Mohamed M. Dadouch, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Knox Superior Court, No. 42D02-1706-CM-477 The
Honorable Ryan S. Johanningsmeier, Judge On Petition to
Transfer from the Court of Appeals, No. 18A-CR-745.
ATTORNEY FOR APPELLANT Mark Small Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Evan Matthew Comer Deputy Attorney General
a bench trial Mohamed Dadouch was convicted of Class A
misdemeanor domestic battery. Dadouch claims he did not
validly waive his right to a jury trial. We agree.
Dadouch was charged with a misdemeanor, he appeared with his
own attorney at an initial hearing on June 21, 2017.
Dadouch's attorney represented to the court that he had
"gone through" Dadouch's constitutional rights
with him. (Tr. p. 5.) The judge asked Dadouch,
Sir, do you understand that you have various constitutional
rights? Your attorney said he's gone over those rights to
a trial and confront/cross-examine witnesses and your
presumption of innocence and proof beyond a reasonable doubt.
He says he's covered all of that with you.
I've also been told there are forms over there that talk
about your rights, and so what he said is instead of me going
on about all of those rights, he will acknowledge that you
…. Do you understand all of that?"
(Id. at 5-6.)
answered, "Yes, I am understanding Your Honor."
(Id. at 6.) The court set a trial date of September
11, 2017. Dadouch signed an advisement of rights form
provided by the court. The form stated, "You have the
right to have a trial and for that trial to be public,
speedy, and by jury. This right to a jury can be lost if you
do not meet certain deadlines." (Appellant's App.
Vol. II, p. 18.)
November 21, 2017, the court held a hearing after Dadouch was
arrested for failing to appear at a pretrial conference. The
court noted the "bench trial date" had been
continued three times and remained set for December 18, 2017.
(Appellant's App. Vol. III, p. 2.) Also on November 21,
2017, Dadouch signed a second advisement of rights form
stating, "For a criminal charge, you have the right to
have a trial and for that trial to be public, speedy, and by
jury. In a misdemeanor case, you must request in writing a
jury trial." (Id. at 3.)
December 11, 2017, Dadouch filed motions to continue the
trial date and set the case for a jury trial. The court
denied the request for jury trial as untimely and set the
motion to continue for a hearing on December 18, 2017.
hearing, Dadouch's counsel argued that Dadouch had asked
prior counsel to request a jury trial but no jury demand was
filed and there may have been a "communication
breakdown" due to a "linguistic barrier." (Tr.
p. 39.) The court again denied the request for a jury trial
as untimely but the judge added, "Of course, I'm
always open to reconsideration if you have some evidence that
he strenuously asked counsel to advance that motion for him
but counsel failed to do so." ...