ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Michael R. Fisher Gregory F. Zoeller

Indianapolis, Indiana Attorney General of Indiana

Thomas M. Fisher

Solicitor General of Indiana

Justin F. Roebel

Deputy Attorney General

Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court 

_________________________________

No. 49S02-0705-CR-202

AHMAD EDWARDS,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).

_________________________________

On Remand from the Supreme Court of the United States

No. 07-208

_________________________________

March 17, 2009

Boehm, Justice.

We hold that the record supports a finding by the trial court that the defendant suffered 

from a severe mental illness to the point where he was not competent to conduct trial 

proceedings by himself. The denial of the defendant’s request to act pro se at trial therefore did 

not violate either his federal or state constitutional right to self-representation.
2

Facts and Procedural History

The facts of this case are recited at length in Indiana v. Edwards (Edwards), 128 S. Ct. 

2379 (2008), and Edwards v. State, 866 N.E.2d 252 (Ind. 2007).

Defendant Ahmad Edwards was tried twice in connection with a 1999 theft and shooting 

in downtown Indianapolis. His first trial resulted in convictions of criminal recklessness and 

theft but a hung jury on charges of attempted murder and battery. At his retrial for attempted 

murder and battery, Edwards sought to proceed pro se. The trial court found Edwards mentally 

competent to stand trial under the standard set forth in Dusky v. United States, 362 U.S. 402 

(1960) (per curiam),1but nevertheless denied Edwards’s request to represent himself. Edwards 

was convicted on both charges.

Edwards appealed and the Court of Appeals reversed, holding that Edwards’s Sixth 

Amendment right to counsel included the right to represent himself. We granted transfer and 

noted that ―the trial court’s conclusion that Edwards was incapable of adequate selfrepresentation was, at a minimum, reasonable.‖ 866 N.E.2d at 260. However, we agreed with 

the Court of Appeals that United States Supreme Court precedent required that a defendant found 

mentally competent to stand trial be permitted to proceed pro se, and we invited the Supreme 

Court to consider this issue. Id. The Supreme Court granted the State’s petition for writ of 

certiorari and vacated our judgment reversing the convictions. The Supreme Court held that

the Constitution permits judges to take realistic account of the particular 

defendant’s mental capacities by asking whether a defendant who seeks to 

conduct his own defense at trial is mentally competent to do so. That is to say, 

the Constitution permits States to insist upon representation by counsel for those 

competent enough to stand trial under Dusky but who still suffer from severe 

mental illness to the point where they are not competent to conduct trial 

proceedings by themselves.

Edwards, 128 S. Ct. at 2387–88. The case was remanded to us for further disposition. Id. at 

2388. We now reconsider the issue in light of Edwards.

 

1

In Dusky, the United States Supreme Court held that a defendant is competent to stand trial if he has 

―sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding‖ 

and has a ―rational as well as factual understanding of the proceedings against him.‖ 362 U.S. at 402.
3

Standard of Review

Determinations of competency to stand trial under Dusky are reviewed under the clearly 

erroneous standard, reversed on appeal only if unsupported by the facts and circumstances before 

the trial court together with any reasonable inferences to be drawn therefrom. See McManus v. 

State, 814 N.E.2d 253, 260–61 (Ind. 2004); Brewer v. State, 646 N.E.2d 1382, 1385 (Ind. 1995); 

Ferry v. State, 453 N.E.2d 207, 212 (Ind. 1983); United States v. Magers, 535 F.3d 608, 610 (7th 

Cir. 2008).2

Although it is now clear that the Dusky competency determination is separate and distinct 

from the Edwards competency determination, both involve a fact-sensitive evaluation of the 

defendant’s capabilities that the trial court is best-situated to make. Indeed, the Supreme Court 

noted in Edwards that ―the trial judge, particularly one such as the trial judge in this case, who 

presided over one of Edwards’ competency hearings and his two trials, will often prove best able 

to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances 

of a particular defendant.‖ 128 S. Ct. at 2387. We conclude that the trial court’s determination 

of competence to act pro se is best reviewed under the clearly erroneous standard.

I. The Sixth Amendment Claim

We understand Edwards 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. In this case, Edwards was found mentally competent to stand trial, but 

the trial court denied his request to proceed pro se. The questions we face on remand, therefore, 

are whether the trial court found that Edwards suffered from a severe mental illness such that he 

was not competent to conduct trial proceedings on his own, and, if so, whether the record 

supports this finding.

 

2 Earlier cases formulated the standard as ―abuse of discretion,‖ see Barnes v. State, 634 N.E.2d 46, 49 

(Ind. 1994); Bramley v. State, 543 N.E.2d 629, 633 (Ind. 1989), which may in practical effect be 

substantially equivalent to ―clearly erroneous.‖
4

Mental competency determinations—at least where competency to be tried is at issue—

are ordinarily made following evidentiary hearings conducted by the trial court. In Indiana this 

procedure is mandated by statute. See Ind. Code § 35-36-3-1 (2004). If the trial court has reason 

to believe that the defendant is not competent to stand trial, the court must appoint two or three 

disinterested mental health physicians to examine the defendant and testify at a hearing to the 

defendant’s ability to understand the proceedings and assist in the preparation of a defense. Id. § 

35-36-3-1(a). Edwards had three such hearings in August 2000, March 2002, and April 2003. 

The second of these was conducted by the judge who would preside over his two trials. 

Edwards first moved for leave to represent himself on the first day of the first trial in June 

2005. This motion was denied because Edwards was not prepared to proceed and a continuance 

would have been required. Edwards renewed his request the week before the scheduled start of 

his retrial in December 2005. The trial court did not hold an evidentiary hearing specifically 

addressing Edwards’s competence to represent himself as an issue distinct from competency to 

stand trial. The court entertained brief arguments on the first day of Edwards’s retrial, and 

denied Edwards’s request after reviewing the existing psychiatric evaluations and the court’s 

own conclusions from prior hearings, and also Edwards’s correspondence with the court.

Our alternatives are only two: either resolve the issue on the record before us or remand 

for a hearing in which the issue is Edwards’s mental illness as of December 2005 when his 

second trial was held. In the first place, an evaluation of Edwards’s mental illness over three 

years ago is inherently problematic. For this reason, retrospective competency hearings are 

generally disfavored.3 A nunc pro tunc competency determination is nevertheless permissible 

 

3

See Drope v. Missouri, 420 U.S. 162, 183 (1975) (―Given the inherent difficulties of such a nunc pro 

tunc determination under the most favorable circumstances . . . , we cannot conclude that such a 

procedure would be adequate here.‖); Dusky, 362 U.S. at 403 (noting the ―difficulties of retrospectively 

determining the petitioner’s competency‖); Pate v. Robinson, 383 U.S. 375, 387 (1966) (same). But see

Smith v. State, 443 N.E.2d 1187, 1191 (Ind. 1983) (remanding for retrospective competency 

determination); Mato v. State, 429 N.E.2d 945, 947 (Ind. 1982) (―Unquestionably, there are difficulties 

with retrospective determinations of competency such as fading memories, and changing conditions . . . . 

Nevertheless, depending upon the data that is available, trustworthy determinations can be made 

retrospectively.‖); Schuman v. State, 265 Ind. 586, 590–93, 357 N.E.2d 895, 898–99 (1976) (affirming a 

―retroactive determination of competency‖); Evans v. State, 261 Ind. 148, 161, 300 N.E.2d 882, 889 

(1973) (remanding case ―for a hearing to determine whether appellant was competent to stand trial at the 

time of his trial‖ and instructing trial court ―to certify its determination following the hearing to this Court 

for final disposition‖ of the appeal); State v. Tinsley, 260 Ind. 577, 584–85, 298 N.E.2d 429, 433–34 
5

―whenever a court can conduct a meaningful hearing to evaluate retrospectively the competency 

of the defendant.‖ Maynard v. Boone, 468 F.3d 665, 674–75 (10th Cir. 2006). Courts typically 

consider the following factors in determining the feasibility of retrospective competency 

hearings:

(1) [T]he passage of time, (2) the availability of contemporaneous medical 

evidence, including medical records and prior competency determinations, (3) any 

statements by the defendant in the trial record, and (4) the availability of 

individuals and trial witnesses, both experts and non-experts, who were in a 

position to interact with defendant before and during trial, including the trial 

judge, counsel for both the government and defendant, and jail officials.

Id. at 675. In the instant case three years have passed and evaluations demonstrate that 

Edwards’s condition has fluctuated over even short periods. There is no psychological evidence 

as of 2005, and the earlier evidence was considered by the trial court in its 2005 ruling denying 

Edwards’s request to proceed pro se. Statements by Edwards were also considered in detail by 

the trial court at that time, and the trial court had its own observations from the prior trial. Under 

these circumstances we believe that the trial court’s findings as to Edwards’s competency to act 

pro se, as well as the substantial body of evidence that was available for the trial court’s 

consideration, obviate any need for a retrospective competency hearing.

The issues are whether the trial court found that Edwards was mentally ill to the point 

that he was not competent to conduct trial proceedings, and if so, whether the record supports 

this finding. The trial court did not have the benefit of the Supreme Court’s analysis in Edwards. 

We therefore have no specific findings formulated in the language of Edwards. We nevertheless 

 

(1973) (same); see also United States v. Giron-Reyes, 234 F.3d 78, 83 (1st Cir. 2000) (remanding for

potential retrospective competency determination); United States v. Auen, 846 F.2d 872, 878 (2d Cir. 

1988) (same); United States v. Jones, 336 F.3d 245, 260 (3d Cir. 2003) (same); United States v. Mason, 

52 F.3d 1286, 1293 (4th Cir. 1995) (same); Wheat v. Thigpen, 793 F.2d 621, 630–32 (5th Cir. 1986)

(affirming retrospective competency determination); Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 

1995) (―The Sixth Circuit recognizes that a retrospective [competency] determination may satisfy the 

requirements of due process provided it is based on evidence related to observations made or knowledge 

possessed at the time of trial.‖), abrogated on other grounds by Thompson v. Keohane, 516 U.S. 99 

(1995); United States v. Savage, 505 F.3d 754, 758 (7th Cir. 2007) (recognizing viability of retrospective 

competency determinations); Reynolds v. Norris, 86 F.3d 796, 802–03 (8th Cir. 1996) (remanding for 

retrospective competency hearing); McMurtrey v. Ryan, 539 F.3d 1112, 1131–32 (9th Cir. 2008)

(describing framework for analyzing feasibility of retrospective competency determinations); Maynard v. 

Boone, 468 F.3d 665, 674–75 (10th Cir. 2006) (affirming retrospective competency determination); Watts 

v. Singletary, 87 F.3d 1282, 1286–87 n.6 (11th Cir. 1996) (recognizing viability of retrospective 

competency determinations).
6

conclude that this record is sufficient to affirm the judgment of the trial court, including its 

conclusion that Edwards was not able to represent himself. Specifically, the trial court found 

Edwards competent to stand trial but not competent to defend himself. The court addressed 

Edwards’s request for self-representation following pretrial argument and explained as follows:

I spent some time going over Doctor Richard Sena’s report of July 27, 2004; 

Doctor Sena’s report of May 28, 2004; Doctor Dwight Schuster’s report of 

December 31st, 2002; Doctor Philip Coons’s report of November 26th, 2002; 

Doctor Ned Masbaum’s report of October 3, 2001; and Doctor Steven Berger’s 

report of February 27, 2001; and finally Doctor Lance E. Trexler’s report of 

February 23, 2000. . . . Each and every report where a . . . neurological exam was 

performed found either delusions, a delusional disorder of the grandiose type or

schizophrenia of an undifferentiated type . . . . Several of the reports refer to 

rambling writings as an indication of an inability to stay focused. The report upon 

which we relied in finding that Mr. Edwards was competent was the report of 

Doctor Robert Sena from July 27, 2004, from Logansport, still found that there 

was schizophrenia of an undifferentiated type; found that Mr. Edwards 

acknowledged his need for counsel; found that Mr. Edwards was able to plan a 

legal strategy in cooperation with his attorney. . . . With these findings, he’s 

competent to stand trial but I’m not going to find he’s competent to defend 

himself. So the request to proceed pro se will be denied.

The trial court also explained that Edwards’s ―voluminous writings‖ substantiated ―what some of 

the doctors were saying and if you’ll remember, the finding of competency was conditioned by 

the doctors on the assistance of counsel.‖

We believe these conclusions collectively constitute a finding by the trial court that 

Edwards suffered from severe mental illness to the point where he was not competent to conduct 

trial proceedings by himself. We also conclude that the trial court’s determinations are 

supported by the record. Edwards was evaluated by several mental health professionals from 

1999 through 2004 and was diagnosed at various points in time with schizophrenia of an 

undifferentiated type, disorganized type schizophrenia, a delusional disorder, and a personality 

disorder. Edwards’s psychiatric evaluations reveal that he experienced hallucinations and 

delusions, and that he manifested disorganized thought processes and impaired verbal 

communication. Several psychiatric reports concluded that Edwards was not competent to stand 

trial in the first instance, let alone represent himself. And as the trial court pointed out, Edwards 

produced a litany of disorganized and incoherent motions that support the physicians’ 

observations as well as the conclusion that Edwards was not competent to conduct trial 

proceedings on his own. The court’s ruling was thus based on an extensive record of psychiatric 
7

evaluations that were already produced in connection with Edwards’s competency proceedings, 

as well as a number of self-authored motions that Edwards submitted to the trial court in the 

course of these proceedings. The trial court was also in a position to observe Edwards’s 

behavior and demeanor in the first trial, the two pretrial pro se request arguments, and Edwards’s 

2002 competency hearing.

The evidence is not without conflict. At least one of Edwards’s evaluations found that he 

was ―free of psychosis, depression, mania, and confusion‖ and that he was able to ―think 

clearly,‖ ―answer questions appropriately,‖ and ―carry on a normal conversation.‖ The most 

recent competency evaluation indicated that Edwards was taking medication and receiving 

therapy for his psychosis, that Edwards reported no longer experiencing hallucinations, 

delusions, and ideas of reference, and that he ―demonstrated an excellent understanding of 

courtroom procedures.‖ And although the record contains numerous pleadings written by 

Edwards that are virtually incomprehensible, several of his motions and in-court colloquies 

demonstrate lucidity, cooperativeness, and at least a rudimentary understanding of trial practice.

The evaluations on which the trial court relied were performed between 1999 and July 

2004, and Edwards’s retrial did not take place until December 2005. Mental competency is not a 

static condition and is to be determined ―at the time of trial.‖ See Burt v. Uchtman, 422 F.3d 

557, 568 (7th Cir. 2005) (citing Drope v. Missouri, 420 U.S. 162, 181 (1975); Pate v. Robinson, 

383 U.S. 375, 387 (1966)); see also Evans v. State, 261 Ind. 148, 160–61, 300 N.E.2d 882, 888

(1973) (where appellant was tried in April of 1959, the issue was ―not appellant’s mental state in 

May of 1959, but his ability to stand trial in April of that year‖); State v. Tinsley, 260 Ind. 577, 

585, 298 N.E.2d 429, 434 (1973) (―The ultimate and relevant issue is not the state of Tinsley’s 

mental health in 1956, but his abilities to function at his trial in 1971.‖). In this case, 

approximately eighteen months elapsed between the time of Edwards’s most recent psychiatric 

evaluation and the time of his retrial. Several experts testified at Edwards’s competency 

hearings that his disorders could be managed and treated using psychotropic medication. 

Moreover, Edwards’s psychiatric evaluations reflect the positive progression and ―marked 

improvement‖ coincident with pharmacological and psychological therapy necessary to find 

Edwards competent to stand trial.
8

Having said that, we remain mindful of the standard of review and believe the totality of 

the evidence adequately supports the trial court’s findings. Edwards’s psychiatric evaluations at 

times disagree, but they overwhelmingly confirm that Edwards has suffered from severe and 

pervasive mental illness. And though the trial court did not rely on any psychiatric evaluations 

completed after July of 2004, the trial judge had the opportunity to observe Edwards at his July 

trial. The trial court also had the lengthy record of Edwards’s mental disorders and the 

discordant motions that Edwards submitted, some immediately preceding his retrial. Finally, the 

trial court had before it the record of erratic performance that gave no confidence that whatever 

Edwards’s state as of a given moment, it might be a transient condition. Taken together, these 

circumstances support the trial court’s determination that Edwards suffered from severe mental 

illness such that he was not competent to represent himself. We therefore affirm the judgment of 

the trial court.

II. The Indiana Constitutional Claim

Edwards urges us to find broader self-representation rights under the Indiana Constitution 

than those afforded by the federal constitution. Edwards contends that there is a ―firmer 

foundation‖ for the right of self-representation under article I, section 13 which guarantees an 

accused the right ―to be heard by himself and by counsel.‖4

Section 13 does provide broader rights than the Sixth Amendment. But each of these 

expanded rights dealt with the right to counsel, and none addressed the right of selfrepresentation. Compare Malinski v. State, 794 N.E.2d 1071, 1079 (Ind. 2003) (section 13 

guarantees the right to be notified that hired counsel is present at police station and wishes to 

consult with the accused) with Moran v. Burbine, 475 U.S. 412, 428–32 (1986) (Sixth 

Amendment guarantees no such right); compare Ajabu v. State, 693 N.E.2d 921, 928 n.4 (Ind. 

1998) (under some circumstances, section 13 right to counsel attaches prior to the filing of 

formal charges) and Pirtle v. State, 263 Ind. 16, 29, 323 N.E.2d 634, 640 (1975) (person who is 

 

4 The State argues that Edwards waived his section 13 claim by failing to provide independent state 

constitutional analysis in his original appellate brief. In Edwards’s original direct appeal, we found that 

Edwards had made no separate argument under the Indiana Constitution and we decided the case solely 

on federal constitutional grounds. 866 N.E.2d at 254–55 n.1. But following the Supreme Court’s ruling

in Edwards, we solicited supplemental briefing from the parties on remand. Edwards has since provided

independent state constitutional analysis, so we will address his section 13 claim.
9

asked to give consent to search while in police custody is entitled to the presence and advice of 

counsel prior to making the decision whether to give such consent) with United States v. 

Gouveia, 467 U.S. 180, 187–88 (1984) (Sixth Amendment right to counsel does not attach until 

the initiation of adversary judicial proceedings).

We think that the right to self-representation of mentally impaired persons under section 

13 is no broader than that guaranteed by the Sixth Amendment as interpreted in Edwards. Our 

precedents respecting self-representation have tracked federal standards. See, e.g., Stroud v. 

State, 809 N.E.2d 274, 279 (Ind. 2004) (drawing no distinction between state and federal 

constitutional requirements for waiving counsel); Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 

2003) (same). Moreover, we have found that the Indiana Constitution assumes and demands 

fundamental fairness in all judicial proceedings. Sanchez v. State, 749 N.E.2d 509, 515 (Ind. 

2001). Denial of self-representation is admittedly an intrusion into the defendant’s right to direct 

his own affairs and to make his own decisions in conducting his defense. But if a defendant is so 

impaired that a coherent presentation of a defense is unlikely, fairness demands that the court 

insist upon representation. We are persuaded that a defendant’s mental illness may preclude 

competent self-representation in the interest of a fair trial, and therefore conclude that the Indiana 

Constitution gives no broader rights than the Sixth Amendment as explained in Edwards.

We acknowledge the textual distinction between the Sixth Amendment and section 13. 

Section 13 guarantees the accused the right ―to be heard by himself.‖ We have also observed 

that the ―Indiana Constitution places a unique value upon the desire of an individual accused of a 

crime to speak out personally in the courtroom and state what in his mind constitutes a predicate 

for his innocence of the charges.‖ Biddinger v. State, 868 N.E.2d 407, 412 (Ind. 2007) (quoting 

Vicory v. State, 802 N.E.2d 426, 429 (Ind. 2004)). But these expressions have addressed the 

right of the defendant to present evidence, Sanchez, 749 N.E.2d at 520–21, to testify at trial, 

Phillips v. State, 673 N.E.2d 1200, 1201–02 (Ind. 1996), or to make statements in allocution at 

sentencing. Vicory, 802 N.E.2d at 429. None specifically dealt with whether the defendant or 

counsel was to take these steps. The constitution, in guaranteeing the right to be heard ―by 

himself and by counsel,‖ does not express a preference for either. We have frequently held that 

where the defendant is represented by counsel, some actions must be taken by counsel. See

Underwood v. State, 722 N.E.2d 828, 832 (Ind. 2000) (―[O]nce counsel [i]s appointed, [a 
10

d]efendant sp[eaks] to the court through counsel.‖); Vance v. State, 620 N.E.2d 687, 689 (Ind. 

1993) (when a defendant is represented by counsel, it is within the trial court’s discretion to 

entertain or strike pro se motions). We do not consider the accused’s right ―to be heard by 

himself‖ as an unlimited right to conduct all trial proceedings on his own.

Finally, the State encourages us to adopt a section 13 standard allowing courts to ―deny a 

criminal defendant the right to represent himself at trial where the defendant cannot 

communicate coherently with the court or jury.‖ The State argues that ―[r]ather than focusing on 

whether a defendant has any particular mental diagnosis or any particular level of mental 

cognition, the State’s proposed rule relates directly to the basic functional demands that having a 

trial necessarily places on the defendant.‖ The federal constitution establishes rights that the 

states may choose to expand, but the Supremacy Clause precludes any state doctrine that restricts 

a federal constitutional right. Edwards describes a limitation on the general federal constitutional 

right to self-representation, and the Supreme Court expressed uncertainty as to how the State’s 

proposal would ―work in practice‖ and declined to adopt it as a federal standard. 128 S. Ct. at 

2388. It remains to be seen whether the State’s proposal, or any attempt to refine the Edwards

language, will be found to violate the Sixth Amendment right to self-representation. We 

therefore decline in the absence of experience under the current Edwards language to attempt to 

tinker with it.

Conclusion

The trial court’s denial of Edwards’s request to proceed pro se was justified by the record 

and did not violate Edwards’s right to self-representation under either the Sixth Amendment or 

article I, section 13. Edwards’s convictions of attempted murder and battery are affirmed.

Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.