Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    Aug 01 2013, 6:39 am
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.



ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

ELLEN M. O’CONNOR                                  GREGORY F. ZOELLER
Marion County Public Defender Agency               Attorney General of Indiana
Indianapolis, Indiana
                                                   GARY R. ROM
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

KEITH ELLIS,                                       )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 49A02-1212-CR-983
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Lisa Borges, Judge
                       The Honorable Stanley E. Kroh, Commissioner
                            Cause No. 49G04-1204-FB-28216



                                         August 1, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Appellant-Defendant Keith Ellis appeals his conviction for Class C felony robbery,

arguing that Appellee-Plaintiff the State of Indiana committed prosecutorial misconduct

amounting to fundamental error. Specifically, Ellis claims that, during closing argument, the

prosecutor commented on Ellis’s decision to represent himself, in violation of his Sixth

Amendment right to self-representation. Because Ellis’s decision was made knowingly,

voluntarily, and intelligently, we determine this claim to be without merit. Ellis also claims

that the prosecutor commented on his decision not to testify, in violation of his Fifth

Amendment privilege against self-incrimination. Assuming that the prosecutor’s comment

was improper, we conclude that Ellis has failed to establish fundamental error. The State

presented overwhelming and uncontradicted evidence of Ellis’s guilt. The judgment of the

trial court is affirmed.

                           FACTS AND PROCEDURAL HISTORY

       On April 26, 2012, Dwayne Chandler placed a telephone call to a singles chat line

and spoke with a woman nick-named “Sparkles.” Sparkles was later identified as Kayla

Nash. Nash and Ellis were dating, and the couple shared an apartment. Chandler was

homeless. During Chandler and Nash’s telephone conversation, Nash offered to let

Chandler stay at her apartment for a couple of days in exchange for $200. Chandler and

Nash made plans to meet the following day at Nash’s apartment. Ellis and Nash intended

to rob Chandler when he arrived.

       Chandler met Nash at her apartment on April 27, 2012. Ellis was not home when

Chandler arrived. Nash and Chandler conversed for approximately ten minutes, at which

                                            2
point Ellis came into the apartment holding a black garbage bag and a small,

semiautomatic handgun. Chandler panicked, and Ellis told him to shut up and empty his

pockets. Chandler hesitantly surrendered approximately $220 and his driver’s license.

Ellis also seized Chandler’s cell phone from the table where it was charging. Ellis

pointed the gun at Chandler’s head and asked if he was willing to die over a phone.

       In what can only be described as a bizarre turn of criminal events, Ellis next

ordered Nash to perform oral sex on Chandler. At Nash’s insistence and at Ellis’s

gunpoint, Chandler went to the bathroom to wash himself. When Chandler exited the

bathroom, Ellis again pointed the gun at him and asked if he was a cop. Ellis then

ordered Chandler to take off his shirt to see if he was wearing a wire. Eventually, Ellis

allowed Chandler to leave the apartment. As Chandler left, Ellis pushed him and hit him

in the back. Chandler ran to his car, drove to a friend’s house, and called 911.

       Figuring that Chandler would call the police, Nash and Ellis concocted the story

that Chandler had attempted to rape Nash.        Nash then called 911 and reported an

attempted rape. She also hid Chandler’s driver’s license under a flower pot in the dining

room and his cell phone in the downstairs laundry room. Officer Nicholas Gallico

responded to Nash’s report of an attempted rape but noticed no signs of a struggle on

Nash or inside the apartment. A sex crimes detective also responded and found Ellis and

Nash to be oddly calm.

       Meanwhile, police received a report of a robbery having occurred at Ellis and

Nash’s apartment. Already at the scene, the officers received consent to search the

apartment and found a gun holster inside a black garbage bag in the bedroom. The

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holster was designed for a small, semiautomatic handgun that fit Chandler’s description

of the gun used in the robbery. Police later found Chandler’s driver’s license underneath

a flower pot in the dining room.

         Ellis and Nash were arrested and transported to the police station.                         There,

Chandler identified Ellis and Nash as the robbers. Ellis and Nash were separated to be

interviewed, and, as Ellis was escorted away from Nash, he repeatedly yelled to her,

“[S]tick to the story.” Tr. p. 116. Ellis was charged with Class B felony robbery. 1

         At trial, Ellis proceeded pro se with stand-by counsel. “Despite blunders, he acted

as counsel throughout the jury phase. For example, the trial court rebuked him for

interrupting, and he asked [the court] for advice despite being warned it could not be

given.” Appellant’s Br. p. 12. “[Ellis’s] case was complicated by the fact that every

State’s witness identified him and that he cross-examined these witness as Keith Ellis,

advocate, by in artfully [sic] referring to Keith Ellis, defendant, in the first person.”

Appellant’s Br. p. 9. For example, Ellis asked Chandler, “Did I hit you closed fist, a slap,

or with a weapon?” “Do you … remember how many times I hit you, sir?” “Where did I

hit you at, sir? Tr. p. 81.

         During the State’s closing argument, the prosecutor made the following

comments:

         I want to talk a little bit about -- Mr. Ellis has been acting as his own
         attorney. Mr. Ellis has the absolute, Constitutional right to act as his own
         attorney. What I want you to consider if you felt that it was ineffective in
         some way or if you felt that the State was behaving improperly as far as
         objecting to the forms of his questions continuously throughout the course

         1
             Nash pled guilty to Class D felony assisting a criminal in exchange for her testimony in Ellis’s
trial.
                                                       4
      of this trial, I just want you to know that we are all held to the same legal
      standard. Mr. Ellis is acting as his own attorney. What you heard from him
      was his role as an attorney. And I want you to consider what you heard
      from him and evaluate only the facts as elicited from that chair, not
      necessarily what he said, what was objected to, or what the prosecutors …
      did in response to his questions. Your verdicts should be based on the law
      and the facts as you find them. It should not be based on sympathy or bias.
      That is an instruction the judge will give you at the close of these
      arguments, and it’s something I want you to strongly consider. You might
      feel sympathy towards Mr. Ellis for acting as his own attorney, but this was
      a right he exercised: His Constitutional right. He made the choice. I don’t
      want … the jury to feel that it was some conscious objective on the part of
      the State to do that. This was his choice and whether or not he performed
      effectively, that’ll be up to you. But I ask that it’s not based on sympathy.
      The second thing I want you to consider is another instruction[]:
      Statements made by attorneys are not evidence. He did not testify.
      Nothing he has said today counts toward testimony. He was speaking as an
      attorney. So the things that he were -- was saying --

Tr. p. 314-16. At this point, Ellis objected to the prosecutor’s comments. The following

exchange then took place between the trial court and the prosecutor:

              The Court: All right. Well, ladies and gentlemen, what the parties
      say in closing argument is not evidence. You know, you can accept or
      reject these arguments as you see fit and I would ask --

              [Prosecutor]: I won’t reference it again.

              The Court: Okay.

             [Prosecutor]: It was in the context of statements made by attorneys
      are not evidence.

              The Court: Certainly.

             [Prosecutor]: Absolutely no reflection on his decision. He has an
      absolute right to do that.

              The Court: Right. All right. If you’ll please continue.

Tr. p. 316.   Ultimately, the jury found Ellis guilty as charged, and the trial court

sentenced him to sixteen years of incarceration.
                                            5
                              DISCUSSION AND DECISION

       Ellis argues that the State committed prosecutorial misconduct by commenting

during its closing argument on his decisions to represent himself and to not testify at trial.

              When an improper argument is alleged to have been made, the
       correct procedure is to request the trial court to admonish the jury. Dumas
       v. State, 803 N.E.2d 1113, 1117 (Ind. 2004); Brewer v. State, 605 N.E.2d
       181, 182 (Ind. 1993). If the party is not satisfied with the admonishment,
       then he or she should move for mistrial. Dumas, 803 N.E.2d at 1117.
       Failure to request an admonishment or to move for mistrial results in
       waiver. Id.

Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006).            Although Ellis objected to the

prosecutor’s comments at trial, he appropriately acknowledges that he failed to move for

a mistrial following the trial court’s admonishment. Therefore, “our standard for review

is different from that of a properly preserved claim.” Id. Where a claim of prosecutorial

misconduct has been waived

       the defendant must establish not only the grounds for the misconduct but
       also the additional grounds for fundamental error. Booher [v. State], 773
       N.E.2d [814], 817 [(Ind. 2002)]; see also Johnson v. State, 725 N.E.2d 864,
       867 (Ind. 2000) (A party’s failure to present a contemporaneous trial
       objection asserting prosecutorial misconduct results in waiver of appellate
       review.). Fundamental error is an extremely narrow exception that allows a
       defendant to avoid waiver of an issue. It is error that makes “a fair trial
       impossible or constitute[s] clearly blatant violations of basic and
       elementary principles of due process ... present[ing] an undeniable and
       substantial potential for harm.” Benson v. State, 762 N.E.2d 748, 756 (Ind.
       2002).

Cooper, 854 N.E.2d at 835 (first three alterations added).

                   I. Whether the Prosecutor Erred in Commenting on
                          Ellis’s Decision to Represent Himself

       Ellis contends that the prosecutor committed misconduct in commenting on his

decision to represent himself at trial. Specifically, Ellis claims that the prosecutor’s
                                              6
comments violated his Sixth Amendment right to self-representation. See generally

Stroud v. State, 809 N.E.2d 274, 279 (Ind. 2004) (discussing Faretta v. California, 422

U.S. 806, 821 (1975)). Contrary to his claim, however, Ellis concedes that he was

permitted to represent himself throughout trial. He also admits that his decision to waive

his right to counsel was voluntary, knowing, and intelligent, and that the trial court twice

advised him of the perils of self-representation and the advantages of having a lawyer.

Accordingly, Ellis’s Sixth Amendment right to self-representation was not violated. See

Osborne v. State, 754 N.E.2d 916, 920-21 (Ind. 2001) (discussing proper waiver of right

to counsel).

       Moreover, the prosecutor’s comments were made in the context of communicating

to the jury that pro se litigants are held to the same legal standard as attorneys and that

the jury’s verdict should not be based on sympathy toward Ellis’s pro se status. This

amounts to neither misconduct nor fundamental error. See People v. Redd, 670 N.E.2d

583, 598 (Ill. 1996) (holding prosecutor’s comments urging jurors not allow defendant’s

pro se status to influence their verdict did not prejudice the defendant).

                 II. Whether the Prosecutor Erred in Commenting on
                            Ellis’s Decision Not to Testify

       Ellis also contends that the prosecutor committed misconduct in commenting on

his decision not to testify at trial.    Specifically, Ellis claims that the prosecutor’s

comments violated his Fifth Amendment privilege against self-incrimination. The Fifth

Amendment to the United States Constitution prohibits compelling a defendant to testify

against himself and has been interpreted to bar prosecutorial comment on a defendant’s

silence. Jenkins v. State, 725 N.E.2d 66, 69 (Ind. 2000) (citing Griffin v. California, 380
                                              7
U.S. 609, 615 (1965)). A Fifth Amendment violation occurs “when a prosecutor makes a

statement that is subject to reasonable interpretation by a jury as an invitation to draw an

adverse inference from a defendant’s silence.” Id. (quoting Moore v. State, 669 N.E.2d

733, 739 (Ind. 1996)).

       Assuming that the prosecutor’s comment was improper, we conclude that it does

not rise to the level of fundamental error.           “For prosecutorial misconduct to be

fundamental error, it must be demonstrated that the prosecutor’s conduct subjected the

defendant to grave peril and had a probable persuasive effect on the jury’s decision.”

Hancock v. State, 737 N.E.2d 791, 798 (Ind. Ct. App. 2000). Here, the prosecutor merely

stated, “He did not testify,” Tr. p. 316, while communicating to the jury that its verdict

should be based on the evidence presented at trial and that statements made by Ellis while

representing himself were not evidence. Moreover, the State presented overwhelming

and uncontradicted evidence of Ellis’s guilt. Both Chandler and Nash testified that Ellis

robbed Chandler at gunpoint. Nash further testified that she and Ellis lured Chandler to

their apartment with the intent to rob him. Inside the apartment, police found Chandler’s

driver’s license and a gun holster designed for a gun matching Chandler’s description of

the gun used in the robbery. Additionally, Nash testified that, after the robbery, she and

Ellis collaborated on a cover-up story involving an attempted rape. And at the police

station, Ellis repeatedly yelled to Nash, “Stick to the story.” Tr. p. 116. In light of this

evidence, we do not find that the prosecutor’s comment subjected Ellis to grave peril.

       The judgment of the trial court is affirmed.

RILEY, J., and BROWN, J., concur.

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