Pursuant to Ind.Appellate Rule 65(D),

this Memorandum Decision shall not be

regarded as precedent or cited before

any court except for the purpose of

establishing the defense of res judicata,

collateral estoppel, or the law of the

case.

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE :

DERICK W. STEELE GREGORY F. ZOELLER

Kokomo, Indiana Attorney General of Indiana

J.T. WHITEHEAD

Deputy Attorney General

Indianapolis, Indiana



## IN THE

COURT OF APPEALS OF INDIANA

AB RAHAM PATTERSON, )

)

Appellant

- Defendant, )

)

vs. ) No. 34A02

- 1110

- CR

- 1005

)

STATE OF INDIANA, )

)

Appellee

- Plaintiff. )

APPEAL FROM THE HOWARD SUPERIOR COURT

The Honorable Brant J. Parry , Judge

Cause No. 34D02

- 1103

- FD

- 40

April 25, 2012

MEMORANDUM D ECISION

- NOT FOR PUBLICATION

BARNES, Judge2 Case Summary

Abraham Patterson appeals his conviction for Class D felony theft

. We affirm

.

Issue

Patterson raises one issue, which we restate as whether the trial court properly

removed him from the cour troom because of his disruptive behavior

.

Facts

On March 15, 2011, Patterson entered the Rural King in Kokomo and filled out a

job application. Patterson then filled two shopping carts with merchandise and walked

out of the store without paying for the i tems. Store manager Shawn Hobson followed

Patterson and asked him to stop. Patterson did not stop, and Hobson followed Patterson

to his vehicle. Patterson started putting the merchandise into his vehicle and refused

Hobson ’ s demands to stop. Patterson started to get into his vehicle, and Hobson

“ grabbed his shirt ” and pulled him out of the vehicle. Tr. p. 18. Hobson and another

customer subdued Patterson until the police arrived.

The State charged Patterson with Class D felony theft. Patterson fil ed a motion

for psychiatric examination and to determine competency. The trial court granted the

motion and appointed two psychiatrists or psychologists to examine Patterson. The trial

court later determined that Patterson was competent to stand trial. Patterson then waived

his right to a jury trial.

At Patterson ’ s bench trial, Officer Douglas Mason testified for the State , and

Patterson interrupted Officer Mason ’ s testimony as follows:3 THE DEFENDANT: I ’ ve never seen that individual before in

my lif e.

THE COURT: Sir, you are going to have an opportunity to

testify when it ’ s your turn. At this point, Mr. Mason is going

to testify and then if you [want] to later, you are going to have

an opportunity to testify.

* * * * *

Q: Please state what occ urred when you arrived at the scene.

A: I was dispatched there along with Officer Tom Kelly to go

for a

– the dispatch was a theft in progress. When I arrived,

Tom Kelly had already gotten there prior to me getting there

and he had a crowd of people arou nd him. One of which was

in cuffs. That ’ s the gentlemen sitting next to the defense

. . . counsel. He had him detained for theft, he told me, for

shoplifting and requested that I speak with the Store Manager

and get some more information regarding that

. . . .

THE DEFENDANT: I did not attempt any theft

. . . .

THE COURT: You are going to have opportunity to tell me

your side

. . . .

THE DEFENDANT: I did not even walk (inaudible)

[DEFENSE COUNSEL] : Rodney, please

. . . .

THE COURT: Rodney, you a re going to have a chance

. . . .

THE DEFENDANT: They got their merchandise back. I

don ’ t owe Rural King anything.

[DEFENSE COUNSEL] : Rodney, please

. . . .

[DEFENSE COUNSEL] : Please, for your own good

. . . .

THE COURT: You are going to have you r chance to tell any

side

. . . .4 THE DEFENDANT: I didn ’ t attempt theft nor shoplifting. I

applied for work there. And I noticed that my checkbook

wasn ’ t there and I tried to leave

. . . .

THE COURT: RODNEY! You are going to have an

opportunity to t ell your side of the story, but you ’ ve got,

we ’ ve got

. . . .

THE DEFENDANT: And they arrested me on, like I said,

. . .

.

THE COURT: Do you want your chance or

. . . .

THE DEFENDANT: I asked for a Fast and Speedy Trial, you

should have honored that by July 21st due to the Indiana

Code of Statues, piece [sic] and dignity.

. . like I said, I ’ m

overdue for a Trial by at least, what, let ’ s see, it ’ s September,

so it ’ s been

. . . I ’ ve already served 6 months. So like I said,

even if you did try to convic t me of a Misdemeanor

shoplifting, I ’ ve got time served. There ’ s no reason for me to

be here. I ’ ve got an employment agenda. I ’ m trying to go

back to work for either Wal

- Mart or go back to IUK. Like I

said, I ’ ve got a lot of work to do. Like I said, I have no prior

convictions. And like I said, I ’ m not even from Indiana.

THE COURT: Well, the longer you talk, the longer we are

not going to get this over with. So if you want to

. . . if you

want to go through the process that we need to go through

h ere,

. . . .

THE DEFENDANT: Like I said, I applied for work with the

Sheriff, with the Howard County Sheriff ’ s Department a few

months ago

. . . .

THE COURT: Do you want to go through this process or do

you not

. . . (inaudible) Do you want us to do th is without you

being here?

THE DEFENDANT: I just want to get the charges dismissed.

Like I said, I ’ m not going to plead guilty

. . . .

THE COURT: We have to go through this Trial, which

. . . .5 THE DEFENDANT: So like I said, I ’ m entering a plea of

in nocent

. . . .

THE COURT: So do you want to just not be here

. . . while

we do this? You don ’ t have to be here if you are going to

cause a disturbance of the Court. Or you can sit here and let

us go through this and at the time when I tell you, then you

will have your chance to tell us whatever you want to tell us.

[DEFENSE COUNSEL] : I told you that he will let you tell

your story

. . . .

THE COURT: Do you want to tell us your story later when I

tell you it ’ s your turn?

THE DEFENDANT: I already did give you my side of the

story. Like I said I don ’ t have

. . . .

THE COURT: So you don ’ t want to? Do you want to be

. . . DO YOU WANT TO BE IN THE COURTROOM OR DO

YOU WANT TO GO? Do you want to be in the Courtroom

or do you want to go?

THE DEFENDANT: Basically, I just want to be released

. . . and go out in the community and

. . . .

THE COURT: That is not one of the options I just gave you.

Either you can be in the Courtroom while we go through this

.

. . .

THE DEFENDANT: Fine.

THE COURT: You w ant to be in the Courtroom or do you

want to leave?

THE DEFENDANT: Well, like I said

. . . .

THE COURT: You want to be in the Courtroom or do you

want to leave?

THE DEFENDANT: We can follow

. . . .6 THE COURT: Do you want to be in the Courtroom or d o you

want to leave?

[DEFENSE COUNSEL] : Rodney, you need to be quite [sic]

.

. . .

THE COURT: Do you want to be in the Courtroom or do you

want to leave?

THE DEFENDANT: I ’ m entering a plea of innocent.

THE COURT: Do you want to be in the Courtroom or do you

want to leave?

THE DEFENDANT: Like I said

. . . whenever I ’ m released

from jail, I ’ m seeking employer, I have

. . . .

THE COURT: Do you want to be in the Courtroom right now

and follow through the procedures or do you want to leave the

Court room and we will do it without you being here? That ’ s

the only question I need you to answer.

THE DEFENDANT: I ’ d rather follow through with the

procedure.

THE COURT: Then you are going to need to sit there and

wait for your turn to talk. If you can ’ t do that, then we are

going to remove you.

[DEFENSE COUNSEL] : You are entitled to be here, just

wait your turn, ok?

THE COURT: Go ahead Mr. Pate [deputy prosecutor]

.

* * * * *

Q: Ok. And what did he tell you?

A: He told me that Mr. Patterson had ju st entered the store

and dropped off an application for an employment to Rural

King. Once he had done that, he began to shop inside Rural

King and had a grocery cart full of items. And once it was

full of items, he said that he simply exited the store. But he7 was being chased, of course, after he stopped, or after he

passed all points to pay. He said he about knocked an elderly

female down. Ran out in the parking lot

. . . .

THE DEFENDANT: No, sir. No I did not

. . . .

THE COURT: You are going to have

. . . .

THE DEFENDANT: I am not abusive to women

. . . .

THE COURT: This is the last time. Either you are going to,

either you are going to go through the procedure

. . . .

THE DEFENDANT: That ’ s a, that ’ s a false allegation

. . . .

THE COURT: Well, you are going to have a chance to

respond to any allegation, to every allegation when it ’ s your

turn.

THE DEFENDANT: Well, I ’ m not going to let him

continuously lie to me and I ’ m not going to give you

authority over me anyway. Not in a Courtroom that I don ’ t

necessarily respect. That ’ s no

. . . .

THE COURT: Well then we will just remove him and we will

do this without you, so

. . . go ahead and take him out. Go

ahead, Mr. Pate.

Q: If you would, proceed w [h] ere you left off.

* * * * *

THE C OURT: You can step down. The security is asking if

they can transfer him back to the jail or not. He gave me his

statement as he sat there. But he hadn ’ t been sworn. Um, he

is causing a disturbance each time he is here

. . . .

[DEFENSE COUNSEL] : Jud ge, I ’ m not going to bring him

back in to testify. I don ’ t see

. . .

THE COURT: I was going to ask. If you want him to come

back up here and have a chance to testify

. . . .8 [DEFENSE COUNSEL] : No, sir. I would love to be able to

put him on the stand a nd unfortunately, I don ’ t think it ’ s an

option

. . . I mean, I just think he ’ s entitled to it. I don ’ t know

how much he would lend to the process. But

. . . unfortunately, I don ’ t think it ’ s an option.

Tr. p p

. 5

- 12, 15. The trial court found Patterson guilty as charged and sentenced him to

three years with one year suspended to probation. Patterson now appeals.

Analysis

Patterson argues that the trial court abused its discretion by removing him from

the courtroom

. A criminal defendant ’ s right to be present at his trial derives from the

Sixth and Fourteenth Amendments to the United States Constitution and Article I, section

13 of the Indiana Constitution. Campbell v. State , 732 N.E.2d 197, 204 (Ind. Ct. App.

2000). However, a defendant ’ s right to be present under either the United States

Constitution or Indiana Constitutions may be waived if such waiver is knowing and

voluntary. Id. (citing Harrison v. State , 707 N.E.2d 767, 785 (Ind. 1999), cert. denied ).

The United St ates Supreme Court has held:

a defendant can lose his right to be present at trial if, after he

has been warned by the judge that he will be removed if he

continues his disruptive behavior, he nevertheless insists on

conducting himself in a manner so disorderly, disruptive, and

disres pectful of the court that his trial cannot be carried on

with him in the courtroom.

Illinois v. Allen , 397 U.S. 337, 343, 90 S. Ct. 1057, 106 0

- 6 1 (1970) (footnote omitted)

.

“ [T]rial judges confronted with disruptive, contumacious, stubbornly defiant de fendants

must be given sufficient discretion to meet the circumstances of each case. ” Id. , 90 S. Ct.

at 1061. I n Campbell , we noted that, although the United States Supreme Court in Allen9

was only addressing the Sixth Amendment right to be present at tri al, “ we can perceive of

no reason why an identical waiver rule should not also be applicable to Article I, section

13 of the Indiana Constitution. ” Campbell , 732 N.E.2d at 205

.

Patterson first argues that he could only be removed due to “ outrageous condu ct . .

. coupled with his express desire to leave the courtroom. ” Appellant ’ s Br. p. 5. In

support of his argument, Patterson relied on Perry v. State , 471 N.E.2d 270 (Ind. 1984),

where the defendant expressly requested to be removed from the courtroom. However,

our supreme court did not hold in Perry that both an express request and outrageous

conduct w ere required to remove a defendant. In fact, such a holding would conflict with

Allen , which held that a defendant can waive his or her right to be pres ent during trial due

to disruptive behavior.

Next, Patterson argues that his removal was unnecessary. Patterson repeatedly

interrupted Officer Mason ’ s testimony. The trial court provided numerous opportunities

for Patterson to stop interrupting the pr oceedings, but Patterson refused to comply. The

trial court was “ extraordinarily patient ” with Patterson and “ provided him with every

opportunity to remain in the courtroom. ” Campbell , 732 N.E.2d at 206. It is clear that

the trial court had the discreti on to remove Patterson from the courtroom due to his

disruptive behavior.

Finally, Patterson also argues that the trial court should have allowed Patterson “ to

reclaim his right to be present at his trial. ” Appellant ’ s Br. p. 6. In Allen , the United

Sta tes Supreme Court held: “ Once lost, the right to be present can, of course, be

reclaimed as soon as the defendant is willing to conduct himself consistently with the10

decorum and respect inherent in the concept of courts and judicial proceedings. ” Allen

,

3 97 U.S. at 343, 90 S. Ct. at 1061. Patterson was removed from the courtroom during the

first of two witnesses. Between the first and second witnesses, Patterson ’ s counsel stated

that, although he would like to have Patterson testify, he did not think it was “ an option. ”

Tr. p. 15. There is nothing in the record to indicate that Patterson was willing to conduct

himself properly if returned to the courtroom, and his trial counsel did not believe it was

appropriate to return Patterson to the courtroom. We cannot say that the trial court

abused its discretion.

Conclusion

The trial court properly removed Patterson from the courtroom due to his

disruptive behavior. We affirm.

Affirmed.

FRIEDLANDER, J., and MAY, J., concur.