MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 16 2018, 11:02 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffery Haupt Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James Higgason, III, May 16, 2018 Appellant-Defendant, Court of Appeals Case No. 64A04-1710-CR-2329 v. Appeal from the Porter Superior Court State of Indiana, The Honorable Mary R. Harper, Appellee-Plaintiff. Judge Trial Court Cause No. 64D05-1611-F6-10253
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018 Page 1 of 8 STATEMENT OF THE CASE [1] Appellant-Defendant, James Higgason, III (Higgason), appeals his conviction
for theft, a Level 6 felony, Ind. Code § 35-43-4-2(a).
[2] We affirm.
ISSUE [3] Higgason presents us with one issue on appeal, which we restate as: Whether
the trial court showed bias and prejudice towards Higgason which prevented
him from getting a fair trial.
FACTS AND PROCEDURAL HISTORY [4] In October 2016, Indiana Department of Transportation (INDOT) employee,
Tyrone Hare (Hare), received a tip that an individual who might be responsible
for copper wire thefts from INDOT light poles was living around 25th and Burr
Streets in Gary, Indiana, and driving a maroon Ford pickup truck. Indiana
State Police obtained a search warrant and placed a GPS tracker on the truck.
While monitoring the vehicle through the GPS tracker, Indiana State Police
Detective, Brian Kubiak (Detective Kubiak), received an alert on November 7,
2016, that the vehicle had broken a geo-fence boundary around some INDOT
light poles in the Lakeland Park area. When he arrived in the area, Detective
Kubiak noticed a vehicle that matched the description provided to Hare.
During the three hours that the vehicle was in the Lakeland Park area,
Higgason exited the truck, waded through a watery ditch, and began removing
the copper wiring from several light poles. Upon leaving the area, Detective Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018 Page 2 of 8 Kubiak followed the truck. Indiana State Police Trooper Andrew Rasala pulled
over the maroon truck Higgason was driving for a traffic infraction and
observed a large amount of wiring in the bed of the truck. The wiring in the
truck matched the description and gauge of the wiring used by INDOT.
[5] On November 8, 2016, the State filed an Information, charging Higgason with
one Count of theft, a Level 6 felony. On July 20, 2017, Higgason proceeded to
a jury trial where he represented himself pro se and, at the conclusion of the
evidence, was found guilty as charged. On August 15, 2017, the trial court
sentenced him to serve 912 days at the Department of Correction.
[6] Higgason now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION [7] Electing to represent himself at trial, Higgason contends that the trial court, on
numerous occasions, exhibited a partiality and bias towards him. A trial before
an impartial judge is an essential element of due process. Everling v. State, 929
N.E.2d 1281, 1287 (Ind. 2010). In assessing a trial court’s partiality, we
examine the judge’s actions and demeanor while recognizing the need for
latitude to run the courtroom and maintain discipline and control of the trial.
Timberlake v. State, 690 N.E.2d 243, 256 (Ind. 1997), reh’g denied. “Even where
the court’s remarks display a degree of impatience, if in the context of a
particular trial they do not impart an appearance of partiality, they may be
permissible to promote an orderly progression of events at trial.” Id. Bias and
prejudice violate a defendant’s due process right to a fair trial only where there
Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018 Page 3 of 8 is an undisputed claim or where the judge expressed an opinion of the
controversy over which the judge was presiding. Smith v. State, 770 N.E.2d 818,
823 (Ind. 2002). Adverse rulings are not sufficient to show bias or prejudice on
the part of the trial judge. Flowers v. State, 738 N.E.2d 1051, 1060 n.4 (Ind.
2000), reh’g denied. Nevertheless, Indiana law presumes that a judge is unbiased
and unprejudiced. See Garland v. State, 788 N.E.2d 425, 433 (Ind. 2003). To
rebut this presumption, a defendant must establish from the judge’s conduct
actual bias or prejudice that places the defendant in jeopardy. Smith, 770
N.E.2d at 823. Looking at the trial in its entirety, Higgason maintains that “the
cumulative impact of the trial court’s rulings and statements both in front of
and outside the presence of the jury [] impacted his ability to have a fair trial.”
(Appellant’s Br. p. 10).
[8] Prior to trial, Higgason dismissed his attorney and elected to proceed pro se.
“Pro se litigants without legal training are held to the same standard as trained
counsel and are required to follow procedural rules.” Wright v. State, 722
N.E.2d 449, 463 (Ind. Ct. App. 2002). Although “a trial court is not required to
guide pro se litigants through the judicial system,” the trial court spent a
considerable amount of time explaining to Higgason the process of voir dire,
how to introduce exhibits, questioned Higgason about the witnesses he
intended to question, and informed him of his right to testify prior to the
commencement of the jury trial. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct.
App. 2004). During trial, the trial court repeatedly reminded Higgason not to
testify himself but instead to question the witness, and advised him how to
Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018 Page 4 of 8 rephrase questions. Despite all this, the trial court had to admonish Higgason
that he “simply [was] not utilizing appropriate procedures.” (Transcript Vol. I,
p. 91). Prior to the start of the second day of trial, and outside the presence of
the jury, the trial court cautioned Higgason that he
intentionally inserted what, if the State did it, would possibly be grounds for a mistrial into the record when you were examining the female witness and waiving this paper in the air and talking about her having been arrested for Auto Theft, which you knew was highly inadmissible. Don’t do that kind of thing again. Don’t do it. Follow the rules. You, you know, you’re making a habit of saying things that are statements that, you know, you’re trying to testify without testifying. And you just follow the rules. Perhaps you don’t know the rules, but I know you knew that rule, the 609 rule. I know you knew that rule. Follow the rules.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 16 2018, 11:02 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffery Haupt Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James Higgason, III, May 16, 2018 Appellant-Defendant, Court of Appeals Case No. 64A04-1710-CR-2329 v. Appeal from the Porter Superior Court State of Indiana, The Honorable Mary R. Harper, Appellee-Plaintiff. Judge Trial Court Cause No. 64D05-1611-F6-10253
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018 Page 1 of 8 STATEMENT OF THE CASE [1] Appellant-Defendant, James Higgason, III (Higgason), appeals his conviction
for theft, a Level 6 felony, Ind. Code § 35-43-4-2(a).
[2] We affirm.
ISSUE [3] Higgason presents us with one issue on appeal, which we restate as: Whether
the trial court showed bias and prejudice towards Higgason which prevented
him from getting a fair trial.
FACTS AND PROCEDURAL HISTORY [4] In October 2016, Indiana Department of Transportation (INDOT) employee,
Tyrone Hare (Hare), received a tip that an individual who might be responsible
for copper wire thefts from INDOT light poles was living around 25th and Burr
Streets in Gary, Indiana, and driving a maroon Ford pickup truck. Indiana
State Police obtained a search warrant and placed a GPS tracker on the truck.
While monitoring the vehicle through the GPS tracker, Indiana State Police
Detective, Brian Kubiak (Detective Kubiak), received an alert on November 7,
2016, that the vehicle had broken a geo-fence boundary around some INDOT
light poles in the Lakeland Park area. When he arrived in the area, Detective
Kubiak noticed a vehicle that matched the description provided to Hare.
During the three hours that the vehicle was in the Lakeland Park area,
Higgason exited the truck, waded through a watery ditch, and began removing
the copper wiring from several light poles. Upon leaving the area, Detective Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018 Page 2 of 8 Kubiak followed the truck. Indiana State Police Trooper Andrew Rasala pulled
over the maroon truck Higgason was driving for a traffic infraction and
observed a large amount of wiring in the bed of the truck. The wiring in the
truck matched the description and gauge of the wiring used by INDOT.
[5] On November 8, 2016, the State filed an Information, charging Higgason with
one Count of theft, a Level 6 felony. On July 20, 2017, Higgason proceeded to
a jury trial where he represented himself pro se and, at the conclusion of the
evidence, was found guilty as charged. On August 15, 2017, the trial court
sentenced him to serve 912 days at the Department of Correction.
[6] Higgason now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION [7] Electing to represent himself at trial, Higgason contends that the trial court, on
numerous occasions, exhibited a partiality and bias towards him. A trial before
an impartial judge is an essential element of due process. Everling v. State, 929
N.E.2d 1281, 1287 (Ind. 2010). In assessing a trial court’s partiality, we
examine the judge’s actions and demeanor while recognizing the need for
latitude to run the courtroom and maintain discipline and control of the trial.
Timberlake v. State, 690 N.E.2d 243, 256 (Ind. 1997), reh’g denied. “Even where
the court’s remarks display a degree of impatience, if in the context of a
particular trial they do not impart an appearance of partiality, they may be
permissible to promote an orderly progression of events at trial.” Id. Bias and
prejudice violate a defendant’s due process right to a fair trial only where there
Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018 Page 3 of 8 is an undisputed claim or where the judge expressed an opinion of the
controversy over which the judge was presiding. Smith v. State, 770 N.E.2d 818,
823 (Ind. 2002). Adverse rulings are not sufficient to show bias or prejudice on
the part of the trial judge. Flowers v. State, 738 N.E.2d 1051, 1060 n.4 (Ind.
2000), reh’g denied. Nevertheless, Indiana law presumes that a judge is unbiased
and unprejudiced. See Garland v. State, 788 N.E.2d 425, 433 (Ind. 2003). To
rebut this presumption, a defendant must establish from the judge’s conduct
actual bias or prejudice that places the defendant in jeopardy. Smith, 770
N.E.2d at 823. Looking at the trial in its entirety, Higgason maintains that “the
cumulative impact of the trial court’s rulings and statements both in front of
and outside the presence of the jury [] impacted his ability to have a fair trial.”
(Appellant’s Br. p. 10).
[8] Prior to trial, Higgason dismissed his attorney and elected to proceed pro se.
“Pro se litigants without legal training are held to the same standard as trained
counsel and are required to follow procedural rules.” Wright v. State, 722
N.E.2d 449, 463 (Ind. Ct. App. 2002). Although “a trial court is not required to
guide pro se litigants through the judicial system,” the trial court spent a
considerable amount of time explaining to Higgason the process of voir dire,
how to introduce exhibits, questioned Higgason about the witnesses he
intended to question, and informed him of his right to testify prior to the
commencement of the jury trial. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct.
App. 2004). During trial, the trial court repeatedly reminded Higgason not to
testify himself but instead to question the witness, and advised him how to
Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018 Page 4 of 8 rephrase questions. Despite all this, the trial court had to admonish Higgason
that he “simply [was] not utilizing appropriate procedures.” (Transcript Vol. I,
p. 91). Prior to the start of the second day of trial, and outside the presence of
the jury, the trial court cautioned Higgason that he
intentionally inserted what, if the State did it, would possibly be grounds for a mistrial into the record when you were examining the female witness and waiving this paper in the air and talking about her having been arrested for Auto Theft, which you knew was highly inadmissible. Don’t do that kind of thing again. Don’t do it. Follow the rules. You, you know, you’re making a habit of saying things that are statements that, you know, you’re trying to testify without testifying. And you just follow the rules. Perhaps you don’t know the rules, but I know you knew that rule, the 609 rule. I know you knew that rule. Follow the rules.
The other thing that I would tell you is, you know, you may have things that you want to move into evidence today because we’re going to get to your case, I think, pretty soon. In order for your materials to be submitted into evidence you need to follow the proper procedure to do that. And if you don’t follow the proper procedure to do that, it won’t be admissible. Just so you understand.
That’s one of the reasons that I tried and tried to get you to have a Public Defender. You’ve decided you can try your case on your own. That’s your rights [sic], but you need to do it correctly.
(Tr. Vol. II, pp. 35-36).
[9] Higgason claims that the trial court showed bias and partiality by allowing the
State to present objections without allowing him to respond. Specifically,
Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018 Page 5 of 8 Higgason points to several instances where the State objected based on facts not
in evidence, speculation, or because Higgason’s questioning was outside the
scope of the State’s direct. Numerous times during these objections, the trial
court, while sustaining the State’s objection, advised Higgason to clarify or
rephrase his question for the witness. In turn, Higgason also points to instances
where he objected to the State’s questioning on hearsay and authenticity
grounds, which the trial court overruled. The record reflects that the State
responded to Higgason’s objections and while the State was not successful
every time, the trial court properly listened to the arguments raised by both
sides and ruled accordingly. As we have noted before, the mere assertion that
certain adverse rulings by a judge constitute bias and prejudice does not
establish the requisite showing of prejudice. See Voss v. State, 856 N.E.2d 1211,
1217 (Ind. 2006).
[10] Higgason also contends that the trial court addressed his arguments in an
improper tone that influenced the jury. He points, in part, to the following
examples:
[Higgason]: But am I allowed to let him read this? Maybe he can recite it? Because it has the multiple uses for this wire. [Trial Court]: If you do it the right way. [Higgason]: May I present this to the witness? [Trial Court]: I was asking you if you wanted a Public Defender that I told you that there were certain things that the Public Defender knows to do.
(Tr. Vol. II, p. 57).
Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018 Page 6 of 8 [Higgason]: This is Exhibit 1 for the Defendant. Let me show you this picture. Is that one of the tipsters? [Witness]: Yes, that looks to be one of them. Yes. [Higgason]: Okay. For the record, this is Daniel Allison. [Trial Court]: uh, uh, uh. [State]: Object – [Trial Court]: Now you’re testifying. [Higgason]: Oh, I’m sorry. [Trial Court]: You have the witness identify your picture. [Higgason]: Okay. [Trial Court]: It’s done. [Higgason]: So what I want to do – do I put this on record? I don’t know your format. [Trial Court]: My format is the Rules of Evidence.
(Tr. Vol. II, p. 90).
[11] Examining the trial court’s actions and demeanor throughout the trial, we
cannot say that the trial court was biased as to impair Higgason’s right to a fair
trial. At no point did the trial judge express an opinion of the controversy over
which she was presiding. All of the trial court’s comments reflect on the trial
court’s responsibility to maintain discipline and control of the trial, even if the
remarks displayed a degree of impatience. See Timberlake, 690 N.E.2d at 256.
The cumulative effect of the trial court’s rulings and remarks indicate a trial
judge repeatedly aiding Higgason by explaining the mechanics of trial
procedure and by maintaining proper decorum in the courtroom, in accordance
with the Indiana Rules of Trial Procedure and the Indiana Rules of Evidence.
As such, on those occasions noted by Higgason, the trial judge was merely
attempting to move the trial forward in an efficient manner. Therefore,
Higgason has failed to demonstrate that the trial judge was biased.
Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018 Page 7 of 8 CONCLUSION [12] Based on the foregoing, we hold that Higgason failed to establish that the trial
court showed bias and prejudice towards him which prevented him from getting
a fair trial.
[13] Affirmed.
[14] May, J. and Mathias, J. concur
Court of Appeals of Indiana | Memorandum Decision 64A04-1710-CR-2329 | May 16, 2018 Page 8 of 8