Durrell L. Shepherd v. State of Indiana (mem. dec.) ( 2020 )

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
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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.
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