ATTORNEY FOR APPELLANT

Kimberly A. Jackson

Indianapolis, Indiana 

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Ian A.T. McLean

Deputy Attorney General 

Indianapolis, Indiana 

In the

Indiana Supreme Court 

No. 76S03-1407-CR-493

DONALD W. MYERS, III,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).

Appeal from the Steuben Circuit Court, No. 76C01-0404-FA-411

The Honorable Allen N. Wheat, Judge

On Petition to Transfer from the Indiana Court of Appeals, No. 76A03-1305-CR-173

April 8, 2015

David, Justice.

Donald W. Myers, III, has a history of mental illness, and has been diagnosed with paranoid 

schizophrenia. Unprovoked, Myers fired a shotgun several times at multiple vehicles, including a 

police cruiser. Myers was ultimately convicted on four counts of attempted murder. The jury 

found Myers guilty but mentally ill. Myers claims that no reasonable jury could have reached this 

conclusion and that he should have been found not guilty by reason of insanity. Myers also asserts 
that any reference during trial to his request for an attorney and refusal to speak to the police after 

the incident violated his constitutional right to due process. 

We hold that there was no due process violation. Additionally, we seek to emphasize the 

great adherence our judicial system affords to the right of a trial by jury and the verdicts reached 

by those juries. Patrick Henry pronounced that “[t]rial by jury is the best appendage of freedom.” 

The United States Supreme Court has declared that “[t]he basic purpose of a trial is the 

determination of truth . . . and it is the jury to whom we have entrusted the responsibility . . . 

.” Brown v. Louisiana, 447 U.S. 323, 334 (1980) (internal quotation omitted). This Court has also 

acknowledged that the jury trial is a “fundamental right in our democratic judicial system that must 

be scrupulously guarded against encroachment.” Sims v. United States Fid. & Guar. Co., 782 

N.E.2d 345, 352 (Ind. 2003) (internal quotations omitted). Having completed our review, we 

affirm the jury’s verdict finding Myers guilty but mentally ill. 

Facts and Procedural History

In 2000, Donald W. Myers, III, was diagnosed with paranoid schizophrenia. Starting in 

young adulthood, Myers was treated at hospitals in Indiana and Alabama for his mental health 

issues and was prescribed various anti-psychotic medications. In 2004, Myers was living with his 

mother at the Silver Lake Trailer Court off of U.S. 20. Towards the end of April of 2004, Myers’ 

mother, Judy Wininger, noticed that Myers was no longer taking his anti-psychotic medications, 

and she contacted Northeastern Center, a counseling center where Myers had previously been 

treated. The hospital prepared a bed for Myers to be admitted upon Wininger’s request on April 

28, 2004. However, Myers refused to go. 

On the evening of April 29, 2004, David Brown was driving in the Silver Lake Trailer 

Court with his wife, Vicki Brown, and young grandson in the car. Brown heard a loud boom, and 

when he looked into the rearview mirror, there was a man running towards the vehicle pointing a 

long gun in the direction of their vehicle. Then, another gunshot was fired in the direction of 

Brown’s vehicle. Brown drove the vehicle out of Silver Lake onto U.S. 20, and saw the man who 

fired the weapon running alongside the road. Brown called 911 and gave a description of the man. 

The man firing the weapon was later identified as Myers. 

2
Shortly thereafter, Desmond Augenstein was driving westbound on U.S. 20 when he saw 

Myers walking down the middle of the road heading eastbound. Augenstein saw a vehicle coming 

the opposite direction and turned around to check on Myers’ well-being. Augenstein then saw that 

Myers was holding a gun, and he quickly turned the vehicle back around. Myers raised the gun 

and shot twice in Augenstein’s direction. Augenstein was driving with the windows down and 

heard bullets flying by the window. He also called 911 to notify police. 

Several police officers were dispatched to the area to investigate. Indiana State Police 

Trooper Lionel Smith located Myers standing partially submerged in a ditch along U.S. 20 on the 

opposite side of the road from where Trooper Smith was driving. As Trooper Smith got closer, he 

saw Myers approach the white fog line of the road and begin tracking his vehicle with a gun. Once 

Myers was parallel to the police cruiser, he fired the gun directly at the driver’s side window. 

Trooper Smith turned his vehicle around, and once he stopped his police cruiser behind Myers, he 

got out of the vehicle and ordered Myers to stop. However, Myers ignored this order and kept 

walking at a normal pace. During this time, Steuben County Deputy Sheriff Phillip Knott joined 

Trooper Smith, and the two together continued to follow behind Myers, ordering him to stop. 

Indiana State Police Trooper Kerry Ghent was approaching the area from the opposite 

direction, and after hearing over dispatch that shots had been fired at Trooper Smith, he pulled his 

vehicle across the westbound lanes of U.S. 20 to block traffic. He got out of his vehicle and saw

Myers with a long gun walking towards him. Trooper Ghent yelled for Myers to stop, but Myers 

appeared to merely look through him and continue walking. After Myers refused to stop and drop 

his weapon, Trooper Ghent fired at Myers and knew that Myers was hit near his shoulder when he 

saw Myers react and turn away. Trooper Smith and Deputy Knott heard the gunshots and did not 

know whether Myers or Trooper Ghent had fired. Both officers fired upon Myers when he turned 

and started approaching them, at which time Myers retreated into a wooded area along the 

roadside. 

The officers immediately established a perimeter around Myers’ location to prevent him 

from exiting out the opposite side. The police vehicles were repositioned to shine spotlights in the 

direction where Myers was hiding to get better visibility. As other law enforcement officials 

arrived, a visual was kept on Myers while a negotiator attempted to convince him to surrender. 

Gas was eventually fired into Myers’ location in an attempt to force him out into an open space, 

3
but Myers remained in the brush. An armored vehicle was finally utilized to approach Myers, and 

two members of the tactical team apprehended him. Myers was immediately taken to the hospital 

due to gunshot wounds to his left shoulder and groin area.

At the hospital, a police officer was stationed outside Myers’ hospital room. Myers did not 

want to talk to police, and made some statements to his mother indicating that he wanted an 

attorney. Specifically, Myers told his mother that he wanted to sue the police for shooting at him. 

The next day, Myers was charged with multiple counts of attempted murder and criminal 

recklessness. Shortly thereafter, defense counsel filed a notice of defense of mental disease or 

defect. After psychological evaluations were conducted, Myers was determined to lack the 

capacity to understand the nature of his criminal charges or to assist in his defense. Myers was 

placed in the custody of the Division of Mental Health & Addiction Services and was assigned to 

be institutionalized at the Logansport State Hospital to receive further treatment and evaluation. 

In July 2009, the Logansport State Hospital indicated that Myers had regained competency 

enough to stand trial. However, after two designated medical experts conducted another 

competency evaluation of Myers, he was again found to be incompetent to stand trial. It was not 

until April 16, 2013, that Myers’ jury trial finally commenced. Counts I, V, and VI, which included 

charges for Class D felony criminal recklessness and two counts of Class A felony attempted 

murder, were dismissed. 

The jury returned verdicts of guilty but mentally ill on the remaining four counts of Class 

A felony attempted murder. Myers was sentenced to thirty (30) years on each count to be served 

consecutively, for an aggregate sentence of one hundred and twenty (120) years. Myers appealed 

his convictions and sentence, arguing that: 1) the trial court committed fundamental error in 

admitting evidence of and allowing the State to argue that Myers’ post-arrest silence and request 

for an attorney were evidence of sanity; 2) there was insufficient evidence to prove Myers was 

guilty but mentally ill, and he had proven by a preponderance of the evidence that he was not guilty 

by reason of insanity; and 3) the trial court abused its discretion in ordering consecutive sentences, 

and his sentence was inappropriate given the nature of the offense and his character. 

The Court of Appeals held that the jury clearly erred in rejecting Myers’ insanity defense 

by determining that the evidence was without conflict that Myers was insane at the time of his 

offense. Myers v. State, No. 76A03-1305-CR-173, Slip Op. at *13-14, 20 (Ind. Ct. App. April 14, 

4
2014). The Court of Appeals also determined that the admission of evidence regarding Myers’ 

post-arrest silence and request for counsel and the prosecutions’ closing arguments relying on 

those instances as evidence of sanity violated Myers’ constitutional due process rights. Id. at *18. 

Furthermore, the Court of Appeals determined that those arguments were not harmless error. Id. 

Since the Court of Appeals determined that the jury clearly erred in rejecting Myers’ insanity 

defense, Myers’ four Class A felony attempted murder convictions were reversed. Id. at *20.

This Court granted the State’s petition to transfer and thereby vacated the Court of Appeals 

opinion. Myers v. State, 12 N.E.3d 877 (table) (Ind. 2014); Ind. Appellate Rule 58(A). 

Issues Raised & Standard of Review

When reviewing a jury’s verdict, which rejected the defense of insanity, this Court “will 

not reweigh evidence, reassess witness credibility, or disturb reasonable inferences made by the 

trier of fact.” Galloway v. State, 938 N.E.2d 699, 709 (Ind. 2010) (citing Thompson v. State, 804 

N.E.2d 1146, 1149-50 (Ind. 2004)). “[A] finding that a defendant was not insane at the time of 

the offense warrants substantial deference from reviewing courts.” Galloway, 938 N.E.2d at 709 

(citing Barany v. State, 658 N.E.2d 60, 63 (Ind. 1995)). Thus, when a defendant claims that an 

insanity defense should have been successful, the conviction will only be set aside “when the 

evidence is without conflict and leads only to the conclusion that the defendant was insane when 

the crime was committed.” Galloway, 938 N.E.2d at 710 (quoting Thompson, 804 N.E.2d at 1149) 

(emphasis added in Galloway). 

Myers also claimed that his constitutional right to due process was violated when testimony 

and the prosecution’s closing remarks referenced his post-arrest silence and request for an attorney. 

Federal constitutional errors are reviewed de novo. Alford v. State, 699 N.E.2d 247, 251 (Ind. 

1998) (citing Chapman v. California, 386 U.S. 18, 24 (1967)). “The use of a defendant’s postMiranda silence . . . to prove a defendant’s sanity is subject to harmless error analysis.” Robinette 

v. State, 741 N.E.2d 1162, 1164 (Ind. 2001) (citing Chapman, 386 U.S. at 23). “Under the 

harmless error analysis, the State bears the burden of establishing that the federal constitutional 

error was harmless beyond a reasonable doubt.” Robinette, 741 N.E.2d at 1165 (citing Brecht v. 

Abrahamson, 507 U.S. 619, 629-30 (1993)). 

5
Finally, if Myers’ convictions are affirmed, Myers has asked this court to review the 

appropriateness of his sentence. “Appellate review of the merits of a sentence may be sought on 

the grounds outlined in Appellate Rule 7(B).” Cardwell v. State, 895 N.E.2d 1219, 1223 (Ind. 

2008) (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007)). Under Indiana Appellate 

Rule 7(B), a reviewing court “may revise a sentence authorized by statute if, after due 

consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light 

of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). 

I. Insanity Defense

To be convicted of a criminal offense, the State must prove each element of the offense 

beyond a reasonable doubt. See Ind. Code § 35-41-4-1(a) (2014). Criminal responsibility can be 

avoided if the defendant can successfully raise and establish the “insanity defense.” Galloway, 

938 N.E.2d at 708; See also Ind. Code § 35-41-3-6(a). To successfully assert this defense, an 

individual must prove by a preponderance of the evidence: “(1) that he or she suffers from a mental 

illness and (2) that the mental illness rendered him or her unable to appreciate the wrongfulness of

his or her conduct at the time of the offense.” Galloway, 938 N.E.2d at 708. Thus, proof of mental 

illness alone is insufficient. Id. (citing Weeks v. State, 697 N.E.2d 28, 29 (Ind. 1998)). 

In the case before us, Myers asserted an insanity defense, and the jury found him guilty but 

mentally ill. See Galloway, 938 N.E.2d at 708 (explaining that “a defendant who is mentally ill 

but fails to establish that he or she was unable to appreciate the wrongfulness of his or her conduct 

may be found guilty but mentally ill”). It is not disputed that Myers suffered from a mental illness. 

Since 2000, Myers has been diagnosed with schizophrenia. Therefore, the only remaining question 

for the purposes of Myers’ insanity defense is whether his mental illness prevented him from 

understanding the wrongfulness of his conduct at the time of the offense. 

It is for the trier of fact to determine whether the defendant appreciated the wrongfulness 

of his conduct at the time of the offense. Thompson, 804 N.E.2d at 1149. The defendant is in the 

position of having to appeal a negative judgment. Id. A reviewing court “will reverse only when 

the evidence is without conflict and leads only to the conclusion that the defendant was insane 

when the crime was committed.” Id. (citing Robinette, 741 N.E.2d at 1167) (emphasis added). 

6
The reviewing court “will not reweigh the evidence or assess the credibility of witnesses but will 

consider only the evidence most favorable to the judgment and the reasonable and logical 

inferences to be drawn therefrom.” Thompson, 804 N.E.2d at 1149 (citing Metzler v. State, 540 

N.E.2d 606, 608-09 (Ind. 1989)). 

At trial, the experts who conducted psychological evaluations of Myers unanimously 

agreed that Myers’ mental illness made him incapable of understanding the wrongfulness of his 

conduct at the time of the offense. Wininger, Myers’ mother, did not see Myers on the day of the 

offense, but she testified that the day before the shooting took place he was not in his right mind. 

Thus, only the experts gave an opinion on Myers’ mental state at the time of the offense. The 

Court of Appeals took the position that the evidence was without conflict and lead only to the 

conclusion that Myers was insane when the crime was committed. Myers, No. 76A03-1305-CR173, Slip Op. at *13-14, 20. However, Indiana precedent has clearly established that unanimous 

expert testimony alone is not determinative where there is conflicting lay opinion testimony or 

demeanor evidence also presented at trial. See Cate v. State, 644 N.E.2d 546, 547 (Ind. 1994) 

(explaining that this Court has “never held expert testimony to be conclusive”). 

This Court has addressed several cases where insanity defenses were unsuccessful, even in 

light of non-conflicting expert testimony that the defendants were insane at the time of the 

offense. Galloway, 938 N.E.2d at 710. “Each time we have upheld the conviction(s) because the 

evidence as to the defendant’s insanity was in conflict and thus sufficient to sustain the trier of 

fact’s determination of sanity.” Id. (citing Thompson, 804 N.E.2d at 1150; Gambill v. State, 675 

N.E.2d 668, 672 (Ind. 1996); Barany, 658 N.E.2d at 64; Cate, 644 N.E.2d at 548; Rogers v. State, 

514 N.E.2d 1259, 1261 (Ind. 1987); Green v. State, 469 N.E.2d 1169, 1172 (Ind. 1984)). In each 

instance, “there has been other sufficient probative evidence from which a conflicting inference of 

sanity reasonably could be drawn.” Galloway, 938 N.E.2d at 710. For example, demeanor 

evidence, “when considered in light of the other evidence” can permit a jury to draw a reasonable 

inference of sanity. Id. at 712 (citing Thompson, 804 N.E.2d at 1149). This is true because 

“testimony regarding behavior before, during, and after a crime may be more indicative of actual 

mental health at [the] time of the crime than mental exams conducted weeks or months 

later.” Thompson, 804 N.E.2d at 1149 (citing Barany, 658 N.E.2d at 64). 

7
The defense argued that the current case is exactly like Galloway, which should compel 

this Court to reach the same conclusion. However, Galloway is distinguishable. In Galloway, the 

defendant had a significant history of mental illness, and starting in 2001 the frequency and 

severity of the defendant’s psychotic episodes began increasing. 938 N.E.2d at 704. In 2002, the 

defendant was institutionalized after he attempted to kill his grandmother while suffering from a 

delusion. Id. Over the next six years, the defendant continued suffering from delusions involving 

him being God and others being the devil. Id. at 704-06. The year leading up to the murder of his 

grandmother, the defendant experienced twelve separate episodes and days before started 

believing that his grandmother’s trailer was haunted. Id. at 705-06. One night, the defendant 

walked into the room where his grandmother, aunt, father, and son were all present, and his aunt 

stated that he had a “wild look” in his eyes that he usually would get right before an episode. Id. 

Completely unprovoked, the defendant attacked his grandmother, stabbed her with a knife, yelled

“you’re the devil,” and stated that he believed she was going to kill him. Id. at 706. This Court 

ultimately held that the evidence was uncontroverted and pointed only to the conclusion that the 

defendant was insane at the time of the offense. Id. at 717. 

In the present case, although Myers also had a history of mental illness, he had seemingly 

been coping better with his mental illness over the past several years. He had been stable on his 

medications and had not been hospitalized for three years. Furthermore, Wininger denied that 

Myers suffered from delusions. This is distinguishable from the defendant in Galloway, who was 

progressively getting worse and appeared to be suffering from the same type of delusion involving 

the devil for at least the prior six years. Furthermore, the defendant in Galloway had previously 

tried to kill his grandmother for the same claimed delusion years before he was finally successful 

in his attempt. Here, Myers had never met the individuals of whom he shot at, and nothing in the 

record indicates that he had ever attacked any other individuals due to delusions regarding his 

believed involvement in the military or CIA. Most significantly, Myers did nothing during the 

incident itself that explicitly demonstrated he was suffering from a delusion at that time, while the 

defendant in Galloway shouted out that he believed his grandmother was the devil. Therefore, we 

disagree that Galloway commands the same outcome in this case. Rather, consideration of the 

specific evidence presented at this trial is necessary to determine whether a conflicting inference 

of sanity could have been made. 

8
Here, the State presented testimony from victims and multiple eyewitnesses describing 

how the incident unfolded. Both of the Browns testified to Myers running after their vehicle, 

pointing a long gun directly at them and firing. Augenstein also testified that Myers pointed a gun 

directly at his vehicle and fired. Trooper Smith explained in even greater detail that Myers walked 

up to the fog line and tracked his police cruiser with a gun as he drove closer to Myers. Then, 

Myers held the gun at waist level, which was directly in line with Trooper Smith’s head, and fired 

when the police cruiser was directly parallel to him. Trooper Smith heard the pellets from the gun 

hitting the driver-side window of the police cruiser. 

Multiple law enforcement officers also testified to Myers’ refusal to obey orders instructing 

him to stop and put his weapon down. When Myers was eventually fired upon by police due to 

his refusal to put his weapon down, he fled into a brushy wooded area near the road. Myers 

remained hidden for over two hours while a police negotiator tried to convince him to surrender. 

Even after gas was fired into the area where Myers was hiding, he remained. A tactical team 

finally approached Myers in an armored vehicle. 

Additionally, when law enforcement instructed Myers to put his hands up, Myers 

responded in a rational manner by explaining that he could only raise one arm because he had been 

shot in the shoulder. Myers was eventually apprehended and taken to the hospital where he was 

treated for his gunshot injuries. While at the hospital, Myers did not want to talk to police and 

alluded to his mother that he wanted an attorney in order to sue the police for shooting at him. 

Upon further investigation, shotgun shells were found in Myers’ vest pocket. The State argued 

that Myers had consciously picked up the casings after they were fired in order to conceal evidence 

linking his weapon to the shooting. 

Based upon the circumstantial evidence provided above, it would be possible for a 

reasonable jury to conclude that Myers was able to appreciate the wrongfulness of his conduct at 

the time of the offense. Some of Myers’ behaviors have even been recognized by this Court as 

demonstrating consciousness of wrongdoing. First, “[e]vidence of flight may be considered as 

circumstantial evidence of consciousness of guilt.” Brown v. State, 563 N.E.2d 103, 107 (Ind. 

1990) (citing Jones v. State, 485 N.E.2d 627, 628 (Ind. 1985)). Additionally, “[e]vidence of an 

attempt to avoid arrest [also] tends to show guilt.” Wilson v. State, 455 N.E.2d 1120, 1123 (Ind. 

1983) (internal citations omitted). Furthermore, Myers’ rational communication with police 

9
immediately before his apprehension could serve to corroborate a reasonable inference by the jury 

that Myers was aware of the wrongfulness of his conduct. 

The defense relied upon expert testimony, which was based upon evaluations of Myers that 

were conducted months after the incident occurred. Dr. Herbert Trier evaluated Myers on one 

occasion, six years after the incident occurred. Dr. David Lombard conducted two evaluations of 

Myers, one which was approximately two months after the incident and another approximately six 

years after the incident. Dr. Lombard explained that because Myers claimed that he never had a 

gun or fired a weapon that night, he could not say how the defendant’s delusions were affecting 

his thoughts at the time he shot the gun. Furthermore, Dr. Lombard did not interview any police 

or eyewitnesses, and Dr. Trier also testified that he did not review police reports or any written 

statements regarding the incident. It was within the province of the jury to give less weight to 

expert testimony that relied upon evaluations of Myers months and years after the incident than to 

the testimony of individuals actually present at the time of the offense. 

Wininger did provide some lay opinion testimony that Myers was not in his right mind the 

day before, that he had stopped taking his medication, and that she had called his doctor to arrange 

a bed for him at the hospital. However, her testimony at trial indicated inconsistencies. Wininger 

testified that she had noticed that Myers was responding slowly, but did not think that he was 

having delusions. Moreover, in her testimony regarding a prior deposition, she stated that she had 

noticed nothing different about Myers leading up to the incident. 

Despite the evidence presented by the State, reasonable minds could interpret a conflict in 

the evidence regarding Myers’ sanity at the time of the offense. Myers’ actions could be 

interpreted as calculated and deliberate when he aimed a gun and fired directly at multiple victims. 

Additionally, Myers’ fleeing from police and attempts to avoid arrest could also indicate a level of 

consciousness that he had done something punishable. Furthermore, Myers’ only verbal 

communication with law enforcement prior to his apprehension was seemingly rational and 

cognizant of what was being requested of him. Myers sensibly explained that he was unable to 

comply with the police request to raise both arms because he had been shot. Finally, Myers’ 

demeanor after the incident at the hospital could also lead an individual to believe Myers was 

cognizant of the wrongfulness of his conduct. Even though Myers made statements that he wanted 

10
an attorney so he could sue the police for shooting at him, a jury could still determine that this 

demonstrated some understanding that shooting at people is wrong. 

Though there was evidence that could also support the conclusion that Myers was insane 

at the time of the crime, “[i]t is not necessary that the court find the circumstantial evidence 

excludes every reasonable hypothesis of innocence. It need only be demonstrated that inferences 

may reasonably be drawn which support the finding of guilt.” Thompson, 804 N.E.2d at 1150 

(quoting Metzler, 540 N.E.2d at 610). It is not within the purview of this Court to reverse the 

jury’s verdict simply because a “more reasonable” inference could be made.1 Thompson, 804 

N.E.2d at 1150. Rather, the fact that a conflicting inference can be made is controlling. For 

example, while fleeing and hiding from the police could be consistent with the fact that Myers was 

suffering from a delusion at the time of the offense, a jury could also infer that this is evidence 

demonstrating Myers’ understanding of the wrongfulness of his conduct. It is not the role of this 

Court to reweigh the evidence presented at trial and make a determination on which of those 

inferences the jury should have made, or to determine what reasonable inferences could have been 

drawn by the jury. Based on the evidence presented at trial, it is possible for a jury to have made 

a reasonable inference that Myers was mentally ill but still able to understand the wrongfulness of 

his conduct at the time of the offense. Therefore, Myers’ convictions on four counts of attempted 

murder are affirmed. 

II. Constitutional Due Process Challenge

Myers has asserted that his due process right under the Fourteenth Amendment to the 

Federal Constitution was violated when the prosecutor’s closing arguments and testimony at trial 

1 Although this Court has previously recognized that “a person experiencing a psychotic delusion may 

appear normal to passersby,” and this may limit the probative value of demeanor evidence, Galloway, 938 

N.E.2d at 713-14, that does not mean that behavior observed before, after, or during the offense can never 

support a reasonable inference that the defendant was able to appreciate the wrongfulness of his or her 

conduct at the time of the offense. 

11

 
both discussed his invocation of his right to remain silent and to an attorney. However, before 

addressing whether the testimony and closing remarks were made in error, we must reiterate that, 

“[i]nvocation of the Miranda right to counsel requires, at a minimum, some statement that can 

reasonably be construed to be an expression of a desire for the assistance of an attorney.” Taylor 

v. State, 689 N.E.2d 699, 703 (Ind. 1997) (citing Davis v. U.S., 512 U.S. 452, 459 (1994)). “It is 

not enough that the defendant might be invoking his rights; the request must be 

unambiguous.” Taylor, 689 N.E.2d at 703. 

Here, the testimony in the record is distorted and confusing regarding the circumstances 

under which Myers allegedly invoked his right to counsel. Wininger provided the only testimony 

recounting Myers’ invocation of his rights, and she seemed unsure whether Myers requested an 

attorney or whether she asked him if he wanted an attorney.2 Wininger also testified that Myers 

wanted an attorney so he could sue the police for shooting at him, and not for the purposes of 

defending him against possible criminal charges. As such, Myers’ statements do not appear to 

2 Wininger was asked, “there came a point during that time that he wanted a lawyer, isn’t that correct?” 

and she responded, “Yes.” (Tr. at 470.) Shortly after this question, the Court attempted to clarify 

Wininger’s testimony about this:

COURT: Did you ask your son if he wanted to have an attorney?

ANSWER: Probably. 

COURT: Or did he tell you I want an attorney?

ANSWER: I asked him, I asked him because he didn’t really know what 

was going on at all. Until here recently he thought it was all charges 

against . . .

COURT: It’s your testimony under oath that in a trial that you asked him 

if he wanted an attorney?

ANSWER: Yes, that would be more like it. 

* * * *

COURT: Did he at any time say “Mom I want a lawyer” without your

prompting him?

ANSWER: I’m sure he probably did around, in his way because he 

didn’t want to talk to police. 

(Tr. at 472.) 

12

 
have unambiguously or unequivocally invoked his right to counsel. However, we will continue 

our analysis assuming that Myers’ statements could be interpreted as an invocation of his rights. 

The Fifth Amendment to the United States Constitution provides in part that an individual 

shall not be “compelled in any criminal case to be a witness against himself.” U.S.CONST. AMEND.

V. That protection has since been extended to protect an individual exercising his or her right to 

remain silent. In Doyle, the United States Supreme Court held that “the use for impeachment 

purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated 

the Due Process Clause of the Fourteenth Amendment.” Doyle v. Ohio, 426 U.S. 610, 619 (1976). 

This holding was reached by recognizing that there is an implied assurance when Miranda

warnings are given that one will not be penalized for exercising the right to remain silent. Id. at 

618. 

The limitations upon using a defendant’s post-Miranda silence have also been extended to 

cases in which an insanity defense is raised. See Wainwright v. Greenfield, 474 U.S. 284, 295

(1986). The United States Supreme Court held that post-Miranda silence could not be used as 

evidence of a defendant’s sanity. Id. The Court clarified that the rationale in Doyle was equally 

applicable to the context of an insanity defense because, “[w]hat is impermissible is the evidentiary 

use of an individual’s exercise of his constitutional rights after the State’s assurance that the 

invocation of those rights will not be penalized.” Id. (emphasis added). 

Indiana followed this rationale in Wilson v. State, where a police officer advised an 

individual of his right to remain silent and to counsel, and then proceeded to conduct a custodial 

interview. 514 N.E.2d 282, 283 (Ind. 1987). In an attempt to rebut the defendant’s insanity 

defense, the police officer was called to testify regarding comments that the defendant made during 

that interview invoking his right to remain silent and to counsel. Id. The prosecution also 

commented on the defendant’s statements during closing arguments as evidence of the defendant’s 

sanity. Id. The Court recognized that “the use of an accused’s silence after receiving Miranda 

warnings as evidence of [the defendant’s] sanity violated the due process clause of the Fourteenth 

Amendment.” Id. (emphasis added).

Lynch v. State also provided “that a post-Miranda request for counsel may not be used to 

show sanity.” 632 N.E.2d 341, 342 (Ind. 1994) (string citation omitted). In Lynch, the State was 

permitted to introduce a taped interview of the defendant conducted by police, in which there was 

13
discussion of the defendant’s Miranda rights and the defendant invoked his right to not be 

questioned further without an attorney present. Id. at 341. This tape was admitted as evidence of 

the defendant’s state of mind at the time of the alleged crime. Id. The Court held that the admission 

of portions of the tape that discussed the defendant’s Miranda rights and his invocation of those 

rights violated due process. Id. at 341-42. The Court relied upon the pronouncement made 

in Wainwright, that “the State gives warnings to protect constitutional rights and implicitly 

promises that any exercise of those rights will not be penalized.” Id. at 342 (citing Wainwright, 

474 U.S. at 292). 

Each of the aforementioned cases reach their holdings by relying either implicitly or 

explicitly on two factors: 1) That the defendant had been advised of his constitutional right to 

remain silent and to an attorney; and 2) That the defendant invoked those rights during a custodial 

interview. In the current case, neither of these prerequisites for finding a constitutional violation 

have occurred. 

Although Myers would like this Court to speculate that Miranda rights were given at some 

point between Myers’ arrest and police standing guard outside his hospital room, “[t]he party who 

alleges error has the duty to provide a proper record on appeal so that an intelligent review of the 

issues may be made,” and where no evidence is in the record, “appellate review is 

foreclosed.” Fleenor v. State, 514 N.E.2d 80, 87 (Ind. 1987). Therefore, this Court could not 

determine that the protections set out in Doyle and Wainwright were triggered, because both cases 

turn upon the implicit promise that is made to a defendant that he will not be penalized for choosing 

to exercise his right to remain silent. Here, it appears that no such implicit promise was ever made 

by the State to Myers. There is nothing in the record which suggests that Myers was advised of 

his Miranda rights, or that he invoked those rights under any implied promise that his invocation 

of those rights would not be used against him. 

However, even if we were to assume that Myers had at some point been advised of 

his Miranda rights, the constitutional protections provided in Doyle and Wainwright are still not 

implicated. Here, the testimony that was elicited at trial was from Myers’ mother, and only she 

has relayed that Myers did not want to speak to police and requested, or affirmed, that he wanted 

an attorney. Myers never made these comments in response to a custodial interview conducted by 

law enforcement or any government agent. As demonstrated in both Lynch and Wilson, the 

14
prohibited evidence arose from either a tape of a police interrogation or the testimony of a police 

officer who had interviewed the defendant. See Lynch, 632 N.E.2d at 341; See also Wilson, 514 

N.E.2d at 283. It cannot be deemed that a due process violation arises any time a defendant makes 

a statement to any person that he wishes to invoke his constitutional rights. 

Even if the officer stationed outside Myers’ hospital room constitutes Myers being in 

custody, his statements were not elicited by any action of the police. If anything, Myers’ 

statements appear to have been elicited by his own mother questioning him, during which time no 

law enforcement personnel were even present. This again reiterates that Myers was not operating 

under any implicit promise from the State, which is the key consideration in the application 

of Doyle and Wainwright protections. See Wainwright, 474 U.S. at 292 (explaining that “it is 

fundamentally unfair to promise an arrested person that his silence will not be used against him 

and thereafter to breach that promise by using the silence . . . to overcome a defendant’s plea of 

insanity,” and that the “implicit promise, the breach, and the consequent penalty” are what violates 

due process); See also Lynch, 632 N.E.2d at 342. 

Since there is no indication that Myers was advised of his Miranda rights or that he clearly 

invoked those rights in response to a custodial interview, we cannot hold that the admission of 

testimony at trial or the prosecution’s closing statements regarding Myers’ post-arrest silence and 

request for an attorney violated his constitutional right to due process. Absent a constitutional 

violation, the evidence of Myers’ preference not to speak to police and confused request for an 

attorney are relevant to his sanity. “This Court has frequently held that when the defendant’s sanity 

is in issue, all evidence is admissible which relates to his behavior or environment and has some 

logical relevance to the issue of his sanity.” Howard v. State, 265 Ind. 503, 507, 355 N.E.2d 833, 

835 (1976) (citing Stamper v. State, 260 Ind. 211, 216, 294 N.E.2d 609, 612 (1973)). This is not 

to suggest that relevance of the defendant’s behavior would trump a constitutional violation. 

However, where no constitutional violation has occurred, evidence that is indicative of the 

defendant’s sanity would otherwise be admissible, absent some other evidentiary bar to the

admission of the evidence. As such, the trial court did not err in allowing this testimony or in 

15
permitting the statements made by the prosecution in closing. Because it is our collective judgment 

that there was no error, we need not address whether the error was harmless.3

III. Appropriateness of Sentence

Under Indiana Appellate Rule 7(B), a reviewing court may revise a sentence upon 

determining that the sentence is “inappropriate in light of the nature of the offense and the character 

of the offender.” This determination “turns on our sense of the culpability of the defendant, the 

severity of the crime, the damage done to others, and myriad other factors that come to light in a 

given case.” Cardwell, 895 N.E.2d at 1224. We recognize that “[t]he principal role of appellate 

review should be to attempt to leaven the outliers . . . but not to achieve a perceived ‘correct’ result 

in each case.” Id. at 1225. 

In the present case, Myers was convicted of four counts of Class A felony attempted 

murder. The possible sentence that can be assigned for a Class A felony ranges from twenty to 

fifty years, with thirty years being the advisory sentence. See Ind. Code § 35-50-2-4. Myers was 

sentenced to thirty years for each count of attempted murder to be served consecutively, making 

his aggregate sentence one hundred and twenty years. 

After reviewing the aggravating factors pronounced by the trial court, and in consideration 

of the fact that the advisory sentence was imposed, it is our collective judgment that the sentence 

imposed by the trial court was not inappropriate. 

Furthermore, with a few execptions, it is within the trial court’s discretion whether to order 

sentences be served concurrently or consecutively. See Ind. Code § 35-50-1-2(c). “Whether the 

counts involve one or multiple victims is highly relevant to the decision to impose consecutive 

sentences . . . .” Cardwell, 895 N.E.2d at 1225. Here, multiple victims were fired upon, one of 

3 Nothing from the above analysis is intended to suggest that it is permissible for law enforcement to 

indefinitely withhold giving Miranda rights in order to allow the prosecution to use any post-arrest preMiranda statements at trial. The analysis in this section outlines multiple case-specific facts supporting the 

conclusion that no constitutional violation occurred in the use of Myers’ statements. 

16

 
which was a young child and another a police officer. We cannot conclude that the trial court 

abused its discretion in deciding that Myers’ sentences should be served consecutively. 

Conclusion

There was sufficient evidence for a jury to draw a reasonable inference that the defendant 

was able to appreciate the wrongfulness of his conduct at the time of the offense. The admission 

of testimony regarding Myers’ convoluted request for counsel and refusal to speak to police did 

not constitute a due process violation. In addition, Myers’ sentence is not inappropriate given the 

nature of the offense and his character, nor was it inappropriate for the trial court to order his 

sentences to be served consecutively. Therefore, we affirm Myers’ convictions of guilty but 

mentally ill, and affirm his sentence of one hundred and twenty years for four counts of Class A 

felony attempted murder. 

Rush, C.J., Dickson and Massa, J.J., concur.

Rucker, J., dissents with separate opinion. 

17
RUCKER, J., dissenting.

In Galloway v. State, this Court evaluated the circumstances under which a defendant is 

entitled to a verdict of not guilty by reason of insanity despite a fact-finder’s verdict to the 

contrary. See 938 N.E.2d 699 (Ind. 2010). Because today’s opinion retreats from and thus 

undermines Galloway, I respectfully dissent. 

Galloway is straightforward: 

Where there is no conflict among the expert opinions that the 

defendant was insane at the time of the offense, there must be other 

evidence of probative value from which a conflicting inference of 

sanity can be drawn. Such probative evidence is usually in the form 

of lay opinion testimony that conflicts with the experts or demeanor 

evidence that, when considered in light of the other evidence, 

permits a reasonable inference of sanity to be drawn.

Id. at 712 (internal citation omitted). The majority of course acknowledges Galloway, but contends 

the facts here are distinguishable. For example the majority points out that unlike the defendant 

in Galloway here the defendant “had seemingly been coping better with his mental illness over the 

past several years,” slip op. at 8, and the defendant here “had never met the individuals he shot at, 

and nothing in the record indicates that he had ever attacked any other individuals due to delusions 

regarding his believed involvement in the military or CIA.” Id. at 9. According to the majority, 

“[m]ost significantly, Myers did nothing during the incident itself that explicitly demonstrated he 

was suffering from a delusion at that time, while the defendant in Galloway shouted out that he 

believed his grandmother was the devil.” Id. While these certainly are distinctions, they are in 

my view distinctions without a difference; and more importantly they were not the basis on 

which Galloway was decided. Instead the Court made clear that where there is no conflict among 

the expert opinions as to the defendant’s insanity then there must be other evidence either from 

“lay opinion testimony that conflicts with the experts or demeanor evidence.” Galloway, 938 

N.E.2d at 712.

Here the majority acknowledges, “the experts who conducted psychological evaluations of 

Myers unanimously agreed that Myers’ mental illness made him incapable of understanding the 

wrongfulness of his conduct at the time of the offense.” Slip op. at 7. And except for Myers’
mother who said the day before the shootings Myers was “not in his right mind,” id. (quoting Tr. 

at 458), there was no other lay or expert testimony that gave an opinion as to Myers’ mental state 

at the time of the offense. As such there must then exist “other evidence of probative value from 

which a conflicting inference of sanity can be drawn.” Galloway, 938 N.E.2d at 712. And the 

only other evidence left in this case is that of demeanor. As the Galloway Court noted “[e]ven 

where there is no conflict among the experts and the lay witnesses, a finding that a defendant was 

sane at the time of the crime still may be sustained by probative demeanor evidence from which a 

conflicting inference of sanity may be drawn.” Id. (emphasis added). We observed, “[d]emeanor 

is useful because a defendant’s behavior before, during, and after a crime may be more indicative 

of actual mental health at [the] time of the crime than mental exams conducted weeks or months 

later.” Id. (alteration in original) (internal citations and quotations omitted). 

Here, while not saying so in express terms the majority appears to rely on such evidence 

pointing out for example the testimony of multiple witnesses describing how the incident 

unfolded. See slip op. at 9-10. However Galloway teaches: 

Although demeanor evidence often is useful, there are limits to its 

probative value. First, demeanor evidence is of more limited value 

when the defendant has a long history of mental illness with 

psychosis. . . . The proposition that a jury may infer that a person’s 

actions before and after a crime are indicative of his actual mental 

health at the time of the crime is logical when dealing with a 

defendant who is not prone to delusional or hallucinogenic episodes. 

However, when a defendant has a serious and well-documented 

mental disorder, such as schizophrenia, one that causes him to see, 

hear, and believe realities that do not exist, such logic collapses. . . .

938 N.E.2d at 713 (internal quotations omitted). The same is true in this case. Myers like 

Galloway has a long mental illness history of paranoid schizophrenia. As one of the experts 

summed up in his report: “Based on Mr. Myers [sic] documented history of schizophrenic 

symptoms, his history of thought disorder, hallucinations and delusions, and his symptom pattern 

on the day of the incidents in question, it is this evaluator’s clinical opinion that Mr. Myers was 

suffering from a mental health condition at the time of his offenses and that mental health condition 

2
(schizophrenia) incapacitated his understanding of right and wrong and his ability to control his 

actions.” App. at 235; see also Tr. at 523. All other experts presented similar evaluations. 

Because I can discern no appreciable difference between the facts in this case and those 

in Galloway, I agree with my colleagues on the Court of Appeals that “the jury clearly erred in 

rejecting Myers’s insanity defense.” Myers v. State, No. 76A03-1305-CR-173, 2014 WL 

1478844, at *10 (Ind. Ct. App. Apr. 14, 2014). Accordingly I would reverse Myers’ four Class A 

felony attempted murder convictions.1

1 I also note the observations of my Court of Appeals colleagues: “Myers has been and remains 

institutionalized in a secure facility within Indiana’s mental health system. Unless new psychotropic 

medications sufficient to treat his serious mental illness are developed, he will likely remain 

institutionalized for the rest of his life.” Myers, 2014 WL 1478844, at *5 n.1.

3