Indiana Court Decisions – March 29-April 12, 2016

7th Circuit Court of Appeals

April 5

Civil – Inmate Grievance/Administrative Remedies

Asher B. Hill v. Jerry Snyder, et al.15-2607

The 7th Circuit Court of Appeals ruled a prisoner can seek remedies against prison staff who did not protect him from other inmates who were throwing feces at him. It found the man had exhausted all of his remedies before filing suit.

Asher Hill filed suit after four incidents in which other prisoners threw feces at him through the bars of his cell. He said the prison staff failed to protect him on these occasions, and the 7th Circuit agreed with him on three of the occasions. The first two times, Hill filed a grievance to the prison, but it was returned unprocessed. The third and fourth time his prison counselor failed to give Hill the form to file his grievance, stating that Hill should know the exact time the incidents occurred, which he did not.

Chief Judge Richard Young in the Southern District of Indiana’s Indianapolis Division granted summary judgment for the prison, saying Hill had not exhausted all of his remedies. Hill appealed.

Summary judgment was overturned in the first incident. The staff returned his grievance unprocessed, saying a staff member viewed the video and could not verify this occurred. The 7th Circuit said verifying the incident is not one of policies for processing grievances, and the prison made it unclear to Hill how he should proceed.

The second incident was the only one in which the District Court should have granted summary judgment, the 7th Circuit said. Hill did not resubmit his grievance within five days of it being denied, therefore the claim was not exhausted.

In the last two incidents, the refusal of the counselors to give him a form means Hill exhausted all of his remedies. The defendants said Hill could have asked more staff, but the 7th Circuit said there’s no knowing when Hill would have exhausted all of his remedies, because the amount of staff he needed to ask was undetermined. The counselor also did not have a legitimate reason to refuse his request.

Indiana Supreme Court

March 29

Criminal – Sentence

Ronald Eckelbarger v. State of Indiana

90S02-1603-CR-157

The Indiana Supreme Court cut a man’s sentence in half, from 32 to 16 years, by a 3-2 decision after it found consecutive sentences in the case were not appropriate because the state sponsored a series of identical offenses.

Ronald Eckelbarger was sentenced to an aggregate 32-year sentence after he was charged and convicted of two counts of Class B felony dealing in methamphetamine (counts I and II), one count of Class B felony dealing in methamphetamine (count III), and one count of Class D felony possession of precursors with intent to manufacture methamphetamine (count IV).

The trial court sentenced him to 16 years with four suspended on counts I and II, to be served concurrently, 16 years with four suspended on count III, and three years on count IV. Counts III and IV would run concurrently, but consecutively to counts I and II.

The Court of Appeals affirmed the sentence but the Supreme Court granted transfer. In a per curiam opinion the court said, “We have previously observed that ‘[c]onsecutive sentences are not appropriate when the state sponsors a series of virtually identical offenses,’” citing Gregory v. State, 644 N.E.2d 543, 544 (Ind. 1994). Because of that, the court said the sentences for counts III and IV should be served concurrently to counts I and II.

Counts III and IV were “convictions supported by evidence seized pursuant to a search warrant procured based on the dealing methamphetamine by delivery counts,” and therefore the majority of Chief Justice Loretta Rush and Justices Robert Rucker and Steven David cut Eckelbarger’s sentences to 16 years.

Justices Brent Dickson and Mark Massa dissented. They believed “the extraordinary relief of appellate sentence revision is not warranted in this case.”
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March 30

Criminal – Suppression of Testimony

State of Indiana v. Brian J. Taylor

46S04-1509-CR-552

While police officers who overheard a pretrial consultation between a suspect and his lawyer were definitely in the wrong, the total suppression of all the officers’ testimony in the case may not be necessary, the Indiana Supreme Court ruled in a unanimous decision.

Chief Justice Loretta Rush wrote the decision in a case which remanded the matter to LaPorte Superior Court 1. The justices held each officer should be interviewed for prejudice and the state must prove beyond a reasonable doubt the entire substance of each witness’ testimony.

The body of Brian Taylor’s girlfriend, Simone Bush, was found on March 14, 2014, just a few hours after Taylor was dropped off at a police station. Taylor’s attorney arrived shortly thereafter and began meeting with his client. Police told the attorney to flip a switch if he didn’t want the police listening to his conversation, but when he did he piped his conversation with his client into another room where many officers were listening. They heard the location of a handgun, among other details. Two days later, Taylor was charged with murder.

A few days later, LaPorte County Chief Deputy Prosecutor Robert Neary told one of Taylor’s attorneys about the eavesdropping. The trial court held a suppression hearing, and the officers who overheard the conversation invoked their Fifth Amendment rights. The trial court ordered blanket suppression of their testimony but the Indiana Court of Appeals reversed in a split decision. The Supreme Court granted transfer.

Rush wrote the court was disappointed in the officers’ conduct. “The right to counsel would be a charade unless it guarantees privacy in those consultations, because a suspect’s candor with counsel cannot come at the price of self-incrimination. We would have hoped that principle too obvious to mention.”

She later wrote, “More than one law enforcement official flagrantly and unconscionable disregarded that safeguard — eavesdropping on privileged attorney-client communications while turning a deaf ear to the Constitutions they swore to uphold. Those officers have not only violated Taylor’s constitutional rights to counsel but have also betrayed public trust.”

However, Rush said excluding all testimony from the officers goes too far. “Even flagrant constitutional violations, though presumptively prejudicial, are not necessarily so, as illustrated by the trial court’s unchallenged ‘independent source’ findings as to many of the State’s exhibits.”

Taylor claimed the blanket suppression is sustainable on three grounds: it violated his Indiana and federal constitutional rights to counsel; the officers’ pleading the Fifth violated his Sixth Amendment right to confront witnesses; and the prosecutor’s participation in the eavesdropping constituted prosecutorial misconduct.

On the first argument, Rush said it’s not clear that all of the evidence was tainted. Some was standard procedure in a crime investigation and there were bullet fragments and fingerprints. The officers could present a limited testimony to provide a foundation for evidence.

On the second argument, Rush said again the officers may be able to provide evidence that Taylor can then cross-examine on, though it may be unlikely.

Also, the court said the prosecutorial misconduct claim need not be addressed because there is not enough evidence to prove there was any — at least, not yet.
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April 12

Miscellaneous – Custody/CHINS

In RE the Custody of M.B. B/N/F S.C. and D.C. v. S.B. and S.W.

65S04-1604-MI-00180

The Indiana Supreme Court reversed a trial court, ruling an aunt and uncle could bring a custody action despite a child in need of services case that was pending for the child in Posey Circuit Court.

A mother admitted her daughter was a CHINS, and began receiving services. The child was staying with relatives when the child’s paternal aunt and uncle filed an emergency petition for custody in the same court where the CHINS case was pending. Since then, the child was placed in foster care because the mother was arrested. The child had previously been removed from aunt and uncle’s care when aunt tested positive for methamphetamine.

A hearing was held, and the trial court determined aunt and uncle did not have standing to bring a custody action and the court did not have jurisdiction while a CHINS case was proceeding. The Indiana Court of Appeals affirmed the trial court.

The CHINS case involving the mother and daughter was terminated in July 2015 and the mother was reunited with the daughter, so the aunt and uncle would be free to file an independent custody action if they chose, meaning the question is moot. However, Justice Steven David wrote that the case still had great public interest.

“(W)e seek to clarify when a suitable third-party may initiate an independent custody action and address the jurisdictional question that has been presented,” David wrote.

The court said the trial court did have jurisdiction to consider the petition under Indiana Code 31-17-2-3(2), which says a person other than a parent has grounds to seek custody of a child that is not incidental to marital dissolution, legal separation or child support action.

David also said a CHINS case and custody action, although different, have the same subject matter, the care of the child. Because of that, the Circuit Court could have allowed the aunt and uncle to file their independent custody action but stay it until the conclusion of the CHINS proceeding. David said a court of concurrent jurisdiction should abstain from exercising that jurisdiction when subject matter is before another court, but abstention is not the same as being divested of jurisdiction, only the postponement of exercise.

Indiana Court of Appeals

March 31

Civil Tort – Injured Worker/Wages

Noe Escamilla v. Shiel Sexton Company Inc.

54A01-1506-CT-602

The Indiana Court of Appeals ruled in a split decision a man’s immigration status is valid evidence in a case where he was injured while working in the United States as an undocumented immigrant.

Noe Escamilla was born in Mexico and moved to the United States with his family. He eventually moved to Indiana, where he found work as a masonry laborer. In 2010 while on a job site, Escamilla slipped on ice and fell and was permanently restricted from lifting more than 20 pounds, which meant he could no longer work as a mason. He was an undocumented immigrant worker at the time.

Escamilla, a subcontractor’s employee, sued the general contractor, Shiel Sexton, seeking medical expenses, lost wages and future income. He then filed a motion in limine to prevent mention of his immigration status. Shiel Sexton moved to exclude the expert witnesses Escamilla was going to call because they were going to talk about the money he could have earned in the United States, and Escamilla was not eligible to work in the United States. Shiel Sexton thought the discussion should be limited to what Escamilla could earn in Mexico. The trial court denied Escamilla’s motion and granted Shiel Sexton’s.

The COA majority also affirmed the denial of Escamilla’s motion because his immigration status is necessary evidence in figuring out how much Escamilla should receive. He and the Indiana Trial Lawyers Association argued that the evidence of his status is prejudicial in today’s climate so the report’s probative value is outweighed.

“However, it is not apparent how Escamilla’s trier of fact might accurately determine his future earning capacity without that knowledge, as it must determine whether to award lost earnings based on United States wages, Mexican wages or some other standard. The prejudicial effect of that evidence therefore currently does not outweigh its probative value,” Judge Melissa May wrote for the majority.

Judge John Baker dissented, saying he didn’t see how evidence of Escamilla’s immigration status could possibly be helpful and would only hinder his chances due to the prejudicial effects.

Civil Tort – Independent Contractor

Robert Prescott Ford v. Dr. Shad Jawaid M.D. and Floyd Memorial Hospital and Health Services

22A04-1506-CT-575

The Indiana Court of Appeals ruled a man was never notified that the doctor treating him was an independent contractor and therefore reversed summary judgment to the hospital and remanded the man’s vicarious liability case to the trial court.

Robert Ford was experiencing pain and swelling of his leg in 2009 and was diagnosed with a large blood clot. He was admitted to Floyd Memorial Hospital and Health Services, treated by Dr. Shad Jawaid and released two days later. He was also treated at a different hospital for the same thing, and continues to have health issues from the clot.

In 2011, he filed a medical malpractice complaint and amended it in 2013 with the Indiana Department of Insurance. The medical review panel found Jawaid failed to comply with the appropriate standard of care and his conduct was a factor, but the hospital was not at fault for his injuries.

In 2014, Ford filed a medical malpractice complaint against the hospital, and the hospital filed for summary judgment. Ford submitted evidence to support his claims, but most of the evidence was struck after motions from the hospital. Later the trial court granted the hospital’s motion for summary judgment and Ford appealed.

The COA said the trial court was right in dismissing most of Ford’s evidence because each of the documents was unsworn and unverified.

Ford also claimed the hospital was directly liable for negligence. However, to prove negligence, the plaintiff needs expert testimony, and Ford didn’t have any. Therefore the court was right in granting summary judgment on the negligence claim.

However, the COA did find that granting summary judgment to the hospital on Ford’s vicarious liability claim was not justified. It said Ford was not properly notified that Jawaid was an independent contractor at the hospital and not an employee. Ford signed a form that said some employees may be independent contractors, but the form never specified which ones were and Ford was never told.

April 5

Post Conviction – Sentence

Jennings Daugherty v. State of Indiana

89A01-1510-PC-1532

The Indiana Court of Appeals reduced a man’s aggregate sentence by three years after it found he was denied effective assistance of counsel when his counsel did not bring up a statutory limitation issue.

Jennings Daugherty got a 53-year sentence for felony intimidation, operating a motor vehicle while intoxicated and resisting law enforcement, all Class D felonies; and two counts of Class B felony possession of a firearm by a serious violent felon that was enhanced by 20 years because of his status as an habitual offender. Police found him clearly drunk when they checked out a bar fight he was allegedly involved in, and later found him on the highway driving his van. Every time the police got out of their car to check on him after they pulled him over, he would slowly drive away until he ran out of room. He also had a handgun and rifle in the car.

The trial court later vacated his habitual offender charge, bringing the sentence to 33 years. He filed for post-conviction relief in 2015 and it was denied, even though his appellate counsel said he did not consider raising a claim that consecutive sentences for two serious violent felon convictions constituted impermissible double enhancement, as well as the fact that Daugherty’s aggregate sentence exceeded the statutory limit for consecutive sentences arising out of single episode of criminal conduct.

The COA agreed with Daugherty’s claim that his sentence for the intimidation conviction ordered to run consecutively to other sentences exceeded the maximum allowed punishment pursuant to Indiana Code 35-50-1-2. An aggregate sentence cannot exceed the advisory sentence for a felony which is one class of felony higher than that of the most serious felonies for which he had been convicted, and his sentence for Class B felony unlawful possession of a firearm should have only carried maximum sentence of a Class A felony, 30 years. Appellate courts need to correct a sentence that violates the trial court’s authority to impose consecutive sentences, and Daugherty’s attorney did not do that.

Daugherty’s case was remanded to the trial court for resentencing to take off three years from his 33-year aggregate sentence.

Daugherty also argued his appellate counsel was ineffective because it did not raise a claim that two consecutive sentences based on a single prior felony conviction constituted impermissible double enhancement. He said because the two SVF convictions were already enhanced and each was supported by the same underlying felony, ordering the sentences to run consecutively violated the double enhancement prohibition. The COA did not agree.

The COA said Daugherty’s single felony conviction served as an element in each SVF count, not an enhancement, and each SVF count was a separate and distinct offense. Also, there was no reasonable probability the result would have been different if appellate counsel would have made the claim.
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April 6

Domestic Relations – Modified Divorce Agreement

Carrie Baker v. Michael Baker64A05-1509-DR-1381

The Indiana Court of Appeals ruled a woman can seek to modify a divorce agreement after she found her husband hid more than $1 million in undisclosed assets five years later.

Carrie and Michael Baker entered into an agreement to divorce in 2009. The divorce agreement said all property was to be split evenly. In 2014, Carrie Baker discovered more than $1 million in undisclosed assets that Michael Baker had. In 2015, she filed a verified motion to open the property settlement proceedings because assets were supposed to be split evenly.

Michael Baker filed a motion to strike and dismiss. About four months later the trial court granted his motion without a hearing or giving Carrie Baker a chance to respond. The trial court said Carrie Baker was supposed file her verified motion to open proceedings within a year of the judgment, which was in 2009, and she did not. Carrie Baker filed a motion to correct errors and reconsider, but the court denied her motion the same day. Carrie Baker appealed.

The COA said the one-year time limit did not apply in Carrie Baker’s case because Trial Rule 60(B) has a savings clause, providing that it “does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding for fraud upon the court.” Because of that, Carrie Baker’s motion can still be considered by the court, and the ruling was incorrect.

Trial Rule 60(B) is very similar to local rules the Porter County court has, and the COA said the court should follow its own rules and give a hearing on her motion.

The COA remanded the case to the trial court for a hearing.•