Charles D. Howard v. State of Indiana

May 22 2015, 9:30 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Bryan L. Ciyou Gregory F. Zoeller
Lori B. Schmeltzer Attorney General of Indiana
Ciyou & Dixon, P.C.
Chandra K. Hein
Indianapolis, Indiana
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles D. Howard, May 22, 2015
Appellant-Defendant, Court of Appeals Case No.
14A04-1406-CR-286
v. Appeal from the Daviess Superior
Court
State of Indiana, The Honorable Robert E. Springer,
Special Judge
Appellee-Plaintiff.
Lower Court Cause No.
14D01-1106-CM-512
Pyle, Judge.
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Statement of the Case
[1] Charles Howard (“Howard”) appeals his convictions, following a jury trial, for
two counts of Class A misdemeanor resisting law enforcement,1 Class B
misdemeanor harassment,2 Class B misdemeanor public intoxication,3 and
Class B misdemeanor disorderly conduct.4
[2] Howard makes three disjointed arguments on appeal under a general issue of
due process. First, he mainly argues that we should reverse and dismiss his
convictions for resisting law enforcement and public intoxication because the
trial court never ruled on part of his motion to suppress/dismiss. Second, he
argues that any evidence obtained after his arrest should have been excluded
because the police did not give him a Miranda warning upon his arrest. Third,
he contends that the trial court should have dismissed all charges against him
pursuant to Criminal Rule 4.
[3] We conclude that Howard’s arguments are either waived or otherwise without
merit because: (1) the trial court issued a ruling on his motion to
suppress/dismiss, and Howard did not object to the admission of evidence at
trial; (2) the State did not introduce or seek to admit into evidence any of
1
IND. CODE §§ 35-44-3-3(a)(1), (a)(3). We note that, effective July 1, 2012, the resisting law enforcement
statute was recodified at INDIANA CODE § 35-44.1-3-1 and that it was subsequently amended in 2013 and
again in 2014. Because Howard committed his crime in 2011, we will refer to the statute in effect at that
time.
2
I.C. § 35-45-2-2(a)(1).
3
I.C. § 7.1-5-1-3 (subsequently amended in 2012).
4
I.C. § 35-45-1-3(a)(1) (subsequently amended in 2014).
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Howard’s post-arrest statements; and (3) Howard did not file a motion for
discharge under Criminal Rule 4 or object to the trial court’s setting of any of
his trial dates. Accordingly, we affirm his convictions.
[4] Affirmed.
Issue
[5] Whether the various arguments Howard attempts to raise on appeal are either
waived or otherwise without merit.
Facts
[6] On June 17, 2011, Howard and his then wife, Tamela Howard (“Tammy”),
lived on Main Street in Washington, Indiana just down the street from the
American Legion where Tammy worked. That day, Tammy and Howard got
into an argument, and she and the children went to stay at her older son’s
house.
[7] Late that evening, Tammy went into the American Legion to cash a check and
was noticeably upset. While there, Tammy told her co-worker, Angie Gottman
(“Gottman”), who was bartending that night, that she and Howard had been in
an argument. About five to ten minutes after Tammy left, which was around
12:30 a.m. on June 18, Howard phoned that American Legion looking for her,
and Gottman answered the phone. Gottman recognized Howard’s voice, and
the caller ID on the phone showed Howard’s name and phone number.
Gottman informed Howard that Tammy had been there but had just left.
Howard told Gottman to tell Tammy that he was going to shut off her phone,
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and Gottman repeated that Tammy was not there. Gottman noticed that
Howard “sounded intoxicated and upset.” (Tr. 78).
[8] Howard hung up but continued to call Gottman back multiple times over the
next twenty or so minutes. Gottman repeatedly told him that she did not know
where Tammy was and to stop calling. Howard told Gottman, “you are a bitch
. . . don’t mess with me” and “don’t fuck with me, I’ll fuck with you.” (Tr. 88,
90). After the third or fourth call, Gottman told Howard that she was going to
call the police. Howard called Gottman back “taunting” her and asking her
where the police were. (Tr. 90). Gottman told him that “if [he] just quit calling
[her] this w[ould] stop[,]” but “[h]e kept calling” and sometimes he would hang
up when she answered. (Tr. 90). As soon as Gottman hung up the phone,
Howard called again. Howard made more than about fifteen calls including
hang ups.
[9] At 12:48 a.m., Gottman called police to report that she was getting harassing
phone calls from Howard, and Washington Police Officers Buck Seger
(“Officer Seger”), Kyle Babrick (“Officer Babrick”), Greg Dietsch (“Sergeant
Dietsch”), and Officer Kevin Buckley (“Officer Buckley”) were dispatched to
the American Legion. When the officers arrived, Gottman, with a cordless
telephone in hand, was standing outside of the American Legion building. As
Gottman was telling the officers about Howard’s conduct, Howard phoned her
again. Gottman showed the officers her phone, which had caller ID, and told
them that it was Howard calling her again. At the same time, Gottman pointed
down the street toward Howard’s house and said, “there he is right now.” (Tr.
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119). The officers saw a “male figure” standing on the sidewalk near a parked
vehicle, and they “noticed that there was a glow of a cell phone” near his face.
(Tr. 119).
[10] After Gottman pointed down the street and identified Howard as the man who
was making the harassing phone calls, Officers Seger and Babrick, both in
uniform, walked up the street to approach him. Officer Seger saw that Howard
was “[i]n the same spot right in front of the vehicle on the sidewalk there[,]”
which was a “public sidewalk” on a “public street[.]” (Tr. 122). As the officers
got closer to Howard, he “turned away” from them and “t[ook] off running[.]”
(Tr. 121, 122). The officers repeatedly yelled, “stop police,” but Howard
continued to run away from them. (Tr. 122, 123). Officer Seger caught up to
Howard outside of his house on a porch near his side door. The officer grabbed
Howard’s arm, told him to stop and come with the officer to talk, but Howard
refused, tried to pull away from the officer, and said he was going inside.
Officer Seger continued to grab hold of Howard, who then went inside the
house and pulled the officer inside with him.
[11] Once inside the house, Officer Seger “couldn’t tell if [Howard] had . . . any
weapons” and “tr[ied] to get him to turn around.” (Tr. 126). Howard kept
“warding off [the officer’s] attempts to gain control of him.” (Tr. 127). Officer
Babrick followed Howard and Officer Seger into the house, and “there was a
brief struggle of [the officers] attempting to gain control of [Howard’s] arms to
place him into handcuffs.” (Tr. 127). As they turned Howard around, Officer
Seger smelled a “[p]retty heavy odor of alcoholic beverage” on Howard’s breath
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and noticed that his speech was slurred and that his eyes were “blood shot and
somewhat glossy.” (Tr. 128).
[12] Howard cursed and continued to struggle with the officers as they attempted to
lead him out of the house to a police car. As they had Howard at the door of
the house, he was “irate and combative[,]”and Sergeant Dietsch had to help
them escort Howard down to the car. (Tr. 205). Even at the car, Howard
struggled with the officers, and one of them had to go inside the car and
“physically pull him into the police car.” (Tr. 131). Howard was then “cursing
and being belligerent in the backseat of the vehicle.” (Tr. 132).
[13] After Officers Seger and Babrick transported Howard to the jail, Sergeant
Dietsch waited at Howard’s house until Tammy got there. The sergeant
explained to Tammy how Howard had been calling Gottman. “After speaking
with her about the details of the night, she volunteered [Howard’s cell] phone
and the contents inside of it to [Sergeant Dietsch.]” (Tr. 262). The sergeant
took the cell phone to the police station, took photos of various screens from the
cell phone, and later returned it to Tammy.
[14] On June 23, 2011, the State charged Howard with: Count 1, Class A
misdemeanor resisting law enforcement (based on fleeing); Count 2, Class A
misdemeanor resisting law enforcement (based on forcibly resisting,
obstructing, or interfering); Count 3, Class B misdemeanor harassment; and
Count 4, Class B misdemeanor public intoxication. Later, on June 22, 2012,
the State added Count 5, Class B misdemeanor disorderly conduct. All five
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charges related to the events of June 18, 2011, and were filed under cause
number 14D01-1106-CM-512. Howard was then released on bond.5
[15] After being charged, Howard informed the trial court that he would be
representing himself. Thereafter, he filed various pro se pleadings, including
“Defendant’s Contentions of Events for Arrest Early Morning 18 June 2011[,]”
in which he “admit[ted] he had been drinking [on the] evening of Friday 17
June 2011 and [that he] did call the American Legion trying to locate his wife.”
(App. 66).6 In his pleading, he stated that he believed that Gottman had “called
the police on him due to a comment he made” to her while on the phone.
(App. 66). He also stated that he “feared being arrested for public intoxication .
. . .” (App. 66).
[16] On August 4, 2011, Howard filed a pro se “Motion For Suppression of
Evidence/Dismissal of All Charges” (“motion to suppress/dismiss”), arguing
that the trial court should dismiss the charges against him because the police
had “violated his fourth amendment right of search and seizure” when they
entered his house without permission and did not obtain a warrant for [his]
arrest. (App. 112). He also argued that the police failed to obtain a warrant for
5
On September 25, 2011, the State arrested Howard and charged him with Class D felony attempted
residential entry and Class A misdemeanor criminal trespass under cause number 14D01-1109-FD-899. The
State then filed a motion to revoke Howard’s bond, and the trial court held a hearing October 12, 2011,
modified the conditions of Howard’s bond, and added an additional condition that he not consume any
alcoholic beverages. This subsequent cause was initially set for trial on the same day as his charges in cause
number 14D01-1106-CM-512. Later, upon a motion by Howard, the trial court severed the two causes.
6
We note that some of the pleadings contained in Howard’s Appellant’s Appendix do not contain the trial
court clerk’s file stamp while others do.
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his cell phone and, as a result, any evidence “obtained from the illegally seized
phone should be suppressed.” (App. 114). Thereafter, the State responded to
Howard’s motion to suppress/dismiss, and the trial court set a hearing on
Howard’s motion for October 14, 2011.
[17] Meanwhile, on October 4, 2011, Howard filed a “Motion for Dismissal of All
Charges without Hearing or Further Summation[,]” stating that he felt “it
would be a waste of the court[’]s time holding a hearing on the matter” because
“all reasons for dismissal ha[d] been met[.]” (App. 122). The trial court denied
this motion.
[18] On October 14, 2011, the trial court held a hearing on Howard’s motion to
suppress/dismiss, and Howard represented himself pro se. The record on
appeal does not contain a transcript of this hearing because Howard did not
request that this hearing be transcribed. However, the chronological case
summary (“CCS”) reveals that the trial court denied Howard’s “Request for
Dismissal[.]” (App. 6). The trial court, pursuant to a request by the State and
over Howard’s objection, continued the hearing on Howard’s motion to
suppress his phone records to October 24, 2011.
[19] A few days later, on October 19, 2011, an attorney entered an appearance on
behalf of Howard and also filed a motion to vacate the evidentiary hearing on
Howard’s motion to suppress scheduled for October 24. The trial court then
vacated the suppression hearing and set the case pre-trial hearings and for trial
on March 20, 2012.
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[20] On February 2, 2012, Howard, still represented by counsel, filed a motion to
continue the March 20, 2012 trial. The trial court granted the motion and reset
the trial for November 27, 2012. Thereafter, Howard’s counsel conducted
various depositions, and then, on June 19, 2012, filed a motion for a plea
hearing. The trial court set the guilty plea hearing for August 1, 2012.
[21] About one week before the plea hearing, on July 25, 2012, Howard’s counsel
filed a motion to withdraw as counsel. The trial court granted the motion and
vacated the guilty plea hearing. Then, pursuant to a motion to continue the
November 27, 2012 trial date filed by Howard, the trial court scheduled the trial
for March 19-22, 2013.
[22] On March 7, 2013, Howard, pro se, filed a motion for a hearing on his motion
to suppress the cell phone evidence obtained by police after they arrested him.
Thereafter, Howard moved to continue the March 2013 trial. He also filed a
pro se motion for change of judge. The trial court held a hearing on April 22,
2013.7 The trial court denied his motion for a change of judge and set the
hearing for Howard’s motion to suppress his phone records and any other
pending motions for July 26, 2013. The trial court also rescheduled the jury
trial for November 26-29, 2013.
[23] Subsequently, on May 1, 2013, Howard filed a second pro se motion for a
change of judge, which the trial court denied. He also attempted to appeal the
7
This hearing was not transcribed because Howard did not request a transcript for the hearing when he filed
his notice of appeal.
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trial court’s denial of his first motion for change of judge. This attempted
appeal was later dismissed by our Court.
[24] On July 26, 2013, the trial court held a hearing on Howard’s motion to suppress
his phone records, and he appeared pro se at this hearing. The State presented
its witnesses, and Howard presented one witness. The trial court continued the
suppression hearing to October 28, 2013 so that Howard could present another
witness. At the end of that October 2013 hearing, the trial court informed the
parties that it was taking Howard’s motion to suppress under advisement so
that it could re-read the depositions that Howard had published. The trial court
also informed Howard that any rulings on motions were preliminary and that
he would need to renew any objections to testimony at trial.
[25] Two days after the October 28 suppression hearing, Howard filed a pro se
“Notice of Alleged Prosecutorial Misconduct/Witness Tampering,” alleging
that the prosecutor had “contaminated” a witness during the October 28
suppression hearing by discussing previous testimony with a witness. (App.
164, 165). In his motion, Howard stated that he was filing a request for
investigation with the Disciplinary Commission.
[26] During November and December 2013, Howard filed various pro se pleadings,
including a Suppression of Evidence Brief, a Trial Readiness Certificate, a
Notice of Request for Investigation, a Motion for Discovery, and a Motion of
Subpoena for Courthouse Video.
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[27] On January 10, 2014, Howard filed a motion in limine, arguing that the trial
court should prohibit the introduction of any statements he may have made to
the arresting police officers because the officers did not give him a Miranda
warning. That same day, he filed a “Motion to Dismiss with Prejudice.” (App.
200). In this motion, he renewed his motion to suppress the evidence obtained
from his cell phone, and again argued that the prosecutor had discussed prior
testimony with a witness during the second suppression hearing.
[28] On January 25, 2014, Howard filed, pursuant to Trial Rule 53.2 (“the lazy
judge rule”), a “Praecipe” with the Executive Director of the Division of State
Court Administration (“the Executive Director”). (App. 202). Howard sought
to have a special judge appointed based on the trial court’s failure to rule on his
motion to suppress. Subsequently, on February 6, 2014, the Executive Director
determined that Howard’s case would be withdrawn from the trial court and
appointed a special judge.
[29] On March 6, 2014, the trial court—now with the special judge presiding—held
a hearing on all pending motions, which included, among others, Howard’s
motion to suppress, Howard’s motion for a change of prosecutor, and motions
in limine filed by both Howard and the State. At the beginning of the hearing,
the trial court advised Howard of the consequences of representing himself and
had Howard sign a waiver of his right to counsel. During the hearing, the trial
court denied Howard’s motion for a change of prosecutor and granted
Howard’s motion to suppress the cell phone evidence. The trial court took the
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motions in limine under advisement and later issued orders denying Howard’s
motion in limine and granting the State’s motion in limine.
[30] On May 8, 2014, the trial court held a jury trial at which Howard represented
himself pro se. The police officers testified to the facts above, including that
Howard was on the public sidewalk that night, and Howard did not object to
any of the officers’ testimony.
[31] Howard testified on his own behalf and, while doing so, he admitted that he
made “multiple phone calls” to Gottman and admitted that he was
“argumentative” and “rude” to her. (Tr. 243, 244). During his testimony, he
extensively discussed the details of his phone calls, including the time that he
called and the duration of each call. Howard attempted to admit into evidence
the cell phone records that he had previously successfully moved to suppress.
The State objected to the exhibit, upon which Howard had written, based on
authenticity and a lack of foundation, and the trial court sustained the State’s
objection. The State then sought to admit the cell phone records during
rebuttal, and Howard had no objection to the admission. He also admitted that
he had been “under the influence” on the night he made the phone calls to
Gottman. (Tr. 273). Howard’s main defense to his offenses was that he had
not been on the public sidewalk at any time and had instead been on his
curtilage at all relevant times. He also testified that he was already in the house
when the officers approached his house, and he testified that they had forced
their way into his house. Finally, he testified that, when he was struggling with
the officers, he was merely “putting up a political protest due to . . . having [his]
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Fourth Amendment rights violated.” (Tr. 255). The jury found Howard guilty
on all five counts as charged.
[32] On May 22, 2014, the trial court held a sentencing hearing. At the beginning of
the hearing, Howard said that he wanted to move for a mistrial based on
undisclosed juror information, and the trial court denied his motion. The trial
court proceeded to sentencing and imposed a 364-day sentence with 304 days
suspended to probation for each of his Class A misdemeanor convictions in
Counts 1 and 2 and a 180-day sentence to be served in the Daviess County
Correctional Facility with 120 days suspended and 304 days of probation for his
Class B misdemeanor convictions in Counts 3, 4, and 5. The trial court ordered
that all sentences be served concurrently and ordered Howard to serve thirty
days of his executed sentence on work release and the remaining thirty days in
home detention. Howard now appeals.8
Decision
[33] Howard makes a mish-mash of arguments under the general guise of one issue
alleging that he was deprived of his due process rights. His main argument is
that the trial court erred because it did not rule on his motion to
8
Howard filed both a notice of appeal and a motion to correct error on the same day. The trial court did not
rule on his motion to correct error. While Howard’s notice of appeal would be considered premature, we
have previously explained that an appellant’s right to appellate review is not defeated because such a
premature filing is “simply a defect in form that is capable of being cured” and does not adversely affect the
substantial rights of either party. See Ivy v. State, 847 N.E.2d 963, 955-56 (Ind. Ct. App. 2006); Reed v. State,
796 N.E.2d 771, 773 n.2 (Ind. Ct. App. 2003) (addressing an appellant’s appeal even though he filed a
premature notice of appeal and then two motions to correct error).
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suppress/dismiss in regard to his argument that there was a warrantless entry
and arrest.9 As an offshoot of this argument, he contends that any evidence of
resisting law enforcement and public intoxication should have been suppressed.
He also makes peripheral allegations of error, contending that the police did not
advise him of his Miranda rights at his house when they arrested him and that
his right to a speedy trial, pursuant to Criminal Rule 4, was violated.
[34] The State contends that Howard has waived these arguments because he did
not raise a relevant objection at trial, he makes no cogent argument now on
appeal, and/or the arguments are otherwise meritless. We agree.
[35] First, turning to Howard’s main argument regarding his allegation that the trial
court erred because it failed to rule on part of his motion to suppress/dismiss,
we note that the record before us indicates that the trial court did indeed rule on
this portion of Howard’s motion. When Howard filed his motion to
suppress/dismiss on August 4, 2011, he argued that the trial court should
dismiss the charges against him because the police had “violated his fourth
amendment right of search and seizure” when they entered his house without
permission or a warrant and arrested him. (App. 112). Additionally, he
contended that the trial court should suppress any evidence obtained from his
cell phone because the police had not obtained a warrant for his cell phone.
The trial court held a hearing on Howard’s motion to suppress/dismiss on
9
Howard makes no challenge to the trial court’s ruling regarding his motion to suppress any evidence
obtained from his cell phone.
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October 14, 2011. As mentioned above, Howard did not request that this
hearing be transcribed; nevertheless, the CCS indicates that the trial court
denied the portion of Howard’s motion to suppress/dismiss that he now
challenges. Specifically, the CCS entry for October 14, 2011 provides:
State appears by Joseph Koenig, defendant appears in person and
without counsel; hearing held on Defendant’s Motion for
Suppression of Evidence/Dismissal of All Charges; Court orders
Defendant’s Request for Dismissal be denied; in regard to request for
suppression of phone[,] State of Indiana requests continuance;
defendant objects; Court grants continuance and reassigns
hearing on Motion to Suppress seizure of cell phone owned by
Charles Douglas Howard, October 24, 2011, at 9:00 a.m.
(App. 6) (emphasis added). Thus, the trial court specifically denied the part of
Howard’s motion that he alleges was not addressed. Accordingly, Howard’s
allegation that the trial court erred by failing to rule on part of his motion to
suppress/dismiss is without merit.
[36] Moreover, as this appeal is following a trial, Howard’s argument challenging a
pretrial ruling on a motion to suppress/dismiss is further without merit because
he was required—and failed—to make a timely, relevant objection at trial to
any evidence that he now contends should have been suppressed in order to
preserve any appellate challenge to the admission of evidence. See Brown v.
State, 929 N.E.2d 204, 207 (Ind. 2010) (“A contemporaneous objection at the
time the evidence is introduced at trial is required to preserve the issue for
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appeal, whether or not the appellant has filed a pretrial motion to suppress.”),
reh’g denied.10
[37] In regard to Howard’s Miranda allegation of error, he contends that “[a]ny
evidence derived eafter [sic] his arrest should be suppressed” because the
officers did not give him a Miranda warning when they arrested him.
(Howard’s Br. 10-11). Again, because this appeal follows a trial, Howard’s
alleged error should be in the context of an admission of evidence. The State
asserts that it is “perplexed at Howard’s [Miranda] argument as the State never
admitted or sought to admit any statements Howard made at the time of his
arrest, or even afterward.” (State’s Br. 14-15). The State further contends that
“Howard’s incoherent arguments are a red herring and should be disregarded as
meritless.” (State’s Br. 15). Because the record on appeal confirms the State’s
assertion that it did not seek to admit statements made by Howard after his
arrest, we too are perplexed by Howard’s argument and accordingly conclude
that his argument is without merit.11
[38] Lastly, turning to Howard’s Criminal Rule 4 argument, we note that he has
quoted Criminal Rule 4(C), but his citation for the quotation indicates that he is
10
In his reply brief, Howard argues that we should review his argument under the fundamental error
doctrine. He did not, however, raise this argument in his initial appellate brief. Therefore, he has waived
review of this argument. See French v. State, 778 N.E.2d 816, 825-26 (Ind. 2002) (holding that an appellant’s
argument, raised for the first time in his reply brief, was waived “by not raising it in his principle brief”).
11
This argument would also be waived due to his lack of cogent argument. See Ind. App. R. 46(A)(8)(a)
(providing that an appellant’s argument must be supported by cogent reasoning); Shane v. State, 716 N.E.2d
391, 398 n. 3 (Ind. 1999) (holding that the defendant waived argument on appeal by failing to develop a
cogent argument).
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quoting Criminal Rule 4(D). Because he argues that he should have been tried
within one year, we presume that his argument is meant to be under section
4(C). Nevertheless, his argument under Criminal Rule 4 is also waived. As
Howard concedes in his Reply Brief, he never objected to his trial date or
moved to dismiss his case under Criminal Rule 4. Because Howard did not file
a motion for discharge under Criminal Rule 4(C) or object to the trial court’s
setting of any of his trial dates, he has waived his claim that Criminal Rule 4(C)
was violated. See, e.g., Brown v. State, 725 N.E.2d 823, 825 (Ind. 2000) (holding
that defendant waived his Criminal Rule 4(C) claim by neither objecting to the
setting of the trial date nor moving the trial court for discharge).12
[39] Affirmed.
[40] Barnes, J., concurs in result.
May, J., concurs.
12
Additionally, this Criminal Rule 4 argument would be waived due to a lack of cogent argument. “When a
defendant makes a motion for discharge pursuant to Criminal Rule 4, the burden is on the defendant to show
that he has not been timely brought to trial and that the defendant is not responsible for the delay.” Feuston v.
State, 953 N.E.2d 545, 548 (Ind. Ct. App. 2011). Howard, however, failed to do so. Because Howard failed
to provide cogent argument to support his claim of error, he has waived appellate review of such claim. See
App. R. 48(A)(8)(a); see also Sipe v. State, 690 N.E.2d 779, 781 (Ind. Ct. App. 1998) (holding that defendant
who failed to present cogent argument waived his speedy trial argument on appeal). Moreover, we reject
Howard’s argument—made for the first time in his Reply Brief—that we should review his Criminal Rule 4
argument based on fundamental error. See French, 778 N.E.2d at 825-26.
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