Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016 Page 1 of 19

MEMORANDUM DECISION

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

P. Stephen Miller

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Monika Prekopa Talbot

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Homer T. Richards,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

October 25, 2016

Court of Appeals Case No.

02A03-1604-CR-824

Appeal from the Allen Superior 

Court

The Honorable John F. Surbeck, 

Jr., Judge

Trial Court Cause No.

02D06-1509-F1-11

Riley, Judge.
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STATEMENT OF THE CASE

[1] Appellant-Defendant, Homer T. Richards (Richards), appeals his conviction for 

attempted murder, a Level 1 felony, Ind. Code §§ 35-41-5-1(a); -42-1-1

[2] We affirm.

ISSUES

[3] Richards raises two issues on appeal, which we restate as follows:

(1) Whether the trial court coerced Richards into forfeiting his right to selfrepresentation; and

(2) Whether the trial court abused its discretion by admitting a surveillance 

video-recording into evidence.

FACTS AND PROCEDURAL HISTORY

[4] On August 18, 2015, Richards and his girlfriend of several years, April Miller 

(Miller), ended their relationship. At the time, Miller worked as a manager at 

Cap n’ Cork, a liquor store, located on Lewis Street in Fort Wayne, Allen 

County, Indiana. Approximately one week after her break-up with Richards, 

Miller began dating a long-time customer from Cap n’ Cork—Peter Major 

(Major). Richards, however, continued to contact Miller on a regular basis, 

even showing up at her house at night uninvited. After obtaining permission 

from her district manager, Miller informed Richards that he was no longer 

permitted inside Cap n’ Cork.
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[5] For several weeks, Richards adhered to this ban, although he regularly waited 

outside the store in an attempt to talk to Miller on her way to and from work. 

On September 21, 2015, Miller arrived at Cap n’ Cork between 8:30 and 8:45 

a.m. in order to open the store at 9:00 a.m. Once again, Richards was waiting 

for her outside the store, but Miller proceeded directly inside. Later that 

morning, Miller left the store to empty the garbage. Richards approached her 

and attempted to discuss a reconciliation. Miller explained that she had no 

interest in resuming their relationship, but Richards argued with her. 

Eventually, Miller “didn’t want to listen to it anymore so [she] shut the door 

and went inside.” (Tr. p. 148). Thereafter, Richards repeatedly attempted to 

call Miller on her cellphone, but Miller refused to answer. Despite his ban from 

the liquor store, Richards went inside and began yelling at Miller for not 

answering her phone. As Miller tried to carry on with her tasks, the two argued 

about Miller’s refusal to reconcile and Richards’ insistence that she quit her job 

because “he has been around there longer.” (Tr. p. 151).

[6] At approximately 12:30 p.m., Richards was still at Cap n’ Cork, arguing with 

Miller. At this time, Miller’s new boyfriend, Major, arrived at Cap n’ Cork, 

along with his brother, John Tinker (Tinker). Major asked Richards, “[W]hy 

do you keep fucking with her, why don’t you just leave her the fuck alone[?]” 

(Tr. p. 155). This inevitably led to an argument between Richards and Major, 

and upon realizing that Major was dating Miller, Richards invited Major to “go 

outside.” (Tr. p. 193). Instead of exiting the store, Major punched Richards 

multiple times, knocking Richards to the ground. Tinker intervened and pulled 
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Major away from Richards. Major ordered Richards to leave the store, and

despite the fact that Tinker was holding onto him, Major managed to knock 

Richards to the ground once more. As Richards stood, he stated that he would 

leave and walked out the door. However, a few minutes later, Major saw 

through the window that Richards was walking back toward Cap n’ Cork—this 

time with a firearm in his hand. Before Major could lock the door, Richards 

pulled it open and was “[w]aving the gun around.” (Tr. p. 158). He then 

aimed the gun at Major and fired twice; Major dropped to the ground.

[7] Miller rushed to Major’s side while calling 911, as Tinker tackled Richards and 

snatched the gun away from him. Outside the liquor store, a customer, 

Domonic Holliday (Holliday), heard the gunfire and immediately ran inside. 

Unaware of who fired the shots, Holliday jumped on Tinker’s back as Tinker 

wrestled with Richards. Assuming that Holliday was Richards’ cohort, Tinker 

turned and hit Holliday in the head with the gun. Tinker chased Holliday out

of the store and even pulled the trigger to shoot at him as he fled, but there was 

no ammunition left in the gun. As Tinker turned back toward the liquor store, 

Richards was running away. Tinker dropped the gun on the floor and checked 

on Major, who was struggling to breathe. Tinker then ran to his vehicle and 

drove off in an attempt to locate Richards, but the police apprehended Tinker 

and took him into custody for questioning.

[8] Major was transported by ambulance to Lutheran Hospital. He survived the 

shooting and was hospitalized for nearly two months. Major sustained a 

collapsed lung, and one of the bullets “traversed and injured his spinal . . . 
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column as well as his spinal cord.” (Tr. p. 286). As a result, Major is now 

paralyzed from the chest down and requires ongoing therapy.

[9] During the investigation at Cap n’ Cork, police officers retrieved the handgun—

a 9mm Luger, as well as two shell casings and a tactical stainless steel knife. In 

addition, Miller informed the officers that Cap n’ Cork was equipped with 

surveillance cameras and that a copy of the footage could be obtained from the 

main Cap n’ Cork branch located on Coldwater Road in Fort Wayne.

[10] On September 25, 2015, the State filed an Information, charging Richards with 

Count I, attempted murder, I.C. §§ 35-41-5-1(a); -42-1-1; and Count II, 

aggravated battery, a Level 3 felony, I.C. § 35-42-2-1.5. The State also filed an 

Information for Application for Additional Fixed Term of Imprisonment (as 

Part II of Count II) based on Richards’ use of a firearm in the commission of his 

aggravated battery offense, I.C. § 35-50-2-11. At his initial hearing on

September 29, 2015, Richards indicated that he would be hiring private counsel, 

but no attorney ever entered an appearance. On October 9, 2015, Richards, 

acting pro se, filed a motion to suppress and a motion to dismiss. On October 

14, 2015, while Richards’ pro se motions remained pending, the trial court 

appointed a public defender to represent him, and on October 21, 2015, John C. 

Bohdan (Attorney Bohdan) filed his appearance as defense counsel.

[11] On November 30, 2015, Richards filed with the trial court a copy of a letter he 

had written to Attorney Bohdan. In his letter, Richards requested that Attorney 

Bohdan “please notify the court A.S.A.P. for a hearing for me to request 
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representing myself.” (Appellant’s App. p. 37). On December 3, 2015, 

Richards filed with the court a copy of another letter making the same request. 

On December 16, 2015, the trial court held a status hearing to discuss Richards’ 

requests to proceed pro se. At the hearing, Richards initially indicated that he 

would be withdrawing his request to proceed pro se, but he subsequently 

informed the trial court that he wanted to represent himself because he has

two (2) pro se motions in front of the [c]ourt that has [sic] good 

merits, and I asked [Attorney Bohdan] to move it [sic] into 

context. [Attorney Bohdan] said that he does not want to—once 

again, he does not want to pursue the matter the way that I was 

trying to lead him in as far as to get that information to the 

[c]ourt and alert the [c]ourt that we have a problem here today.

[The State is] basing [its] case on false information, and 

[Attorney Bohdan] does not seem to want to pursue it.

(Status Hrg. Tr. p. 4) (Italics added). Based on Richards’ intent to proceed pro 

se, the trial court advised him of his rights and of the pitfalls of selfrepresentation. The trial court also informed Richards of its policy against 

appointing standby counsel. The trial court questioned Richards about his 

capabilities, and Richards indicated that he has his GED; he has done legal 

work in his prior cases; and he has some experience studying to be a paralegal. 

Richards also stated that he can read and write well; he is a good speaker; and 

he could quickly become familiar with the rules and procedures for his trial. 

Moreover, Richards verified that his decision to represent himself was not 

influenced by promises of special treatment or threats of harm. Richards 

articulated that he understood the disadvantages of self-representation but that 
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he wished to proceed pro se. However, after the trial court commenced a 

discussion about scheduling a suppression hearing, Richards privately consulted 

with Attorney Bohdan. As a result, both Attorney Bohdan and the trial court 

directed Richards that he needed to make a final decision about his 

representation. Richards determined that he was “going with [Attorney] 

Bohdan” and officially withdrew his request to proceed pro se. (Status Hrg. Tr. 

p. 15). The trial court subsequently returned Richards’ pro se motions to 

suppress and to dismiss, stating that it does not accept pro se motions from 

represented defendants.

[12] On February 16-17, 2016, the trial court conducted a bifurcated jury trial. 

During the trial, to bolster the testimony of Miller, Major, and Tinker, the State 

offered the surveillance footage of the shooting as Exhibit 1. Richards objected 

to the admission of the video-recording based on his belief that it had been 

edited and was “not a true and accurate copy.” (Tr. p. 163). The trial court 

admitted Exhibit 1 over Richards’ objection. During his case-in-chief, Richards 

testified as to his version of events. He stated that after he was repeatedly 

punched by Major, he initially left the liquor store, but he was worried about 

Miller’s safety because he believed that Major and Tinker were planning on 

robbing Cap n’ Cork. Thus, he withdrew the firearm from his pocket and 

returned to the liquor store merely with the intent to ensure Miller’s safety. 

Richards testified that Major charged at him with a knife, so he fired a warning 

shot in the opposite direction. Richards claimed that “the gun went off” a 

second time when Tinker tackled him, but he never intentionally fired a shot at 
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Major. (Tr. p. 389). At the close of the evidence, the jury returned a guilty 

verdict on both Counts. Thereafter, the jury made a separate determination 

that Richards used a firearm in the commission of the aggravated battery 

offense, thus warranting an additional fixed penalty.

[13] On March 15, 2016, the trial court held a sentencing hearing. The trial court 

merged the aggravated battery charge into the attempted murder charge and 

entered a judgment of conviction for attempted murder, a Level 1 felony. The 

trial court imposed the advisory sentence of thirty years, fully executed in the 

Indiana Department of Correction. In addition, during the sentencing hearing, 

Major accepted responsibility for his role in the altercation with Richards; thus, 

he requested that Richards pay for only one-half of his medical expenses. The 

trial court agreed and ordered Richards to pay $23,500 in restitution.

[14] Richards now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Right to Self-Representation

[15] Richards claims that the trial court coerced him into forfeiting his right to selfrepresentation by improperly advising him that he would not have access to 

legal materials. “The Sixth Amendment to the United States Constitution 

guarantees a criminal defendant the right to counsel.” Henson v. State, 798 

N.E.2d 540, 543 (Ind. Ct. App. 2003), trans. denied. This right is paramount 

because it “can affect a defendant’s ability to assert all his other rights and 

because most defendants do not have the professional legal skills necessary to 
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represent themselves adequately.” Id. at 543-44. However, “a State may not 

‘constitutionally hale a person into its criminal courts and there force a lawyer 

upon him, even when he insists that he wants to conduct his own defense.’” 

Sherwood v. State, 717 N.E.2d 131, 134 (Ind. 1999) (quoting Faretta v. California, 

422 U.S. 806, 807 (1975)). Thus, the Sixth Amendment also affords a criminal 

defendant the right to forego the assistance of counsel and proceed pro se. 

Henson, 798 N.E.2d at 544. “The decision to proceed pro se must be made 

knowingly and intelligently because, by asserting this right, the defendant 

simultaneously waives his or her right to the assistance of counsel.” Dobbins v. 

State, 721 N.E.2d 867, 871 (Ind. 1999). Nevertheless, “[t]he law ‘indulges every 

reasonable presumption against a waiver of [the] fundamental right’” to 

counsel. Henson, 798 N.E.2d at 544 (quoting Poynter v. State, 749 N.E.2d 1122, 

1126 (Ind. 2001)).

[16] As a prerequisite to claiming that the right to self-representation has been 

denied, a defendant must “clearly and unequivocally assert his right of selfrepresentation.” Dobbins, 721 N.E.2d at 871. Following such an assertion, the 

trial court must conduct a pre-trial hearing to determine whether the defendant 

is competent to proceed without counsel and to establish a record of the 

defendant’s knowing and voluntary waiver of his right to counsel. Id. at 872. 

As our supreme court has stated, “[w]hen a defendant asserts the right to selfrepresentation, the court should tell the defendant of the ‘dangers and 

disadvantages of self-representation.’” Poynter, 749 N.E.2d at 1126 (quoting 

Faretta, 422 U.S. at 835). “There are no prescribed ‘talking points’ the trial 
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court is required to include in its advisement to the defendant;” rather, the trial 

court “need only come to a considered determination that the defendant is 

making a voluntary, knowing, and intelligent waiver.” Id. (quoting Leonard v. 

State, 579 N.E.2d 1294, 1296 (Ind. 1991)).

[17] In this case, the trial court advised Richards, in relevant part, as follows:

You have the right to be represented by a lawyer. On the other 

hand, you have the right to represent yourself, but to do so you 

must first give up your right to have a lawyer. In order for you to 

give up your right to a lawyer I must be sure that you fully 

understand what you’re asking for and what you’re giving up. . . . 

Count 1 is [a]ttempted [m]urder, a Level 1 [f]elony. . . . Level 1 

carries a twenty (20) to forty (40) year term. A Level 3 [felony 

for aggravated battery] carries three (3) to sixteen (16) [years]. If 

the allegations pertain to the same victim they would—the 

[b]attery would merge in the [a]ttempted [m]urder, . . . [s]o really 

we’re talking about an [a]ttempted [m]urder, a Level 1 [f]elony, 

twenty (20) to forty (40) year term. As you know it’s the State’s 

obligation to prove the elements of the crime beyond a 

reasonable doubt. A person charged as you are may have one (1) 

or more defenses. There are legal factors that may increase or 

decrease a sentence from an advisory sentence. An attorney has 

developed skills and expertise to prepare and present a defense to 

the criminal charges against you. Those attorney skills include 

investigating and interrogating witnesses; gathering documents 

and other kinds of written evidence; finding favorable witnesses 

and obtaining testimony; preparing and filing motions before 

trial; presenting favorable opening and closing statements; 

examining and cross examining witnesses; recognizing 

objectionable and unfavorable evidence and promptly objecting 

to its use; preparing appropriate jury instructions and presenting 

favorable sentencing information; and attacking unfavorable 

sentencing information should that be necessary. Drawing on 

these skills and related knowledge an attorney can analyze the 
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strength and weakness of the evidence for or against you and give 

you expert advice on the benefits of any of negotiating with the 

prosecutor for dismissal of some or all of the charges, or a 

favorable sentence in return for a plea of guilty. You must 

understand that if you decide not to have an attorney you will 

not receive any special treatment with your defense. You will 

have to follow all of the same legal rules and procedures in your 

case as an attorney would have. Remember the State is going to 

be represented by an attorney and will have the advantage of all 

the skill and experience that a trained lawyer can provide. You 

have the right to decide against having an attorney, but deciding 

not to have one can turn out to be a very bad decision. 

Experienced lawyers understand this when they are prosecuted, 

they are almost always—an experienced lawyer decides to be 

represented by another lawyer.[1]

(Status Hrg. Tr. pp. 5-8). The trial court added:

If I find that you understand your right to have a lawyer, that you 

understand the dangers and disadvantages of representing 

yourself, and that you have voluntarily decided to give up your 

right to a lawyer and wish to represent yourself, I will allow you 

to do so. Now, I need you to understand different courts do 

different things. Sometimes courts appoint standby counsel to 

assist pro se [d]efendants with the law. I’ve done enough reading 

[of] case law about those situations to understand that all that 

does is cause confusion among everyone, including the pro se

[d]efendant and the lawyer who is trying his or her best to 

represent that pro se [d]efendant. It’s never clear exactly where 

the line is of where the responsibility of the pro se [d]efendant 

ends and where the obligation of the standby counsel begins. So 

 

1

 As Richards recognizes, the trial court’s advisement generally follows the guidelines set forth in Dowell v. 

State, 557 N.E.2d 1063, 1066-67 (Ind. Ct. App. 1990), trans. denied; cert. denied, 502 U.S. 861 (1991), for 

establishing a knowing, intelligent, and voluntary waiver of a defendant’s right to counsel. 
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I do not appoint standby counsel. You will be on your own. The 

[c]ourt will issue subpoenas for you and see to it that they are 

served. I will not, nor will any court personnel do any 

investigation for you. [Attorney] Bohdan has access to 

investigators and folks to serve subpoenas and follow through on 

those sorts of things that you would not have if you were to 

represent yourself.

(Status Hrg. Tr. pp. 10-11) (Italics added). As previously mentioned, Richards 

initially indicated that he understood the risks of self-representation and wanted 

to proceed pro se regardless. However, when pressed to make a final decision 

(and after being advised that he could not continue to change his mind on this 

matter), Richards elected to maintain representation by Attorney Bohdan.

[18] Richards now contends that the trial court improperly advised him of the 

limitations surrounding his right to self-representation. Specifically, Richards 

argues that he was misled into believing that he would not have access to legal 

materials based on the court’s advisement that it would not appoint standby 

counsel or provide investigatory assistance. Richards acknowledges that “a 

defendant who chooses to proceed pro se must accept the burdens and hazards 

incidental to his position.” (Appellant’s Br. p. 15). Nevertheless, he contends 

that “there is a constitutional right to have access to the courts and this right 

may be protected by the appointment of standby counsel, if standby counsel is 

not refused by the [d]efendant.” (Appellant’s Br. p. 15). Richards relies on 

Engle v. State, 467 N.E.2d 712, 714 (Ind. 1984), in which a trial court denied a 

pro se defendant’s petition for direct access to legal materials. Our supreme 

court stated that “[t]he fundamental constitutional right of access to the courts 
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requires prison authorities to assist inmates in the preparation and filing of 

meaningful legal papers by providing prisoners with law libraries or adequate 

assistance from persons trained in the law.” Id. at 715. In the case of Engle, the 

supreme court concluded that the defendant’s “right of access to the court was 

not undermined” because “[h]e had access to legal materials and legal 

assistance through his stand-by counsel.” Id. Thus, according to Richards,

[b]y summarily denying [him] the appointment of standby 

counsel, without determining [Richards’] access to legal material, 

simply because the court believed that standby counsel does 

nothing more than cause confusion among everyone, the court 

not only denied [Richards] definite access to the court but abused 

its discretion by summarily refusing standby counsel. Perhaps 

more accurately stated, the court failed to exercise its discretion 

as it failed to even consider the appropriateness of standby 

counsel in this specific case.

(Appellant’s Br. p. 16).

[19] We agree with the State that Richards’ reliance on Engle is misplaced. Here, 

there is no indication in the record that Richards had been denied access to 

legal materials (i.e., a law library) or that he would be if he elected to proceed 

pro se. Furthermore, the appointment of standby counsel, while “an appropriate 

prophylactic device” for a pro se defendant, is entirely within the trial court’s 

discretion. Sherwood, 717 N.E.2d at 135 n.2; Jackson v. State, 441 N.E.2d 29, 33 

(Ind. Ct. App. 1982). In fact, although Richards did not request the 

appointment of standby counsel, “a defendant who proceeds pro se has no right 

to demand the appointment of standby counsel for his assistance.” Sherwood, 
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717 N.E.2d at 135 n.2 (Italics added). Accordingly, we find that the trial court 

adequately apprised Richards “of the ‘dangers and disadvantages of selfrepresentation.’” Poynter, 749 N.E.2d at 1126 (quoting Faretta, 422 U.S. at

835). Based on the information he received, Richards was capable of making a 

knowing and intelligent decision, and he opted not to waive his right to 

counsel. We conclude that the trial court did not coerce Richards into 

foregoing his right to self-representation.

II. Admission of Evidence

[20] Richards next claims that the trial court abused its discretion by admitting into 

evidence the footage from Cap n’ Cork’s surveillance cameras (i.e., State’s 

Exhibit 1).2

 The admission or exclusion of evidence is reserved to the discretion 

of the trial court. Mays v. State, 907 N.E.2d 128, 131 (Ind. Ct. App. 2009), trans. 

denied. On appeal, we review a trial court’s evidentiary rulings only for an 

abuse of discretion. Id. It is an abuse of discretion if the trial court’s “decision 

is clearly against the logic and effect of the facts and circumstances.” Id.

[21] During the trial, the State offered Exhibit 1 into evidence through Miller. As 

the store manager, Miller testified that she helped the police officers obtain a 

copy of the footage from its storage location at the Coldwater Road branch of 

Cap n’ Cork. Within half an hour of the shooting, Miller reviewed the footage 

with the officers at the liquor store. She testified that it was a true and accurate 

 

2 Despite our best efforts, we were unable to access the files on the DVD. Nevertheless, we find that we are 

able to resolve this issue without reviewing the surveillance footage. 
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copy of what had transpired. She further stated that, to the best of her 

knowledge, the footage had not been edited. Richards objected to the 

introduction of State’s Exhibit 1 “as an overabundance of caution” because he 

believed that the video had been “edited . . . and that it is not a true and 

accurate copy.” (Tr. p. 163). The trial court ruled that the State “laid a proper 

foundation” and admitted Exhibit 1. (Tr. p. 163).

[22] On appeal, Richards contends that the admission of the video recording 

“violated the best evidence principles and failed to comply with any exception

to such principles.” (Appellant’s Br. p. 19). He further asserts that the video 

recording was not properly authenticated under the silent witness theory. 

Although Richards did not object to the admission of Exhibit 1 on these specific 

grounds during the trial, we will nevertheless address his arguments to the 

extent that they relate to his general objection that the video recording had been 

edited and was not a true and accurate portrayal of the events that it purported 

to depict. See Warren v. State, 757 N.E.2d 995, 999 (Ind. 2001) (noting that 

grounds not raised when evidence is presented at trial may not be raised for the 

first time on appeal).

[23] With respect to Richards’ best evidence claim, he argues that the State failed to 

establish that Exhibit 1 “was not modified.” (Appellant’s Br. p. 19). The best 

evidence rule is codified in Indiana Evidence Rule 1002, which provides that 

“[a]n original writing, recording, or photograph is required in order to prove its 

content . . . .” See Lawson v. State, 803 N.E.2d 237, 240 (Ind. Ct. App. 2004), 

trans. denied. However, “[a] duplicate is admissible to the same extent as an 
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original unless a genuine question is raised about the original’s authenticity or 

the circumstances make it unfair to admit the duplicate.” Ind. Evidence Rule 

1003. During the trial, Richards vaguely indicated that he believed that Exhibit 

1 was an edited copy of the recording, but he did not cite specific reasons to 

raise a genuine question as to its authenticity. He now points out, for the first 

time, that there is a discrepancy between the date the footage was purportedly 

obtained and the date that was used as a file name to save the footage on a 

DVD. He further argues that there was never “any showing that Exhibit 1 was 

compared to the initial video stored off site.” (Appellant’s Br. p. 19). Thus, 

Richards insists that the State failed to establish that Exhibit 1 was either an 

original or a duplicate of the original—i.e., that it was not an edited version.

[24] We find no merit in Richards’ argument. Richards had the opportunity at trial 

to ask preliminary questions regarding any discrepancy between the date of the 

footage and the date used in the file name on the DVD, but he never mentioned 

this as an issue. Instead, Richards simply asked Miller whether the “copy being 

offered here as an exhibit today[] is . . . a true and accurate copy of the sequence 

surrounding the shooting incident” and whether “there [had] been any editing 

done as it relates to this copy.” (Tr. p. 163). As previously mentioned, Miller 

testified that the copy was a true and accurate depiction of events, and there 

was no editing done “to [her] knowledge.” (Tr. p. 163). She explained that the 

surveillance footage was stored at the main Cap n’ Cork location, and she 

assisted the police officers in retrieving a copy immediately following the 

shooting. Within approximately one-half hour following the shooting, Miller 
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and the police officers reviewed the footage together. Thus, we decline to 

reverse the trial court’s evidentiary ruling based on Richards’ best evidence 

argument.

[25] Richards also challenges the admission of the video-recording on the basis that 

it was not properly authenticated. Pursuant to “the ‘silent witness’ theory,” a 

video recording may be admissible as substantive evidence as long as there is “a 

strong showing of [the videotape’s] authenticity and competency.” Mays, 907 

N.E.2d at 131 (alteration in original) (quoting McHenry v. State, 820 N.E.2d 124, 

128 (Ind. 2005)). The recording acts as a silent witness “as to what activity is 

being depicted.” Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014) (quoting Smith 

v. State, 491 N.E.2d 193, 196 (Ind. 1986)). As such, a witness “is not required 

to testify that the [recording] is an accurate representation of the scene as it 

appeared—and indeed, often could not so testify since he or she was not 

necessarily there to observe the scene on that day.” Id. (internal quotation 

marks omitted). In order to meet the heightened foundational requirements, 

“[t]here must be a strong showing of authenticity and 

competency” and . . . when automatic cameras are involved, 

“there should be evidence as to how and when the camera was 

loaded, how frequently the camera was activated, when the 

photographs were taken, and the processing and changing of 

custody of the film after its removal from the camera.”

Wise v. State, 26 N.E.3d 137, 141 (Ind. Ct. App. 2015) (ellipsis in original) 

(quoting McHenry, 820 N.E.2d at 128), trans. denied. “This standard is applied 

‘where there is no one who can testify as to its [the recording’s] accuracy and 
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authenticity because the photograph must ‘speak for itself’ and because such a 

‘silent witness' cannot be cross-examined.’” Id. (alteration in original) (quoting 

Edwards v. State, 762 N.E.2d 128, 136 (Ind. Ct. App. 2002), trans. denied).

[26] Richards appears to acknowledge that the “silent witness” theory is not 

particularly applicable in this case in light of the fact that Miller was present as 

a witness during the event, and she testified as to the recording’s accuracy and 

authenticity. Thus, the recording need not “speak for itself.” Id. Nevertheless, 

Richards argues that Miller’s “testimony does not account for the fact that 

during part of the [video recording] she was ducked down behind the counter 

and for at least that small segment she could not verify the accuracy of the 

[recording].” (Appellant’s Br. p. 18). We note that Tinker testified at trial that 

he also watched the video, and he stated that it accurately depicted what 

occurred at the time Major was shot. Richards further challenges the integrity 

of the recording based on his own testimony during the trial that Major charged 

at him with a knife, which was not depicted in the footage. Although police 

officers retrieved a knife from the floor, Miller and Tinker both testified that 

they never saw Major with a knife, and Major testified that he had never seen 

the tactical knife that was recovered, and he never brandished a knife at 

Richards. Thus, Richards’ self-serving testimony does little to convince our 

court that the surveillance footage was manipulated. Accordingly, we find no 

basis for reversing the trial court’s ruling on authentication grounds. We 

conclude that the trial court did not abuse its discretion by admitting State’s 

Exhibit 1.
Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016 Page 19 of 19

CONCLUSION

[27] Based on the foregoing, we conclude that the trial court properly advised 

Richards of the disadvantages of self-representation and did not coerce Richards 

into foregoing his right to act pro se. We further conclude that the trial court 

acted within its discretion by admitting Exhibit 1 into evidence.

[28] Affirmed.

[29] Bailey, J. and Barnes, J. concur