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Dadouch v. State

Supreme Court of Indiana

July 16, 2019

Mohamed M. Dadouch, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal 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 Indianapolis, Indiana

          OPINION

          PER CURIAM.

         Following 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.

         After 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 understand them….
…. Do you understand all of that?"

(Id. at 5-6.)

         Dadouch 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.)

         On 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.)

         On 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.

         At the 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." ...


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