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
                                                            Jan 22 2015, 10:03 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.




ATTORNEY FOR APPELLANT:                                  ATTORNEY FOR APPELLEE:

JOEL C. WEINEKE                                          GREGORY F. ZOELLER
Weineke Law Office, LLC                                  Attorney General of Indiana
Plainfield, Indiana
                                                         JESSE R. DRUM
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA


                                                 )
SANTIAGO VALDEZ,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )   No. 18A05-1407-CR-304
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE DELAWARE CIRCUIT COURT
                        The Honorable Kimberly S. Dowling, Judge
                              Cause No. 18C02-1204-FB-3
                                      January 22, 2015

                MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                            Case Summary

        Santiago Valdez (“Valdez”) was found mentally competent to stand trial on charges

of Attempted Rape,1 Criminal Confinement,2 Attempted Incest,3 Intimidation,4 and

Battery,5 but his motion to proceed pro-se was denied. Valdez pursued an interlocutory

appeal, presenting the sole issue of whether the denial is clearly erroneous. We affirm.

                                   Facts and Procedural History

        On April 7, 2012, Muncie police officers responded to a 9-1-1 call at a residence

where they found a naked, screaming woman and Valdez standing behind her. The State

brought criminal charges against Valdez and he was appointed a public defender. On July

13, 2012, counsel filed a “Suggestion of Insanity” and requested that Valdez be examined

by Dr. Craig Buckles, a psychiatrist, and Dr. Frank Krause, a psychologist. (App. 85.)

Counsel also advised the trial court that Valdez had previously been a professional boxer

and had sustained blows to his head.

        After interviewing Valdez, Drs. Buckles and Krause opined that Valdez was able to

appreciate the wrongfulness of his conduct. Valdez was found competent to stand trial.

On August 16, 2012, the trial court conducted a hearing on Valdez’s request to proceed

pro-se and initially granted the motion.

        Over the next few months, Valdez filed numerous motions.                         Although some

appeared to be appropriate motions, Valdez also claimed that he needed to be tested for


1
  Ind. Code §§ 35-42-4-1, 35-41-5-1.
2
  Ind. Code § 35-42-3-3.
3
  Ind. Code §§ 35-46-1-3, 35-41-5-1.
4
  Ind. Code § 35-45-2-1.
5
  Ind. Code § 35-42-2-1. We refer to the statutes in effect at the time of Valdez’s alleged offenses.

                                                     2
mind-altering drugs and requested an investigation of the sheriff’s department.                      On

December 28, 2012, the trial court ordered an evaluation of Valdez’s competency to stand

trial.

         Dr. Rebecca Mueller, a psychiatrist, was appointed to evaluate Valdez. After

administration of a “cursory exam that was along the lines of a Folstein mini mental status,”

Tr. 57, Dr. Mueller did not perceive “glaring thought disorders.” (Tr. 65.) Nor did she

find evidence of “dementia pugilistica.”6 (Tr. 65.) Dr. James McDaniel, a psychologist,

evaluated Valdez on January 11, 2013. He opined that Valdez was competent to stand trial

and to proceed pro-se.

         On February 4, 2013, Valdez was examined for seven hours by Dr. Javan Horwitz,

a neuropsychologist. According to Dr. Horwitz, Valdez appeared rational for the first four

or five hours. However, he subsequently talked incoherently and displayed psychotic

symptoms. Valdez reported to Dr. Horwitz that he was suffering persecution and had been

subjected to electronic monitoring in his jail cell and the court room. He also reported that

he was forced to undergo electronic surgery; specifically, his throat and heart had been cut.

He complained of being sprayed with sulfuric acid and “dummy dust.” (Tr. 116.) Valdez

offered to display burns on his body. To support his claim of torture, Valdez also proffered

for testing a Ramen noodle bag containing fecal and saliva samples. Dr. Horwitz provided

the trial court with a written report concluding that Valdez was not competent to stand trial

or to represent himself. He diagnosed Valdez as suffering from paranoid schizophrenia.


6
  Dr. Mueller also referred to the condition as “punch drunk encephalopathy,” a result of too many blows
to the head. (Tr. 66.)

                                                   3
       On March 7, 2013, the trial court conducted a competency hearing, at which Drs.

Mueller, Horwitz, McDaniel, Buckles, and Krause testified and affirmed their written

recommendations. The latter three acknowledged that Dr. Horwitz had performed the most

extensive examination of Valdez to date. Dr. Horwitz testified that, although Valdez

displayed moments of lucidity, he was not competent to stand trial due to “executive

dysfunction and the significant thought disorder related to his schizophrenia.” (Tr. 112.)

       Valdez testified at the hearing, claiming that jail staff had tortured him and

attempted to murder him. He stated that he had been given a “speed-type drug” causing a

sixty-pound weight loss. (Tr. 136.) According to Valdez, food and water had been

electronically removed from his stomach, chemicals had been emitted under his cell door,

he had been cut up inside his body, he had been subjected to electronic implants, and he

had been burned by lasers. He reported that jail employees and the Muncie Police

Department were aiding the prosecution by monitoring him in the shower, cell, and

courtroom. Valdez proffered a Cheetos bag of purported evidence and he asked that the

trial court order his body examined for burns.

       At the conclusion of the hearing, the trial court entered an order denying Valdez’s

request to proceed pro-se. The trial court concluded that “the Defendant here cannot

communicate coherently with the Court” and provided specific examples:

       The Defendant has provided “Cheetos” bags with paper towels folded up in
       them requesting the Court have them tested for poisons, etc.

       The Defendant has provided envelopes to the Court with pages of magazines
       folded inside of them asking that they be tested for poisons, and admitted as
       evidence.


                                             4
       The Defendant has filed voluminous pleadings and motions that ramble, are
       repetitive and are incoherent. Many of the motions make reference to being
       tortured in jail, the sheriff’s office attempting to murder him, being poisoned,
       etc.

       The Defendant has provided fecal and saliva samples to the FBI and to Dr.
       Horwitz asking that they be tested for proof of poisons.

       The Defendant has reported to numerous people that he hears voices coming
       from the ducts in the jail, and has asked to be moved to different cells as a
       result.

       The Defendant has difficult differentiating between fantasy and reality.

       The Defendant struggles with the connection between his moral knowledge,
       appreciation of his behaviors and social context, and his chosen actions and
       consequences.

(App. 508.) The State, defense counsel, and the trial court agreed that Valdez was not

competent to stand trial and Valdez was committed to the Logansport State Hospital

Division of Mental Health. On June 6, 2013, the Superintendent certified that Valdez “has

attained the ability to understand the proceedings and assist in the preparation of his

defense.” (App. 516.)

       Valdez, through counsel, filed a renewal of his motion to proceed pro-se. On May

29, 2014, a hearing was conducted at which Valdez testified. Valdez testified that “all

through the night” prior to the hearing, he had been subjected to electronic cutting. (Tr.

186.) He claimed to have suffered cuts to his neck, throat, and chest area. He described

the defense he wished to assert on his own behalf, that is, that the victim had perjured

herself during her deposition. He anticipated arguing that the 9-1-1 tape was false and that

evidence had been fabricated by the Muncie Police Department. He opined it would be

necessary to discuss his subjection to surveillance and electronic surgeries because it


                                              5
formed part of the fabricated case against him. According to Valdez, he needed to depose

police officers to garner evidence of the plot against him. Valdez’s counsel suggested that

an insanity defense might be appropriate, but Valdez insisted he had never been insane.

       The trial court issued a second order with respect to Valdez’s request to proceed

pro-se, specifically incorporating the findings from the order of March 7, 2013. The order

included additional findings, providing in pertinent part:

       The Defendant has, and by his own admission, filed over one hundred (100)
       “motions” in this case, some while he was representing himself and some
       while he had counsel. The term “motion” is used loosely by the Court, in
       that most, if not all of these documents, were rambling documents wherein
       the Court was mostly unable to determine what action the Defendant wanted
       the Court to take; that is other than requesting the Court order full body scans
       of the Defendant because of the allegations that the Sheriff’s department is
       trying to murder him by using lasers to cut the backs of his eyes, his throat
       and his chest.

       As a part of this hearing, the Defendant demonstrated that he does not have
       a working knowledge of the rules of evidence. The Defendant’s definition
       of hearsay, for example, was nonsensical and rambling. His assertion that
       there is “totempole” hearsay is incomprehensible.

       The Defendant also demonstrated, through his testimony, that he does not
       have a working knowledge of voir dire, asserting that he is entitled to three
       strikes.

       The Defendant further demonstrated his lack of trial skills by asserting that
       his defense will be that these charges were fabricated ahead of time, that the
       police paid the alleged victim money and cocaine to file the report, and that
       the police falsified the 911 tape.

       Finally, the Defendant maintains that he continues to be tortured, that the Jail
       Staff is conducting illegal surveillance, and that the most recent incident of
       torture was continuously during the night before our hearing.

(App. 591.) Concluding that Valdez’s “lack of capacity threatens an improper conviction

or sentence and undercuts the most basic of the Constitution’s criminal law objectives of


                                              6
providing a fair trial,” the trial court denied Valdez’s motion to proceed pro-se. This Court

accepted jurisdiction of Valdez’s interlocutory appeal.

                                     Discussion and Decision

        A 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. 2008) (citing

Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963)). Implicit in the right to counsel is

the right to self-representation. Faretta v. California, 422 U.S. 806, 819 (1975).

        However, the right of self-representation is not absolute. “[A] trial court may deny

a defendant’s request to act pro se when 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) (citing

Indiana v. Edwards, 554 U.S. 164 (2008)).7 The trial court’s determination of competence

to act pro se will be reviewed under the clearly erroneous standard. Id. “Clear error is that

which leaves us with a definite and firm conviction that a mistake has been made.” Austin

v. State, 997 N.E.2d 1027, 1040 (Ind. 2013). In reviewing for clear error, we neither

reweigh the evidence nor determine the credibility of witnesses, but consider only the

probative evidence and reasonable inferences supporting the judgment. Id.

        Mental competency is not a static condition; accordingly, it is to be determined at

the time of trial. Edwards, 902 N.E.2d at 827. “[I]f a defendant is so impaired that a



7
 Article 1, section 13 of the Indiana Constitution provides “no broader right to self-representation of
mentally impaired persons” than that guaranteed by the Sixth Amendment. Edwards, 902 N.E.2d at 828.
Valdez also alleged a violation of Article 1, section 3 of the Indiana Constitution, but developed no
corresponding argument.

                                                   7
coherent presentation of a defense is unlikely, fairness demands that the court insist upon

representation.” Id. at 829.

       The record reveals that Valdez suffers from a severe mental illness. Dr. Krause

rendered to the trial court a report including a diagnosis that Valdez suffers from an

antisocial personality disorder and schizotypal personality disorder. Dr. Buckles issued a

report including his finding that Valdez displays symptoms suggestive of schizophrenia.

Dr. Horwitz, who examined Valdez most thoroughly, diagnosed Valdez as a paranoid

schizophrenic.

       As to Valdez’s competence to conduct trial proceedings himself, the trial court heard

abundant testimony and was in a position to observe Valdez’s demeanor and conduct at

multiple hearings. Valdez consistently claimed that he had been framed for crimes he did

not commit, he had been subjected to torture at the hands of law enforcement personnel,

and an appropriate defense would include claims that all evidence against him, including

the 9-1-1 call tape, had been fabricated. He had filed numerous motions – many of which

were indecipherable – and he had requested a polygraph test to reveal the truth of his

accusations of torture. Valdez had, on multiple occasions, proffered food bags containing

his excrement, which he asserted would reveal evidence of his subjection to torture.

       Valdez, by counsel, points to evidence that Valdez is intelligent and articulate, and

asserts that the “trial court’s criticisms were unfounded and exaggerated.” (Appellant’s

Br. at 16.) According to Valdez, he displayed an appropriate understanding of the

definition of hearsay and the process of voir dire. Valdez presents us with an invitation to

reweigh the evidence, which we decline. Austin, 997 N.E.2d at 1040.

                                             8
                                         Conclusion

       The trial court did not clearly err in finding that Valdez suffers from severe mental

illness such that he is not competent to represent himself at trial.

       Affirmed.

ROBB, J., and BROWN, J., concur.




                                              9
