      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                               FILED
      regarded as precedent or cited before any
                                                                      Jun 29 2017, 8:35 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                             CLERK
                                                                      Indiana Supreme Court
      estoppel, or the law of the case.                                  Court of Appeals
                                                                           and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Donald C. Swanson, Jr.                                   Curtis T. Hill, Jr.
      Deputy Public Defender                                   Attorney General of Indiana
      Fort Wayne, Indiana                                      Jesse R. Drum
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Ronald D. Billingsley-Smith,                             June 29, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               02A03-1612-CR-2769
              v.                                               Appeal from the Allen Superior
                                                               Court
      State of Indiana,                                        The Honorable Frances C. Gull,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               02D06-1604-F5-102



      Mathias, Judge.


[1]   Following a jury trial in Allen Superior Court, Ronald Billingsley-Smith

      (“Smith”) was convicted of Level 5 felony carrying a handgun without a license


      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2769 | June 29, 2017    Page 1 of 12
      and Class A misdemeanor possession of marijuana. Smith appeals and presents

      two issues, which we restate as: (1) whether the trial court erred by denying

      Smith’s morning-of-trial request to represent himself, and (2) whether the trial

      court committed fundamental error when it admitted evidence seized during an

      inventory search of the vehicle Smith was driving. Concluding that Smith’s

      request to represent himself was per se untimely, and that the trial court did not

      commit fundamental error, we affirm.


                                 Facts and Procedural History

[2]   On the night of April 2, 2016, Sergeant Gary Hensler (“Sgt. Hensler”) of the

      Fort Wayne Police Department was among the police officers watching

      Foster’s bar, an establishment with a history of criminal activity. The police

      observed a man, later determined to be Smith, standing next to an automobile

      in the bar’s parking lot. Before the man went inside the bar, Sgt. Hensler

      observed him lean into his car and appear to place something in the back seat.

      Since Foster’s had a policy of prohibiting firearms, Hensler suspected that the

      man had placed a gun in his car. Sgt. Hensler ran the license plate of the car

      through his computer system, which revealed that the car was owned by Smith,

      who matched the description of the man seen next to the car, and whose

      driver’s license was suspended. Smith stayed inside the bar for approximately

      half an hour, then left in the car.


[3]   Knowing that the registered owner of the car, whose description matched

      Smith, had a suspended license, the police decided to pull the car over. Fort

      Wayne Police Detective Matthew Foote (“Detective Foote”) activated the
      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2769 | June 29, 2017   Page 2 of 12
      emergency lights on his patrol car. Instead of stopping, however, Smith

      continued to drive. Detective Foote then activated his siren, but Smith still

      continued to drive, observing the speed limit and using his turn signals when

      appropriate. Smith later explained that he did not immediately stop because he

      wanted to get to an area with better lighting, where others could witness the

      stop.

[4]   After driving for approximately one minute, Smith pulled into a gas station.

      The police ordered Smith out of the car at gunpoint in a procedure they termed

      a “high risk traffic stop,” because Smith had not immediately stopped his

      vehicle. Tr. p. 40. Smith complied with the officer’s orders and was taken into

      custody without incident. Because Smith’s license was suspended, the police

      decided to impound the vehicle. Before doing so, they performed an inventory

      search of the car and found a bag of marijuana in the center console. The police

      also found a 9 mm handgun located in the pocket on the back side of the front

      passenger’s seat. Smith denied knowing that the gun and marijuana were in the

      car and denied that they belonged to him. Unconvinced, the police arrested

      Smith.

[5]   On April 6, 2016, the State charged Smith with Level 5 felony carrying a

      handgun without a license, Level 6 felony resisting law enforcement by fleeing

      in a vehicle, and Class A misdemeanor possession of marijuana. A jury trial

      was held on October 12 and 13, 2016. The jury found Smith guilty of carrying a

      handgun without a license and possession of marijuana but was unable to reach

      a unanimous verdict on the charge of resisting law enforcement. The trial court

      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2769 | June 29, 2017   Page 3 of 12
      held a sentencing hearing on November 15, 2016, at the conclusion of which it

      imposed a sentence of four years on the conviction for carrying a handgun

      without a license and a concurrent one-year sentence on the conviction for

      possession of marijuana. Smith now appeals.

                            I. Smith’s Request to Represent Himself

[6]   Smith first argues that the trial court erred when it denied his request to

      represent himself. On the morning of the first day of trial, Smith’s attorney

      informed the trial court that Smith wished to represent himself. In response, the

      trial court questioned Smith to determine whether he was knowingly waiving

      his right to counsel. After being advised of all of the rights he would be

      foregoing by representing himself, Smith still indicated that he wished to

      proceed pro se. The trial court then questioned Smith regarding his capabilities

      to act as his own counsel. Smith conceded that he had no formal legal training

      but claimed that he had been informally studying the law since he had been

      released from incarceration on a prior conviction. Smith indicated that he could

      read and write the English language and had one year of college education.

      Howver, Smith had no trial experience, no experience selecting a jury, and had

      no familiarity with the Indiana Rules of Evidence

[7]   When the trial court indicated that it was prepared to deny Smith’s request to

      represent himself, Smith interjected, “I don’t think that’s a fair trial.” Tr. p. 14.

      The trial court responded as follows:

              Well, here’s the problem, Mr. Billingsley-Smith: If you would
              have told me this six or eight weeks ago, we would have had—
      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2769 | June 29, 2017   Page 4 of 12
              you would have had more time to get ready for trial. You’re
              telling me day of trial that you want to represent yourself. I’ve
              already found that you’re not capable of representing yourself
              day of trial, I’m not gonna continue this trial for that reason. You
              don’t know how to do what—the basics of trial [are], so you have
              a very able attorney that you have hired to represent you. He is
              perfectly capable of representing you and will give you a fair
              defense. It is not the practice of this Court nor any court to do
              hybrid representation, so you have an attorney—again, if you
              would have told me this several weeks ago or several months ago
              that you wanted to represent yourself, you would have had
              plenty of time at that point to get familiar with the things that
              you need to get familiar with to represent yourself, but you didn’t
              do that and here we are day of trial, so your attorney is going to
              be representing you, sir. Are we all on the same page with that?


      Tr. p. 14. Smith repeated his objection, claiming that forcing counsel on him

      was a violation of his Sixth Amendment rights, but the trial court still rejected

      his request to proceed pro se, again noting Smith’s lack of experience and

      qualifications.


[8]   On appeal, Smith argues that the trial court’s ruling denying his request to

      represent himself denied him his Sixth Amendment rights. A criminal

      defendant’s Sixth Amendment right to counsel is essential to the fairness of a

      criminal proceeding. Drake v. State, 895 N.E.2d 389, 392 (Ind. Ct. App. 2009)

      (citing Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963)). Implicit in this right

      to counsel is the right of a defendant to self-representation. Id. (citing Faretta v.

      California, 422 U.S. 806, 819 (1975)). The accused must knowingly and

      intelligently forgo the many benefits he gives up by waiving the right to counsel.

      Id. Thus, when a defendant asserts his right to self-representation, the trial court

      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2769 | June 29, 2017   Page 5 of 12
       should advise the defendant of the dangers and disadvantages of self-

       representation. Id.


[9]    The right to self-representation also must be asserted within a reasonable time

       prior to the first day of trial. Id. (citing Campbell v. State, 732 N.E.2d 197, 204

       (Ind. Ct. App. 2000); Olson v. State, 563 N.E.2d 565, 570 (Ind. 1990)). Our

       supreme court has long held that a request to proceed pro se on the morning of

       trial is per se untimely, and denial of a request to proceed pro se on the ground

       of untimeliness is permissible. Id. (citing Moore v. State, 557 N.E.2d 665, 669

       (Ind. 1990)).

[10]   Our supreme court first held that morning-of-trial requests to represent oneself

       are per se untimely in Russell v. State, 270 Ind. 55, 62, 383 N.E.2d 309, 314

       (1978). Since then, the court has never wavered from its holding. See Stroud v.

       State, 809 N.E.2d 274, 279 (Ind. 2004) (citing Russell in concluding that

       defendant’s requests to represent himself were untimely); Moore, 557 N.E.2d at

       669 (rejecting defendants morning-of-trial request to represent himself and have

       counsel act as his legal advisor); Broadus v. State, 487 N.E.2d 1298, 1304 (Ind.

       1986) (affirming trial court’s decision to deny request of defendant during trial

       to represent himself); Smith v. State, 474 N.E.2d 973, 979 (Ind. 1985) (citing

       Russell in rejecting defendant’s claim that trial court erred by denying his request

       to proceed pro se); Dixon v. State, 470 N.E.2d 728, 730 (Ind. 1984) (noting in

       post-conviction appeal that defendant’s request for self-representation had been

       made on the morning of trial and was therefore untimely); Hunt v. State, 459

       N.E.2d 730, 733-34 (Ind. 1984) (affirming trial court’s summary denial of
       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2769 | June 29, 2017   Page 6 of 12
       defendant’s request, on morning of trial, to represent himself); Dixon v. State,

       437 N.E.2d 1318, 1321 (Ind. 1982) (affirming trial court’s denial of defendant’s

       request to represent himself made on the morning of trial during jury voir dire);

[11]   Smith acknowledges the holding of Russell and the cases that follow it.

       However, he argues that Russell was decided incorrectly, referring to the dissent

       in that case and to other state and federal court decisions that have declined to

       follow the rule espoused in Russell. After discussing those cases, Smith

       concludes:


               Simply put, no good reason exists for the continued adherence to
               Russell. It represents a statement of law that is out of step with
               literally every other American jurisdiction. It is premised upon
               concerns which this case shows are either overstated, or non-
               existent. As Justice DeBruler stated [in his dissent in Russell], it
               “sanction[s] constitutional error.” This Court should so find,
               should adopt an approach to day-of-trial requests for self-
               representation that is recognized by at least one other American
               jurisdiction, and should remand this case for a new trial where
               Smith’s Sixth Amendment rights can be preserved.


       Appellant’s Br. at 17.


[12]   Even if we were inclined to agree with Smith’s position, there exists a very good

       reason for our continued adherence to Russell: it remains the controlling

       precedent of our supreme court. We have explained before that

               we are bound by the decisions of our supreme court. Supreme
               court precedent is binding upon us until it is changed either by
               that court or by legislative enactment. While Indiana Appellate


       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2769 | June 29, 2017   Page 7 of 12
               Rule 65(A) authorizes this Court to criticize existing law, it is not
               this court’s role to “reconsider” supreme court decisions.


       Dragon v. State, 774 N.E.2d 103, 107 (Ind. Ct. App. 2002) (citations omitted),

       trans. denied.


[13]   Unless and until our supreme court (or the Supreme Court of the United States)

       overrules the rule espoused in Russell, this court, as an intermediate appellate

       court, must continue to apply it. Under this rule, Smith’s request to represent

       himself, which was made on the morning his trial was set to begin, was per se

       untimely, and it was wholly within the discretion of the trial court to deny this

       untimely request. See Stroud, 809 N.E.2d at 279; Moore, 557 N.E.2d at 669;

       Broadus, 487 N.E.2d at 1304; Hunt, 459 N.E.2d at 734; Dixon, 437 N.E.2d at

       1321; Russell, 270 Ind. at 62, 383 N.E.2d at 314.


                                       II. Admission of Evidence

[14]   Smith also argues that the trial court committed fundamental error in the

       admission of the evidence found in the inventory search of his car. Generally

       speaking, decisions regarding the admission of evidence are entrusted to the

       sound discretion of the trial court. Bell v. State, 29 N.E.3d 137, 141 (Ind. Ct.

       App. 2015), trans. denied. We review the trial court’s decision only for an abuse

       of this discretion. Id. The trial court abuses its discretion only if its decision is

       clearly against the logic and effect of the facts and circumstances before it, or if

       the court misinterprets the law. Id.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2769 | June 29, 2017   Page 8 of 12
[15]   Smith admits that he made no contemporaneous objection to the admission of

       the evidence he now claims was improperly admitted. A contemporaneous

       objection is required to preserve evidentiary error on appeal, and the failure to

       object waives the issue for purposes of appellate review. Hastings v. State, 58

       N.E.3d 919, 922 (Ind. Ct. App. 2016). To avoid this waiver, Smith argues that

       the admission of the evidence seized from his car was fundamental error.

[16]   A claim that has been waived by a defendant’s failure to raise a

       contemporaneous objection can be reviewed on appeal if the reviewing court

       determines that a fundamental error occurred. Brown v. State, 929 N.E.2d 204,

       207 (Ind. 2010). The fundamental error exception is “extremely narrow, and

       applies only when the error constitutes a blatant violation of basic principles,

       the harm or potential for harm is substantial, and the resulting error denies the

       defendant fundamental due process.” Id. (quoting Mathews v. State, 849 N.E.2d

       578, 587 (Ind. 2006)). “The error claimed must either ‘make a fair trial

       impossible’ or constitute ‘clearly blatant violations of basic and elementary

       principles of due process.’” Id. (quoting Clark v. State, 915 N.E.2d 126, 131 (Ind.

       2009)). Thus, the fundamental error exception is available only in “egregious

       circumstances.” Id. (quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)).


[17]   The Brown court explained that the fundamental error exception, as applied to a

       claim of the admission of evidence that is alleged to have been the subject of an

       unconstitutional search and seizure, is very limited:

               [A]n error in ruling on a motion to exclude improperly seized
               evidence is not per se fundamental error. Indeed, because
       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2769 | June 29, 2017   Page 9 of 12
                improperly seized evidence is frequently highly relevant, its
                admission ordinarily does not cause us to question guilt. That is
                the case here. The only basis for questioning Brown's conviction
                lies not in doubt as to whether Brown committed these crimes,
                but rather in a challenge to the integrity of the judicial process.
                We do not consider that admission of unlawfully seized evidence ipso
                facto requires reversal. Here, there is no claim of fabrication of evidence or
                willful malfeasance on the part of the investigating officers and no
                contention that the evidence is not what it appears to be. In short, the
                claimed error does not rise to the level of fundamental error.


       Brown, 929 N.E.2d at 207 (emphasis added); see also Mamon v. State, 6 N.E.3d

       488, 490 (Ind. Ct. App. 2014) (noting that, absent a claim of fabricated evidence

       or willful malfeasance on the part of the police and no showing that the

       evidence is not what it appears to be, the claimed error in admission is not

       fundamental).


[18]   Nor is this rule new to Indiana law. Almost forty years ago, our supreme court

       held that, even if evidence was obtained in violation of constitutional

       protections against unlawful searches and seizures, its introduction at trial

       “does not elevate the issue to the status of fundamental error that may be raised

       for the first time on appeal.” Swinehart v. State, 268 Ind. 460, 466-467, 376

       N.E.2d 486, 491 (1978). Under this rule, Smith has not established fundamental

       error.

[19]   There is no suggestion of the fabrication of evidence or willful malfeasance on

       the part of the police who searched Smith’s car. Smith claims that his own

       testimony that he was unaware of the existence of the marijuana and handgun


       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2769 | June 29, 2017   Page 10 of 12
       “may very well be sufficient to show that the evidence is not what it appears to

       be.” Appellant’s Br. at 24. We disagree. Smith’s own testimony claimed only

       that he did not know that the gun and marijuana were in his car; his testimony

       in no way suggests that the gun and the marijuana were not what they appeared

       to be, i.e. an illicit substance and a handgun for which he did not have a permit.


[20]   Accordingly, the admission of the evidence seized from the car was not

       fundamental error. See Mamon, 6 N.E.3d at 490 (rejecting claim of fundamental

       error where defendant argued only that police officer misunderstood the traffic

       law that was the basis of the stop of defendant’s vehicle and defendant did not

       dispute the truth of the officer’s testimony and related exhibits); Rhodes v. State,

       996 N.E.2d 450, 454-55 (Ind. Ct. App. 2013) (holding that no fundamental

       error occurred where defendant did not make any claims of fabricated evidence

       or willful malfeasance and instead merely asserted that the evidence was

       improperly admitted as the result of an unconstitutional search); Brown, 929

       N.E.2d at 208 (holding no fundamental error occurred where defendant did not

       make any claim of fabricated evidence or willful malfeasance on the part of the

       police and instead argued only that the evidence at issue was the product of an

       unconstitutional search and seizure); Covelli v. State, 579 N.E.2d 466, 471 (Ind.

       Ct. App. 1991) (holding that the admission of evidence obtained in violation of

       the defendant’s constitutional rights to be protected against unlawful searches

       and seizures did not elevate that issue to the status of fundamental error).




       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2769 | June 29, 2017   Page 11 of 12
                                                 Conclusion

[21]   Based on the controlling precedent of our supreme court in Russell, Smith’s

       eleventh-hour request to represent himself was per se untimely, and the trial

       court acted within its discretion to deny Smith’s belated request. Smith’s claim

       of error regarding the admission of evidence fares no better, in light of the

       extremely narrow fundamental error exception, under which the admission of

       evidence seized as a result of an allegedly unconstitutional search is not

       fundamental error absent evidence of fabrication of evidence, willful

       malfeasance, or a showing that the evidence at issue is not what it appears to

       be. As this is not the case here, Smith’s claim of fundamental error also fails.


[22]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2769 | June 29, 2017   Page 12 of 12
