Yusuf Hotep-El v. State of Indiana

FILED
Nov 13 2018, 9:13 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
George P. Sherman
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Yusuf Hotep-El, November 13, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-477
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia A. Gooden,
Appellee-Plaintiff. Judge
The Honorable Richard E.
Hagenmaier, Commissioner
Trial Court Cause No.
49G21-1608-F5-32766
Friedlander, Senior Judge.
[1] Yusuf Hotep-El appeals the trial court’s termination of his self-representation.
We affirm.
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 1 of 34
[2] In August 2016, Hotep-El was charged with possession of cocaine, a Level 5
1 2
felony; two counts of possession of a narcotic drug, both Level 5 felonies;
3
possession of a controlled substance, a Level 6 felony; driving while suspended,
4 5
a Class A misdemeanor; possession of marijuana, a Class B misdemeanor; and
6
later he was also alleged to be an habitual offender.
[3] At his initial hearing on these charges, Hotep-El was appointed counsel to
represent him. Subsequently, a motions hearing was held on February 15,
2017, at which Hotep-El, through counsel, requested permission to represent
himself. Following a proper inquiry by the court, his request was granted with
appointed counsel remaining as standby counsel.
[4] At a hearing in April, the court terminated Hotep-El’s self-representation. The
court stated that his abundant inappropriate filings as well as his statements and
behavior in court caused it concern regarding his mental fitness. The court then
reappointed standby counsel for the purpose of determining whether a
competency evaluation was warranted.
1
Ind. Code § 35-48-4-6 (2014).
2
Ind. Code § 35-48-4-6.
3
Ind. Code § 35-48-4-7 (2014).
4
Ind. Code § 9-24-19-2 (2016).
5
Ind. Code § 35-48-4-11 (2014).
6
Ind. Code § 35-50-2-8 (2015).
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 2 of 34
[5] In May, defense counsel filed a combined notice of insanity defense and motion
for psychiatric examination to determine Hotep-El’s competence to stand trial,
which the trial court granted. Dr. Olive and Dr. Parker were appointed to
examine Hotep-El. Dr. Olive concluded he was competent. Dr. Parker,
although unable to conduct a complete evaluation, formed an opinion that
Hotep-El was capable of understanding the nature of the proceedings against
him and assisting his counsel. At the pretrial conference and competency
hearing in July 2017, the trial court found Hotep-El competent to stand trial
based on the doctors’ reports. Appointed counsel continued as counsel for
Hotep-El.
[6] At the final pretrial conference in January 2018, the State asked the court to
address the status of Hotep-El’s representation. The court and defense counsel
then attempted to ask Hotep-El if he wanted the public defender to represent
him or if he wanted to represent himself, but he refused to answer the question.
[7] On the first morning of trial, defense counsel informed the court that Hotep-El
was requesting to proceed pro se. The court denied the request and proceeded
with the trial. The State dismissed the charge of driving while suspended, and
the jury found Hotep-El guilty on all remaining charges and determined that he
is an habitual offender. The court sentenced Hotep-El to an aggregate sentence
of ten years executed. He now appeals.
[8] Hotep-El contends the trial court improperly terminated his self-representation.
The Sixth Amendment guarantee of a defendant’s right to counsel encompasses
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 3 of 34
the right of a defendant to represent himself. Hopper v. State, 957 N.E.2d 613(Ind. 2011) (citing Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L.
Ed. 2d 562 (1975)). Yet, this right is not without limits. The United States
Supreme Court recognized that “[t]he right of self-representation is not a license
to abuse the dignity of the courtroom. Neither is it a license not to comply with
relevant rules of procedural and substantive law.” Faretta, 422 U.S. at 834 n.46.
[9] While the trial court terminated Hotep-El’s right to proceed pro so at a hearing
in April 2017, a timeline of events and background information prior to and
following that hearing is helpful to our discussion. At Hotep-El’s initial
hearing, counsel was appointed to represent him. Despite that, he sent
numerous pro se documents to the court throughout January and February
2017. Some of these documents were entitled “Averment of Jurisdiction – Quo
Warranto,” “Affidavit of Fact – Writ of Discovery,” and “Affidavit of Error.”
Appellant’s App. Vol. II, pp. 71-133. Many of these documents contained the
following, or a similar, heading:
THE MOORISH NATIONAL REPUBLIC FEDERAL
GOVERNMENT NORTHWEST AFRICA
THE MOORISH DIVINE AND NATIONAL MOVEMENT
OF THE WORLD.
Northwest Amexem/Northwest Africa/North America.
‘The North Gate’.
Societas Republicae Ea Al Maurikanos.
Aboriginal and Indigenous Natural Peoples of the Land.
The true and de jure Al Moroccans/Americans
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 4 of 34
Id. at 71. In addition, several showed copies being sent to people or
organizations such as the United Nations, the International Criminal Court, the
International Court of Justice, Interpol, the President of the United States, the
U.S. Department of State, and the U.S. Justice Department. See id. at 72. On
February 7, 2017, the court issued an order denying Hotep-El’s pro se requests
because he was represented by counsel and explaining that Trial Rule 11
requires pleadings and motions to be signed by an attorney when a party has
representation.
[10] At the motions hearing in February 2017, defense counsel informed the court
that Hotep-El did not want counsel to represent him and that he wanted to
represent himself. The court asked Hotep-El if he understood what a jury trial
is and that he was charged with felony charges. Hotep-El answered
affirmatively. The court further inquired as to Hotep-El’s education,
understanding of trial procedure, and mental health history. Hotep-El informed
the court that he has a GED and culinary arts training, that he has experienced
several jury trials, and that he had never been treated for any mental illness.
The court instructed Hotep-El that his opponent would be a trained lawyer, that
he would be held to the same standard as an attorney, and that he would be
expected to know the rules of evidence, investigate, engage in plea negotiations,
conduct voir dire, make opening and closing arguments, subpoena witnesses,
and preserve issues for appeal. See Tr. Vol. 2, pp. 5-10. After receiving Hotep-
El’s acknowledgment that he understood what would be required of him, the
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 5 of 34
court granted his request to represent himself and ordered appointed counsel to
remain as standby counsel.
[11] Once Hotep-El’s request to represent himself was granted, the court asked for
his contact information. He stated his mailing address and his email address.
However, when the deputy prosecutor asked him to write his email address on
paper, Hotep-El replied that he did not “consent to filling out any
documentation, for the record.” Id. at 15. Hotep-El then told the court he
wanted to read his documentation into the record and stated, “Department of
jurisdiction, Code 1, sir, for the record, to be read into the record. Notice to
Agent is notice to principle, notice to principle is notice to agent.” Id. at 16. He
continued, “According to the Canon, Rule of 2.6, I’m showing a right to be
heard.” Id. The court informed Hotep-El:
There are certain formalities, there’s certain evidentiary rules of
things that we have to follow as attorneys in court. You’re held
to that same standard. If you become obstructive, particularly in
front of the jury, then you can forfeit your right to represent
yourself. You can even forfeit your right to be present during
trial. Do you understand that? I’ll let you represent yourself,
but you’re going to follow procedures and rules.
*****
Like I say, we are certainly happy to let you represent yourself,
but if you become such a distraction because of your
stubbornness, I’m just giving you a warning on that, that you
won’t be representing yourself, okay?
Id. at 17, 22. Hotep-El replied that he understood and then asked, “I have a
question. I’m on this electronic house monitor on the (inaudible) arrest and
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 6 of 34
coercion and I do not consent to any confinement, detainment, anything that
lines up with that. So could you order that this be taken off my leg?” Id. at 22.
The court denied his motion.
[12] In March 2017, there was again a flurry of filings by Hotep-El with documents
entitled “Affidavit of Fact,” “Writ of Mandamus,” “Legal Notice of Removal,”
and “Averment of Jurisdiction – Quo Warranto.” See Appellant’s App. Vol. II,
pp. 154, 168, 171, 173, 177, 189, 194, 199. One such Writ of Mandamus states,
in part:
COMES NOW, Yusuf Hotep-El, Natural Person, In Propria
Persona Sui Juris (not to be confused with, nor substituted by,
Pro Se by unauthorized hand of another). I am Aboriginal
Indigenous Moorish-American; possessing Free-hold by
Inheritance and Primogeniture Status; standing squarely
Affirmed, aligned and bound to the Zodiac Constitution, with all
due respect and honors given to the Constitution for the United
States Republic, North America. Being a descendant of
Moroccans and born in America, with the blood of the Ancient
Moabites from the Land of Moab, who received permission from
the Pharaohs of Egypt to settle and inhabit North-West
Africa/North Gate. The Moors are the founders and are the true
possessors of the present Moroccan Empire; with our Canaanite,
Hittite and Amorite brethren, who sojourned from the land of
Canaan, seeking new homes. Our dominion and inhabitation
extended from Northeast and Southwest Africa, across the Great
Atlantis, even unto the present North South and Central America
and the Adjoining Islands-bound squarely affirmed to THE
TREATY OF PEACE AND FRIENDSHIP OF SEVENTEEN
HUNDRED AND EIGHTY-SEVEN (1787) A.D. superseded by
THE TREATY OF PEACE AND FRIENDSHIP OF
EIGHTTEEN [sic] HUNDRED AND THIRTY-SIX (1836)
A.D. between Morocco and the United States
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 7 of 34
(http://www.yale.edu/lawweb/avalon/diplomacy/barbary/b
arl866t.htm or at Bevines Law Book of Treatises) the same as
displayed under Treaty Law, Obligation, Authority as expressed
in Article VI of the Constitution for the United States of America
(Republic).
Id. at 173. Hotep-El also accused the trial court judge of violating her oath of
office to uphold the U.S. Constitution, claimed she did not have jurisdiction to
hear the case, and accused her of knowingly committing fraud. See id. at 174.
On March 24, 2017, the court issued its “General Order Regarding
Miscellaneous Filings” in which it noted that Hotep-El’s filings did not appear
to pertain to his pending criminal action, struck all documents as improper, and
admonished Hotep-El that future filings not complying with the trial rules or
pertaining to the pending cause would also be struck.
[13] In April, the court held a hearing on a notice of a pretrial release violation
which alleged that Hotep-El had failed for five days to report for home
detention and to be hooked back up to GPS monitoring for this case after he
was arrested and released on new charges of driving while suspended and
refusing to identify himself. At the hearing, this colloquy ensued:
THE DEFENDANT: I’m not in need of the Public Defender’s
Agency.
THE COURT: All right. I know I—I think you are representing
yourself in your current case. Do you understand that?
THE DEFENDANT: Yeah. For the record, I In Propria
Persona.
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 8 of 34
*****
THE COURT: Mr. El, how do you plan on representing
yourself [at the contested hearing for the pretrial release
violation/probation violation]?
THE DEFENDANT: Through starting, going on
documentation, studying court rules, studying evidentiary rules,
like I’ve been doing. And for the record, My Honor, filed on
April 3rd, 2017, a violation of jurisdiction, (inaudible) for the
record to be read into the record, notice to agent. There’s no —
THE COURT: All right. I know where you’re going with this.
You have a lot of what I would consider unorthodox laws and
views that you want to bring up that I don’t recognize. Do you
understand what a jury trial is?
THE DEFENDANT: For the record, you—I definitely
understand, but what is so unorthodox about my (inaudible)?
THE COURT: What is a jury trial?
THE DEFENDANT: What I’m reading, what makes what I’m
reading unorthodox?
THE COURT: Tell me what a jury trial is.
THE DEFENDANT: I’m not here to exercise any law or
practice any law, I mean we all are here. I mean [sic] tell you
what a jury trial, I’m not trying to be disrespectful, My Honor,
but I—
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 9 of 34
THE COURT: Well, I’m asking you on the record what is a jury
trial?
THE DEFENDANT: I mean what are you asking me this for,
My Honor? I mean I’m [sic] just now told you I understand
what a jury trial is.
THE COURT: Because you’re acting somewhat disorderly
today and I’m a little concerned about your ability to represent
yourself under the laws that you’re going to have to represent
yourself on. Okay? So I’m just asking you some simple
question[s], what’s a jury trial?
THE DEFENDANT: Well, I do not choose to exercise any, you
know, on the record for the record, I’m not trying to exercise any
[sic] what a jury trial is, what any words mean.
THE COURT: All right. So you’re just—you’re not going to
answer that question?
THE DEFENDANT: No, I don’t refuse to answer anything, My
Honor.
THE COURT: Well—
THE DEFENDANT: I’m just not understanding the question
that you’re asking.
THE COURT: Well, I’m going to give you one more chance.
It’s not a hard question, tell me what a jury trial is.
THE DEFENDANT: A simple—I mean something that you
have a trial with juries on.
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 10 of 34
THE COURT: Okay. What do they do?
THE DEFENDANT: You have 12 peers, or six peers on some
cases.
THE COURT: Okay.
THE DEFENDANT: To decide, make decisions on crimes,
whether you’re guilty or not guilty.
THE COURT: Okay. All right.
THE DEFENDANT: And proven beyond a reasonable doubt.
THE COURT: How do you pick a jury? How do you go to pick
a jury?
THE DEFENDANT: Well, (inaudible) I explain exactly what a
jury was, I get to exercise my right. I mean I don’t see how this
pertains—
THE COURT: Well, I mean I’m going to go through this. I
want to see if you’re competent to represent yourself at this point.
THE DEFENDANT: I am, My Honor.
*****
THE COURT: Based on what I’ve heard, I’m a little concerned
right now of a lot of different things regarding your ability to
represent yourself in this case; also based on some of the things
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 11 of 34
I’ve heard about your activities at the Track Group the other day,
and I know it’s just allegations at this point.
So, I am going to appoint the Public Defender office to represent
you in this probation violation. I am going to appoint the Public
Defender’s Office to represent you in your current case, the Level
5 felony case, and I’m also going to order an examination by a
couple of psychiatrists just to—
THE DEFENDANT: Well, I object.
THE COURT: —just to [sic] as to your competency at this
point, sir.
THE DEFENDANT: Well, I object, My Honor. For the
record, I—
THE COURT: I know you do.
THE DEFENDANT: I do not consent to a psychiatrist.
THE COURT: Okay.
THE DEFENDANT: And for the record, I—
THE COURT: Actually, what I will do—actually, I’ll appoint
the Public Defender’s Office to represent you and then I’ll wait
for their determination—
THE DEFENDANT: Well—
THE COURT: —but I honestly think—
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 12 of 34
Well, let me put it this way, at this point I am going to order him
examined as to his competency to stand trial at this stage.
THE DEFENDANT: Well, for the record, My Honor, so we
definitely—I mean I do not need the services of the Public
Defender Agency.
THE COURT: Well, I don’t know. If the Public Defender
meets with you again, if the psychiatrists meet you and say
you’re fully competent, you understand what—
THE DEFENDANT: Well, I see—I see, for the record, you all
being—you all being restricting my documents from the record.
THE COURT: Sir, you’re interrupting me.
THE DEFENDANT: I’m not trying to interrupt you.
THE COURT: Okay, you’re interrupting me.
THE DEFENDANT: Okay.
THE COURT: If you meet with the Public Defender and the
psychiatrists give you a clean bill of health, then I don’t see why
you couldn’t represent yourself, but right now, you’re also
demonstrating an inability to follow the Court’s rules because
Judge Gooden, some weeks ago, issued orders on what motions
you would—can file and what you can’t. I don’t have the order
in front of me, but I know that there have been a lot of motions,
her orders striking everything you’re filing because you’re not
complying with the Rules of Procedure.
THE DEFENDANT: Okay. Now—
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 13 of 34
THE COURT: So that also tells me that you’re not doing a very
good job representing yourself right now.
*****
THE DEFENDANT: I mean I—for the record, I do not consent
to any further jail time, prison time.
THE COURT: I understand, but again, your behavior has
warranted this. You have not followed the rules regarding the
pleadings that you filed. You’re talking something about
Moorish law that doesn’t even apply to your case.
THE DEFENDANT: Well, for the record, My Honor, I would
like to explain this to you. Well, I know I know [sic] that the
delegation of authority the Prosecution is supposed to provide,
due to the fact that the Prosecution has brought forth the
allegations or whatever criminal charges that I am facing. And
the delegation of order of authority would clearly tell me what
the position is of the commissioners and the magistrates, and
administration of these—of this venue.
Now, the oath of office is just the oath of office to the
Constitution. Now these things—these is all the things, all the
(inaudible) unorthodox. If one that took the oath to the
Constitution in there, and me asking for the oath of office to the
Constitution, that’s not unorthodox to me.
THE COURT: Okay.
THE DEFENDANT: And my documentation speaks clear, it’s
not veering off or anything—
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 14 of 34
THE COURT: —Well, here’s another—Mr. Hotep-El, here’s
another problem we have is that 49G21-1309-FD-58514, that is
the case you’re here for on a probation violation. You have
continually, allegedly continually tested positive for use of drugs.
And a person that is allegedly using drugs, I would think would
have a harder time representing himself. I’m not saying that
you’ve been found guilty of anything, but that’s just another fact
that I have to consider as to your ability to do this.
*****
THE COURT: —All right. With all that’s going on, and again,
I’m going to repeat this, you continually file irrelevant pleadings
that have been stricken, the allegations of drug use on your
behalf. You’re not showing up—
THE DEFENDANT: Well, I would like to object for the record.
It sounds like you’re practicing law from the bench.
THE COURT: —not showing up—sir—
THE DEFENDANT: —it sounds like you’re practicing law
from the bench—
THE COURT: —not showing up for your Community
Corrections or pretrial release afterward. All this tells me that
there is an issue as to your competency at this point. One more
time, I am going to appoint a Public Defender’s Office to
represent you, both of these case[s], and I am going to order an
independent—two psychiatrists to review you for competency at
this point.
Tr. Vol. 2, pp. 28, 29-31, 32-34, 35-36, 38.
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 15 of 34
[14] The court’s order from the hearing states, in part:
The Court further now questions the Defendant’s ability to
represent himself. He has repeatedly violated the Court[’]s Order
in [this case] by filing inappropriate and improper pleadings
based on “Moorish Law[.”] He has exhibited irrational behavior
in court and there are now allegations of menacing behavior that
have been brought to the attention of the court during the
hearing. The court takes note of the Defendant[’]s criminal
history and drug use.
As Such the Court now appoints the Office of the Public
Defender to represent the Defendant in these cases. Since the
Defendant is now represented by Counsel, the court leaves the
decision as to competency evaluation to appointed counsel and
does not now order the same.
Appellant’s App. Vol. II, pp. 226-27.
[15] The trial court should not grant a defendant’s request for self-representation
unless it is satisfied that the defendant has the mental capacity to understand the
proceedings. Ellerman v. State, 786 N.E.2d 788 (Ind. Ct. App. 2003). As the
transcript and the court’s order demonstrate, the court reappointed the public
defender, who had been acting as standby counsel, for the purpose of
determining whether a competency evaluation was warranted and specifically
explained on the record its concern that Hotep-El may not be competent to
stand trial. Although the trial court had previously questioned Hotep-El
concerning his waiver of counsel at the hearing in February, his conduct and
filings over the intervening months, as well as his colloquy with the court at the
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 16 of 34
April hearing, so concerned the court that it believed his competency to stand
trial may need to be examined by experts.
[16] Moreover, “[a] trial judge may terminate self-representation by a defendant
who deliberately engages in serious or obstructionist misconduct.” German v.
State, 268 Ind. 67, 73, 373 N.E.2d 880, 883 (1978) (citing Illinois v. Allen, 397
U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970)). Indeed, trial judges
“‘confronted with disruptive, contumacious, stubbornly defiant defendants
must be given sufficient discretion to meet the circumstances of each case.’”
Gilmore v. State, 953 N.E.2d 583, 592 (Ind. Ct. App. 2011) (quoting Allen, 397
U.S. at 343).
[17] As the record here demonstrates, Hotep-El had submitted filings in violation of
court orders, disrupted and impeded court proceedings with statements
concerning irrelevant, nonsensical subjects, and had exhibited
evasive/argumentative behavior such that the court had difficulty
distinguishing between his genuine inability to understand the proceedings (i.e.,
competency to stand trial) and his intent to impede them (i.e., deliberate
obstructionist behavior). Thus, the trial court did not abuse its discretion in
determining reasonable grounds existed for seeking a determination of Hotep-
El’s competency to understand the proceedings and to stand trial. See Benefiel v.
State, 716 N.E.2d 906 (Ind. 1999) (whether reasonable grounds exist to order
evaluation of competency is within sound discretion of court). Further, given
the circumstances of this case and Hotep-El’s obstreperous behavior, the trial
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 17 of 34
court did not err in terminating, or at least suspending, his self-representation
while it obtained such a determination.
[18] Following the termination in April of Hotep-El’s self-representation for the
purpose of determining his competency to stand trial, his obstructionist
behavior continued. In addition, he never asserted a clear and unequivocal
request to again proceed pro se. Once the trial court reappointed counsel,
counsel moved for a psychiatric evaluation. The court appointed Doctors Olive
and Parker to evaluate Hotep-El. Following his examination of Hotep-El, Dr.
Olive concluded he was competent and possessed sufficient ability to consult
with his attorney and understand the proceedings against him with a reasonable
degree of rational understanding. Dr. Parker, on the other hand, was unable to
complete a formal evaluation because Hotep-El abruptly left the interview after
only a few minutes. Nevertheless, based on the brief interview and the
available records, it was Dr. Parker’s opinion that Hotep-El was capable of
understanding the nature and objectives of the proceedings against him and
assisting his counsel, though he might not be willing to cooperate with either.
Dr. Parker noted that Hotep-El is a follower of a set of fringe political beliefs
known as the sovereign citizen movement, which he described as using odd
interpretations of both federal and state laws and constitutions to conclude that
they do not apply to these citizens. He further characterized the followers of
this movement as typically serving as their own counsel, filing unconventional
motions in an attempt to frustrate the court proceedings, and generally
competent to stand trial as they typically do not have a serious mental illness.
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 18 of 34
[19] In May, Hotep-El filed correspondence with the court indicating he did not
consent to the public defender taking his case and complaining that he had not
heard from defense counsel and that counsel had a conflict of interest. Further
correspondence accused defense counsel of violating the rules of professional
conduct and declined his services while also stating that Hotep-El did not waive
any of his rights. See Appellant’s App. Vol. II, pp. 228, 240.
[20] At the pretrial conference/competency hearing in July, the trial court found
that Hotep-El was competent to stand trial based upon the doctors’ reports. At
the end of the hearing, Hotep-El stated:
THE DEFENDANT: Well, for the record I am not (inaudible)
man. The court continues to have these gentleman [sic] on my—
on this—this suit, when I—I clearly have made record that it’s a
conflict of interest, due to this fact it’s prejudice of my nationality
and things, and things like that, but the Court continues to force
this attorney on me.
For the record, on the record, and let the record reflect I’m in
proper persona (inaudible). I’m here on the threat, duress, and
coercion.
Furthermore, I do not consent to any other jail time, prison time,
to finally detain me, and I demand that this Court dismiss all the
suits, and for the record, on the record, and let the record reflect.
*****
No, matter, I filed a removal with the Federal Court, and I’ve
also sent to the tribunal the consent sheet. I want to know if you
have signed the documentation to transfer this to the Federal
Court, for lack of jurisdiction; one other issue which the tribunal
has got a copy of the documentation?
*****
For the record I have not consent [sic] to proceed.
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 19 of 34
THE COURT: I understand.
THE DEFENDANT: The Court has not prove—proven
jurisdiction, judicial must be proven—
THE COURT: I understand.
THE DEFENDANT: —or the town. So it’s versus United
States.
Tr. Vol. 2, pp. 47-49.
[21] Throughout July, August, September, October, November, and December of
2017, and January and February of 2018, Hotep-El continued to file pro se
documents with the court. These filings are filled with illogical and nonsensical
statements and alleged theories of law. See Appellant’s App. Vol. III, pp. 17-22,
28-30, 33, 34, 37-39, 41, 93, 96-97, 100-102, 104-106, 113-128, 135-40, 147-51,
183-221, 238-39; Appellant’s App. Vol. IV, pp. 2-8. In response, the court
issued orders stating he was represented by counsel and citing Trial Rule 11.
See Appellant’s App. Vol. III, pp. 26, 42, 45, 94, 109, 131, 143, 222; Appellant’s
App. Vol. IV, p. 9.
[22] In addition, in October Hotep-El filed with the court an “Affidavit to Dismiss
Public Defender” in which he requested dismissal of the public defender due to
a conflict of interest and deterioration of their relationship. Yet, he also stated,
“the Petitioner is exercising rights to self representation and do [sic] not waive
his rights to a [sic] attorney.” Appellant’s App. Vol. III, pp. 104-06. He filed
similar documents with the court in November and again in January 2018. See
id. at 113-14, 207-08, 238-39.
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 20 of 34
[23] At the final pretrial conference in January 2018, the State noted Hotep-El’s
previous requests to represent himself and the results of his competency
evaluations and inquired as to the status of the situation. The court and the
parties responded:
THE COURT: Well, I mean, I did, we had a hearing on this,
and you know, it was my ruling at the time based on—and I
can’t go back and recreate the wheel on all my thought processes,
but I did find that with what was going on that he did—was not
legally competent to represent himself. I denied his right to go
pro se in this case.
Is that still what he wants to do?
[DEFENSE COUNSEL]: Mr. Hotep-El, what do you want to
do? Do you want me to represent you, or do you want to
represent yourself, or what?
THE DEFENDANT: For the record, I’m Yusuf Hotep-El, In
Propria Persona (inaudible) to the jury, here by special
appearance (inaudible). I continue to exercise my rights and
reserve them, and I will respectfully demand that this Court
continue to reserve all my rights.
And for the record, I’ve been—I mean, I’ve been in propria
persona, (inaudible). Since no matter when the Court addressed
or said that I was incompetent, I haven’t stopped filing my
documents. I have continued to file in proper personas to the
jurors. I haven’t waived any of my rights.
For the record, with all due respect the Court has no right—no
right or no authority to weigh any of my rights. Today I’m here
to address, you know, the—the tax matter, and—
THE COURT: The tax matters?
THE DEFENDANT: Well, I sent—I sent it via certified mail,
certified numbers 7013171000019184890. The tax 156. For the
record, on the record you were provided with executor and
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 21 of 34
appointed as—as a co-trustee (inaudible). And like I said, I have
documents to tender, for the record, on the record, and let the
record reflect.
THE COURT: All right. I’m not sure what to make of all that,
but—
[DEFENSE COUNSEL]: Well, just answer the man’s question,
do you want to represent yourself, or do you want me to
represent you?
[THE DEFENDANT]: I am in Propria persona.
[STATE]: Okay. So I think the record is clear, as clear as it’s
going to get.
THE COURT: No. He hasn’t answered my question.
THE DEFENDANT: Yeah. I do not consent to proceeding, but
I’m—I am in proper persona, two jurors. I am going to
representing—
THE COURT: What does that—
THE DEFENDANT: I am in my proper self.
THE COURT: —mean, you’re in propria persona?
THE DEFENDANT: I’m in my proper self.
THE COURT: Okay. You’re in your proper self?
THE DEFENDANT: Yes, sir.
THE COURT: But do you want [defense counsel] to be your
attorney at trial?
THE DEFENDANT: Well, for the record, on the record, like I
said, I have to continue to reserve my rights. He’s—he was
appointed by the Court.
THE COURT: Right.
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 22 of 34
THE DEFENDANT: And it’s not disrespect to him, I mean,
he’s always represented the corporation, he can never represent.
He also (inaudible) up here. Because once again I’m in propria
persona.
THE COURT: So whether he sits there or not you think that
you’re in proper persona?
THE DEFENDANT: It’s a fact.
THE COURT: Okay.
[DEFENSE COUNSEL]: The record has to be clear.
THE DEFENDANT: I have answered the question. I’m not the
right representative. I’m the attorney of facts, so therefore I’m in
propria persona.
Tr. Vol. 2, pp. 59-61.
[24] And then:
THE COURT: I am not going to allow this man to represent
himself, when he’s sitting here telling me he wants to address tax
issues. I don’t know that he understands even what he’s here for
today. I know he’s legally competent. I don’t know whether
this—if this is an act, or what’s going on, but he is currently
not component [sic] to be an attorney for himself.
[STATE]: Okay.
THE COURT: I think I made that ruling—
THE DEFENDANT: Well, I’d like to object, are you a doctor,
My Honor.
THE COURT: You can object all you want at that this point
Mr. [Hotep-El]. I have made that ruling in this case, and that’s
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 23 of 34
based on a lot of different factors. The violations of [Judge
Gooden’s] file, the continuing stream of I guess sovereign
citizen type of filings. The fact that when I address questions
to you about your case, all I hear are issues about taxes, and
things at in persona, whatever.
But, [defense counsel], you will be his attorney for trial.
*****
But I know from what I’ve seen of this man, my experience is
that I don’t know that we could ever get through a trial with
all the documents he wants to put in, the tax issues he wants to
raise.
As a matter [sic] fact, I actually feel like if he represented himself
he would not be around at trial very long, because he would have
to be removed because of all the stuff.
[DEFENSE COUNSEL]: I think this would be an [appropriate]
time for the Court to inform Mr. Hotep-El of what would be
expected of his demeanor at trial. If I’m going to represent him,
then that means he cannot represent himself, and he can’t be
making—
THE COURT: Well—
[DEFENSE COUNSEL]: —objections, and—
THE COURT: No, he cannot and he cannot—
[DEFENSE COUNSEL]: Because—
THE COURT: —do anything except through his attorney. If
you’ve got motions they have to be—
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 24 of 34
THE DEFENDANT: I don’t have an attorney.
THE COURT: —through your attorney. If you—
[STATE]: You do now.
THE COURT: —at some point if you become disruptive to the
proceedings, Mr. [Hotep-El], you will be—the Court can do a lot
of things. I could bind and gag you, I don’t prefer to do that, but
at some point you risk not being at your jury trial, I may have to
remove you.
THE DEFENDANT: Well, I object, for the record. I am not
the corporation, I am Yusuf Hotep-El, in propria persona. I
have—
THE COURT: Mr. [Hotep-El], we’ve gone through that. If you
do not behave at trial you were [sic] forfeit your right to be at
trial; do you understand that, sir?
THE DEFENDANT: No. I not—I not [sic] have waived of my
rights.
Id. at 62-65 (emphasis added). As the hearing was concluding, Hotep-El
continued:
THE DEFENDANT: Well, for the record mine—I still have my
documents to file. I have my documents to tender.
THE COURT: You can give those to your attorney. If he thinks
that they’re relevant to any issues in this case he—
THE DEFENDANT: I don’t have an attorney—
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 25 of 34
THE COURT: —will file them.
THE DEFENDANT: —my Honor.
THE COURT: He’s sitting right—
THE DEFENDANT: He’s fired—
THE COURT: —right next to you.
THE DEFENDANT: —for the record. And let the record
reflect.
THE COURT: You fired him?
THE DEFENDANT: Yes. He’s fired.
THE COURT: All right. We’ll see you February 1st, Mr.
[Hotep-El].
*****
THE COURT: We went off the record. I just want to make it
clear for the record that Mr. [Hotep-El] became very unruly and
disruptive as he was leaving. He indicated that his life was in
danger, and that the officer had threatened him, and he’s back
there screaming now.
So, again, I’m making that for the record, because it’s been my
continual belief that this man cannot represent himself, and I
think he continues to give us evidence every time he comes to
court. Okay.
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 26 of 34
Id. at 68-69 (emphasis added).
[25] Finally, on February 1 the morning of trial, defense counsel informed the court
that Hotep-El was requesting to represent himself. The court responded:
THE COURT: And I understand that. But I think I’ve made
quite a significant record of this over the last few months. I just
did not feel that he’s competent to represent himself as an
attorney. And I’m not going to go through all the different
reasons again. So I’m going to deny that motion.
Mr. Hotep-El, I will tell you today that this is going to be a jury
trial. We’re going to conduct this in a civil manner. I know that
you have been prone to voice your displeasure with many things
at different times during your hearings in this case. But we need
to act civilly today. You are represented by attorneys.
You cannot speak to the jury or me unless it’s through your
attorneys. So we’re just going to do this in a calm, civilized
manner. You can forget your right to be here at any point if you
become disruptive. Do you understand that, Mr. Hotep-El?
THE DEFENDANT: Well, for the record, on the record and let
the [sic] reflect, I am Yusuf Dunwayne Hotep-El In Propria
Persona (inaudible)—
THE COURT: Okay. Well, see, you’re not going into legal
things without your attorney commenting. I’m just asking for a
yes or no. Do you understand the ground rules on proper
behavior in this Court?
THE DEFENDANT: And also, Your Honor, I’ve filed
documentation with the Court which—
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 27 of 34
THE COURT: All right, Mr. El, apparently, you’re not going to
answer my question. So let’s just say I’ve given you your
warning, okay?
THE DEFENDANT: Well, for the record, my Honor, I have
filed documentation with the Court—
THE COURT: All right. And I have rejected all your
documentation because it has not been filed through your
attorney.
Id. at 82-83. While the court and the attorneys discussed preliminary
instructions, Hotep-El interrupted:
THE DEFENDANT: I want to place on the record that—
THE COURT: Mr. [Hotep-El], we’re going to get off to a bad
start. You have no right to say anything unless it’s through your
attorney at this point, okay?
THE DEFENDANT: They’re fired, they’re fired, they’re fired, I
don’t need him on the—
THE COURT: Okay.
THE DEFENDANT: So, I mean, I’m just—
THE COURT: All right. Well, I’ve gone over the ground rules.
The jury’s not here yet. But I’m not going to give you too much
rope based on your prior conduct. If you just disrupt these
proceedings and are not proceeding in a civilized manner, you
will forfeit your right to be here. Okay?
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 28 of 34
THE DEFENDANT: For the record, My Honor, I do not forfeit
any of my rights.
Id. at 86. Later, while the court and counsel were discussing instructions and
verdict forms out of the presence of the jury, Hotep-El addressed the court:
THE DEFENDANT: For the record, I want the record to reflect
I have a right to be heard right 2.6. And I just want to make
record of this is on the record, Joseph Hotep-El. Certified 90-70-
13-170000, 1918, 4906, there was a written clarification of the
tribunal on 1/25 I sent—I put it in the certified mail, which was
continuously ignored. For the record, I do not consent to any
further jail time, prison time, make a finding of detainment, et
cetera. I want to put on the record, also that I filed in jury
instructions, certified number 7013.17100000, 1918. It was for
my respectfully requesting and demand a jury instructions of this
tribunal going into jury trial. And also my in propria persona
appearance in which it has been ignored for the record. And that
by my documents that I’ve lawfully filed with this tribunal being
denied, it has biased and prejudiced my due process. For the
record, on the record, let the record reflect.
*****
Well, for the record, I want to let the record reflect I have
continued to make aware of, you know, [Trial Court
Commissioner] that I did not need or require, or that I was
terminating the services of the Public Defender Agency, yet, the
trial still proceeded over my objections and my continuance.
You know, like I said, I put in—I put in the proper
documentation assuming that I was in propria persona—you
know, my in propria persona appearance. Not to be confused
with pro se. So therefore, I mean, just make a record.
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 29 of 34
*****
—I would address the jurisdiction of the Court which has been
assumed, but not been proven by the state [sic] of Indiana which
April 3rd, 2017 documents was filed certified mail, also further
was filed on 2/6/2017 certified mail. Not stamped by the court,
affirming the jurisdiction, per Warnto (phonetic) and written
nature of discovery, requesting that the state [sic]of Indiana
provides Joseph Hotep-El with the oath of office, and delegation
of authority, also bond and signatures of each public official
operating within this tribunal. Yet, still, there has been no
production from the State account and as well as it has assumed
jurisdiction. The want for jurisdiction it still doesn’t have
jurisdiction, because it still has not been proven. For the record,
on the record, and let the record reflect.
*****
I just want to make clear, the last time I was in here, for the
record, on the record, and let the record reflect that [Trial Court
Commissioner], that you was fired, as executor and appointed
co-trustee for settlement closure in this tax matter. It still has not
been—you know, so that’s just for the record. And that’s all I
was here for, from the get go of the Clerk attachment.
Id. at 245, 246, 247-48.
[26] We observe that recently, the Texas Court of Appeals dealt with a similar case
of obstreperous conduct. In Lewis v. Texas, 532 S.W.3d 423 (Crim. App. 2016),
the defendant, who was being prosecuted for possession of cocaine, engaged in
confrontational and obstructive behavior, raised the so-called defense of being a
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 30 of 34
“sovereign citizen,” and made irrelevant references to the Uniform Commercial
Code. On appeal, the court held:
The record in this case indicates that appellant is one of a loosely-
formed group of citizens who believe that they are sovereign
individuals, beyond the reach of any criminal court. These so-
called “sovereign citizens” share a common vernacular and
courtroom strategy. Courts across the country have encountered
their particular brand of obstinacy—not consenting to trial,
arguing over the proper format and meaning of their names,
raising nonsensical challenges to subject matter jurisdiction,
making irrelevant references to the Uniform Commercial Code,
and referring to themselves as trustees or security interest holders.
These calculated obstructions and delay tactics pose a unique
challenge for trial courts considering Faretta motions. When a
defendant asserts irrelevant or nonsensical arguments, it becomes
difficult to discern whether he lacks a complete understanding of
the proceedings or whether he is simply attempting to subvert
them. See United States v. Mosley, 607 F.3d 555, 557-59 (8th Cir.
2010) (upholding a trial judge’s decision to deny self-
representation based on an observation that the defendant either
did not understand the proceedings or was ‘unwilling to
participate in them’). The trial court’s own assessment,
therefore, is critical in determining whether the defendant
actually lacks the mental capacity to conduct his own defense or
whether he is utilizing his intact mental capacity to consciously
obstruct the proceedings against him. We hold, that in either
case, the trial court may deny the defendant’s request to represent
himself and insist on representation by appointed counsel.
Id. at 430-31 (internal footnotes omitted). The court further explained that
although it relies “heavily on the trial court’s assessment of an obstreperous
defendant,” the trial court’s discretion to deny a defendant’s right of self-
representation is limited. Id. at 431. First, allowing a defendant to represent
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 31 of 34
himself will, necessarily, result in delay. Nevertheless, as long as the delay is
not a calculated obstruction, such delay cannot deprive a defendant of his right
of self-representation once it has been properly asserted. Id. Second, the denial
of self-representation cannot be based on expected obstructive behavior. Id.
[27] Once the court was informed that Hotep-El was found competent, it was clear
that his filings, statements, and behavior that disrupted and delayed the
proceedings were not disruptions related to an inability to understand the
proceedings or to self-representation without a legal education; rather, they
were deliberate and calculated tactics. Further, the trial court’s decisions were
based, not on conjecture, but on firsthand observation of Hotep-El’s behavior
each time he was present in court and with every filing. We thus conclude that
given these facts it was not improper for the trial court to decline to reinstate
Hotep-El’s pro se status when his deliberate obstructive behavior did and
further threatened to undermine the proceedings and compromise the court’s
ability to maintain order and efficiency of its courtroom and caseload.
[28] Moreover, a defendant asserting his right of self-representation must do so
clearly and unequivocally. Stroud v. State, 809 N.E.2d 274 (Ind. 2004). Our
Supreme Court has explained, “half-hearted expressions of dissatisfaction with
counsel fail to meet the requisite clear and unequivocal assertion for the right of
self-representation.” Dobbins v. State, 721 N.E.2d 867, 872 (Ind. 1999). None of
Hotep-El’s statements represent a clear and unequivocal request to proceed
without counsel; rather, they are complaints about counsel and declarations
asserting his right to counsel. Further, he consistently accepted the assistance of
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 32 of 34
his court-appointed counsel, and when asked, point blank, if he wanted to
proceed pro se, he stated, “I’m not the right representative.” Tr. Vol. 2, p. 61.
[29] In addition, our Supreme Court has held that a request to proceed pro se on the
morning of trial is per se untimely, and denial of such a request is permissible.
Moore v. State, 557 N.E.2d 665 (Ind. 1990). Thus, even if Hotep-El had clearly
and unequivocally asserted his right to self-representation the morning of trial,
such request was per se untimely and its denial was proper.
[30] Finally, we note that Hotep-El argues the trial court improperly denied his
request to represent himself because he was found competent to stand trial and
was not found to be suffering from a severe mental illness. His argument is
based on our Supreme Court’s decision in Edwards v. State, in which the Court
stated, “We understand [Indiana v.] Edwards[, 554 U.S. 164, 128 S. Ct. 2379,
171 L. Ed. 2d 345 (2008)] to announce the following rule of law: a trial court
may deny a defendant’s request to act pro se when the defendant is mentally
competent to stand trial but suffers from severe mental illness to the point where
he is not competent to conduct trial proceedings by himself.” 902 N.E.2d 821,
824 (Ind. 2009).
[31] While we understand his argument, we conclude it is not reasonable in light of
the overwhelming evidence in the record. As this opinion sets forth, the trial
court did not deny Hotep-El the right to proceed pro se because it determined
that he suffered from a mental illness so severe that he was not competent to
conduct his own defense. Nonetheless, the trial court uses the term
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 33 of 34
“competency” at times to refer to Hotep-El’s actual mental competence to stand
trial as determined by Doctors Olive and Parker and mistakenly at other times
to refer to his obstructionist conduct. When taken in context, the court’s
meaning is readily apparent, and its conclusion is clear: Hotep-El was legally
competent and was intending to deliberately impede the proceedings. See Tr.
Vol. 2, pp. 63-64. Although the trial court indicated at the April hearing that
Hotep-El could again represent himself if he was found competent to stand trial,
the court’s decision on this issue changed given the behavior and tactics set
forth in the record and discussed in this opinion. Dr. Parker’s report further
explains the sovereign citizen movement to which Hotep-El claimed affiliation,
characterizing the movement’s members as typically unwilling to cooperate
with the proceedings and counsel and attempting to frustrate court proceedings.
[32] We conclude, therefore, that the trial court did not err when it terminated
Hotep-El’s self-representation in order to determine his competency to stand
trial and subsequently when it did not reinstate his pro se status based on its
conclusion that he sought to use the courtroom for deliberate disruption of the
proceedings.
[33] Judgment affirmed.
Najam, J., and Brown, J., concur.
Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018 Page 34 of 34