                                                                                FILED
                                                                        Jul 31 2019, 10:37 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Alan K. Wilson                                              Curtis T. Hill, Jr.
Muncie, Indiana                                             Attorney General of Indiana
                                                            Samuel J. Dayton
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Quintin D. E. Davis,                                        July 31, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            19A-CR-631
        v.                                                  Appeal from the Delaware Circuit
                                                            Court
State of Indiana,                                           The Honorable Marianne Vorhees,
Appellee-Plaintiff.                                         Judge
                                                            Trial Court Cause No.
                                                            18C01-1801-F6-21



Riley, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-631 | July 31, 2019                                    Page 1 of 9
                                 STATEMENT OF THE CASE
[1]   Appellant-Defendant, Quintin D.E. Davis (Davis), appeals his conviction for

      domestic battery, a Class A misdemeanor, Ind. Code § 35-42-2-1.3(a)(1).


[2]   We affirm.


                                                      ISSUE
[3]   Davis presents this court with one issue on appeal, which we restate as:

      Whether the trial court abused its discretion by denying Davis’ request for

      appointment of counsel made during the bench trial and more than one year

      after affirming his request for self-representation.


                       FACTS AND PROCEDURAL HISTORY
[4]   Davis and L.W. met at their place of employment during June or July 2017.

      They began dating one month later and in September 2017, they moved into an

      apartment, together with L.W.’s two children from a previous relationship. On

      January 1, 2018, Davis and L.W. argued when Davis intended to drink the last

      bottle of Pepsi. L.W. squeezed the bottom of the bottle, spilling the Pepsi. In

      response, Davis grabbed her bag of Skittles. When L.W. did not react, Davis

      banged her phone against the side of the bed and shattered the screen. At that

      point, L.W. was “ready to leave.” (Transcript p. 74). However, Davis

      apologized and gave L.W. his phone to break, which she did.


[5]   The following morning, L.W. started packing her belongings, intending to

      move out. Davis grabbed L.W.’s cigarettes and they began to argue. He

      Court of Appeals of Indiana | Opinion 19A-CR-631 | July 31, 2019           Page 2 of 9
      pushed L.W. and caused her to fall on top of her two-year-old son. When L.W.

      moved towards her closet, Davis pinned her down and hit her in the face. She

      fought her way towards the entrance of the bedroom before Davis pinned her

      arms to her legs. L.W.’s daughter, who was down the hall, started crying.

      L.W. managed to free herself by biting Davis’ chin and she escaped to the

      neighbor’s apartment where she called 911. After making the call, she returned

      to the apartment and Davis and L.W. began “going at it again.” (Tr. p. 76).

      Davis grabbed L.W.’s laptop out of her hands and broke it in two pieces. L.W.

      lost her balance, and fell on a glass table which Davis kicked in an attempt to

      shatter it. Shortly thereafter, police officers arrived. While the officers

      attempted to arrest him, Davis talked loudly and used profanity directed at the

      officers. He tensed his arms, balled his fists, and was non-compliant with the

      officers’ orders.


[6]   On January 9, 2018, the State filed an Information, charging Davis with Count

      I, battery against a public safety officer, a Level 6 felony; Count II, domestic

      battery, a Class A misdemeanor; and Count III, resisting law enforcement, a

      Class A misdemeanor. On January 17, 2018, during the pre-trial hearing,

      Davis informed the trial court that he intended to represent himself. The trial

      court noted the request and set it for a hearing. On January 24, 2018, the trial

      court conducted a hearing to address Davis’ request to represent himself. Davis

      advised the trial court that he was twenty-six, had a high school diploma, and

      had completed some college education. He did not have any learning

      disabilities, and understood and read the English language. Davis disclosed


      Court of Appeals of Indiana | Opinion 19A-CR-631 | July 31, 2019              Page 3 of 9
      that he had never before participated in a jury trial, but had been charged with a

      Class A misdemeanor in the past. Davis confirmed that although he had the

      right to have an attorney appointed for him, he wanted to waive that right and

      instead represent himself. He affirmed that he had made that choice voluntarily

      and out of his own free will. The trial court proceeded to explain the

      disadvantages of self-representation versus the advantages of being represented

      by an attorney, trained in the rules of evidence and procedural mechanisms.

      Davis acknowledged that he understood the trial court’s cautionary advice but

      wanted to proceed pro se. Finding Davis competent, the trial court concluded

      that he had voluntarily waived his right to an attorney and advised him that “if

      [he] d[id] want an attorney at any time, all [he] ha[d] to do [wa]s send [the

      court] a letter, or a motion, and” the trial court would assign Davis an attorney.

      (Tr. p. 17).


[7]   During the pre-trial hearing of September 12, 2018, the trial court enquired after

      Davis’ preferred bench trial date setting, either December 20, 2018 or January

      24, 2019. Davis explicitly confirmed the latter date. On November 19, 2018,

      Davis signed a discovery receipt acknowledging that he had received the

      charging Information and probable cause affidavit, police reports, witness

      statements, and videotaped materials on a CD.


[8]   On January 24, 2019, the trial court conducted a bench trial. After the State

      began presenting its evidence, Davis interrupted, requesting a recess because he

      “didn’t even know that we was [sic] coming into trial today.” (Tr. p. 37).

      Upon conclusion of the recess, Davis told the trial court “I’m going to just go

      Court of Appeals of Indiana | Opinion 19A-CR-631 | July 31, 2019          Page 4 of 9
      ahead and request for a P.D.” (Tr. p. 37). He advised the court “I’m not

      prepared for this. Not, not right now. I’m just going to, you know, with the –

      not knowing what to object, I’m just going to go ahead and continue it.” (Tr.

      pp. 37-38). The State objected, noting that Davis knew “since September that

      this was set. He’s the one that wanted to get it done sooner rather than later. I

      think this is a ploy by [Davis] to come in here. He knows our victim flew in

      from out of state.” (Tr. p. 39). Although Davis informed the trial court that his

      “anxiety [wa]s through the roof,” the trial court denied his request for a public

      defender, finding that the


              alleged victim has flown in from California. She is here. So I
              will deny the request for continuance and to be able to hire
              counsel. I think this is exactly what the advisement is intended
              to do, is to advise people of the risks of going ahead without an
              attorney. And this was set September 12th, 2018. The notice says
              Bench trial January 24, 2019 at 1:00 p.m. So we’re all
              assembled. . . . My ruling is to deny the continuance, deny the
              request for Public Defender.


      (Tr. p. 40). At the close of the evidence, the trial court took the matter under

      advisement.


[9]   On February 26, 2019, the trial court issued its judgment, finding Davis guilty

      of domestic battery, a Class A misdemeanor, but not guilty of battery against a

      law enforcement officer, a Level 6 felony, and resisting law enforcement, a

      Class A misdemeanor. The trial court sentenced Davis to pay a fine, court

      costs, and domestic violence prevention and treatment fee.



      Court of Appeals of Indiana | Opinion 19A-CR-631 | July 31, 2019           Page 5 of 9
[10]   Davis now appeals. Additional facts will be provided as necessary.


                                DISCUSSION AND DECISION
[11]   Davis contends that the trial court abused its discretion by denying his request

       for a public defender after the bench trial had started and more than a year after

       Davis had waived his right to counsel.


[12]   The Sixth Amendment of the United States Constitution and Art. I, § 13 of the

       Indiana Constitution guarantee the right to counsel at any critical stage of

       prosecution where counsel’s absence “might derogate from the accused’s right

       to a fair trial.” United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1932, 18

       L.Ed.2d 1149, 1158 (1967). Correlative to this constitutional right to counsel is

       the right of a defendant in a criminal proceeding to appear pro se. “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 personally to decide whether in his particular case counsel is to his

       advantage.” Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45

       L.Ed.2d 562, 581 (1975).


[13]   It is within the trial court’s discretion to determine whether a defendant may

       abandon his pro se defense after trial has begun and reassert his right to counsel.

       Koehler v. State, 499 N.E.2d 196, 198-99 (Ind. 1986). We will reverse only if we

       conclude that the trial court abused that discretion. Id. In Koehler, our supreme

       court identified five factors to be considered by a trial court in order to exercise

       meaningful discretion in ruling on a defendant’s request to change from self-

       Court of Appeals of Indiana | Opinion 19A-CR-631 | July 31, 2019            Page 6 of 9
       representation to counsel-representation. Id. Specifically, the trial court should

       consider: (1) the defendant’s prior history in the substitution of counsel and in

       the desire to change from self-representation to counsel-representation, (2) the

       reasons set forth in defendant’s request, (3) the length and stay of the trial

       proceedings, (4) any disruption or delay in the trial proceedings which might be

       expected to ensue if the request is granted, and (5) the likelihood of defendant’s

       effectiveness in defending against the charges if required to continue to act as

       his own attorney. Id. at 199.


[14]   Initially, and reflecting on Koehler’s first factor, we note that Davis was fully

       advised of the dangers and disadvantages of waiving his right to counsel, a full

       year prior to the commencement of the bench trial. The trial court explained

       the charges to him and the consequences of proceeding pro se. Although Davis

       acknowledged that he understood the charges and the trial court’s cautionary

       advice, he indicated that he wanted to waive his right to counsel. During this

       intermediate time leading to trial, Davis did not waiver in his decision to

       proceed pro se. Davis was presented with an option of trial dates and the bench

       trial was set for the date and time he selected. Davis filed motions and obtained

       court orders in his favor. Even when the bench trial was convened and the

       State started its presentation of the evidence did Davis remain silent and

       proceeded pro se. At the commencement of the bench trial, Davis

       competently—albeit unsuccessfully—addressed the State’s addition of a

       foundational witness. Only during the State’s examination of its first witness




       Court of Appeals of Indiana | Opinion 19A-CR-631 | July 31, 2019            Page 7 of 9
       did Davis change his mind. After requesting a recess, Davis returned and asked

       for counsel to be appointed.


[15]   Davis’ reason for his request to retract his waiver of counsel was his

       unpreparedness and anxiety. The State objected, referencing the ample

       opportunity to get prepared as the date of the bench trial had been set four

       months earlier and the inconvenience to the victim who had flown in from out

       of state if the case were to be continued. Granting Davis’ request would most

       likely have resulted in a substantial continuance in order for counsel to get

       familiar with the facts of the case and would have required additional sacrifice

       from the victim who would have to make an additional trip to Indiana.

       Although Davis relies on the trial court’s statement that he could request an

       attorney “at any time” to support his contention that he should have been

       assigned an attorney midway through the bench trial, the trial court tempered

       that broad statement with the qualifier that Davis had to send the court “a letter

       or a motion.” (Tr. p. 17). Accordingly, unlike Davis’ claim, the trial court’s

       option to assign counsel did not span the entire trial after a full year of pre-trial

       proceedings; but rather appears to be limited to the legal proceedings prior to

       the commencement of trial. Despite the trial court’s denial of his request for

       counsel, Davis effectively defended against the charges pro se. Not only did he

       manage to impeach the victim during cross-examination, but he also was found

       not guilty on two of the three charges the State brought against him.


[16]   Mindful of the Koehler factors, and given the tardiness of Davis’ request and the

       trial court’s previous warnings about self-representation, we conclude that the

       Court of Appeals of Indiana | Opinion 19A-CR-631 | July 31, 2019             Page 8 of 9
       trial court did not abuse its discretion in denying Davis’ midtrial request for

       appointment of counsel.


                                               CONCLUSION
[17]   Based on the foregoing, we hold that the trial court did not abuse its discretion

       by denying Davis’ request for an attorney made during the bench trial and more

       than one year after affirming his request for self-representation.


[18]   Affirmed.


[19]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Opinion 19A-CR-631 | July 31, 2019           Page 9 of 9
