Durrell L. Shepherd v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 31, 2020
• Docket: 19A-CR-1740
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 31 2020, 10:02 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Michael R. Fisher Attorney General of Indiana Marion County Public Defender Agency Josiah J. Swinney Appellate Division Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Durrell L. Shepherd, January 31, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1740 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Angela D. Davis, Judge Trial Court Cause No. 49G16-1905-F6-18802

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1740 | January 31, 2020 Page 1 of 5 [1] Durrell L. Shepherd (“Shepherd”) was convicted of domestic battery1 as a Level

6 felony and was sentenced to 366 days executed. Shepherd appeals his

conviction, contending that he did not knowingly, voluntarily, and intelligently

waive his right to a jury trial.

[2] We affirm.

Facts and Procedural History [3] On May 10, 2019, Shepherd had an argument with the mother of his children.

Tr. Vol. II at 8, 15. She fell to the ground holding their two-year-old child as

Shepherd stood over her and punched her in the face with a closed fist five to

ten times. Id. at 15, 17. As Shepherd was punching his children’s mother, he

screamed that the beating was her fault because he thought she had called the

police. Id. at 16. On May 14, 2019, the State charged Shepherd with two

counts of domestic battery, each as a Level 6 felony, and one count of battery as

a Level 6 felony. Appellant’s App. Vol. II at 17.

[4] At a preliminary hearing on May 16, 2019, Shepherd’s counsel informed the

trial court that Shepherd intended to waive his right to a jury trial and to request

a bench trial. Supp. Tr. Vol. II at 9. The trial court then placed Shepherd under

oath. Id. The trial court spoke directly to Shepherd and asked, “You have a

constitutional right to six members of the public being selected from a larger

1 See Ind. Code § 35-42-2-1.3.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1740 | January 31, 2020 Page 2 of 5 group but with a court trial it just would be me or someone like me; do you

understand?” Id. Shepherd responded in the affirmative that he understood.

Id. The trial court then confirmed that he wished to proceed without a jury by

asking, “Is that how you wish to proceed,” and Shepherd responded, “Yes,

ma’am.” Id. The trial court next confirmed that Shepherd had not been

promised any special treatment by waving his right to a jury trial. Id. After this

inquiry, the trial court found that Shepherd’s waiver of a jury trial was “freely,

knowingly, and voluntarily” done and set the case for a bench trial. Id. At the

bench trial, Shepherd was found guilty of one count of Level 6 felony domestic

battery. Tr. Vol. II at 79. The presentence investigation report stated that

Shepherd had a lengthy criminal history, consisting of eighteen arrests, eight

misdemeanor convictions, and five felony convictions. Appellant’s Conf. App.

Vol. II at 69. The trial court sentenced Shepherd to 355 days executed.

Shepherd now appeals.

Discussion and Decision [5] Shepherd contends that he was denied his right to a jury trial because he did not

personally communicate a knowing, voluntary, and intelligent waiver of his

right to a jury trial. He specifically asserts that the record contains no

indication that he waived his right to a jury trial. We disagree.

[6] “The jury trial right is a bedrock of our criminal justice system, guaranteed by

both Article I, Section 13 of the Indiana Constitution and the Sixth

Amendment to the United States Constitution.” Horton v. State, 51 N.E.3d

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1740 | January 31, 2020 Page 3 of 5 1154, 1158 (Ind. 2016). The Federal and Indiana constitutional jury trial rights

guarantee the same general protection, that a criminal defendant must receive a

jury trial, unless he waives it. Id. Under the Sixth Amendment, waiver of a

jury trial right must be “express and intelligent,” Patton v. United States, 281 U.S.

276, 312 (1930), and waiver of the right to a jury trial under the Indiana

Constitution, must be “knowing, voluntary[,] and intelligent,” Perkins v. State,

541 N.E.2d 927, 928 (Ind. 1989). But the Indiana jury trial right provides

greater protection because, in a felony prosecution, waiver is valid only if

communicated personally by the defendant. Horton, 51 N.E.3d at 1158 (citing

Kellems v. State, 849 N.E.2d 1110, 1114 (Ind. 2006)).

[7] Here, contrary to Shepherd’s contention, the record contains evidence of his

waiver of his right to a jury trial. At the preliminary hearing on May 16, 2019,

Shepherd was explicitly advised by the trial court of his right to a jury trial

before he personally confirmed that he understood the right, that he still wished

to proceed with a bench trial, and that he was not promised any special

treatment by waiving his right to a jury. Supp. Tr. Vol. II at 9. Shepherd’s

counsel was present at the time of the waiver and indicated that he had

discussed the matter with Shepherd. Id. Additionally, Shepherd’s criminal

history consisting of eighteen arrests, eight misdemeanor convictions, and five

felony convictions made “it likely that he knew very well what a jury was and

what it meant to waive a jury trial.” McSchooler v. State, 15 N.E.3d 678, 683

(Ind. Ct. App. 2014). We, therefore, conclude that the record was sufficient to

establish that Shepherd knowingly, voluntarily, and intelligently waived his

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1740 | January 31, 2020 Page 4 of 5 right to a jury trial. See id. (holding that waiver of right to jury trial was valid

where defendant personally expressed a desire to waive his jury trial right, was

represented by an attorney who indicated that he and the defendant had

discussed the waiver beforehand, and had a somewhat extensive criminal

history).

[8] Affirmed.

Bailey, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1740 | January 31, 2020 Page 5 of 5