Indiana Court decisions – Feb. 9-22, 2012

For Publication opinions on Indiana cases released by the 7th Circuit Court of Appeals and the Indiana Supreme Court, Court of Appeals and Tax Court during this issue’s reporting period are highlighted in this section of the Indiana Lawyer. To read the complete opinion issued in any of these cases, visit www.theindianalawyer.com and search by case name.

7th Circuit Court of Appeals

February 9

Civil – Inmate Rights

Sammie L. Booker-El v. Superintendent, Indiana State Prison and all agents

10-1490

The 7th Circuit Court of Appeals has upheld the decision in the Northern District of Indiana that an inmate has no property interest in prison recreation funds.

Inmate Sammie Booker-El filed a pro se suit against prison officials claiming they were misappropriating money from the inmates’ recreation fund. The money from this fund comes from sources outside of the state budget and officials can use the money to purchase recreational items or for a purpose not already covered under existing state appropriations. Booker-El’s suit claimed that he has been denied his property interest in the fund without due process of the law.

The District Court ruled that because neither the Constitution nor United States laws mandated that state penal facilities maintain an inmates’ recreation fund or dictate how money in such funds be spent, Booker-El could only state a claim if Indiana law provided the inmates with a property interest in the fund. The District judged examined Indiana Code 4-24-6-6 and concluded that the statute did not give inmates a property interest in the fund. The case was dismissed.

The Indiana statute in question requires only that if prison officials decide to spend money from the fund, it must be spent for the direct benefit of prisoners. The statute doesn’t impose any obligation for officials to spend the money within a given period of time, and the statute also gives officials discretion to transfer a recreation fund from one institution to another without consulting any inmates, wrote Judge Michael Kanne.

“Therefore, prison officials were free to transfer the entirety of the inmates’ recreation fund at the Indiana State Prison to another institution at any time without notice. Given this discretion, Booker-El has no legitimate expectation to any benefit derived from the inmates’ recreation fund, and thus no protected property interest,” he wrote.

Judge Tanya Walton Pratt, of the Southern District of Indiana, sat by designation on this case.

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February 14

Civil – Insurance/Language of Policy

St. Paul Fire & Marine Insurance Company v. Schilli Transportation Services, Inc.

11-2307

The 7th Circuit Court of Appeals has reversed a District Court’s grant of summary judgment in favor of St. Paul Fire & Marine Insurance Co., holding that the language of its insurance policy creates a question of liability for deductible payments.

Schilli Transportation Services claimed that under its insurance policy provided by St. Paul Fire & Marine, the liability for deductibles is unclear.

The 7th Circuit said Schilli’s policy states the “words you, your and yours mean the insured named here, which is a CORPORATION.” The policy document lists Schilli’s name and address, but also states “Insured Names Continued on Back.” On the back of the document, eight more companies are listed.

The fact that the policy names nine companies as insured, along with the manner they were listed, could indicate that the companies were the “you, your and yours” referred to in the document. But the 7th Circuit concludeed that language is not sufficient in and of itself to create joint and several liability among defendants for the deductibles. The Circuit Court also wrote that no language clearly indicates that the liability is joint, not separate, and it remanded for further proceedings.

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February 17

Criminal – Sex with a Minor/Crossing State Lines

United States of America v. Samuel T. Henzel

11-2293

The 7th Circuit Court of Appeals upheld the 135-month sentence given to a man who drove from Illinois to have sex with a 12-year-old Westfield girl, finding that although the District Court miscalculated the imprisonment range, the defendant was sentenced within the correct guidelines range.

Samuel Henzel met the girl online through a chat room about online video games. The two began texting and talking and made plans to meet. The girl did not know Henzel was really 29, although he knew she was 12. When she met him she was surprised by his age, but she agreed to go to a hotel with him. She became uncomfortable and told him she didn’t want to do anything, but he gave her alcohol and drugs and tried to have sex with her.

Henzel pleaded guilty to traveling across state lines with the intent to engage in illicit sexual conduct. There was confusion by the government and the courts as to whether the base level under the sentencing guidelines included a cross-reference to another section of the law, which would require a higher sentencing range. The District Court determined that the government didn’t meet the burden to allow the cross-reference, applied a base level offense of 24, added levels due to circumstances of the crime, and then subtracted three levels because Henzel accepted responsibility.

The judge came up with an offense level of 27, which would have a guideline imprisonment range of 70 to 87 months. She sentenced him above the range to 135 months due to the victim’s age, because Henzel gave her drugs and alcohol, and because the girl told him she did not want to have sex with him.  

Henzel appealed the sentence, claiming the District Court sentenced him four years above the guidelines. The 7th Circuit found the District Court actually miscalculated the applicable guidelines range because the cross-reference applied in Henzel’s case. Had the District judge applied the cross-reference, the total offense level would have ended up at 31, to which the applicable imprisonment range would be 108 to 135 months.

Indiana Supreme Court

February 14

Post Conviction – Ineffective Assistance of Counsel

Kevin L. Hampton v. State of Indiana

84S04-1103-PC-161

The Indiana Supreme Court upheld the denial of a man’s petition for post-conviction relief claiming ineffective assistance of counsel. In doing so, the justices addressed the use and language of a jury instruction and rewrote it to make it clearer.

Kevin Hampton appealed the denial of his claim of ineffective assistance of appellate counsel. Hampton was convicted of murder, rape and criminal deviate conduct; his convictions and sentences were upheld by the Indiana Court of Appeals. He then sought post-conviction relief, claiming his appellate attorney rendered ineffective assistance by not asserting on direct appeal that the trial court erred in refusing to instruct the jury “[w]here proof of guilt is by circumstantial evidence only, it must be so conclusive in character and point so surely and unerringly to the guilt of the accused as to exclude every reasonable theory of innocence.”

Hampton argued that the DNA evidence presented – collected from vaginal swabs and the victim’s tank top – was not direct, but circumstantial evidence.

Before addressing Hampton’s claims, the justices first looked at when to give the “reasonable theory of innocence” instruction. Writing for the court, Justice Brent Dickson said that it is appropriate that juries receive, a “reasonable theory of innocence” instruction in addition to the standard reasonable doubt instruction. The justices decided the current advisement needed reformulated.

“We thus hold that, when the trial court determines that the defendant’s conduct required for the commission of a charged offense, the actus reus, is established exclusively by circumstantial evidence, the jury should be instructed as follows: In determining whether the guilt of the accused is proven beyond a reasonable doubt, you should require that the proof be so conclusive and sure as to exclude every reasonable theory of innocence,” he wrote.

The justices then turned to the issue of whether DNA evidence is direct or circumstantial evidence – an issue that had not been specifically addressed by the Indiana Supreme Court or in other states.

“Application of our analysis today leads us to conclude that the DNA evidence in the present case should be considered as circumstantial and not direct evidence of the defendant’s conduct comprising the physical components of each of the charged criminal offenses (actus reus). On the other hand, such focus upon actus reus has not been the prevailing basis of prior Indiana case law, which had usually found the ‘reasonable theory of innocence’ instruction properly rejected when any one element of a criminal offense has been proven by direct evidence,” Dickson wrote.

“Under such line of authority, the rejection of the instruction would not have been error in the present case because of the direct evidence in this case proving that the victim was raped, murdered, and criminally sexually battered by someone, or the DNA direct evidence identifying the defendant as having a prior involvement with the victim. The existing state of the law could have led the defendant’s appellate counsel to conclude that there was little if any merit in pursuing on appeal the refusal of the ‘reasonable theory of innocence’ instruction.”

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February 16

Civil – State Employees/Wages

Richmond State Hospital and All Other Similarly Situated State Institutions and Agencies v. Paula Brattain, et al.

49S02-1106-CV-327

The Indiana Supreme Court has adjusted the time frame for which state non-merit employees who sued for back pay may be able to recover funds. Instead of the period going back some 20 years, the justices decided the non-merit employee’s time period should be the same as merit employees.

State workers sued to recover back pay for unequal wages earned between 1973 and 1993. There were four subclasses of workers – merit overtime-exempt; merit overtime-eligible; non-merit overtime-exempt; and non-merit overtime-eligible. Those who worked 40 hours sought back pay because they were paid the same amount as those who worked 37.5 hours.

Marion Superior Judge John Hanley ruled in favor of the plaintiffs and awarded them $42.4 million in 2009, but the Indiana Court of Appeals significantly reduced that amount in October 2010. The COA held that the merit employees were only able to recover for a period 10 days before the class-action suit was filed in July 1993 to when the split-class system was abolished in September of that year. The judges didn’t alter the lower court ruling regarding the non-merit employees, in which the trial court held they are owed back pay for a period of time ending the day the state eliminated the split-pay system and going back 20 years. That meant the non-merit employees could get nearly $19 million dollars as compared to the couple million dollars the merit employees were eligible to receive.

Justice Frank Sullivan did not participate in the case. The high court summarily affirmed the COA with respect to its determination on the merit employees’ claims. Addressing the state’s claim that laches should bar the employees’ claims outright, the justices rejected it regarding the merit employees. But they found that it does apply to the non-merit employees’ claims.

The state began the split-pay system in 1967, and the non-merit sub-class representatives began working for the state in 1969. The merit employees initiated the lawsuit in 1993, but it wasn’t until February 2002 that the non-merit employees were added.

“While we think the Attorney General’s contention that laches should bar all claims by all claimants goes a bridge too far, we conclude that the inordinate delay as respects the non-merit claims — filed by amendment forty-five years after they arose — warrants limitation on the damages as to these claims only,” wrote the justices.

The justices ordered the trial court recalculate the non-merit employees’ back pay judgment based upon the same time period as the merit employees.

Indiana Tax Court

February 16

Tax – Exempt Facility

Tipton County Health Care Foundation, Inc, f/k/a Tipton County Memorial Hospital Foundation v. Tipton County Assessor

49T10-1101-TA-6

The Indiana Tax Court has upheld the decision of the Indiana Board of Tax Review that a Tipton County assisted living facility failed to raise a prima facie case that it is exempt from property tax under Indiana Code 6-1.1-10-16.

The Tipton County Health Care Foundation filed for a charitable purposes tax exemption for the 2008 and 2009 tax years regarding the operation of Autumnwood, an assisted living facility. The facility was built by the Tipton County Hospital and later sold to the health care foundation. Miller’s Health Systems Inc. leased Autumnwood for five years pursuant to a triple net lease. Miller’s is an Indiana nonprofit that owns and operates nursing homes and assisted living communities.

The Tipton County Property Tax Assessment Board of Appeals denied the exemptions; the board of tax review held that the foundation didn’t make a prima facie case that Autumnwood was entitled to the charitable purposes exemption.

Judge Martha Wentworth upheld the review board’s decision, pointing out that just being an assisted living facility that cares for the elderly does not automatically make a facility exempt. Examining the lease, the judge found that its provisions indicate how Miller’s will use Autumnwood during its tenancy, not that Miller’s overall goal or purpose for its use is charitable. In addition, the certified administrative record regarding whether the arrangement between the foundation and Miller’s was entered into for a public benefit or a private benefit is woefully deficient, Wentworth wrote.

Indiana Court of Appeals

February 9

Criminal – Burglary/Bodily Injury

Angus Toney v. State of Indiana

89A01-1108-CR-374

The Indiana Court of Appeals affirmed a man’s conviction of Class A felony burglary resulting in bodily injury because all the statute requires is evidence the victim experienced physical pain, which the victim in this case did when the burglar twisted her hand.

Angus Toney and an accomplice broke into the home of G.R. and demanded money, drugs and her purse. When G.R. tried to dial 911, Toney grabbed her hand, twisted the phone out of it, and threw the phone across the room. G.R. later testified that caused her pain.

Toney argued that he only committed Class B felony burglary, not Class A felony burglary resulting in bodily injury, because there wasn’t sufficient evidence to find his victim suffered any bodily injury. The applicable statute defines bodily injury as “any impairment of physical condition, including physical pain.” Toney claimed that G.R. only had a fleeting moment of pain, so it’s insufficient to establish bodily injury.

“To us, however, the statutory definition of bodily injury is clear and unambiguous. It contains no requirement that the pain be of any particular severity, nor does it require that the pain endure for any particular length of time. It must simply be physical pain,” wrote Judge Paul Mathias.

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February 10

Civil Tort – Dept. of Insurance/Medical Malpractice

Commissioner of the Indiana Dept. of Insurance v. Tim Black, as Husband and Personal Rep. of Kay Black, Deceased

64A05-1104-CT-240

The Indiana Court of Appeals has sided with the commissioner of the Indiana Department of Insurance in a medical malpractice case.

The commissioner contended the trial court erred in denying his motion to dismiss for failure to state a claim. However, for the first time on appeal, Tim Black disputed the characterization of the commissioner’s motion as a motion to dismiss pursuant to Ind. Trial Rule 12(B)(6). He asserted that because additional supporting documents were attached to the motion to dismiss, the commissioner’s motion was converted into a motion for summary judgment pursuant to T.R. 56. The appellate court agreed.

Indiana’s medical review panel had unanimously concluded that Dr. Fred Harris of Porter Memorial Hospital failed to comply with the appropriate standard of care with regard to Tim Black’s wife, Kay Black. Kay Black had gone to the hospital’s emergency room in 2000, complaining of severe chest pain radiating down her left arm and nausea. An abnormal blood enzyme test indicated she might have suffered a heart attack, but when consulted by phone, Harris did not order heart monitoring or repeat enzyme testing. Hours later, Kay Black suffered a severe cardiac arrest that resulted in her needing a heart transplant.

Kay Black died in 2008 of an unrelated cause. In 2009, Tim Black, as his wife’s personal representative, filed a petition for payment of damages from the Patient Compensation Fund, asserting that Harris had agreed to make payment of his liability limit in the amount of $250,000, thereby establishing liability of the PCF under the Medical Malpractice Act.

The COA held that Black failed to provide sufficient evidence to establish an agreement with Harris and remanded on the motion for summary judgment for further proceedings.

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February 13

Civil – Judicial Recusal

Bloomington Magazine, Inc. v. Mark Kiang d/b/a Mikado Restaurant, Sunbeam Corp., and Truffles 56 Degrees Incorporated

53A05-1012-SC-790

The Indiana Court of Appeals has ruled that a Monroe Circuit judge abused her discretion in denying a motion to recuse in a small claims case that involved an attorney who previously served as the judge’s election campaign committee chair.

The appellate court reversed and remanded a case involving a payment dispute between Bloomington Magazine and two advertisers, Mark Kiang and Truffles 56 Degrees. Judge Valeri Haughton in January 2010 ruled against the magazine and in favor of Kiang. The magazine’s attorneys appealed after the judge denied a motion to correct error.

While that appeal was pending, the magazine filed a motion to set aside the trial court judgment pursuant to Indiana Trial Rule 60(B)(2), (3), and (8) on grounds that it had discovered Kiang’s attorney, Geoffrey M. Grodner, served as chair of the judge’s campaign committee in 2008. The attorney and judge didn’t disclose that information.

The Court of Appeals looked to the Indiana trial rules governing recusals and judicial canon 2.11, which states a judge must disqualify himself or herself in any proceedings in which the judge’s impartiality might reasonably be questioned. The rule also states that a judge should disclose on the record any information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge doesn’t believe there is a basis for disqualification.

The Indiana court panel cited a Florida appellate decision in Neiman-Marcus Grp., Inc. v. Robinson, 829 So.2d 967, 968 (Fla. Dist. Ct. App. 2002), that made the proximity of time in which an attorney serves on a judicial campaign committee to the current litigation matter the relevant inquiry in determining whether a trial judge should grant a motion to disqualify himself or herself.

The appellate judges found that Haughton and Grodner’s relationship wasn’t so remote in time as to dispel the appearance of impropriety, particularly since the attorney filed an appearance within three months of the 2008 election and the recusal motion was within two years of the election, once the opposing counsel learned of the relationship.

Remanding the case, the appellate court wrote that the parties can introduce evidence at the hearing regarding the requirements of the Indiana Trial Rules, including whether evidence of the professional relationship between Haughton and Grodner satisfies the rule requirements on evidence being newly discovered and not something that could have been found earlier.

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February 14

Juvenile – Parental Rights

Term. of Parent-Child Rel. of C.M., G.M., and R.M.; A.M. (Mother) and C.M. (Father) v. Indiana Dept. of Child Services, Dearborn County Office

15A01-1104-JT-204

On petition for rehearing, the state Department of Child Services claims that the appellate court imposed an undue burden upon the agency by recognizing that DCS has to make a prima facie showing regarding current conditions before the parent is obliged to come forward with evidence.

The Indiana Court of Appeals supported its original opinion, citing Indiana Code 31-35-2-4(b)(2)(B). That statute says that if the child has not been adjudicated a child in need of services on two separate occasions, the DCS must show either “a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied” or “a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.” The DCS must also show that termination of parental rights is in the child’s best interest.

Holding that the Legislature has chosen to require proof of present conditions, the COA said it is not at liberty to alter the statutory language.

Criminal – Traffic Stop/DUI

State of Indiana vs. Renee Lynch

49A02-1105-CR-529

The Indiana Court of Appeals has sided with the state in its appeal of a trial court’s ruling.

Renee Lynch had successfully argued in trial court that all evidence of her intoxication while driving should be supressed, as the police officer who pulled her over did not have a reasonable suspicion to stop her.

But the appellate court agreed with the state that a police officer did have reasonable suspicion to stop Lynch’s car, as she did not turn left at an intersection from a clearly marked turn-only lane, committing an infraction. It reversed the trial court on Lynch’s motion to suppress.  

Domestic Relation – Paternity/Divorce

In Re: The Marriage of K.Z. and M.H.

43A05-1107-DR-436

A mother who appealed a court’s order acknowledging that her ex-husband is the father of her child cannot prove that the court abused its discretion.

The mother, K.Z., requested dissolution of her marriage to M.H. when she was six months pregnant. In the dissolution petition, K.Z. signed under a penalty of perjury a statement that said, “I am currently six months pregnant, and there will be one minor child born to the marriage, who will be dependent on the parties for support.”

After the divorce and the baby’s birth, the father claimed K.Z. denied access to his child. He filed a motion to set aside judgment pursuant to Indiana Trial Rule 60(B), requesting modification of the dissolution decree to reflect that a child of the marriage had been born.

Holding that the mother’s own statement shows no question of paternity, the Indiana Court of Appeals affirmed the trial court’s grant of M.H.’s request to modify the decree.

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February 16

Criminal – Suppression of Evidence

In State of Indiana v. Elvis Holtsclaw

49A02-1108-CR-743

The Indiana Court of Appeals issued a divided ruling on whether the state could appeal the denial of its motion to correct error after the trial court granted a defendant’s motion to suppress evidence. The majority decided the state’s appeal should be dismissed as untimely.

Elvis Holtsclaw moved to suppress the chemical tests that supported his various drunk-driving charges. The trial court granted the motion, after which the state filed a motion to correct error within 30 days. The trial court denied that motion.

After the state dismissed the charges against Holtsclaw, it appealed the order granting the motion to suppress and the order denying the state’s motion to correct error.

In dismissing the appeal, Judges L. Mark Bailey and Carr Darden relied on the language of Indiana Code 35-38-4-2, which they said only confers on the state the authority to appeal an order granting a motion to correct error, not the authority to appeal from the denial of a motion to correct error.

Judge John Baker dissented because he didn’t read I.C. 35-38-4-2 as precluding the state from appealing. He said nothing in that statute stated or implied that Appellate Rule 9 shouldn’t apply to appeals initiated by the state.

“In my view, foreclosing the State from seeking redress through a more direct route, such as filing a motion to correct error in circumstances such as these, is simply not a sound application of the language embodied in Indiana Code section 35-38-4-2,” Baker wrote. “Moreover, I do not believe that our General Assembly intended the result reached by the majority in this circumstance when construing the provisions of Indiana Code section 35-38-4-2 and our court rules. Such a holding effectively elevates form over substance, which we are loathe to do.”

Small Claim – Hospital Detention/False Imprisonment

Raymond Dale Berryhill v. Parkview Hospital

02A04-1108-SC-400

The Indiana Court of Appeals rejected a man’s argument that he could not have been detained in the hospital for mental health reasons before an application for detention was filed, which occurred after facility security guards restrained him.

Raymond Berryhill challenged the ruling in favor of Parkview Hospital granting the facility immunity in Berryhill’s suit for false imprisonment. Berryhill and his wife, Kay, had a fight in which Berryhill became violent. She called 911, but he refused to go to the hospital. Berryhill’s wife wanted him to be examined because his head hurt, and he had history of a stroke and brain surgery.

Eventually Berryhill went to the hospital, and while in the emergency room he became loud and aggressive. Berryhill’s physician ordered he be secured and sedated. Two Parkview security guards tried to calm him down, but Berryhill resisted and asked to go home. The guards escorted him to the secured room and put him in restraints. After this incident, Berryhill’s wife filed an application for him to be detained and examined.

Berryhill sued, arguing that the security guards’ actions constituted false imprisonment. The trial court ruled Parkview was immune from liability based on a statute that covers people who assist in detentions. On appeal, Berryhill claimed that the immunity statute doesn’t apply because he wasn’t detained for purposes of the statute until after his wife filed the application for detention.

“We cannot conclude that the legislature intended to leave healthcare facilities and their employees powerless to detain individuals who are mentally ill and either dangerous or gravely disabled before an application for detention is filed. As such, without deciding precisely when Berryhill was detained for purposes of Indiana Code Section 12-26-5-1, we conclude that the security guards “act[ed] according to” Indiana Code Article 12-26, which governs the voluntary and involuntary treatment of mentally ill individuals …,” wrote Judge Terry Crone.

There is no evidence the guards acted with malice, bad faith or negligence, so Parkview is entitled to immunity on the false imprisonment claim, the COA ruled.

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February 21

Civil Plenary – Defamation/Anonymous Comment

In Re: Indiana Newspapers, Inc. d/b/a The Indianapolis Star, Jeffrey M. Miller & Cynthia S. Miller v. Junior Achievement of Central Indiana, Inc.; Jennifer Burk; et al.

49A02-1103-PL-234

In a case of first impression, the Indiana Court of Appeals has ordered the trial court apply a modified test based on a New Jersey case to determine whether The Indianapolis Star must identify an online user whose comment is part of a defamation lawsuit.

Jeffrey Miller, former CEO of Junior Achievement of Central Indiana, sued multiple parties for defamation, and sought to add people who made anonymous comments on news organization websites that ran stories about Miller and Junior Achievement. The Star wrote an article concerning Junior Achievement facing questions and an audit about a building project, to which an anonymous poster, “DownWithTheColts,” wrote, “This is not JA’s responsibility. They need to look at the FORMER president of JA and others on the [Foundation] board. The ‘missing’ money can be found in their bank accounts.”

Marion Superior Judge S.K. Reid issued an order in 2011 to the Indianapolis Business Journal, a sister publication of Indiana Lawyer; The Star; and WTRV-TV Channel 6 that the news outlets must identify people who posted comments on their websites. At issue is whether The Star has to provide Miller information to help him identify “DownWithTheColts.” The Star is the only news organization that did not comply with the discovery requests.

The judges decided the heart of the case is whether “DownWithTheColts” is “the source of any information” under Indiana’s Shield Law. The judges compared the online comment forum to that of a bulletin board outside of The Star’s office building that asks for anyone to tack an announcement. The newspaper did not use the comment by “DownWithTheColts” to write its story or as a lead for another story. An anonymous commenter is not a source as envisioned by Indiana’s Shield Law, and this holding is consistent with the state Legislature’s intent, wrote Judge Nancy Vaidik.

The appellate court then turned to the anonymous speech rights under the state and federal constitutions. They found that the statement made by “DownWithTheColts” is defamatory per se, and while Miller has alleged that the statement made was false, he hasn’t yet provided any proof of this, which is necessary for his defamation claim to move forward, wrote Vaidik. And, it will be impossible for him to make a showing of actual malice under Indiana law without the identity of “DownWithTheColts.”

“While we do not want defamatory commenters to hide behind the First Amendment protection of anonymous speech, we must balance the prospect of too readily revealing the identity of these anonymous commenters,” she wrote.

The judges decided the Dendrite test, which comes from a New Jersey case involving anonymous commenters on a Yahoo! message board, draws the most appropriate balance between protecting anonymous speech and preventing defamatory speech. But because of the requirement to prove actual malice here, the judges adopted a modified Dendrite test which requires the plaintiff to produce prima facie evidence to support only those elements of his or her cause of action that are not dependent on the commenter’s identity. Prima facie evidence of actual malice is not required.

The COA sent the case back to the trial court to apply the modified version of the Dendrite test under both the federal and state constitutions to determine if Miller has satisfied the requirements for obtaining the identity of “DownWithTheColts.”

Civil Tort – Employment/Wrongful Termination

Paul K. Ogden v. Stephen Robertson, et al.

49A05-1101-CT-45

The Indiana Court of Appeals affirmed summary judgment in favor of the Indiana Department of Insurance in a lawsuit filed by a former employee claiming wrongful termination.

Paul Ogden was hired in November 2006 as a division manger in the title division of IDOI. His job was classified as a grade executive broad band position. He worked under the supervision of chief deputy commissioner Carol Mihalik. Within months, Ogden verbalized frustrations to Commissioner James Atterholt regarding Mihalik’s supervision.

At one point, there was confusion over the preparation of insurance bulletins, and Ogden interpreted his conversation with Atterholt to mean that he was to work around Mihalik to develop the bulletins. Mihalik sent Ogden a “counseling letter” in September 2007, claiming he violated IDOI polices in drafting the bulletins and that she and Atterholt need to see bulletins before they are disseminated. The letter was not classified as a disciplinary measure.

Ogden also met with State Personnel Department employees to file a formal complaint against Mihalik alleging many violations, including personnel and legal ones. An investigation was opened. Ogden also sent a memorandum to Atterholt asking that the Title Insurance Division be removed from Mihalik’s unit so that it could operate under a different chief deputy and that the division be moved to a different floor.

As a result of the letter, Ogden was given two options by IDOI officials – resign or be terminated for being “out of line” requesting reorganization of the division. Ogden agreed to resign. He then filed the suit alleging violations of the First and 14th amendments, Article I, Section 9 of the Indiana Constitution, the Whistleblower Law, Indiana Code 4-15-10-5, and state due process. The trial court granted summary judgment to the IDOI defendants, finding that the Whistleblower Law provided no private cause of action for which Ogden could seek relief through a civil lawsuit, Ogden’s memorandum wasn’t protected speech under the state constitution, and that memorandum was not the motivating factor in his forced resignation.

The Indiana Court of Appeals upheld summary judgment, finding that the memorandum wasn’t protected speech under the Indiana Constitution; that Ogden wasn’t entitled to due process protections under Indiana personnel policy and Executive Order 05-14, which addresses when an employee may file a complaint regarding dismissal; and that the trial court did not have subject matter jurisdiction over his claim that he was wrongfully terminated.

Criminal – Evidence/Reasonable Search

Herbert Yanez v. State of Indiana

49A02-1104-CR-362

Because there was no evidence presented as to why a defendant was stopped or that the state’s actions were reasonable, the Indiana Court of Appeals reversed a man’s conviction of misdemeanor possession of marijuana.

Herbert Yanez was at an Indianapolis flea market when he was stopped by Special Agent Rodriguez with the Immigration and Customs Enforcement Unit of the Department of Homeland Security. Rodriguez was part of an investigation looking for illegal immigrants who are gang members and for counterfeit items. After Rodriguez stopped Yanez, Indianapolis Metropolitan Police Officer Humerickhouse approached to assist. Yanez consented to a pat-down search, which revealed a baggie of marijuana sticking out of Yanez’s pants pocket.

Yanez sought to suppress the drug based on lack of a constitutional basis for the investigatory stop. The trial court denied the motion and found him guilty.

Addressing only the state constitutional grounds, the Court of Appeals found that the state presented no evidence of a concern or suspicion that a violation of law had occurred. Rodriguez stopped Yanez, yet the agent did not testify at trial. Humerickhouse was the only witness for the state.

With regards to whether the state presented evidence that the officers’ actions were reasonable, the appellate court split. The majority found the evidence presented failed to establish the reasonableness of the state’s actions, but Judge Michael Barnes disagreed as to this point.

The question arises whether Rodriguez had “seized” Yanez when Humerickhouse approached him. But without Rodriguez’s testimony, the question can’t be answered.

“Although we can speculate that Yanez’s initial encounter with Agent Rodriguez might have been ‘consensual,’ as that word is defined by case law, I believe it was the State’s burden to establish that it was. Without Agent Rodiguez’s testimony, the State failed to meet that burden,” Barnes wrote.

Post Conviction – Waiver of Right to Counsel

State of Indiana v. Christopher Vickers

88A05-1106-PC-317

The Indiana Court of Appeals found that the post-conviction court erred when it concluded that a defendant had not knowingly waived his right to counsel.

Nineteen-year-old Christopher Vickers was arrested for various alcohol offenses and appeared two days later at an initial hearing along with a group of other defendants. At this hearing, the trial court advised the defendants of their rights, including the right to have an attorney, the risk of proceeding without one, and the availability of appointed counsel. Vickers’ family indicated that they would try to find an attorney, to which the trial court requested they let the judge know quickly so counsel could be appointed if needed.

Vickers eventually signed a plea agreement to Class A misdemeanor operating a vehicle while intoxicated causing endangerment; he did not have an attorney. The form was not signed by the trial court and didn’t have the name of the prosecutor and date completed on it. Nearly seven years later, Vickers filed his petition for post-conviction relief claiming that he had not knowingly or voluntarily waived his right to counsel. The post-conviction court granted his request, in part because there wasn’t a record of Vickers’ waiver of his right to counsel.

Based on Supreme Court precedent, the lack of a record showing a waiver of right to counsel does not necessarily mean the trial court didn’t make such a determination that the waiver was valid, so the extent that the post-conviction court relied on the lack of record to grant relief was an error, wrote Judge Patricia Riley.

Looking at other evidence in the record, the appellate court couldn’t find that Vickers met his burden of proof establishing that he didn’t waive his right to counsel or did not unequivocally assert his right to proceed without an attorney.

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February 22

Criminal – Child Molestation/Testimony

Ernesto Gutierrez v. State of Indiana

44A03-1106-CR-257

The Indiana Court of Appeals has thrown out a man’s convictions of Class A felony child molesting because the trial court erred in admitting improper vouching testimony.

Ernesto Gutierrez’s stepdaughter accused him of molesting her on several occasions. M.L. was examined by a sexual assault nurse, Michelle Ditton, and spoke to LaGrange Department of Child Services’ case manager Penny Hasselman. At Gutierrez’s trial, there were inconsistencies in M.L.’s testimony. Ditton and Hasselman testified – over objections from Gutierrez – about whether they believed M.L. was telling the truth about the molestations. Both said they believed her.

The Court of Appeals reversed Gutierrez’s convictions because the testimony of Ditton and Hasselman ran afoul of Indiana Evidence Rule 704(b)’s prohibitions. The trial court erred in admitting the vouching testimony, which invaded the province of the jury and prejudiced Gutierrez’s substantial rights, Judge John Baker wrote.

The appellate court ordered Gutierrez be retried.•

Criminal – Child Support/Nonpayment

Amir H. Sanjari v. State of Indiana

20S03-1105-CR-268

The Indiana Supreme Court has ruled that under Indiana Code 35-46-1-5(a), the enhancement of nonsupport of a dependent child to a Class C felony because of an arrearage of $15,000 or more is triggered by the dollar amount owed, regardless of how many children the parent has.

The state had charged Amir Sanjari with two counts of Class D felony nonsupport of a dependent and two counts as Class C felonies because he owed more than $15,000 in child support for his two children. He was convicted on all counts but only sentenced on the Class C felonies. Sanjari believed the two Class C felony convictions should have “merged” into one under Indiana double jeopardy jurisprudence.

The Court of Appeals vacated one of his Class C felony convictions but affirmed in all other respects.

Justice Brent Dickson analyzed the statute at issue and held that I.C. 35-46-1-5 allows for separate Class D felony convictions of nonsupport of a dependent child, but only one such offense may be enhanced to a Class C felony where the unpaid support for one or more children is $15,000 or more. The state argued that the statute allows for the enhancement for every $15,000 in nonsupport arrears, so if a parent with four children owed $60,000, he or she could be punished for four Class C felonies.

The same $15,000 was used to enhance both of Sanjari’s convictions, so the justices vacated the four convictions and ordered that he be convicted of and sentenced for one count of Class C felony nonsupport of a dependent for one child and Class D felony nonsupport with regards to the other child.

“For future clarification, however, we do not consider the attribution of separate $15,000 portions of the aggregate arrearage to separate dependent children a proper basis for seeking separate class C felony convictions as to each child. Such a technique might avoid the statutory construction rule of Richardson and Spivey proscribing multiple punishments for the same behavior or harm,” Dickson wrote. “But this prosecutorial maneuver would not satisfy the statutory basis for a class C felony nonsupport conviction, which requires that the aggregate, the ‘total’ amount, of unpaid support for all of the defendant’s dependent children, whether one or more, equal or exceed $15,000.”

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February 22

Criminal – Batson Challenge

Joey Addison v. State of Indiana

49S05-1105-CR-267

Criminal – Batson Challenge

Jerrme Cartwright v. State of Indiana

82S01-1109-CR-564

The Indiana Supreme Court ruled on two cases that stemmed from Batson challenges, and in doing so, articulated the standard of review of such challenges when a defendant raises a Batson challenge at the trial level, but then brings up a different argument on appeal.

Joey Addison appealed the removal of one of the only three African-American venirepersons at this trial for murder. Addison – an African-American — intended to use the insanity defense. During voir dire, the court removed venireperson Turner – an African-American – because the state argued Turner said he would only rely on the doctors’ testimony regarding Addison’s sanity when deciding the case. Addison did not object to the removal of the other two African-Americans from the jury panel because the state gave race-neutral reasons for their removal.

The justices had a novel issue to address on appeal – how should an appellate court treat a defendant’s appellate claim when the defendant offered no substantive argument to the trial court as to why the state’s proffered reason for striking a black panelist is pretextual? Addison had made a Batson challenge regarding Turner, but he did not argue to the trial court that other nonblack jurors offered similar testimony as Turner but were not removed. He made that argument for the first time on appeal.

Turning to other jurisdictions for guidance, the justices decided that such claims could be addressed on appeal under Indiana’s fundamental error doctrine. Using that doctrine, the Supreme Court found that the state mischaracterized Turner’s statements that he would only rely on what the doctors said regarding Addison’s sanity, and that several other jurors made similar statements to Turner.

“This mischaracterization of Turner’s voir dire testimony is troubling and undermines the State’s proffered race-neutral reason for the strike,” Justice Robert Rucker wrote. The justices were left with the firm impression that the state’s proffered explanation for striking Turner was a mere pretext based on race, making a fair trial impossible. They ordered Addison be retried.

The justices also ruled on a Batson challenge in which Jerrme Cartwright – an African-American who was on trial for attempted battery and unlawful possession of a firearm – argued that the state failed to meet its burden to show that its strike of venireperson Bard was not motivated by discriminatory purpose. Bard was the only African-American venireperson. The state struck Bard because he said at voir dire examination that he didn’t want to serve on the jury, that he took a diuretic that caused him to frequently use the restroom, and that he’s not a good listener. He also answered yes to the question of whether he or an immediate family member had been charged with or convicted of a crime.

The justices found the prosecutor didn’t run afoul of Batson for striking Bard based on these statements, and the record showed that nonblack venirepersons with problems like Bard’s were also dismissed from the jury. The Supreme Court affirmed Cartwright’s convictions.

Criminal – Drugs/Sentencing

Antwon Abbott v. State of Indiana

34S02-1202-CR-110

The Indiana Supreme Court was divided 3-2 over whether to reduce the sentence of a man who received the maximum 20 years for having cocaine within 1,000 feet of a school when police stopped his vehicle.

Justices Robert Rucker and Frank Sullivan and Chief Justice Randall Shepard ordered the trial court to reduce Antwon Abbott’s 20-year sentence to 12 years. Abbott was the passenger in a car that was pulled over for a “window tint” violation. The car was stopped near a private school. Abbott had rolling papers, a plastic bag with 26 smaller baggies, and a plastic baggie taped under his scrotum that had 1.15 grams of cocaine and 5.17 grams of marijuana.

If not for being stopped by the officer near the school, then Abbott would have been charged with Class D felony possession of cocaine, which carries a maximum penalty of three years. These circumstances “weigh heavily” in assessing the appropriateness of his sentence, wrote Rucker. Despite Abbott’s extensive criminal history, the majority decided his sentence should be shortened.

“These circumstances compel us to conclude that although Abbott’s character does not necessarily justify a revision of his sentence, the nature of Abbott’s offense in this case renders his twenty-year maximum sentence inappropriate,” wrote Rucker.

Justices Steven David and Brent Dickson dissented because they wanted the original sentence left in tact.

“Although sympathy may arise when a defendant who commits a Class D felony suddenly finds himself facing a Class B felony sentence, the trial court here adequately justified the sentence imposed,” David wrote.

Police found a substantial amount of drugs on Abbott and he has a long criminal history. David cited a portion of the Indiana Court of Appeals opinion which upheld the 20-year sentence that said “Clearly, Abbott has not reformed his criminal behavior despite his numerous prior contacts with the criminal justice system.”