FILED Jul 17 2023, 10:18 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Victoria Bailey Casanova Theodore E. Rokita Casanova Legal Services, LLC Attorney General of Indiana Indianapolis, Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Billy Gene Luke, July 17, 2023 Appellant-Defendant, Court of Appeals Case No. 23A-CR-50 v. Appeal from the Dearborn Circuit Court State of Indiana, The Honorable Frank A. Appellee-Plaintiff Negangard, Judge The Honorable James D. Humphrey, Judge Trial Court Cause No. 15C01-2205-F4-10
Opinion by Judge Mathias Judges Vaidik and Pyle concur.
Mathias, Judge.
Court of Appeals of Indiana | Opinion 23A-CR-50 | July 17, 2023 Page 1 of 7 [1] Billy Gene Luke brings this interlocutory appeal from the trial court’s order that
prohibited Luke from proceeding pro se and appointed counsel for Luke. Luke
raises a single issue for our review, namely, whether the trial court erred when it
found that he had forfeited his right to self-representation. We affirm.
Facts and Procedural History [2] In May 2022, the State charged Luke with Level 4 felony stalking and Level 6
felony invasion of privacy. The trial court set Luke’s initial hearing date for
September 6. In August, Luke filed a motion to proceed pro se. In that motion,
Luke accused the trial judge of “uncivilized and unruly behavior” against Luke
in a prior cause; of “total disdain” for Luke’s “right to self[-]representation”; of
being “tyrannical” and “belligerently angry in an unhinged manner”; and of
“personal malice against Billy Luke.” Appellant’s App. Vol. 2, p. 43. Luke
further accused the Dearborn County judges, prosecutors, and law enforcement
officers of “operat[ing] in criminal concert with each other over the years to
violate Billy Luke’s most basic rights.” Id.
[3] Luke filed seven other motions in August. Luke also filed a witness list that
identified 135 witnesses. Included on his witness list were President Biden,
Governor Holcomb, and Chief Justice Rush. Id. at 67-68.
[4] At his initial hearing, Luke reiterated his desire to proceed pro se. The trial
court advised Luke accordingly. The court also informed Luke that, if he did
proceed pro se, he would have to comply with the court’s rulings. Luke stated
he would do so. The court then took judicial notice of the prior cause against
Court of Appeals of Indiana | Opinion 23A-CR-50 | July 17, 2023 Page 2 of 7 Luke. In that prior cause, the same trial judge found that Luke had forfeited his
right to self-representation after Luke had filed “multiple motions,” the purpose
of which “was to harass, disrupt[,] and insult certain parties or witnesses,” and
which had “no legitimate purpose.” Appellant’s App. Vol. 4, p. 132. After
taking that notice, the court took Luke’s current request under advisement.
[5] Nine days after the initial hearing, Luke filed more than 400 pages of
“[m]iscellaneous [d]ocuments” with the court. Appellant’s App. Vol. 1, p. 3.
The relevance and purpose of those filings to the instant charges is not clear.
However, throughout the documents, Luke made numerous disparaging
comments about the trial judge and others along with numerous apparent
threats.
[6] Following Luke’s filings, on October 4, the court, on its own motion, found
that Luke had forfeited his right to self-representation in the instant matter and
appointed him counsel. In its order, the court recited Luke’s criminal history
and the prior cause’s events that had resulted in the forfeiture of Luke’s right to
represent himself in that cause. The court then found as follows: that Luke’s
numerous filings in the instant cause included “threatening” language; that
Luke’s filings “made it clear that his purpose in self-representation is to attack
the Court System and all those involved who he can bring into his proposed
conspiracy theory”; that his filings contained numerous “attacks” on and at
least one “threat” against state or local officials, including numerous references
to “street justice”; and that his filings included “scandalous comments” and a
Court of Appeals of Indiana | Opinion 23A-CR-50 | July 17, 2023 Page 3 of 7 threat to “physically punish [a former attorney’s] daughter.” Appellant’s App.
Vol. 4, pp. 126-28. The court also noted Luke’s proposed witness list.
[7] In light of those facts and circumstances, the court concluded that Luke “is
clearly intending to turn these proceedings into a circus.” Id. at 128. The court
added that Luke “potentially poses a significant security risk” in the courtroom
“a few feet from the Judge.” Id. And the court further added that Luke’s
“pattern of behavior,” as demonstrated in both the prior cause and the instant
one, “will continue.” Id. at 129. The court then concluded that Luke had
forfeited his right to self-representation and appointed counsel for Luke. The
court certified its order for interlocutory review, which we accepted. This
appeal ensued.
Standard of Review [8] Luke appeals the trial court’s order in which the court found that Luke had
forfeited his right to self-representation and appointed counsel for Luke.
“Whether the trial court” violated a defendant’s “right to self-representation is a
question of law that we review de novo.” Hill v. State, 773 N.E.2d 336, 342 (Ind.
Ct. App. 2002), trans. denied. As we have explained:
A defendant in a criminal case has a constitutional right under the Sixth Amendment to proceed without the assistance of counsel. Faretta v. California, 422 U.S. 806, 821, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) (holding that “[t]he Sixth Amendment . . . implies a right of self-representation”). This right may be overridden if a defendant is not “able and willing to abide by rules of procedure and courtroom protocol.” McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S. Ct. 944, 79 L. Ed. 2d 122 Court of Appeals of Indiana | Opinion 23A-CR-50 | July 17, 2023 Page 4 of 7 (1984). The trial court is in the best position to assess whether a defendant has the ability and willingness to proceed pro se. See Edwards v. State, 902 N.E.2d 821, 824 (Ind. 2009); Poynter v. State, 749 N.E.2d 1122, 1128 (Ind. 2001).
***
[T]he United States Supreme Court has noted that “the right of self-representation is not a license to abuse the dignity of the courtroom.” Faretta, 422 U.S. at 835 n.46, 95 S. Ct. 2525. The Indiana Supreme Court has likewise found that part and parcel of a defendant’s right to represent himself is “the state’s interest in preserving the orderly processes of criminal justice and courtroom decorum.” Russell v. State, 270 Ind. 55, 383 N.E.2d 309, 312 (1978) (citing Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970); German v. State, 268 Ind. 67, 373 N.E.2d 880 (1978)).
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FILED Jul 17 2023, 10:18 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Victoria Bailey Casanova Theodore E. Rokita Casanova Legal Services, LLC Attorney General of Indiana Indianapolis, Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Billy Gene Luke, July 17, 2023 Appellant-Defendant, Court of Appeals Case No. 23A-CR-50 v. Appeal from the Dearborn Circuit Court State of Indiana, The Honorable Frank A. Appellee-Plaintiff Negangard, Judge The Honorable James D. Humphrey, Judge Trial Court Cause No. 15C01-2205-F4-10
Opinion by Judge Mathias Judges Vaidik and Pyle concur.
Mathias, Judge.
Court of Appeals of Indiana | Opinion 23A-CR-50 | July 17, 2023 Page 1 of 7 [1] Billy Gene Luke brings this interlocutory appeal from the trial court’s order that
prohibited Luke from proceeding pro se and appointed counsel for Luke. Luke
raises a single issue for our review, namely, whether the trial court erred when it
found that he had forfeited his right to self-representation. We affirm.
Facts and Procedural History [2] In May 2022, the State charged Luke with Level 4 felony stalking and Level 6
felony invasion of privacy. The trial court set Luke’s initial hearing date for
September 6. In August, Luke filed a motion to proceed pro se. In that motion,
Luke accused the trial judge of “uncivilized and unruly behavior” against Luke
in a prior cause; of “total disdain” for Luke’s “right to self[-]representation”; of
being “tyrannical” and “belligerently angry in an unhinged manner”; and of
“personal malice against Billy Luke.” Appellant’s App. Vol. 2, p. 43. Luke
further accused the Dearborn County judges, prosecutors, and law enforcement
officers of “operat[ing] in criminal concert with each other over the years to
violate Billy Luke’s most basic rights.” Id.
[3] Luke filed seven other motions in August. Luke also filed a witness list that
identified 135 witnesses. Included on his witness list were President Biden,
Governor Holcomb, and Chief Justice Rush. Id. at 67-68.
[4] At his initial hearing, Luke reiterated his desire to proceed pro se. The trial
court advised Luke accordingly. The court also informed Luke that, if he did
proceed pro se, he would have to comply with the court’s rulings. Luke stated
he would do so. The court then took judicial notice of the prior cause against
Court of Appeals of Indiana | Opinion 23A-CR-50 | July 17, 2023 Page 2 of 7 Luke. In that prior cause, the same trial judge found that Luke had forfeited his
right to self-representation after Luke had filed “multiple motions,” the purpose
of which “was to harass, disrupt[,] and insult certain parties or witnesses,” and
which had “no legitimate purpose.” Appellant’s App. Vol. 4, p. 132. After
taking that notice, the court took Luke’s current request under advisement.
[5] Nine days after the initial hearing, Luke filed more than 400 pages of
“[m]iscellaneous [d]ocuments” with the court. Appellant’s App. Vol. 1, p. 3.
The relevance and purpose of those filings to the instant charges is not clear.
However, throughout the documents, Luke made numerous disparaging
comments about the trial judge and others along with numerous apparent
threats.
[6] Following Luke’s filings, on October 4, the court, on its own motion, found
that Luke had forfeited his right to self-representation in the instant matter and
appointed him counsel. In its order, the court recited Luke’s criminal history
and the prior cause’s events that had resulted in the forfeiture of Luke’s right to
represent himself in that cause. The court then found as follows: that Luke’s
numerous filings in the instant cause included “threatening” language; that
Luke’s filings “made it clear that his purpose in self-representation is to attack
the Court System and all those involved who he can bring into his proposed
conspiracy theory”; that his filings contained numerous “attacks” on and at
least one “threat” against state or local officials, including numerous references
to “street justice”; and that his filings included “scandalous comments” and a
Court of Appeals of Indiana | Opinion 23A-CR-50 | July 17, 2023 Page 3 of 7 threat to “physically punish [a former attorney’s] daughter.” Appellant’s App.
Vol. 4, pp. 126-28. The court also noted Luke’s proposed witness list.
[7] In light of those facts and circumstances, the court concluded that Luke “is
clearly intending to turn these proceedings into a circus.” Id. at 128. The court
added that Luke “potentially poses a significant security risk” in the courtroom
“a few feet from the Judge.” Id. And the court further added that Luke’s
“pattern of behavior,” as demonstrated in both the prior cause and the instant
one, “will continue.” Id. at 129. The court then concluded that Luke had
forfeited his right to self-representation and appointed counsel for Luke. The
court certified its order for interlocutory review, which we accepted. This
appeal ensued.
Standard of Review [8] Luke appeals the trial court’s order in which the court found that Luke had
forfeited his right to self-representation and appointed counsel for Luke.
“Whether the trial court” violated a defendant’s “right to self-representation is a
question of law that we review de novo.” Hill v. State, 773 N.E.2d 336, 342 (Ind.
Ct. App. 2002), trans. denied. As we have explained:
A defendant in a criminal case has a constitutional right under the Sixth Amendment to proceed without the assistance of counsel. Faretta v. California, 422 U.S. 806, 821, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) (holding that “[t]he Sixth Amendment . . . implies a right of self-representation”). This right may be overridden if a defendant is not “able and willing to abide by rules of procedure and courtroom protocol.” McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S. Ct. 944, 79 L. Ed. 2d 122 Court of Appeals of Indiana | Opinion 23A-CR-50 | July 17, 2023 Page 4 of 7 (1984). The trial court is in the best position to assess whether a defendant has the ability and willingness to proceed pro se. See Edwards v. State, 902 N.E.2d 821, 824 (Ind. 2009); Poynter v. State, 749 N.E.2d 1122, 1128 (Ind. 2001).
***
[T]he United States Supreme Court has noted that “the right of self-representation is not a license to abuse the dignity of the courtroom.” Faretta, 422 U.S. at 835 n.46, 95 S. Ct. 2525. The Indiana Supreme Court has likewise found that part and parcel of a defendant’s right to represent himself is “the state’s interest in preserving the orderly processes of criminal justice and courtroom decorum.” Russell v. State, 270 Ind. 55, 383 N.E.2d 309, 312 (1978) (citing Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970); German v. State, 268 Ind. 67, 373 N.E.2d 880 (1978)). In other words, a trial court may terminate self-representation by a defendant who deliberately engages in serious or obstructionist misconduct, German, 373 N.E.2d 880, or where the record shows that the defendant was abusing his pro se status as a means to engage in dilatory tactics or to distort the conduct of the trial. State v. Whalen, 192 Ariz. 103, 961 P.2d 1051, 1058 (Ariz. Ct. App. 1997). . . .
In denying a defendant his right to self-representation, care should be taken to “ensure that the record reflect respect for all of defendant’s rights” and, “to the extent possible, prevent the manipulative defendant from fashioning a record which seems to reflect an unconstitutional denial” of the right to counsel/self- representation. See Russell, 383 N.E.2d at 312. We do not find this to require that a trial court conduct a special inquiry, but nevertheless note that making a record to support the decision to terminate a defendant’s self-representation would be beneficial for appellate review. We will review and consider the entire
Court of Appeals of Indiana | Opinion 23A-CR-50 | July 17, 2023 Page 5 of 7 record to make sure the defendant’s right to self-representation has not been violated.
Love v. State, 113 N.E.3d 730, 738-39 (Ind. Ct. App. 2018), trans. denied.
The totality of the circumstances supports the trial court’s determination that Luke was abusing his pro se status. [9] The trial court concluded that Luke had forfeited his right to self-representation
because, in effect, Luke was abusing his pro se status. The court’s conclusion is
supported by the record. Luke, acting pro se, filed seven motions in August
2022 followed by more than 400 pages of miscellaneous documents in
September. Luke also submitted a witness list with 135 named individuals,
including President Biden and other federal and state officials. In his filings,
Luke repeatedly made threats, disparaged the trial judge and others, and alleged
a federal, state, and local conspiracy against him. The relevance of the 400-plus
pages of miscellaneous documents in particular is not clear. What is clear,
however, is that Luke’s submissions reflect dilatory tactics and an intent to
distort the State’s Level 4 felony stalking and Level 6 felony invasion of privacy
charges against him. Accordingly, the trial court did not err when it concluded
that Luke had forfeited his right to self-representation and appointed counsel for
him. See id.
[10] Still, Luke argues that the trial court erred because none of his submissions
were “in violation of any court order” at the time the court terminated his right
to proceed pro se. Appellant’s Br. at 21. Luke also asserts that the trial court’s
Court of Appeals of Indiana | Opinion 23A-CR-50 | July 17, 2023 Page 6 of 7 judgment is not based on the instant proceedings but instead “on what the trial
court fears [Luke] might do because of his conduct in prior cases.” Id. at 22.
[11] We cannot agree. Luke’s abuse of his pro se status, whether it was in violation
of a standing order or not, is a sufficient basis upon which a court may
terminate the right to self-representation. See Love, 113 N.E.3d at 738-39.
Further, while the trial court was aware of, took notice of, and expressed
concern about Luke’s behavior in the prior cause, nonetheless its judgment was
grounded in and supported by the record of Luke’s behavior in the instant
cause. We therefore reject Luke’s arguments on appeal and hold that the trial
court did not err when it found that he had forfeited his right to self-
representation.
[12] The trial court’s judgment is affirmed.
[13] Affirmed.
Vaidik, J., and Pyle, J., concur.
Court of Appeals of Indiana | Opinion 23A-CR-50 | July 17, 2023 Page 7 of 7