MCGHEE v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Mitchell Cheeks McGhee was charged with Level 2 felony dealing in a narcotic drug and Level 3 felony possession of a narcotic drug. McGhee waived his right to counsel. The case proceeded to trial, with McGhee representing himself. During trial, McGhee made multiple outbursts and refused to proceed in a civil manner. He was eventually found to be in contempt of court and removed from the courtroom. McGhee's trial continued in his absence. At the conclusion of the State's case, the jury found McGhee guilty of Level 3 felony possession of a narcotic drug.¹ The trial court imposed a sixteen-year sentence and, on August 1, 2024, granted McGhee's motion to have certain property returned to him. On appeal, McGhee contends that the trial court abused its discretion by (1) excluding certain evidence from trial, (2) removing him from the courtroom before continuing on with his trial in his absence, and (3) refusing to return his property to him. We affirm.

Facts and Procedural History

[2] In July of 2023, Jordan Darling and his girlfriend Ashley Mills were living with Andrew Hubble. Darling and Mills knew McGhee, as Darling had been “gettin’ fentanyl from him.” Tr. Vol. III p. 57. At some point in mid-July, McGhee began living at Hubble's home. On July 19, 2023, Mills overdosed after ingesting fentanyl that McGhee had sold to her and Darling. Darling revived Mills with Narcan.

[3] About twenty to thirty minutes after Mills overdosed, police arrived at the residence to execute a search warrant. Police knocked and announced their presence, but no one answered. Police entered the home after hearing “rustling inside.” Tr. Vol. II p. 185.

[4] When police entered, McGhee was standing in a hallway. Upon seeing the officers, McGhee “turned around and took off[,]” running toward Darling and Mills's bedroom in the back of the home. Tr. Vol. II p. 189. When McGhee entered the bedroom, Darling “didn't actually see him stash the fentanyl but I seen the fentanyl on [sic] his hand and he ran in my room and he ran like to the front of my bed and I believe he stashed it.” Tr. Vol. III p. 58. Prior to police entering the residence, Mills had also seen McGhee with a “big bag” of fentanyl “on his person.” Tr. Vol. III p. 52. Upon searching the bedroom, police recovered a plastic bag of fentanyl that weighed 28.09 grams. Police also seized McGhee's cellular telephone and $1449.00 in U.S. currency from McGhee's person.²

[5] On July 21, 2023, the State charged McGhee with Level 2 felony dealing in a narcotic drug and Level 3 felony possession of a narcotic drug. McGhee waived the right to an attorney and represented himself at trial. McGhee became irate and disruptive during trial after the trial court made an evidentiary ruling contrary to McGhee's position. McGhee engaged in a lengthy rant that began in the presence of the jury and continued after the trial court ordered a recess and removed the jury from the courtroom. In this rant, McGhee accused the trial court of lying to the jury, violating his constitutional rights, and being biased against him. Despite McGhee's disruptive behavior, the trial court offered him the opportunity to remain in the courtroom so long as he agreed to behave in an appropriate manner. McGhee refused, after which the trial court found him in contempt of court and removed him from the courtroom. McGhee's trial then continued in his absence.

[6] At the conclusion of trial, the jury found McGhee guilty of the Level 3 felony possession offense but could not reach a verdict on the Level 2 felony dealing offense. The trial court imposed a sixteen-year sentence. At some point after being sentenced, McGhee filed a motion for the return of his personal property, namely his cellular telephone and U.S. currency. The trial court granted McGhee's motion on August 1, 2024.

Discussion and Decision

I. Exclusion of Evidence

[7] The admission of evidence is a matter that we generally “leave to the discretion of the trial court.” Clark v. State, 994 N.E.2d 252, 259–60 (Ind. 2013). “We review these determinations for abuse of that discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.” Id. at 260 (internal citation omitted). “[W]e will not reverse the decision to admit or exclude evidence if that decision is sustainable on any ground.” Carpenter v. State, 15 N.E.3d 1075, 1078 (Ind. Ct. App. 2014), trans. denied.

[8] McGhee contends that the trial court abused its discretion in excluding the probable-cause affidavit that was filed in support of the search warrant. The State claims that McGhee has waived this contention by failing to make an offer to prove.

[Indiana Evidence Rule] 103(a)(2) provides error may not be predicated on a ruling that excludes evidence unless the substance of the evidence was made known to the court by a proper offer of proof, or was apparent from the context within which questions were asked. The purpose of an offer to prove is to enable the trial court and this court to determine the admissibility and relevance of the proffered evidence. The failure to make an offer to prove results in a waiver of the asserted evidentiary error.

Carter v. State, 932 N.E.2d 1284, 1287 (Ind. Ct. App. 2010) (internal citations and quotation marks omitted). In order to circumvent waiver, a defendant must prove that the claimed error amounts to fundamental error. See Young v. State, 746 N.E.2d 920, 924 (Ind. 2001) (providing that failure to make an offer to prove renders any claimed error unavailable on appeal unless it rises to the level of fundamental error). As such, because McGhee did not make an offer to prove, he must prove that exclusion of the probable-cause affidavit resulted in fundamental error.

[9] “A fundamental error is a substantial, blatant violation of basic principles rendering the trial unfair to the defendant, and applies only when the actual or potential harm cannot be denied.” Wilson v. State, 4 N.E.3d 670, 676 (Ind. Ct. App. 2014). McGhee, however, does not argue fundamental error in his opening appellate brief. Any argument as to fundamental error, therefore, is also waived. See Davidson v. State, 211 N.E.3d 914, 925 (Ind. 2023) (providing that an appellant who failed to raise an argument in her opening appellate brief waived the issue for appellate review).

[10] Waiver notwithstanding, we cannot say that the trial court committed fundamental error. We have previously concluded that probable-cause affidavits are not admissible because they contain inadmissible hearsay that does not fall within any of the exceptions to the hearsay rule. See McMillen v. State, 169 N.E.3d 437, 443 (Ind. Ct. App. 2021); Abney v. State, 79 N.E.3d 942, 954–55 (Ind. Ct. App. 2017); Rhone v. State, 825 N.E.2d 1277, 1283–84 (Ind. Ct. App. 2005), trans. denied; Tate v. State, 835 N.E.2d 499, 508–09 (Ind. Ct. App. 2005), trans. denied.

The primary hearsay concern with such a report is that it may allow a trier of fact to draw conclusions from the statements made therein, which often contain the preparer's assumptions and personal interpretations of the events. Thus, the statement of facts presented in a probable cause of arrest affidavit pose a risk of unreliability that the hearsay rule is designed to protect against.

Tate, 835 N.E.2d at 509 (internal citations omitted).

[11] The trial court excluded the probable-cause affidavit on hearsay grounds. Hearsay means “a statement that: (1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter asserted.” Ind. R. Evid. 801(c). “Hearsay is not admissible unless these rules or other law provides otherwise.” Evid. R. 802. Evidence Rule 803 sets forth exclusions to the general hearsay rule, but McGhee does not explain which exclusion to the hearsay rule he believes applies here. Regardless of which exception McGhee may believe applies, we find our prior conclusions on this issue to be persuasive and apply them here; that being that probable-cause affidavits are not admissible because they contain inadmissible hearsay that does not fall within any of the exceptions set forth in Evidence Rule 803. As such, we cannot say that the trial court abused its discretion, much less committed fundamental error, in excluding the probable-cause affidavit from trial.

II. McGhee's Exclusion from Trial

[12] McGhee contends that the trial court abused its discretion in moving forward with his trial after removing him from the courtroom, effectively excluding him from his own trial.³ For its part, the State contends that the trial court acted within its discretion when it removed McGhee from the courtroom before moving forward with trial.

[13] We review the decision to exclude a defendant from trial for an abuse of discretion. Wilson v. State, 30 N.E.3d 1264, 1270 (Ind. Ct. App. 2015), trans. denied. “An abuse of discretion occurs when the trial court's decision is clearly against the logic, facts, and circumstances presented.” Id. “We do not reweigh evidence.” Id. “There is a strong presumption that the trial court properly exercised its discretion.” Warner v. State, 773 N.E.2d 239, 247 (Ind. 2002).

[14] The Sixth Amendment to the United States Constitution and Article I, Section 13 of the Indiana Constitution grant a defendant in a criminal proceeding the right to be present at his or her own trial. However, this right, under either the United States or Indiana Constitutions, may be waived if such waiver is made knowingly and voluntarily. Both this court and the United States Supreme Court have held that significantly contemptuous conduct by a defendant can function as a knowing and voluntary waiver of their right to be present.

Wilson, 30 N.E.3d at 1269 (internal citations omitted); see also Illinois v. Allen, 397 U.S. 337, 343 (1970). In concluding that it was constitutionally permissible to remove a disruptive defendant from the court room and continue the trial in the defendant's absence, the United States Supreme Court explained that

[i]t is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.

Allen, 397 U.S. at 343 (emphasis added). We have previously concluded that no warnings are required before a trial court excludes a defendant from trial due to disruptive behavior. Wilson, 30 N.E.3d at 1270–71. It does not matter whether the defendant's outbursts occur within or outside the presence of the jury. See Campbell v. State, 732 N.E.2d 197, 204–06 (Ind. Ct. App. 2000) (affirming the trial court's removal of a defendant who made repeated disruptive outbursts outside the presence of the jury).

[15] McGhee became irate after the trial court excluded the probable cause affidavit, behaving in a disruptive manner and making disruptive statements. After an outburst in which McGhee yelled at the trial court, exclaiming his belief that the exhibit did not contain hearsay, the trial court instructed McGhee to sit down, telling him that it was “not going to have these antics in the courtroom!” Tr. Vol. III p. 30. As the trial court attempted to explain to McGhee why the tendered evidence had been excluded, McGhee accused the trial court of lying. The trial court recessed the proceedings and removed the jury from the courtroom. During the recess, the trial court explained to McGhee that he would be removed from the courtroom if he kept “acting out[.]” Tr. Vol. III p. 31. McGhee “declare[d] a mistrial” and ranted about his belief that the search warrant had not been supported by probable cause. Tr. Vol. III p. 32. The trial court offered McGhee the opportunity to question the investigating officer outside of the presence of the jury, in an apparent attempt to help him better understand the proceedings, but McGhee refused. McGhee continued his rant, claiming that he was “gettin’ a half trial!” Tr. Vol. III p. 33. McGhee accused the trial court of lying to the jury, violating his constitutional rights, and being biased against him.

[16] As McGhee ranted about being “falsely detained[,]” the trial court asked McGhee if he wanted to make a record of his arguments relating to the alleged admissibility of the probable-cause affidavit for the purposes of appeal. Tr. Vol. III p. 34. This led to the following exchange:

THE COURT: Okay. Do you want to make a record –

THE DEFENDANT: How – I don't wanna make a record because a record don't matter because who to say – I'm not gettin’ a fair trial! Who to say your clerk is really puttin’ this on the record?! – Who's to says that?! I don't know that!

THE COURT: Do you wanna make a record for purposes of appeal[?] If you wanna appeal --

THE DEFENDANT: I do I know that she's making a direct – a direct record?! I don't know that! My court – I'm not for appeal right now! My due process right is for a fair and impartial trial – what I'm not getting in this courtroom! Because – know why?! Because it's African American and you know this case is no good! Your case is falsely imprisonment! Your affidavit is no good! He knows that and the jury hear the affidavit there's no case! Your – everyone knows that!

Tr. Vol. III p. 34.

[17] As McGhee continued to rant about his belief that the search warrant had not been supported by probable cause, the trial court reminded him that McGhee had made this argument prior to trial and that the court had ruled “against your position.” Tr. Vol. III p. 35. McGhee interrupted the trial court, telling the judge to “listen!” Tr. Vol. III p. 35. McGhee then accused the trial court of not allowing him to make his case before the jury. Eventually, the following exchange occurred:

THE COURT: Okay, are we gonna proceed with the trial?

THE DEFENDANT: I – I – I – I can't! So, if you gonna have a trial without me, have it without me! Cause I don't have a fair trial anyway! –

THE COURT: Okay. –

THE DEFENDANT: -- That's what the court gonna – the Court of Appeals gonna hear! I don't have a fair a trial anyway because you don't let me (inaudible) this in! You didn't let the jury hear the facts of this case! You the one who put the case in because I got 1983 on you! I got 1983 on him! I got 1983 on the same thing! You wanna kill the civil case! – Come on, man! How can that be fair, Judge?! You the same one that sat on the affidavit of the search warrant! You the same one who signed the affidavit for me to be locked up! You the same one who hear the motion! The same one who signed the – you not gonna make try the probable cause because you read the probable cause, Your Honor! That's a conflict of interest! You have interest in the case! Of course, you – you – you – you feelin’ a certain way! Cause you the one (inaudible) the probable cause! That's why it say you gotta be in – in – in People versus Green – you gotta be a mutual detached magistrate! And that (inaudible) it!

THE COURT: Alright, um, Mr. McGhee, um, we're gonna continue with the trial. If you're gonna participate – I don't want any more outbursts, alright?

THE DEFENDANT: I'm gonna give it cause I'm fightin’ my case! You might as well contempt me and kick me out! Cause I'm gonna tell ya like this – you not bullyin’ me for my rights! Martin Luther King – Malcolm X – said injustice anywhere is a threat to justice everywhere and I'm not givin’ it to you!

THE COURT: Okay, Mr. McGhee, I've given ya the chance to participate in the trial without disturbing the proceedings of the court in a civil manner. You're – you're irritate. You're – you're accusing the Court of bias. You're accusing, uh, law enforcement of unethical conduct. Um, it's disrespectful to the Court and dignity of the Court. Um, it's disturbing court business. Uh, you're – I gave you an opportunity to proceed and you're not apologizing or – finding you in – in Direct Contempt of the Court. I'm gonna have you, uh, removed from the courtroom and we're gonna proceed without you.

Tr. Vol. III pp. 36–37.

[18] Upon review of the record, we find that McGhee's behavior was aggressive and disruptive. He engaged in numerous outbursts; accused various state-actors, including the trial court, of bias and misconduct; and refused to participate in an appropriate manner. The trial court demonstrated patience with McGhee and offered him the chance to remain in the courtroom if he promised to stop his disruptive behavior. McGhee refused this opportunity, exclaiming “[y]ou might as well contempt me and kick me out!” Tr. Vol. III p. 37. Left with no other reasonable choice, the trial court did just that. We cannot say that the trial court abused its discretion in this regard.⁴

III. Release of McGhee's Property

[19] McGhee last contends that the trial court abused its discretion in failing to return evidence seized at the time of McGhee's arrest, i.e., his cellular telephone and United States currency, to him. The trial court issued an order on August 1, 2024, granting McGhee's motion for the return of the property. McGhee acknowledges the trial court's order but nonetheless argues that the trial court abused its discretion by failing to order that his property be returned to him.

[20] McGhee's argument on appeal focuses on his claim that the State has failed to comply with the trial court's order. We agree with the State that “the trial court has done what was within its power, which was to grant McGhee's request.” Appellee's Br. p. 21. If the State has failed to comply with a trial court order, the proper avenue for relief is to ask the trial court to find the State in contempt and to compel the State to comply with the court's order.⁵ Given that the trial court granted McGhee's motion for the return of his property, we cannot say that the trial court abused its discretion in this regard.

[21] The judgment of the trial court is affirmed.

FOOTNOTES

1.   The jury could not reach a verdict on the Level 2 offense.

2.   $1449.00 represents the amount of genuine U.S. currency recovered from McGhee's person. Additional bills were subsequently determined to be counterfeit.

3.   We note that McGhee argues in his appellate brief that the trial court committed fundamental error by removing him from the courtroom and moving forward with his trial in his absence. However, because the correct standard of review is abuse of discretion, we will review the trial court's decision for an abuse of discretion.

4.   When managing a criminal trial with a pro se defendant, an available practice is for a trial judge is to appoint stand-by counsel who is prepared to advise and represent the defendant upon request of the defendant.

5.   We note that McGhee filed a motion to compel the release of his property on November 20, 2024, in which he contested the State's assertion that some of the recovered currency was counterfeit and claimed that the State could mail his property to his sister at an address in Illinois. We further note that McGhee claimed in his opening appellate brief that the trial court never ruled on his motion to compel. While McGhee mentioned this alleged fact, he did not develop an argument that the trial court had abused its discretion by failing to rule on this motion to compel in his opening appellate brief. Any contention to that effect is therefore waived. See Davidson, 211 N.E.3d at 925 (providing that an appellant who failed to raise an argument in her opening appellate brief waived the issue for appellate review).

Bradford, Judge.

Pyle, J., and Kenworthy, J., concur.