ILNews

Man entitled to warning that conduct may waive right to counsel

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals has reversed the finding that a man charged with murder is no longer indigent and that his difficult behavior caused him to waive or forfeit his right to appointed counsel. The appellate court concluded that the judge considered the defendant’s conduct, not his ability to pay, when finding him no longer indigent.

Stephen Gilmore was charged with murder in 2005. His first trial was declared a mistrial and he was able to post a cash bond. Gilmore received two court-appointed attorneys at that trial and expressed displeasure at the time with his attorneys, among other things.

When he was up for retrial in 2006, the two original attorneys filed a motion to withdraw representation, citing a major breakdown in the attorney-client relationship. Several other court-appointed attorneys, including one from another county, eventually filed motions to withdraw their appointments, citing major disagreements in trial strategy and breakdowns in communication. Gilmore continually requested a new court-appointed attorney after the previous ones had withdrawn.

In January 2009, the trial court decided to review Gilmore’s indigency status and found no changes, but in September 2010, the trial court issued an order finding he was no longer indigent. The judge also said he waived his right to counsel by his “obstreperous conduct.” The judge noted the cases raise the question of whether there are limits on one’s right to indigent counsel.

At the September 2010 hearing, the judge noted that Gilmore’s income from Social Security was in excess of Federal Poverty Guidelines, his home’s property was assessed at $54,000, and the attorney fees for his first trial were $21,000. But the judge went on to say that a court must also consider a defendant’s conduct and behavior when re-evaluating indigency.

The appellate court was troubled by this statement because “it indicates that the trial court based its indigency determination in whole or in part on its assessment of Gilmore’s conduct, not his financial condition. We have found no such requirement with regard to an indigency status determination,” wrote Judge James Kirsch in Stephen L. Gilmore v. State of Indiana, No. 40A01-1011-CR-553.

Having found that Gilmore’s assets and income were insufficient for him to afford to pay for his own attorney, the court can’t then reverse its decision without finding a change in circumstances since its earlier decision or determining the previous decision was an error, wrote the judge.

Regarding his right to court-appointed counsel, the COA agreed with the trial court that although a defendant has a right to an attorney, if indigent, he doesn’t have the right to abuse it. Gilmore’s conduct appears to be along the line of a waiver by conduct or forfeiture with knowledge. Because of this, he’s entitled to a hearing during which he should be warned that if his difficult behavior persists, the trial court will find he has chosen self-representation by his own conduct.

“While not condoning Gilmore’s apparent obstreperous conduct, because those warnings were not given to Gilmore, we conclude that the trial court erred by finding that Gilmore had waived his right to counsel,” he wrote.

ADVERTISEMENT

  • Well that's one side if this story...
    what about the other side--Mr. Gilmore's side? I understand that he has posted his side of the story, which apparently did not violate the comments policy, yet you removed his comments. Why? I think his comments help to round out the "mental picture" of this case...a case in which Mr. Gilmore has basically been railroaded from the beginning. He deserves to be heard.

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. All of these comments you see on the internet about Dr matamah are not just comments, they are truthful words of experience written by those who have been there and found help in reuniting with the ones they hold dear to their heart and other marital and financial problems just like i did. am Svein Erik Bjerke from Gardermoen, Norway I can tell you this because I also asked him for help to cast a spell to fix my relationship with the only woman I have ever loved after been married four time in the last four years cos i didn't believe in love but in the power of being rich. When it came to meet my wife it was a different case because I fell for her in every way. At the time i met her it was only a while before the relationship became serious cos I bet she love me also. We moved in together and our relationship blossomed. we got married but couldn't have a baby and then I discovered my wife was barren. I had to try some spell casters but to no avail until I contacted Dr matamah. HE restored my wife's womb and just like that she got pregnant, she has given birth now and our baby is growing very healthy. I later casted a money spell through him which he did and today we are rich and doing very fine. Thank God for our lives and also to Dr matamah who God has used to blessed us. I know that not everybody will believe this moreover its just something on the internet but my heart knows every of this word that formed this entire comment is true. Am Leaving Dr matamah's contact for those who believe this and need help as well. his contact is: guruvoodoospellcast@yahoo.com

  2. Or does the study merely wish they fade away? “It just hasn’t risen substantially in decades,” Joan Williams, director of the Center for WorkLife Law at the University of California Hastings College of the Law told Law360. “What we should be looking for is progress, and that’s not what we’re seeing.” PROGRESS = less white males in leadership. Thus the heading and honest questions here ....

  3. One need not wonder why we are importing sex slaves into North America. Perhaps these hapless victims of human trafficking were being imported for a book of play with the Royal Order of Jesters? https://medium.com/@HeapingHelping/who-are-the-royal-order-of-jesters-55ffe6f6acea Indianapolis hosts these major pervs in a big way .... https://www.facebook.com/pages/The-Royal-Order-of-Jesters-National-Office/163360597025389 I wonder what affect they exert on Hoosier politics? And its judiciary? A very interesting program on their history and preferences here: https://www.youtube.com/watch?v=VtgBdUtw26c

  4. Joseph Buser, Montgomery County Chief Prosecutor, has been involved in both representing the State of Indiana as Prosecutor while filing as Representing Attorney on behalf of himself and the State of Indiana in Civil Proceedings for seized cash and merchandise using a Verified Complaint For Forfeiture of Motor Vehicle, Us Currency And Reimbursement Of Costs, as is evident in Montgomery County Circuit Court Case Number 54C01-1401-MI-000018, CCS below, seen before Judge Harry Siamas, and filed on 01/13/2014. Sheriff Mark Castille is also named. All three defendants named by summons have prior convictions under Mr. Buser, which as the Indiana Supreme Court, in the opinion of The Matter of Mark R. McKinney, No. 18S00-0905-DI-220, stated that McKinney created a conflict of interest by simultaneously prosecuting drug offender cases while pocketing assets seized from defendants in those cases. All moneys that come from forfeitures MUST go to the COMMON SCHOOL FUND.

  5. I was incarcerated at that time for driving while suspended I have no felonies...i was placed on P block I remember several girls and myself asking about voting that day..and wasn't given a answer or means of voting..we were told after the election who won that was it.

ADVERTISEMENT