Opinion
23A-CR-1635
10-30-2024
Robert Mclee Holland, III, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Benjamen W. Murphy Law Office of Ben Murphy Griffith, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Lake Superior Court The Honorable Aleksandra Dimitrijevic, Judge Trial Court Cause No. 45D12-2109-F6-2092
ATTORNEY FOR APPELLANT Benjamen W. Murphy Law Office of Ben Murphy Griffith, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] In August of 2021, Robert Holland, III, attempted to file legal documents in the Lake County Clerk's Office without first fulfilling the provisions of a previously-issued order in the case in question. Lake County Sheriff's Deputy Jessica Mikolajczak responded at the request of court personnel, informed Holland regarding why he could not file his documents, and advised him that the Clerk's Office would be closing soon. Holland began to leave, and, when Deputy Mikolajczak attempted to prevent him from leaving so that she could examine his identification, he shoved her arm, pushing her back. The State charged Holland with Level 6 felony battery of a public-safety officer.
[¶2] At an initial hearing, the trial court, presided over by Judge Aleksandra Dimitrijevic, appointed counsel for Holland, who indicated that he did not want appointed counsel. Over the next several months, the trial court held several hearings at which Holland failed to appear and unsuccessfully attempted to transfer the case to a different court due to a previous incident the trial court had observed involving Holland and another judge. In March of 2022, Holland appeared for a hearing, at which the trial court offered to recuse itself from the case, an offer to which he did not directly respond. At a hearing in May of 2022, the trial court asked Holland if he wanted appointed counsel, and he did not directly respond to the question.
[¶3] In May of 2023, the trial court denied Holland's motion to dismiss based on an alleged violation of his right to a speedy trial, and his jury trial was held on May 25, 2023. The jury found Holland guilty of Class A misdemeanor battery of a public-safety official, and the trial court sentenced him to six months of incarceration. Holland contends that he did not validly waive his right to trial counsel, Judge Dimitrijevic's bias against him amounted to fundamental error, his right to a speedy trial was violated, the State produced insufficient evidence to sustain his conviction, and omissions from the jury instructions amounted to fundamental error. Because we conclude that none of Holland's arguments have merit, we affirm.
Facts and Procedural History
[¶4] On August 3, 2021, Lake Superior Court Judge Gina Jones issued an order in Holland v. Indiana University, et al., No. 45D10-1607-CT-113 ("Cause No. CT-113"), restricting Holland from "submitting any further repetitive or frivolous filings"; admonishing Holland that "further repetitive or frivolous filings may subject him to further sanctions, including being held in contempt; directing Holland to verify any further filings pursuant to Indiana Trial Rule 11(B); directing Holland to accompany any filings with a verified brief setting forth any "new and meritorious issue of fact or law that is not barred by the doctrines of res judicata, collateral estoppel or law of the case" and that "good grounds exist for such filing post-judgment and post-appeal"; directing the Clerk to return any non-verified filings; and directing Holland to attach a copy of the order to any further filings against the defendants in that case. St. Ex. 1-A.
[¶5] On September 1, 2021, Holland attempted to file documents in Cause No. CT-113, apparently without attempting to comply with prerequisites for doing so. Deputy Mikolajczak was in full uniform and responded to a report of an "unwanted party" in the clerk's office. Trial Tr. Vol. II p. 34. Court security advised Deputy Mikolajczak about the order in Cause No. CT-113 and informed her that, the last time Holland was in the clerk's office, he had taken control of the clerk's filing stamp and had stamped a filing himself. Deputy Mikolajczak explained to Holland why the clerk's office could not accept his filings and that he would need to leave the clerk's office because it was closing.
The transcript prepared in this case consists of three volumes devoted to pretrial hearings and two volumes devoted to Holland's trial, exclusive of tables of contents and exhibit volumes. We will cite to the first set as "Hearing Tr." and second as "Trial Tr."
[¶6] Holland began to leave the building, but Deputy Mikolajczak explained that he could not leave the building yet because she had not been able to identify him. Holland continued to walk toward the exit and ignored Deputy Mikolajczak's command that he stop. Deputy Mikolajczak stepped in front of Holland and put her left arm up in "a stopping motion[.]" Trial Tr. Vol. II p. 52. Holland, who was six feet and eight inches tall and weighed 330 pounds at the time, shoved Deputy Mikolajczak's left arm, knocking her backward.
[¶7] On September 2, 2021, the State charged Holland with Level 6 felony battery of a public-safety officer. On September 3, 2021, the trial court (presided over by Judge Dimitrijevic) held an initial hearing and appointed counsel for Holland. Holland told the trial court that he did not agree to have counsel appointed for him and claimed that his case should be removed to federal court. When the public defender asked Holland whether he could afford a $1500.00 bond, he refused to answer the question, instead asking for the case to be dismissed. The public defender asked for a bond review hearing the following week, which the trial court granted.
[¶8] On September 10, 2021, the trial court held a hearing at which Holland was represented by counsel but not present. At the hearing, the trial court explained that it intended to recuse itself because it knew Holland from when he had been an attorneyThe trial court said, "We had an incident in Judge Murray's courtroom," and "[b]ased upon the fact that I was present for the incident with Judge Murray, I feel it would be appropriate for me to recuse myself from this matter[.]" Hearing Tr. Vol. II pp. 12-13. The trial court said that it would retain jurisdiction until the case could be transferred. At the conclusion of that hearing, the trial court set a status conference for October 8, 2021. Holland failed to appear for the status conference on October 8, 2021. The trial court scheduled hearings for November 8, November 23, and December 15, 2021. Holland failed to appear for hearings on November 8 and November 23.
The Indiana Supreme Court suspended Holland's attorney license in 2009 for twelve months without automatic reinstatement. See In re Holland, 911 N.E.2d 574 (Ind. 2009). Holland had committed three trustaccount violations and had falsely accused opposing counsel of paying a judge a $1000.00 bribe. Id. The Indiana Roll of Attorneys indicates that Holland's license remains suspended.
[¶9] On November 23, 2021, the trial court issued an order stating that "due to a conflict ... [t]he Clerk is ordered to assign a new cause number and transfer this case to the Lake Superior Court, County Division, Room Three, upon acceptance." Appellant's App. Vol. II p. 45. The judge of Room Three of the Lake Superior Court declined to accept jurisdiction on December 1, 2021
To the extent that the trial court may have concluded that recusal was prudent in this case, the better practice would have been to decline to continue to preside after the judge in Room Three refused to accept the case. As we shall explain, however, Holland has waived his claim of judicial bias for appellate review.
[¶10] Holland failed to appear for hearings on December 15, 2021, and January 10, 2022. On January 10, 2022, the trial court issued a bench warrant for Holland's arrest. A person purporting to be Holland's sister appeared for a hearing on January 28, 2022, and claimed that Holland was in a nursing home after having medical issues. Holland's purported sister provided a document that said he had been admitted to Golden Living Centers, but the document had no phone number, no letterhead, and no address. The trial court scheduled a hearing for March 4, 2022, for which Holland failed to appear.
[¶11] On May 20, 2022, Holland filed an appearance, in which he indicated that he would be representing himself and moved to dismiss the charges, alleging, inter alia, that the trial court did not have personal jurisdiction over him. The same day, Holland appeared at a hearing and claimed that he had been in the hospital. The trial court explained that it knew Holland and had been present on a day when there "was an issue with [Holland] and Judge Murray" that it was "present" for but "wasn't involved" in. Hearing Tr. Vol. II p. 37. The trial court said that it would have "no problem" recusing itself if Holland wanted it to but also said that it would remain on the case if Holland wanted it to remain. Hearing Tr. Vol. II p. 37. Holland did not respond to this and, instead, argued that the case needed to be transferred to federal court because the state court did not have jurisdiction over him. The trial court said that it would need time to review Holland's motion to dismiss and continued the proceedings to May 25, 2022.
[¶12] At the hearing on May 25, 2022, the trial court heard argument from Holland in support of his motion to dismiss and denied it. The trial court also noted that it had contacted the facility where Holland claimed to have been, "spoke with someone there[,]" and "sent [him] a summons to come to court[,]" but Holland had continued to fail to appear. Hearing Tr. Vol. II pp. 52-53. The trial court attempted to appoint a new public defender for Holland, but he refused to accept any public defender who would not be able to remove his case to federal court. The trial court asked Holland whether he wanted a public defender, "[y]es or no?", and Holland responded that he had already answered the question, to which the trial court said, "So we're done." Hearing Tr. Vol. II p. 70. At Holland's request, the trial court set a hearing on his motion to suppress evidence for August 4, 2022.
[¶13] The trial court held a status conference about discovery on June 29, 2022. At the hearing, the State explained that it had mailed discovery via certified mail to Holland's address and had receipts. Holland confirmed that the State had mailed the discovery to the correct address. The trial court ordered the State to provide body-camera footage from the Lake County Sheriff's Office within two weeks. The trial court also observed during this hearing that the case had been pending for nine months and that Holland had been responsible for most of that delay by failing to appear for multiple hearings. On July 12, 2022, Holland moved to certify thirteen issues for interlocutory appeal and for the appointment of an appellate public defender. The trial court denied Holland's motion for interlocutory appeal the next day and his motion for an appellate public defender on July 16, 2022.
[¶14] Meanwhile, the trial court had held a hearing on July 13, 2022, at which the State had explained that it had mailed a video to Holland via certified mail but had come prepared with another copy for Holland in case he had not received it. The State provided a copy of that video to Holland at the hearing. The trial court ordered that any other video surveillance that had not been provided to Holland by that point would be excluded from trial. On July 18, 2022, Holland moved to reset the suppression hearing that had been set for August 4, 2022, alleging that he "ha[d] not received discovery[.]" Appellant's App. Vol. III p. 43. Holland did not specifically name any discovery that had not been provided to him. The trial court scheduled a suppression hearing for September 13, 2022, and, when Holland failed to appear for that hearing, rescheduled it for November 22, 2022.
[¶15] On October 11, 2022, Holland moved to indefinitely continue the suppression hearing scheduled for November 22, 2022, alleging that he could not be ready for a suppression hearing until receiving discovery, yet again failing to specify what discovery had not been provided to him. On October 17, 2022, Holland filed a demand for a jury trial. On October 28, 2022, the trial court scheduled a pretrial conference for February 8, 2023, and a jury trial for March 2, 2023.
[¶16] On February 24, 2023, the State moved to continue the trial set for March 2, 2023, pursuant to Criminal Rule 4(D)The State informed the trial court that it had learned the day before the filing of the motion to continue that one of the State's key witnesses was a member of the United States Army Reserves and had been summoned for training in California that would begin on March 2, 2023, and last until March 26, 2023. The State also noted that the witness had already scheduled vacation time and asked for the trial to be scheduled after May 15, 2023. The trial court granted this motion on February 27, 2023.
A trial court may extend a trial date beyond the one-year deadline for a period up to ninety days if the State shows that there was admissible evidence unavailable to it at the time of the originally scheduled trial date, despite reasonable efforts to procure it, that would become available within the ninety-day period. Crim. R. 4(D).
[¶17] On March 2, 2023, the trial court held a hearing to set a new trial date. Holland objected to the trial court's grant of the State's motion to continue the jury trial, arguing that the State should have known earlier that its witness would be unavailable for the originally-scheduled trial date. The State explained that the officer called into service by the United States Army Reserves for training had found out about the training approximately a week before the then-scheduled trial date. The trial court indicated that the earliest available trial date was May 25, 2023. Holland indicated that he objected to the continuance of trial, notwithstanding the trial court's previous ruling, because he doubted that the officer had been called in for United States Army Reserves training a week before the trial, and he claimed that it was "the State's problem[,]" not his. Hearing Tr. Vol. III p. 96. The trial court reset the jury trial for May 25, 2023. Holland said, "I'm objecting" but did not mention Criminal Rule 4. Hearing Tr. Vol. III p. 97.
[¶18] Holand moved for discharge under Criminal Rule 4 and his constitutional speedy trial rights on April 10 and April 19, 2023. At a hearing on May 22, 2023, the trial court denied Holland's motions for discharge, specifically noting that "the continuances that were had in this case in the beginning were caused by you failing to come to court" and that the remainder of the delays did not add up to a year under Criminal Rule 4(C) in any event. Hearing Tr. Vol. IV p. 38.
[¶19] Jury trial was held on May 25, 2023, and, at the completion of evidence, the trial court announced that it was handing out the final instructions to the jury and read them aloud. At no point did Holland object on the basis that the instructions did not include any that he wished to be given. The jury found Holland guilty of Class A misdemeanor battery of a public-safety official, and, on June 20, 2023, the trial court sentenced Holland to six months of incarceration.
Discussion and Decision I. Right to Counsel
[¶20] Holland contends that the trial court denied him his right to counsel, while the State contends that he validly waived that right. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to counsel. Hopper v. State, 957 N.E.2d 613, 618 (Ind. 2011) (citing Faretta v. California, 422 U.S. 806, 807 (1975)). A defendant also has the right to refuse court-appointed counsel. Id. A defendant choosing to represent himself forgoes many of the traditional benefits associated with the right to counsel, and the defendant must knowingly and intelligently forego the relinquished benefits for his waiver of his right to counsel to be effective. Id. The defendant must be aware of the dangers and disadvantages of self-representation, so that "the record will establish that 'he knows what is doing and his choice is made with eyes open.'" Id. (quoting Faretta, 422 U.S. at 835). There is "no particular formula or script that must be read to the defendant[,]" and the information that must be given depends on a range of case-specific factors, "including the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding." Id. (quoting Iowa v. Tovar, 541 U.S. 77, 88 (2004)). We generally consider "(1) the extent of the court's inquiry into the defendant's decision, (2) other evidence in the record that establishes whether the defendant understood the dangers and disadvantages of self-representation, (3) the background and experience of the defendant, and (4) the context of the defendant's decision to proceed pro se." Id. (citing U.S. v. Hoskins, 243 F.3d 407 (7th Cir. 2001)).
[¶21] We have little hesitation in concluding that Holland validly waived his right to trial counsel. Holland's conduct is sufficient to establish a waiver, namely, in refusing to accept appointed counsel at his initial hearing and, later, refusing to directly respond to the trial court's questions about whether he wanted appointed counsel, responding only with a demand that he be appointed an attorney who would remove his case to federal court. It is also worth noting that Holland's request for a public defender to assist with his attempted interlocutory appeal indicates that he knew how to ask for assistance of counsel if he wanted it and that he was generally aware of the value of legal representation but chose to forego it at the trial level. As for whether Holland was aware of the pitfalls of self-representation, the record indicates that the trial court was aware that Holland had been a practicing attorney and could reasonably infer that he was, in fact, aware of those pitfalls. The record contains ample support for the proposition that Holland validly waived his right to trial counsel.
II. Judicial Bias
[¶22] Holland contends that Judge Dimitrijevic was biased against him to the extent that fundamental error occurred. "The law presumes that a judge is unbiased and unprejudiced." Timberlake v. State, 753 N.E.2d 591, 610 (Ind. 2001) (citations omitted). To show that Judge Dimitrijevic should have recused herself, Holland has the burden to show that "an objective person, knowledgeable of all the circumstances, would have a reasonable basis for doubting the judge's impartiality." Id. (citation omitted). A party, however, must first raise a claim of judicial bias in the trial court. Woods v. State, 98 N.E.3d 656, 664 (Ind.Ct.App. 2018) (citing Flowers v. State, 738 N.E.2d 1051, 1061 (Ind. 2000)), trans. denied.
[¶23] Holland has waived his claim of judicial bias for appellate review because he was given an opportunity to ask for a new judge and did not take advantage of that opportunity. At a hearing at which Holland was present, Judge Dimitrijevic mentioned a previous encounter with Holland and offered to recuse herself if he wanted her to. Holland, however, did not ask Judge Dimitrijevic to recuse herself. By failing to take advantage of Judge Dimitrijevic's invitation to recuse herself, Holland waived any challenge to her decision to stay on the case. See Woods, 98 N.E.3d at 664 (observing that a defendant must object to trial court's statements or actions to preserve claim of bias); see also White v. State, 963 N.E.2d 511, 518 (Ind. 2012) ("'[A] party may not sit idly by and permit the court to act in a claimed erroneous matter and then attempt to take advantage of the alleged error at a later time.'") (quoting Hensley v. State, 251 Ind. 633, 639, 244 N.E.2d 225, 228 (1969)).
[¶24] Seemingly conceding his waiver of this issue, Holland contends that Judge Dimitrijevic's decision to stay on his case nonetheless constituted fundamental error.
Appellate courts may, on rare occasions, resort to the fundamental error exception to address on direct appeal an otherwise procedurally defaulted claim. But fundamental error is extremely
narrow and available only when the record reveals a clearly blatant violation of basic and elementary principles, where the harm or potential for harm cannot be denied, and which violation is so prejudicial to the rights of the defendant as to make a fair trial impossible.Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008) (citations omitted).
[¶25] Holland has fallen short of establishing fundamental error in this regard. Judge Dimitrijevic indicated that she had not been directly involved in whatever had occurred between Holland and Judge Murray but had only been present, which, without more, provides no reason to doubt that she was capable of deciding the case fairly. Holland attempts to show judicial bias by pointing to certain rulings decided against him, but "prejudice is not derived from judicial rulings." Garland v. State, 788 N.E.2d 425, 433 (Ind. 2003). "A showing of prejudice that calls for a change of judge must be established from personal, individual attacks on a defendant's character, or otherwise." Id. "A defendant cannot merely assert prejudice on the grounds that the judge has ruled against [him] in a prior proceeding." Id. Holland points only to adverse rulings and does not identify any attacks on him as an individual or any other indications that Judge Dimitrijevic was biased against him personally. Holland has failed to establish fundamental error in this regard.
III. Right to a Speedy Trial
[¶26] Indiana Criminal Rule 4(C) "provides a defendant may not be held to answer a criminal charge for greater than one year, unless the delay is caused from the defendant, emergency, or court congestion." State v. Larkin, 100 N.E.3d 700, 703-04 (Ind. 2018) (citing Curtis v. State, 948 N.E.2d 1143, 1148-49 (Ind. 2011)). The one-year period begins running from "the date the criminal charge against [the] defendant is filed, or from the date of his arrest on such charge, whichever is later." Crim. R. 4(C). Criminal Rule 4(C) is not intended to give defendants a technical means to avoid trial; it is simply meant to assure that speedy trials happen. Cundiff v. State, 967 N.E.2d 1026, 1028 (Ind. 2012) (citation omitted). When evaluating a Criminal Rule 4(C) motion for discharge, "in cases where the issue is a question of law applied to undisputed facts, the standard of review-like for all questions of law-is de novo." Larkin, 100 N.E.3d at 703 (citing Austin v. State, 997 N.E.2d 1027, 1039 (Ind. 2013)). If the trial court has made a factual finding in denying a motion for discharge, this Court reviews that finding for clear error. Id. The State has the burden of bringing the defendant to trial within one year. Id. (citation omitted).
[¶27] Holland's claim in this regard fails because, in light of delays clearly attributable to him, he cannot even establish that his trial date occurred outside Criminal Rule 4(C)'s one-year period. There were 630 days between the date the State charged Holland, September 2, 2021, and the date of his trial, May 25, 2023, making the difference between the total elapsed time between charging and trial and the one-year limit in Criminal Rule 4(C) 265 days. The question, then, is whether more than 265 days of delay may be charged to Holland, and the answer is yes.
[¶28] The record shows that Holland caused 252 days of delay by failing to appear for a series of hearings between September 10, 2021, and May 20, 2022. A defendant's failure to appear for trial tolls the one-year deadline of Criminal Rule 4(C). See, e.g., Werner v. State, 818 N.E.2d 26, 32 (Ind.Ct.App. 2004) (concluding that time for the defendant's failure to appear for a hearing, after having already appeared for an initial hearing, tolled the one-year deadline of Criminal Rule 4(C)), trans. denied; and Rust v. State, 792 N.E.2d 616, 620 (Ind.Ct.App. 2003) (observing that the "clock was clearly tolled for purposes of Criminal Rule 4(C) when [the defendant] failed to appear" after previously appearing for a hearing), trans. denied. Holland also failed to appear for the suppression hearing on September 13, 2022, a hearing which he himself had requested. The trial court rescheduled the hearing for November 22, 2022, and Holland moved to cancel that hearing on October 11, 2022, which motion the trial court granted. The delay caused by Holland's failure to appear for his requested suppression hearing and until he canceled his request for that hearing, September 13 to October 11, 2022, was twenty-eight days. In summary, there were at least 280 days of delay attributable to Holland because of his various failures to appear, leaving at least fifteen days left on the Criminal Rule 4(C) clock by the time his trial actually occurred.
[¶29] Holland argues that the record does not support a conclusion that some of these delays should be charged to him because the trial court allegedly did not make findings about the causes of the delays. Each time Holland failed to appear, however, the trial court duly noted this on the chronological case summary and explained at a hearing that the continuances for his failure to appear would be charged against him. These notations, along with the well-settled proposition that delays caused by a failure to appear are charged to the party who failed to appear, are fatal to Holland's speedy-trial claim.
IV. Sufficiency of the Evidence
[¶30] Holland contends that the State produced insufficient evidence to sustain his conviction for battery of a public-safety official. In reviewing a challenge to the sufficiency of the evidence to support a criminal conviction, we do not reweigh the evidence or assess the credibility of witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). The evidence, even if conflicting, and all reasonable inferences drawn therefrom are viewed in a light most favorable to the conviction. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). The evidence need not overcome every reasonable hypothesis of innocence but is sufficient if a reasonable inference may be drawn from it to support the verdict. Stubbers v. State, 190 N.E.3d 424, 429 (Ind.Ct.App. 2022), trans. denied. We will affirm the conviction unless no reasonable fact-finder could find the elements of the offense proven beyond a reasonable doubt. Delagrange v. State, 5 N.E.3d 354, 356 (Ind. 2014).
[¶31] In order to convict Holland of battery of a public-safety official, the State was required to prove that he had knowingly or intentionally touched Deputy Mikolajczak in a rude, insolent, or angry manner while she had been engaged in her official duties. Ind. Code § 35-42-2-1(e)(2). Holland's argument, which is that Deputy Mikolajczak had been acting illegally during her encounter with him, fails because it is based on the false premise that the State was required to establish that she had been acting legally when the statute requires proof only that Deputy Mikolajczak had been engaged in her official duties.
[¶32] We rejected an argument identical to Holland's in Masotto v. State, 907 N.E.2d 1083 (Ind.Ct.App. 2009). In Masotto, three police officers had entered Masotto's home without a warrant after responding to noise complaints. After they had been invited in by Masotto's boyfriend, the officers had decided to leave and return the next day to issue a citation, and, as they were leaving, Masotto had shoved one of the officers in the back. Id. at 1084. We rejected Masotto's contention that an officer ceases to act in his official capacity if he enters a home without a warrant or a justifiable excuse from the warrant requirement, explaining that the "battery statute explicitly requires only that officers be engaged in their official duty, not in lawful execution of their duty." Id. (citation omitted); see also Ind. Code § 35-42-2-1(e)(2). Because the State was required only to establish that Deputy Mikolajczak had been engaged in her official duties, which Holland does not actually dispute we conclude that the State produced evidence sufficient to sustain his conviction for battery of a public-safety official.
Holland seems to argue that Deputy Mikolajczak could not have been engaged in her official duties because she was acting illegally. As we explained in Masotto, however, an officer can act illegally while still engaging in official duties. Masotto, 907 N.E.2d at 1084.
V. Jury Instructions
[¶33] The purpose of jury instructions is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict. Munford v. State, 923 N.E.2d 11, 14 (Ind.Ct.App. 2010) (citing Murray v. State, 798 N.E.2d 895, 899900 (Ind.Ct.App. 2003)). Courts review the trial court's manner of instructing the jury for an abuse of discretion. Owen v. State, 210 N.E.3d 256, 267 (Ind. 2023) (citation omitted).
[¶34] Holland concedes that he did not object to the failure to give certain jury instructions during trial and has therefore waived his claim for appellate review. (Appellant's Br. 42-43). Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013); see also McKinley v. State, 45 N.E.3d 25, 28 (Ind.Ct.App. 2015) (explaining that a contemporaneous objection is required to preserve a claim of jury-instruction error), trans. denied. As mentioned, the only exception to waiver is review for fundamental error. Halliburton, 1 N.E.3d at 678. Under fundamental-error review, the burden is on Holland to show that failure to provide the instructions he now claims should have been provided made a fair trial impossible or that it blatantly violated due process. Knapp v. State, 9 N.E.3d 1274, 1285 (Ind. 2014).
[¶35] There are two instructions that Holland claims should have been given to the jury. The first is the following instruction regarding an officer's official duties:
"It is the nature of the acts performed and not whether the officer is on or off duty, in or out of uniform, which determines whether the officer is engaged in the performance of his official duties." Thus, "when a police officer, whether in uniform or not, takes it
upon himself to enforce the law in order to maintain peace and order for the benefit of the public, the officer is performing official duties as a police officer."Appellant's Br. pp. 43-44.We do not see how the failure to give this instruction could have prevented Holland from having a fair trial: It is a general instruction regarding the circumstances under which an officer is said to be engaged in performing his or her official duties, and, as mentioned, Holland does not actually dispute that Deputy Mikolajczak had been engaged in her official duties when he shoved her. It seems to us that, by focusing the jury's attention on the fact that Deputy Mikolajczak had been engaged in her official duties, the proposed instruction would have made the jury, if anything, more likely to find Holland guilty, not less.
The State notes that this language appears to have been pulled from Cupello v. State, 27 N.E.3d 1122, 1127 (Ind.Ct.App. 2015) (quoting Nieto v. State, 499 N.E.2d 280, 282 (Ind.Ct.App. 1986); and Tapp v. State, 406 N.E.2d 296, 302 (Ind.Ct.App. 1980)). As the State also notes, however, the "mere fact that certain language or expression [is] used in the opinions of [an appellate court] to reach its final conclusion does not make it proper language for instructions to a jury." Ludy v. State, 784 N.E.2d 459, 462 (Ind. 2003).
[¶36] The second instruction Holland contends that the trial court should have given without being asked is the following pattern instruction regarding the use of force against a public servant to protect a person:
It is an issue whether the Defendant acted against a public servant in lawful [self-defense] [defense of another person].
A person may use reasonable force against a public servant to protect [the person] [someone else] from what the person reasonably believes to be the imminent use of unlawful force.
[However, a person may not use force against a public servant if:
(the person is committing a crime that is directly and immediately connected to the (confrontation with the public servant)) (use a descriptive term based on evidence).
(or)
(the person is escaping after the commission of a crime that is directly and immediately connected to the (confrontation with the public servant)) (use a descriptive term based on evidence).]
(or)
(while acting with the intent to cause bodily injury to the public servant, the person provokes action by the public servant).]
(or)
(the person has entered into a fight with the public servant or has started the fight, unless the person withdraws from the fight and communicates to the law enforcement officer the person's intent to withdraw and the law enforcement officer nevertheless continues or threatens to continue unlawful action).]
(or)
The person reasonably believes the public servant is acting lawfully or engaged in the lawful execution of the public servant's official duties.]
The State has the burden of proving beyond a reasonable doubt that the Defendant did not act in lawful self-defense.Ind. Criminal Pattern Jury Instruction 10.0700, https://lawofselfdefense.com /jury-instruction/in-10-0700-use-of-force-against-a-public-servant-to-protect- person/#:~:text=Indiana%20Pattern%20Jury%20Instructions%20%E2%80%93 %20Criminal (last viewed, Oct. 7, 2024) (emphases, parentheses, and brackets in original).
[¶37] Holland's argument on this point seems to be, essentially, that the trial court should have become his advocate by unilaterally instructing the jury on a defense that he did not think to put forward himself. As the Indiana Supreme Court and this court have recognized myriad times, however, the choice of a defense is a strategic decision for a defendant to make, not one for a trial court or this court. Cf., e.g., Whitener v. State, 696 N.E.2d 40, 43 (Ind. 1998) (stating, in the context of a claim of ineffective assistance of trial counsel, that "[t]he decision of whether or not to present a defense can be considered a matter of trial strategy and will not be lightly second guessed"). For whatever reason, Holland chose not to attempt to establish that he had acted in self-defense, but that was his choice to make, not the trial court's. Just as we will not become an advocate for a party, see, e.g., Dridi v. Cole Kline LLC, 172 N.E.3d 361, 364 (Ind.Ct.App. 2021), we will not encourage trial courts to evaluate a party's case and determine the best way to proceed by declaring it fundamental error when they do not. Holland has failed to establish that the trial court committed fundamental error in instructing the jury.
[¶38] The judgment of the trial court is affirmed.
Bailey, J., and Foley, J., concur.