A defendant who pleaded with a judge to try to obtain possibly exculpatory video evidence he said his public defender refused to seek did not, by his conduct, waive his right to counsel, the Indiana Court of Appeals determined Thursday.
Gabriel Kowalskey was represented by his third public defender, Eric Oliver, in one of two criminal cases against him in Hendricks County. Oliver represented Kowalskey on Class B felony charges of possession of cocaine, possession of marijuana, unlawful possession of a firearm by a serious violent felon, and lesser firearms charges.
Kowalskey’s first appointed counsel withdrew citing a conflict, and a second withdrew citing a breakdown in communication. Hendricks Superior Judge Rhett M. Stuard warned Kowalskey before appointing Oliver that if his obstreperous behavior persisted, the court could find that he had chosen to represent himself.
Later, Oliver also moved to withdraw, also citing a breakdown in communication. But according to the record in Gabriel Kowalskey v. State of Indiana, 32A01-1503-CR-99, Kowalskey told the judge he didn’t want Oliver removed. Rather, he wanted evidence from police dash-cam video or from a CVS drugstore’s surveillance video that he said would prove police had their emergency lights activated for an investigatory stop, which Kowalskey said police denied.
“I am scheduled for a suppression hearing and without footage from the scene or an honest account from at least one of the officers I cannot ‘definitely’ prove the arresting officer made an Invalid Investigatory Stop – they claim a stop was never made,” Kowalskey wrote the judge in a letter a day after a pretrial conference. He also wrote he was not asking to fire Oliver.
A day after Kowalskey sent the letter, Oliver moved to withdraw. He told the court that Kowalskey “wants to have the best of both worlds and have the lawyer but dictate to the lawyer how they handle the case and that just doesn’t make a feasible solution.” The trial court granted Oliver’s motion and ruled Kowalskey had waived his right to appointment of pauper counsel.
The Court of Appeals panel reversed the waiver in this interlocutory appeal.
“Oliver indicated that Kowalskey’s February 5, 2015 letter prompted his request to withdraw appearance. In the letter, Kowalskey stated that he was scheduled for a suppression hearing, that the police had denied making an investigatory stop, that he knew the police had activated their emergency lights and thus that there had been an investigatory stop, that Oliver had not attempted to contact CVS for its surveillance system footage, that without footage he could not prove the arresting officer did not make a valid investigatory stop, and that he was not asking to fire Oliver but was hoping the court would demand the prosecutor to produce or obtain the officers’ dash-cam footage or the CVS footage,” Judge Patricia Riley wrote for the panel.
“At the February 9, 2015 hearing, Kowalskey stated that he did not want a different lawyer, that he did not have time to have a different lawyer, and that he was stressed and wrote the letter because his suppression hearing was scheduled for a week later. The record does not establish that Kowalskey, in sending his letter to the court, engaged in obstreperous conduct or behavior. The court did not make specific findings supporting the conclusion that Kowalskey, by his letter or otherwise, engaged in obstreperous conduct,” the panel concluded, citing the test for waiver of counsel under Gilmore v. State, 953 N.E.2d 583 (Ind. Ct. App. 2011).
“The trial court did not undertake an analysis of whether, or make specific finding supporting the conclusion that, Kowalskey demonstrated obstreperous conduct after being warned that such conduct could result in the waiver of his right to counsel or made a knowing and intelligent waiver of his right to counsel,” the panel held in remanding for proceedings.