis

                                           17
added). Once the government places an individual in custody, that individual has a right

to remain silent and a right to counsel. Id; see also Griffin v. California, 380 U.S. 609,

614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

       Therefore, in applying the holdings in Doyle and Wainwright, we conclude that

both the admission of the evidence of Myers’s post-arrest silence and request for counsel

and the prosecutor’s closing argument thereon as evidence of his sanity are a violation of

Myers’s constitutional rights to silence and to counsel.       The entire purpose of this

evidence was to demonstrate that Myers’s post-arrest silence and request for counsel

constituted lucid and reasonable behavior, demonstrating an understanding of the nature

and quality of Myers’s actions, in contradiction of Myers’s claim of insanity. In sum, the

trial court abused its discretion in allowing the State to use Myers’s refusal to speak with

police and his request for counsel as substantive evidence of his sanity, and, therefore, his

guilt. It is this type of conduct that Doyle and Wainwright prohibit.

       Such constitutional error requires reversal unless it is harmless beyond a

reasonable doubt. See Brown v. State, 446 N.E.2d 354, 357 (Ind. Ct. App. 1983). In the

case before us, the jury was presented with expert testimony that Myers was insane at the

time he committed the crime, followed by testimony from Myers’s mother elicited by the

State to prove that Myers was sane. This question of constitutional error, then, pertains to

a crucial fact on which the outcome of this case hinges, Myers’s state of mind at the time

of the offense and immediately after the offense. Therefore, we are unable to say that the

trial court’s error in admitting the evidence of Myers’s silence and request for counsel

was harmless. See Robinette v. State, 741 N.E.2d 1162 (Ind. 2001) (concluding that the

                                             18
admission of evidence of murder defendant’s post-Miranda silence, which the State

offered to rebut insanity defense, was not harmless error where defendant offered

substantial testimony that she suffered from a condition causing her to be unable to recall

or appreciate the crimes she committed, and her videotaped statements, in which she

repeated, “I don’t want to talk about it,” could have left jurors with the impression that

defendant was sane enough to recognize that it was not to her benefit to speak with

police). Considering the jury’s ultimate determination that Myers was mentally ill but

able to appreciate the wrongfulness of his conduct, rather than not guilty by reason of

insanity, the potential for harm was substantial. Thus, the admission of this evidence to

prove Myers’s sanity was reversible error.

       Our review of the record, then, does not reveal any properly admitted lay

testimony, or expert testimony, or demeanor evidence that could justify rejection of

Myers’s proffered insanity defense. See Galloway v. State, 938 N.E.2d 699 (Ind. 2010)

(holding that where testifying experts unanimously agree that the defendant was insane at

the time of the offense, there must, in order to create a fact issue, be other evidence of

probative value, usually lay opinion testimony or demeanor evidence, from which a

conflicting inference of sanity can be drawn, that, when considered in light of the other

evidence, permits a reasonable inference of sanity to be drawn). With absolutely no

evidence of probative value from which an inference of sanity could be drawn sufficient

to create a conflict with the unanimous expert testimony, lay opinion testimony, and

demeanor evidence indicating that Myers was insane at the time of the offence, the jury

clearly erred in rejecting Myers’s insanity defense. Because Myers was insane at the

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time of his offense, he was incapable of forming the requisite mens rea or intent to

commit the crimes charged, and indeed, to commit any crime. We therefore reverse his

convictions.

                                     Conclusion

      The trial court abused its discretion in admitting evidence of Myers’s refusal to

speak with police and his request for counsel and the jury clearly erred in rejecting

Myers’s insanity defense.   Accordingly, we reverse Myers’s four Class A felony

attempted murder convictions.

      Reversed.

FRIEDLANDER, J., and PYLE, J., concur.




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