                                                                           FILED
                                                                     Jul 22 2016, 8:26 am

                                                                           CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Joel C. Wieneke                                            Gregory F. Zoeller
Wieneke Law Office, LLC                                    Attorney General of Indiana
Brooklyn, Indiana
                                                           Jesse R. Drum
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Santiago Valdez,                                           July 22, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A02-1509-CR-1514
        v.                                                 Appeal from the Delaware Circuit
                                                           Court
State of Indiana,                                          The Honorable Kimberly S.
Appellee-Plaintiff                                         Dowling, Judge
                                                           Trial Court Cause No.
                                                           18C02-1204-FB-3



Baker, Judge.




Court of Appeals of Indiana | Opinion 18A02-1509-CR-1514 | July 22, 2016                     Page 1 of 18
[1]   Santiago Valdez appeals his convictions for Class B Felony Attempted Rape 1

      and Class C Felony Criminal Confinement.2 He argues that the trial court

      made evidentiary errors and that the State engaged in prosecutorial misconduct.

      During closing arguments, the prosecutor hinted to the jury that the defense

      counsel improperly influenced an expert witness outside of the trial. We find

      that these statements constituted prosecutorial misconduct, but that a prompt

      admonishment from the trial court prevented Valdez from being placed into

      grave peril. We also find that the trial court did not make evidentiary errors.

      Consequently, we affirm.


                                                      Facts     3




[2]   On April 7, 2012, Valdez was at the Muncie home of his sister, C.V. He had

      been drinking alcohol and smoking crack. C.V. was on the phone with her

      uncle when she heard Valdez utter an obscenity. She ended the phone call with

      her uncle and walked toward Valdez.


[3]   At this point, C.V. realized that Valdez had taken off his pants and underwear.

      She immediately phoned the police because, as she testified later, “I knew he




      1
          Ind. Code §§ 35-42-4-1, 35-41-5-1.
      2
          Ind. Code § 35-42-3-3.
      3
       We held oral argument in this case in Bloomington, Indiana, on June 28, 2016. We would like to thank the
      Commissioners of Monroe County for allowing us usage of the Nat U. Hill Memorial Courtroom in the
      beautifully restored Monroe County Courthouse. We would also like to thank the Center on Representative
      Government at Indiana University, and in particular Dr. Elizabeth Osborn, for their hospitality and
      participation. Finally, we thank counsel for their engaging and informative oral advocacy.

      Court of Appeals of Indiana | Opinion 18A02-1509-CR-1514 | July 22, 2016                     Page 2 of 18
      was going to try something with me.” Tr. p. 695. Before she was able to speak

      to the police dispatchers, Valdez walked over to her, pushed her on the couch,

      and got on top of her. C.V. left the phone on and was able to kick it under the

      couch where Valdez could not see it.


[4]   The police dispatcher could hear the ensuing struggle and recorded it. On the

      recording, Valdez says things like “we gonna f***,” “come on with it,” “shut

      your mouth,” and “take your top off.” Id. at 723. C.V. can be heard crying and

      saying “Oh my God,” and “please help me.” Id. at 723-24. During the

      struggle, Valdez took off C.V.’s shirt, pants, and underwear.


[5]   A police officer came to the house. When C.V. opened the door, the officer

      noticed that C.V. was wearing only one sock and Valdez was naked from the

      waist down. C.V. told the officer, “He’s trying to rape me.” Id. at 734. Valdez

      calmly told the officer “that everything was fine.” Id. The officer arrested

      Valdez.


[6]   On April 12, 2012, the State charged Valdez with attempted rape, a Class B

      felony; criminal confinement, a Class C felony; attempted incest, a Class C

      felony; intimidation, a Class D felony; and battery, a Class A misdemeanor.

      The State eventually dropped the attempted incest and battery charges.


[7]   On July 13, 2012, Valdez filed a suggestion of insanity, alleging that he was a

      former boxer who had suffered repeated blows to the head. Valdez began




      Court of Appeals of Indiana | Opinion 18A02-1509-CR-1514 | July 22, 2016   Page 3 of 18
      writing dozens of pro se “motions” to the trial court, 4 including a motion to

      represent himself. The trial court denied his motion to represent himself,

      finding that he was not mentally competent, and Valdez filed an interlocutory

      appeal on that issue. We affirmed the trial court’s decision to deny his motion

      to represent himself in a memorandum decision. Valdez v. State, No. 18A05-

      1407-CR-304 (Ind. Ct. App. Jan. 22, 2015).


[8]   The case was remanded to the trial court, and on June 3, 2015, the State

      notified the trial court that it intended to present evidence of previous criminal

      activity covered by Indiana Evidence Rule 404(b). In 1993, Valdez was

      convicted in Monroe County of rape and confinement, and was sentenced to

      twenty-three years. After a hearing, Valdez agreed that his prior convictions

      should be presented because he believed they were relevant to his insanity

      defense. The parties agreed on the following limiting instruction: “This

      evidence has been received solely on the issue of Defendant’s sanity. This

      evidence should be considered by you only for that limited purpose.”

      Appellant’s App. p. 244. However, the jury never received this instruction.


[9]   On July 20-23, 2015, Valdez was tried before a jury. At trial, Valdez repeatedly

      attempted to put into evidence a Pre-Sentence Investigation Report from the

      1993 Monroe County trial, which included reports of psychological evaluations




      4
       As an example of the typical contents of these motions, Valdez alleged that prison guards were denying him
      medical treatment “because they say I look normal. However, I am being cut up inside and electronically
      and bleeding.” Interloc. App. p. 525.

      Court of Appeals of Indiana | Opinion 18A02-1509-CR-1514 | July 22, 2016                       Page 4 of 18
       done in 1986 and 1987 in connection with a criminal case from Arizona

       (“Defense Exhibit M”). He also attempted to put into evidence a police report

       from the 1993 case in which the victim told police that Valdez would not sleep

       for fear that people were hiding in his closet or attic or were watching him

       through his windows (“Defense Exhibit N”). The trial court agreed with the

       State that these documents constituted hearsay and lacked a proper foundation,

       and so denied Valdez’s attempt to admit them into evidence.


[10]   During closing arguments, the State tried to convince the jury that a defense

       witness, Dr. Javan Horwitz, was not credible when he testified that Valdez

       could not understand the wrongfulness of his actions. The State argued the

       following:

               This was supposed to be an independent evaluation on the up
               and up. I’ll just tell you I’ll call it as I see it. But, what’s going
               on here? The Defense is controlling the information that this
               alleged expert is looking at. I wonder why the Defense didn’t
               want Doctor Horwitz to hear that record. I wonder why. Then
               remember that as of Friday he wasn’t sure if he denied having an
               opinion, like we talked about. Interestingly, he comes into open
               Court . . . and now he surprisingly has an opinion on insanity.
               Who’s the only person Horwitz talked to after he hung up the
               phone with me and said, “I didn’t have an opinion”? Mr.
               Wieneke, the Defense attorney. So he went from I don’t have an
               opinion to he’s legally insane. And what’s the common—what
               changed from Friday to Wednesday? He talked to the Defense.


       Tr. p. 1423. Valdez immediately objected and moved for a mistrial. The trial

       court told the State, “I understand his complaint about it because you are

       impugning his character.” Id. at 1424. The trial court did not grant the
       Court of Appeals of Indiana | Opinion 18A02-1509-CR-1514 | July 22, 2016     Page 5 of 18
       mistrial, but did sustain the objection. It admonished the jury not to take the

       State’s statements on this issue as evidence, and informed them that earlier

       testimony, outside the presence of the jury, had established that the defense had

       not told Dr. Horwitz what to say.


[11]   The jury found Valdez guilty as charged. On August 20, 2015, the trial court

       held a sentencing hearing and sentenced Valdez to twenty years for attempted

       rape and eight years for criminal confinement, with those sentences to be served

       consecutively. The trial court vacated the intimidation count based on double

       jeopardy concerns. Valdez now appeals.


                                     Discussion and Decision
[12]   Valdez has four arguments on appeal: 1) the trial court should have admitted

       the documents from his 1993 case; 2) since the jury did not find that Valdez was

       insane or mentally ill, he should have been allowed to represent himself from

       the beginning of the case; 3) the trial court should have given a limiting

       instruction regarding Valdez’s 1993 conviction; and 4) the State committed

       reversible error when it suggested that the defense told a witness what to say.


                                    I. Admission of Evidence
[13]   Trial courts have broad discretion to admit or exclude evidence, and our review

       is limited to whether the trial court went beyond the scope of that discretion.

       Satterfield v. State, 33 N.E.3d 344, 352 (Ind. 2015). We consider all the facts and

       circumstances surrounding the trial court’s decision to determine whether it is



       Court of Appeals of Indiana | Opinion 18A02-1509-CR-1514 | July 22, 2016     Page 6 of 18
       clearly against the logic and effect of what those facts and circumstances

       dictate. Id.


[14]   Valdez argues that Defense Exhibits M and N should have been admitted under

       Evidence Rule 803(8), which provides that the following is not excluded by the

       rule against hearsay:

               (8) Public Records.


                        (A) A record or statement of a public office if:


                                 (i) it sets out:


                                          (a) the office's regularly conducted and
                                          regularly recorded activities;


                                          (b) a matter observed while under a legal duty
                                          to [observe and] report; or


                                          (c) factual findings from a legally authorized
                                          investigation; and


                                 (ii) neither the source of information nor other
                                 circumstances indicate a lack of trustworthiness.


                        (B) Notwithstanding subparagraph (A), the following are
                        not excepted from the hearsay rule:


                                 (i) investigative reports by police and other law
                                 enforcement personnel, except when offered by an
                                 accused in a criminal case;

       Court of Appeals of Indiana | Opinion 18A02-1509-CR-1514 | July 22, 2016            Page 7 of 18
                                 (ii) investigative reports prepared by or for a public
                                 office, when offered by it in a case in which it is a
                                 party;


                                 (iii) factual findings offered by the government in a
                                 criminal case; and


                                 (iv) factual findings resulting from a special
                                 investigation of a particular complaint, case, or
                                 incident, except when offered by an accused in a
                                 criminal case.


[15]   Defense Exhibits M and N, however, were never authenticated. Evidence Rule

       901 provides, “To satisfy the requirement of authenticating or identifying an

       item of evidence, the proponent must produce evidence sufficient to support a

       finding that the item is what the proponent claims it is.” Even if these

       documents fell under the language of Evidence Rule 803(8) as public records,

       that would only save them from exclusion on hearsay grounds; it would not

       guarantee admission. Valdez produced no evidence at trial to show that these

       documents were what he said they were.


[16]   Valdez also argues that, even if these exhibits were not admissible on their own

       merits, the State opened the door to their admission. Indiana courts have long

       recognized that otherwise inadmissible evidence may become admissible if a

       party opens the door to questioning on that evidence in order to correct a

       deceptively incomplete disclosure. Hall v. State, 36 N.E.3d 459, 471 (Ind. 2015).

       In order for this to occur, the party opening the door “must leave the trier of



       Court of Appeals of Indiana | Opinion 18A02-1509-CR-1514 | July 22, 2016           Page 8 of 18
       fact with a false or misleading impression of the facts related.” Gilliam v. State,

       270 Ind. 71, 76-77, 383 N.E.2d 297, 301 (1978).


[17]   At trial, the State repeatedly told the jury that Valdez had no history of mental

       illness or delusional beliefs, and that he began faking these symptoms after he

       was arrested in the present case. In the State’s opening statement, it told the

       jury, “I believe the evidence will show you [] that there’s no history of mental

       illness with this Defendant. Prior to being arrested and jailed and awaiting

       trial, there’s no evidence, no history of mental illness, no history of hearing

       voices, no history of delusional beliefs.” Tr. p. 679. The State developed this

       theme during the trial. The State asked Dr. Frank Krause, “So the only thing

       that you’re aware of is that he started hearing things and had these paranoid

       beliefs after he was arrested and booked in the jail in this case, is that accurate?”

       Id. at 940. Dr. Krause agreed. The State asked Dr. Christopher Modica, “Prior

       to being arrested and booked into jail, there was no evidence of prior

       hallucinations or delusions? . . . And all that started after his arrest?” Id. at

       1003. Dr. Modica agreed. Similar exchanges occurred with several other

       expert witnesses, and each time Valdez sought to admit his exhibits.


[18]   We note that neither a history of mental illness, nor a history of hearing voices,

       nor a history of delusional beliefs is the same as being insane. The test for

       insanity is whether, “as a result of mental disease or defect, [the accused] was

       unable to appreciate the wrongfulness of the conduct at the time of the offense.”

       Ind. Code § 35-41-3-6. However, the State attempted to prove that Valdez was



       Court of Appeals of Indiana | Opinion 18A02-1509-CR-1514 | July 22, 2016     Page 9 of 18
       not insane at the time of the offense by arguing that he had no history of mental

       illness, and thereby put the issue into contention.


[19]   We agree with Valdez that, assuming Exhibits M and N are what they purport

       to be, the State created a very misleading picture of Valdez’s history of mental

       illness. While the State claimed that Valdez had no history of mental illness,

       Valdez’s Defense Exhibit M reports that a Dr. Thomas evaluated Valdez

       roughly thirty years ago and concluded that the “probable mental condition of

       the Defendant at the time of the Armed Robberies was that of major affective

       disorder, bipolar.” At roughly the same time, a Dr. John Mitchell is reported as

       concluding that Valdez had “borderline personality disorder.” A Dr. Donald

       Tator is reported as concluding that Valdez was “suffering from a bipolar

       disorder, manic type, manifested primarily by delusions of grandeur and

       persecution.” Id. And, while the State told the jury that Valdez had no history

       of delusional beliefs, Defense Exhibit N reports statements from the victim in

       Valdez’s 1993 case: “he had become a problem because he would stay awake at

       all hours of the night stating that people were watching him through the

       windows, hiding in closets, hiding in the attic, etc. and insisted on having all the

       lights on in the house at all times.”


[20]   Despite these apparent inconsistencies, Valdez’s argument is ultimately

       unavailing. When analyzing whether a party has opened the door to evidence,

       our case law focuses on the admission of “otherwise inadmissible evidence,”

       Hall, 36 N.E.3d at 471, but has not focused on why a piece of evidence would

       otherwise be inadmissible. Courts have previously found that a party can open

       Court of Appeals of Indiana | Opinion 18A02-1509-CR-1514 | July 22, 2016   Page 10 of 18
       the door to evidence that would have been excluded under the Fifth

       Amendment, Ludack v. State, 967 N.E.2d 41 (Ind. Ct. App. 2012); excluded

       under the Rape Shield Rule, Hall, 36 N.E.3d at 471; excluded as hearsay,

       Turner v. State, 953 N.E.2d 1039 (Ind. 2011); excluded as evidence of prior bad

       conduct, Reese v. State, 939 N.E.2d 695 (Ind. Ct. App. 2011); excluded as silence

       after a Miranda5 warning, Barton v. State, 936 N.E.2d 842 (Ind. Ct. App. 2010);

       excluded as character evidence, Clark v. State, 915 N.E.2d 126 (Ind. 2009); and

       excluded as evidence from a polygraph test, Majors v. State, 773 N.E.2d 231

       (Ind. 2002).


[21]   But we find that evidence excluded for want of authentication poses a special

       problem for a party seeking its admission. The reason for its exclusion is that

       the party has not yet provided sufficient evidence to “support a finding that the

       item is what the proponent claims it is.” Evid. R. 901(a). Even after the

       adverse party makes a claim that is inconsistent with this evidence, the

       deficiency of a lack of authentication remains. Put another way, our Supreme

       Court directs our inquiry toward whether the adverse party’s evidence “leave[s]

       the trier of fact with a false impression of the facts related,” Hall, 36 N.E.3d at

       471, but a lack of authentication means that the trial court is not convinced that

       the proposed evidence is factual. Indeed, that is one of the purposes of




       5
           Miranda v. Arizona, 384 U.S. 436 (1966).


       Court of Appeals of Indiana | Opinion 18A02-1509-CR-1514 | July 22, 2016   Page 11 of 18
       Evidence Rule 901: to ensure that nonfactual information does not enter into

       evidence.


[22]   Finally, we note that these exhibits, while not allowed into evidence, did play a

       role at trial. The trial court read a stipulation to the jury that Valdez underwent

       mental health evaluations in 1986 and 1987. Tr. p. 954-55. Moreover, Valdez

       was able to show Defense Exhibits M and N to three expert witnesses to try to

       change their opinions. In one case, it appears that Valdez was successful; after

       showing the exhibits to Dr. Horwitz, Dr. Horwitz testified, “I think it would

       help to explain to the jury that this has been a long standing mental illness that

       has been well covered up by Mr. Valdez . . . but there’s evidence of it even in

       this report from 1993.” Tr. p. 1147.


[23]   In sum, the lack of authentication prevented the admission of these exhibits,

       either directly or to address a topic to which the State opened the door. The

       trial court committed no error in this regard.


                                       II. Self-Representation
[24]   Valdez has previously argued that he should be allowed to represent himself,

       and has already lost on that issue in an interlocutory appeal. Valdez v. State, No.

       18A05-1407-CR-304 (Ind. Ct. App. Jan. 22, 2015). His argument for the

       current appeal centers on several allegedly inconsistent positions taken by the

       State.


[25]   For example, in the interlocutory appeal, the State relied heavily on Dr.

       Horwitz’s testimony to argue that Valdez was not mentally competent to
       Court of Appeals of Indiana | Opinion 18A02-1509-CR-1514 | July 22, 2016   Page 12 of 18
       represent himself. At trial, however, the State attacked Dr. Horwitz for his

       testimony: “he came in here and tried to dazzle everybody with his big words

       and long winded answers and hoping that everybody would think he is legit.

       But, the facts show that he’s not.” Tr. p. 1434. Valdez argues that he cannot be

       considered mentally ill for purposes of his right to represent himself and not

       mentally ill when being convicted.


[26]   As for Valdez’s right to represent himself, that issue is settled by the law of the

       case doctrine, “a discretionary tool by which appellate courts decline to revisit

       legal issues already determined on appeal in the same case and on substantially

       the same facts.” Cutter v. State, 725 N.E.2d 401, 405 (Ind. 2000). We will not

       revisit the issue because Valdez has failed to show additional information to

       distinguish this appeal from his first appeal. Wells v. State, 2 N.E.3d 123, 128-29

       (Ind. Ct. App. 2014).


[27]   Moreover, Valdez has conflated the standard for declaring someone mentally

       incompetent to represent himself and the standard to find someone insane. The

       test for the former is whether the defendant is “mentally competent to stand

       trial but suffers from severe mental illness to the point where he is not

       competent to conduct trial proceedings by himself.” Edwards v. State, 902

       N.E.2d 821, 824 (Ind. 2009). The test for the latter is whether, “as a result of

       mental disease or defect, he was unable to appreciate the wrongfulness of the

       conduct at the time of the offense.” Ind. Code § 35-41-3-6. There is no

       inconsistency between the earlier finding that Valdez is not mentally competent

       to represent himself and the jury’s determination that he was not insane when

       Court of Appeals of Indiana | Opinion 18A02-1509-CR-1514 | July 22, 2016    Page 13 of 18
       he committed the present crime, and Valdez has not pointed to any new

       information that would cause us to revisit his right to represent himself.

       Therefore, we decline to reverse on this basis.


                                     III. Limiting Instruction
[28]   Valdez argues that the trial court should have issued an admonishment not to

       use his 1993 conviction as evidence of guilt in this case. Without such an

       admonishment, Valdez argues, the jury could have used that previous

       conviction to create an inference of bad character and guilt.


[29]   This argument is unavailing. A trial court does not have an affirmative duty to

       issue admonishments or limiting instructions sua sponte. Humphrey v. State, 680

       N.E.2d 836, 839 (Ind. 1997). The parties agreed that the conviction would

       come into evidence and agreed on the language of an admonishment to the jury

       to consider the previous conviction only for limited purposes. However, when

       the moment arrived, Valdez did not request the admonishment to be read, and

       explicitly told the trial court that he had no objection. Likewise, he declined to

       have any limiting instruction read after a video deposition mentioned the

       previous conviction. Finally, he declined to request a limiting instruction

       regarding the conviction during final instructions. In short, Valdez had ample

       opportunity to have the admonishment read to the jury, and declined.

       Therefore, this argument has been waived.




       Court of Appeals of Indiana | Opinion 18A02-1509-CR-1514 | July 22, 2016   Page 14 of 18
                                IV. Prosecutorial Misconduct
[30]   Valdez argues that Chief Trial Deputy Prosecutor Eric Hoffman committed

       prosecutorial misconduct by insinuating that defense counsel influenced Dr.

       Horwitz’s testimony. Valdez argues that Deputy Prosecutor Hoffman violated

       Indiana Professional Conduct Rule 3.4, which provides the following:

               a lawyer shall not: . . . (e) in trial, allude to any matter that the
               lawyer does not reasonably believe is relevant or that will not be
               supported by admissible evidence, assert personal knowledge of
               facts in issue except when testifying as a witness, or state a
               personal opinion as to the justness of a cause, the credibility of a
               witness, the culpability of a civil litigant or the guilt or innocence
               of the accused.


[31]   As noted above, Deputy Prosecutor Hoffman hinted that the defense had told

       Dr. Horwitz to change his testimony, despite there being no evidence in the

       record on this point. In fact, the parties had discussed the issue earlier in the

       trial outside the presence of the jury. Tr. p. 1094-1106. The State attempted to

       have Dr. Horwitz disqualified from testifying. The trial court denied the State’s

       request, and Dr. Horwitz testified that he did not receive any instructions from

       the defense counsel. Not only did Deputy Prosecutor Hoffman not have

       evidence that the defense coached the witness, he heard explicit testimony

       denying that this was the case.


[32]   Our Supreme Court has detailed the inquiry surrounding prosecutorial

       misconduct: we inquire (1) whether misconduct occurred, and if so, (2) whether

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

       Court of Appeals of Indiana | Opinion 18A02-1509-CR-1514 | July 22, 2016    Page 15 of 18
       position of grave peril to which he should not have been subjected. Ryan v.

       State, 9 N.E.2d 663, 667 (Ind. 2015). 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.


[33]   As for the first element of our review, we find that the prosecutor engaged in

       misconduct in this case. The Preamble to the Indiana Rules of Professional

       Conduct states, “A lawyer should demonstrate respect for the legal system and

       for those who serve it, including judges, other lawyers, and public officials.”

       Our Supreme Court has long held that it “goes scarcely without saying that it is

       highly prejudicial and unethical for one attorney to attack personally opposing

       counsel with the hope that he may thereby prejudice the jury against the case of

       the party represented by such counsel.” Loveless v. State, 240 Ind. 534, 542, 166

       N.E.2d 864, 868 (1960). More recently, our Supreme Court has cautioned that

       it “is highly improper for counsel to attempt to impinge the integrity of

       opposing counsel.” Splunge v. State, 641 N.E.2d 628, 630-31 (Ind. 1994).

       Although the State argues that Deputy Prosecutor Hoffman was simply

       recounting a series of events, the trial court found that these statements

       impugned defense counsel’s character. Tr. p. 1424. We agree.


[34]   As to the second element of our review, Valdez argues that he was placed in

       grave peril by this statement. Although the trial court admonished the jury,

       Valdez contends that “an admonishment could never adequately cure the peril

       inflicted by the State’s improper argument.” Appellant’s Br. p. 31. This is

       because Dr. Horwitz was the one expert witness who testified that Valdez was

       Court of Appeals of Indiana | Opinion 18A02-1509-CR-1514 | July 22, 2016   Page 16 of 18
       insane at the time of the crime, and so using an improper method to discredit

       Dr. Horwitz’s testimony was extremely detrimental to Valdez’s defense.


[35]   Our case law makes clear that we cannot reverse Valdez’s conviction because

       the State’s conduct did not place him in grave peril. The trial court

       immediately gave an admonishment to the jury, and we are obliged to presume

       “that the jury are [people] of sense, and that they will obey the admonition of

       the court.” Thomas v. State, 9 N.E.3d 737, 743-44 (Ind. Ct. App. 2014). We

       must presume that the jury forgot Deputy Prosecutor Hoffman’s insinuation

       because the trial court told them to forget it. “Admonishments and reprimands

       are presumed to have cured the misconduct of a prosecutor.” Hubbard v. State,

       262 Ind. 176, 181, 313 N.E.2d 346, 350 (1974).


[36]   We would like to recognize the difficult position the defense counsel faced in

       this case. His client did not want to be represented by counsel and thought that

       he should be representing himself. The best defense that counsel could argue

       was that Valdez was insane, yet Valdez himself repeatedly testified that he was

       not insane. Tr. p. 812-17. When defense counsel attempted to question Valdez

       at trial, Valdez continually wandered off topic, expounding on the conspiracy

       he believed was attempting to put him in jail, and drew an admonishment from

       the trial court to provide responsive answers. Once, Valdez even objected to his

       own counsel’s question. Tr. p. 817.


[37]   Defense counsel found only one expert witness to testify that Valdez was

       insane. Of course, Deputy Prosecutor Hoffman was perfectly entitled to argue


       Court of Appeals of Indiana | Opinion 18A02-1509-CR-1514 | July 22, 2016   Page 17 of 18
       against Dr. Horwitz’s conclusions, or attempt to convince the jury that Dr.

       Horwitz “came in here and tried to dazzle everybody with his big words . . . .”

       Tr. p. 27. But to insinuate that defense counsel improperly influenced his

       testimony, particularly where the trial court heard evidence on the issue and the

       only evidence on the issue showed that defense counsel did not do so, was

       extremely inappropriate. Our adversarial system of justice can only function

       when based on a certain level of respect and decorum, and will quickly break

       down if attorneys hurl wild, baseless accusations of misconduct at each other.

       To engage in such conduct is to enter a race to the bottom, where the attorneys

       who are willing to make such accusations against other attorneys will sound

       authentic and honest (Deputy Prosecutor Hoffman made sure to preface his

       misconduct with, “I’ll just tell you I’ll call it as I see it,” tr. p. 1423), while more

       circumspect and honorable attorneys who are not willing to make such

       accusations will sound like they are hiding something. We cannot countenance

       a trial environment in which respectful attorneys have an inherent

       disadvantage. We admonish Mr. Hoffman to refrain from such conduct in the

       future.


[38]   The judgment of the trial court is affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 18A02-1509-CR-1514 | July 22, 2016     Page 18 of 18
