Indiana Court Decisions – Aug. 28-Sept. 11, 2019

7th Circuit Court of Appeals

Sept. 10

Civil Tort — Wrongful Arrest, Incarceration/Reversal

David Camm v. Stanley Faith, et al.

18-1440

Ex-Indiana State Police trooper David Camm, who was convicted then cleared of murdering his wife and young children in multiple trials, partially won an appeal for a new civil trial after the 7th Circuit Court of Appeals ruled in his favor on some of his claims for damages.

Camm was charged and acquitted more than once of the murder of his wife and two children after the three were found dead in the garage of the family’s Georgetown home.

Camm’s first trial and conviction for the murders took place in early 2002, but the Indiana Court of Appeals reversed the conviction in August 2004. The following year, DNA evidence collected from a sweatshirt found at the scene revealed a new suspect, Charles Boney. Camm and Boney were then charged as co-conspirators, and a second trial began in January 2006.

Both men were found guilty, and Camm was sentenced to life without parole. In 2009, the Indiana Supreme Court reversed and remanded Camm’s second conviction, and a third trial began in August 2013. However, Camm was ultimately acquitted on all counts after spending 13 years in custody.

Camm subsequently sued numerous defendants alleging malicious prosecution; due process violations; conspiracy to violate civil rights; a Monell v. Department of Social Services claim; and state law claims against the prosecutors, investigators and law enforcement officials involved. Southern District Court Judge Tanya Walton Pratt ruled in favor of the defendants, finding the state employees named in the complaint were immune from liability for Camm’s Indiana tort claims pursuant to the Indiana Tort Claims Act.

In David Camm v. Stanley Faith, et al., 18-1440, the 7th Circuit Court of Appeals addressed three issues, starting with Camm’s assertion that the defendants violated his Fourth Amendment rights by including false statements in probable cause affidavits.

The 7th Circuit first clarified in its decision that Camm and the district court’s use of the term “malicious prosecution” was incorrect. That claim was rather one of wrongful arrest and detention in violation of the Fourth Amendment. The appellate court proceeded to find that a reasonable jury could conclude that prosecutors and investigators all either knowingly or recklessly made false statements or withheld information in procuring the first warrant for Camm’s arrest. It also found the false statements and omissions were “clearly material.”

“So the Fourth Amendment claim may proceed to trial as it relates to the first probable-cause affidavit,” Circuit Judge Diane Sykes wrote. “The second and third affidavits, however, are a different matter.”

No recklessness was found in lead case investigator Gary Gilbert’s inclusion of Camm’s statements made to former lead case officer Sean Clemons on the night of the killing that “This is what they do to you when you kill your wife and kids,” nor in the inclusion of a confidential jailhouse informant’s report that Camm had confessed. Additionally, by the time the second affidavit was written, the 7th Circuit noted that several forensic experts had offered opinions confirming a blood-spatter conclusion.

“The third affidavit contained even more incriminating evidence against Camm. Charles Boney told investigators that he provided the murder weapon and was present when Camm killed his family. In addition, Gilbert learned that Camm called his wife’s employer early in the morning following the murder to calmly inquire about collecting on her life-insurance policy. And a second jailhouse informant had come forward claiming that Camm confessed to the killings. No evidence suggests that Gilbert acted recklessly by including this information in the third affidavit,” Sykes wrote.

Next, Camm argued a violation of his rights under Brady v. Maryland, 373 U.S. 83 (1963), in the suppression of three categories of evidence — the extent of a forensic investigator’s lack of qualifications; the fact that the DNA on Boney’s sweatshirt was never tested and experts allegedly lied about this; and Floyd County Prosecutor Keith Henderson’s book deal about the case. The 7th Circuit concluded Camm had enough evidence to proceed to trial on his first two Brady claims, but it found Henderson’s conduct could not be subject to a Brady claim.

Finally, Camm asserted the investigators fabricated Boney’s confession by using coercive interrogation techniques to obtain it. But the 7th Circuit found that claim could not succeed without more than Camm’s contention that the investigators used suggestive interrogation methods to elicit a story they should have known was unreliable.

The panel therefore reversed and remanded for trial on Camm’s Fourth Amendment claim solely in regard to the first probable cause affidavit, as well as on the two surviving Brady claims. The district court’s judgment was affirmed in all other respects.

Indiana Supreme Court

Sept. 10

Attorney Discipline — Incompetence, Improperly Using a Nonlawyer Assistant

In the Matter of Brent Welke

49S00-1707-DI-472

An Indianapolis attorney who hired a convicted killer to persuade a defendant accused of murder to ditch a public defender and retain him has been suspended for three years for incompetent client representation and lying to the disciplinary commission. A dissenting justice, however, would have disbarred the attorney.

Brent Welke of the Welke Law Firm on North High School Road will begin his three-year suspension without automatic reinstatement Oct. 22. But Justice Steven David believed disbarment was warranted in In the Matter of Brent Welke, 49S00-1707-DI-472.

According to a Sept. 10 per curiam opinion, Welke’s current ethical trouble began in 2010, when a public defender was negotiating a plea deal that would have allowed a murder defendant to plead guilty to voluntary manslaughter and serve no more than 30 years. A man named Joseph Everroad, however, told the defendant the public defender would sell him out.

Everroad was Welke’s nonlawyer assistant, and in a footnote, the Indiana Supreme Court said Everroad is also a convicted murderer Welke hired. Everroad was convicted of the 1985 Columbus slaying of Wesley Tichenor and sentenced to 60 years in prison. He was released in 2010, according to Indiana Department of Correction records.

Everroad “ingratiated himself” with the defendant’s family, and together he and Welke convinced the defendant that Welke could successfully pursue a self-defense argument, which the public defender had believed would not be successful, or negotiate a better plea deal.

The defendant’s family hired Welke with a $6,000 retainer, $1,000 of which was earmarked for an interpreter. However, Welke never hired the interpreter despite a language barrier with his client and, in addition to his limited experience with major felonies, Welke had never handled a murder case.

Everroad performed most of the work on the case, including meeting with the defendant. At one of these meetings, the nonlawyer assistant brought an unpaid and untrained woman in need of community service credit to serve as an interpreter and assure the client he had a strong self-defense case.

“Everroad did not bring an interpreter to other meetings with Client,” the per curiam opinion says. “Everroad explained the purpose of these meetings was simply to ‘just keep [Client] happy so [Respondent] could get the rest of his money out of the client’ and added ‘we didn’t even talk about the case. We were talking about other things. Cars – things like that.’”

Then, shortly before the murder trial was set to begin, Welke viewed post-mortem photos of the victim for the first time and believed a self-defense or voluntary manslaughter strategy would not work. He tried to accept a manslaughter plea with a 40-year sentence without speaking to his client, but the court sent the matter to trial after the client complained.

The trial began in April 2011, but Welke was not prepared and did not have a defense interpreter available to communicate with the defendant. Instead, during a recess, Welke used his client’s friend to communicate the most recent plea deal — murder with a fixed term of 45 years — and the client accepted.

In a footnote, the court said the client’s plea was vacated in post-conviction proceedings for ineffective assistance of counsel and an unknowing, unintelligent and involuntary plea. But after a retrial in 2016, the client was convicted and sentenced to 55 years.

In another footnote, the court said that after Welke’s representation of the client ended, Everroad robbed a bank at gunpoint and was convicted and sentenced to 20 years. His conviction was affirmed in 2013.

As Welke’s conduct was being investigated by the Indiana Supreme Court Disciplinary Commission, the attorney falsely told the commission that his client had been fluent in English and that he had visited the client multiple times while he was in jail. The commission ultimately charged Welke with violating six Indiana Rules of Professional Conduct: Rule 1.1, 1.3, 1.4(a)(2) 1.4(b), 5.3(b) and 8.1(a).

Justices likewise found Welke guilty of those violations and rejected each of his three challenges to the hearing officer’s findings of fact. Specifically, Welke first challenged the finding that, had the client continued with the public defender’s representation, he would have been convicted of voluntary manslaughter and sentenced to 30 years.

“Respondent correctly observes that this outcome had not yet reached the point of formal acceptance by the parties and the trial court, and he points to earlier and subsequent offers made by the State for a 40-year sentence, but Respondent’s argument misses the forest for the trees,” the per curiam opinion states. “Not only does the evidence clearly reflect a 30-year sentence had been placed on the bargaining table by the State and was reasonably within reach for Client immediately prior to the change in representation, but Respondent’s attempt to manufacture uncertainty on this point glosses over the fact that either of these case outcomes — 30 or 40 years for voluntary manslaughter — would have been better for Client than the outcome obtained through Respondent’s woefully inadequate representation.”

As to Welke’s challenge of the finding that he had not prepared for voir dire or the examination of witnesses, the court said Welke contradicted himself and “admits having failed to provide Client with competent and diligent representation.” And as to the argument that the hearing officer should have given more weight to the testimony of the client’s former supervisor who said the client had a better English-language proficiency than indicated, Welke “concedes that communicating with a supervisor of a kitchen staff and communicating about legal matters are two very different things … .”

Then, noting that this case is Welke’s fourth disciplinary case, the court said “(t)he instant case — involving what the hearing officer aptly described as a ‘bait and switch’ representation — is by far the most egregious of Respondent’s four disciplinary cases.”

“In the end, switching from the public defender to Respondent earned Client a lighter wallet, comprehensively shoddier legal representation, weakened bargaining power, the inability to meaningfully participate in his own defense, and ultimately a higher-level conviction and several more years in prison than he otherwise would have received,” the court wrote. “Whether measured in terms of process or outcome, the prejudice suffered by Client as a result of Respondent’s misconduct was severe.”

Welke is not permitted to undertake any new legal matters in the time leading up to his Oct. 22 suspension date. The costs of the proceeding are assessed against him.

Indiana Court of Appeals

Aug. 28

Civil Plenary — Casino Revenue Sharing Agreement

The City of Lawrenceburg, Indiana, the Mayor of the City of Lawrenceburg in his official capacity, et al. v. Franklin County, Indiana, et al.

19A-PL-263

A city and county’s agreement to share tax revenue from a southeastern Indiana riverboat casino is void, an Indiana Court of Appeals majority ruled, but a dissenting judge held that the agreement should continue.

The City of Lawrenceburg, which serves as the home dock for a local riverboat casino, created a revenue-sharing program allowing it to share some of its gaming tax revenue with surrounding counties. Franklin County entered into an agreement with Lawrenceburg in 2006 to get its share of the distributed tax revenue and continued to receive $500,000 annually from the city until 2013.

At that point, Lawrenceburg decided to stop making payments to Franklin County because of increased competition from nearby Ohio casinos and because of a projected 30 percent loss in its gaming tax revenue for the following year. It claimed Franklin County had done nothing to earn the annual payments and did not provide any services or goods, nor incur any nontrivial expenses in connection with the parties’ agreement.

Franklin County sued Lawrenceburg for breach of contract and was ultimately granted summary judgment in Decatur Superior Court, which then ordered Lawrenceburg to pay Franklin County approximately $3.1 million in damages, including prejudgment interest.

An Indiana Court of Appeals panel split in The City of Lawrenceburg, Indiana, the Mayor of the City of Lawrenceburg in his official capacity, et al. v. Franklin County, Indiana, et al., 19A-PL-263. The majority concluded reversal was warranted, finding Lawrenceburg did not waive its defenses and that its agreement with Franklin County was void by statute. On the first point, the majority noted Franklin County offered no evidence showing prejudice from the timing of Lawrenceburg’s arguments.

“Nor could it, given that the argument that the Agreement was void by statute is a purely legal argument that did not necessitate a fully developed factual record to address,” Judge John Baker wrote for the majority, joined by Judge Edward Najam. “… Given that Franklin cannot show that it was deprived of, or otherwise seriously hindered in the pursuit of, some legal right, we find that the timing of Lawrenceburg’s void by statute argument did not bar its introduction into the proceedings.”

On its second point, the majority found the agreement was void because Lawrenceburg had no money appropriated at the time of the agreement’s execution.

“Shortly thereafter, Lawrenceburg appropriated $500,000 for the first year’s payment, but that action cannot save a contract that was void ab initio,” Baker wrote. “Because the Agreement was void from the outset, any payments made by Lawrenceburg to Franklin thereafter were gratuitous, and Franklin has no legal right to demand their continuation or to receive damages for their cessation.”

The majority therefore ordered the judgment of the trial court be reversed and remanded with instructions to enter final judgment in favor of Lawrenceburg.

Judge Margret Robb concurred in a separate opinion with the majority’s finding that Lawrenceburg did not waive its argument that the agreement was void by statute. However, she disagreed in a partial dissent that the parties’ agreement in the context at hand was void.

“Here, the Agreement was for Lawrenceburg to share its wagering tax revenues with Franklin County in the amount of $500,000 for as long as Lawrenceburg received at least that much in wagering tax revenue,” Robb wrote. “The legislature clearly contemplated such an agreement in enacting Indiana Code section 4-33-13-6(b). Applying section 36-4-8-12(b) to void the Agreement is illogical and contrary to legislative intent. I would affirm the trial court’s grant of summary judgment to Franklin County.”
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Aug. 29

Criminal — Felony Murder/Drug Injection

Nathaniel Walmsley v. State of Indiana

18A-CR-2506

A man alleged to have killed his wife after she died from a narcotic drug injection he administered cannot be charged with felony murder, the Indiana Court of Appeals ruled.

Nathaniel Walmsley was charged with felony murder after his wife, Rachel, overdosed and died after Walmsley injected her with what he claimed to have thought was heroin, but was actually fentanyl. Walmsley said the married couple had consulted with one another about purchasing and using heroin on the day of Rachel’s death before he purchased drugs from James Trimnell, and injected himself and his wife.

Walmsley filed a motion to dismiss his felony murder charge in Ripley County, arguing that injecting Rachel with drugs that they jointly purchased and possessed did not amount to dealing. The Ripley Circuit Court denied his motion to dismiss, however, and Walmsley contended the trial court erred in its decision during oral arguments before the Indiana Court of Appeals earlier this month.

Specifically on appeal, Walmsley did not dispute that the injected drug was a Schedule I or II narcotic as relevant to the term “dealing” under Indiana Code § 35-48-4- 1(a)(1)(C). Instead, he argued he didn’t “deliver” the drug to Rachel when he injected her, as defined in Ind. Code § 35-48-1-11.

In ruling for Walmsley, the appellate court rejected the state’s assertion that Duncan v. State, 857 N.E.2d 955 (Ind. 2006), was controlling, noting Rachel was an adult who chose to use drugs and consented to the injection, not a “two-year-old who did not voluntarily choose to ingest methadone.”

Additionally, the panel concluded in Nathaniel Cartwright Walmsley v. State of Indiana, 18A-CR-02506, that Walmsley did not “deliver” the drug to Rachel when he injected her.

“In other words, when two or more people jointly acquire possession of a drug for their own use, intending only to share it together, they do not ‘deliver’ the drug when they inject or hand the drug to the other person, since they acquired possession from the outset and did not intend to distribute the drug to a third person,” Chief Judge Nancy Vaidik wrote, joined by Judges Robert Altice and James Kirsch.

“Here, the basis of the State’s felony-murder charge against Nathaniel is that he delivered the drug to Rachel by injecting her,” Vaidik continued. “Nathaniel’s affidavit, however, provides that Nathaniel and Rachel agreed to purchase heroin from Trimnell, they used Rachel’s tip money to purchase it, and Trimnell handed the drug to Nathaniel ‘in Rachel’s presence [and] with her knowledge.’ The State did not submit any evidence to dispute these allegations and at oral argument maintained that Rachel’s involvement in the purchase of the drug was not ‘relevant.’”

The court therefore concluded Walmsley could not be charged with felony murder for injecting Rachel and reversed the denial of his motion to dismiss the charge.
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Sept. 6

Expungement — Conviction Date/Felony Reduced to Misdemeanor

N.G. v. State of Indiana

19A-XP-637

Editor’s note: This item has been revised to replace references to the expungement plaintiff’s name with his initials after the Indians Supreme Court ruled in his favor.

The Indiana Court of Appeals asked the Indiana General Assembly for guidance as it sharply divided over whether minor felonies reduced to misdemeanor convictions should trigger new five-year waiting periods for people seeking to expunge their criminal records. The majority ruled they should, a result the dissenting judge called “unjust and ill-advised.”

The appellate panel affirmed the denial of an expungement petition that was filed last year in Elkhart Superior Court. N.G. was convicted of Class D felony theft in 13 years ago, and in 2016, he successfully petitioned to have the conviction reduced to a misdemeanor. But when he filed an expungement petition in 2018, the trial court denied it, ruling that the entry of the misdemeanor conviction meant N.G. had to wait five years from the date the conviction was reduced for relief.

Appellate judges Terry Crone and James Kirsch agreed in N.G. v. State of Indiana, 19A-XP-637. “In an issue of first impression, we conclude that (Indiana Code) Section 35-38-9-2(c)’s requirement that a person wait at least five years ‘after the date of conviction’ before petitioning a court for expungement means five years from the date of the misdemeanor conviction, and not, as N.G. urges, the date of the class D felony conviction. Therefore, we affirm,” Crone wrote for the majority.

The majority and Judge John Baker’s dissent focused on elements of statutory construction to construe whether N.G. and others similarly situated would qualify for an expungement, but the jurists came to completely opposite conclusions.

“We acknowledge that there is an incongruity between the waiting period required for expungement of conviction records for a class D felony and the longer waiting period required for a class D felony conviction converted to a class A misdemeanor,” Crone wrote. “Under Section 35-38-9-3(c), a person convicted of a class D felony must wait eight years after the date of conviction to petition a court for expungement. However, a person who has a class D felony conviction converted to a class A misdemeanor will have to wait longer. If a person seeks to convert a class D felony conviction to a class A misdemeanor, Section 35-50-7-2(d) first requires the person to wait three years after completing his or her sentence and satisfying all obligations before petitioning to convert the class D felony conviction to a class A misdemeanor. Then, Section 35-38-9-2(c) requires that the person wait five more years before petitioning for expungement. Thus, the waiting period required to petition for expungement for persons with converted class D felonies will be greater than eight years depending on the length of the person’s sentence and the time it takes him or her to satisfy the obligations imposed as part of the sentence. This incongruity is one that our legislature might consider addressing.”

Nevertheless, the majority concluded that by virtue of the conversion of his Class D felony conviction, “Because (N.G.) was convicted of class A misdemeanor theft in August 2016, five years after the date of his conviction have not elapsed, and therefore he is not entitled to expungement of his misdemeanor conviction records under Section 35-38-9-2 at this time.”

Baker would remand the matter to the Elkhart Superior Court with instructions to grant the expungement, he wrote in dissent, suggesting the absurd result doctrine might apply in N.G.’s case.

“(A)s a general rule, ‘we presume that the General Assembly intended its language to be applied logically and so as not to cause an unjust or absurd result,’” Baker wrote, citing Marshall v. State, 52 N.E.3d 41, 43 (Ind. Ct. App. 2016). Additionally, citing Cline v. State, 61 N.E.3d 360, 362 (Ind. Ct. App. 2016), he noted, “expungement statutes are inherently remedial and, as such, should be liberally construed to advance the remedy for which they were enacted.”

“Our courts have not addressed whether, in cases where a class D felony conviction has been converted to a class A misdemeanor, ‘the date of conviction’ for purposes of the five-year waiting means the date of the class D felony conviction or the date the class D felony conviction was converted to a class A misdemeanor,” Baker noted.

“I believe that the position advanced by the State, and adopted by the majority, leads to an illogical result — a person who has a Class D felony conviction that was converted to a Class A misdemeanor has to wait longer for expungement than someone who merely has a Class D felony conviction. I simply cannot accept that the General Assembly intended this result, which is both unjust and ill advised. Moreover, given the mandate that we liberally construe the expungement statutes, in my opinion the result is doubly wrong.”

Baker did agree with the majority in one regard, writing in a footnote, “I certainly join in the majority’s wise suggestion that the legislature consider addressing this unclear statutory language.”•