Indiana Court Decisions – Dec. 16-29, 2020

7th Circuit Court of Appeals

Dec. 18

Criminal — Postal Worker Robbery/Remand for New Trial

United States of America v. Tanisha A. Banks

19-3245

The 7th Circuit Court of Appeals has reversed guilty verdicts against a former Merrillville postal worker convicted in a robbery scheme, finding that a holdout juror at the woman’s trial was subjected to “impermissible coercion.”

Tanisha Banks, a former U.S. Postal Service employee from Merrillville, was convicted of plotting a 2017 armed robbery at a Gary post office and sentenced to more than seven years in prison. She was found guilty by a jury of conspiracy and aiding and abetting a robbery following a five-day trial and four hours of deliberation that stretched to about 8:45 p.m.

When the judge polled the jurors at Banks’ request, the fifth juror did not affirm the verdict. When asked whether the guilty verdict was in fact his verdict, Juror 32 responded, “Forced into.” The judge repeated the question, and Juror 32 responded that he needed more time.

The judge continued the poll, and the remaining jurors affirmed the verdict while Juror 32 remained the lone dissenter. After being instructed to continue deliberating, the jurors were sent back to the jury room. Almost 30 minutes later, the jury again returned a unanimous guilty verdict.

On appeal, Banks’ argument focused on concerns about the circumstances surrounding the jury poll, which she contended exerted impermissible pressure on the wavering juror. Agreeing with Banks’ concerns, the 7th Circuit Court of Appeals found that the totality of the circumstances were “unacceptably coercive” and vacated the judgment, remanding for a new trial.

Specifically, the 7th Circuit expressed concern with the dissenting juror’s “troubling responses to the poll questions, the judge’s decision to complete the poll notwithstanding the juror’s dissent, the lateness of the hour, and the extreme brevity of the jury’s renewed deliberations … .”

“After Juror 32 said, ‘Forced into,’ the judge again asked him, ‘Is this your verdict?’ And he responded, ‘I suppose so.’ The government characterizes this response as suggesting that Juror 32 agreed with the guilty finding. That hardly seems the case,” Chief Judge Diane Sykes wrote for the 7th Circuit panel. “…When asked a third time, Juror 32 said, ‘I don’t know how to answer that.’ We do not need to speculate about the implications of this answer. The purpose of a jury poll is to confirm unanimity, … and this response decidedly did not do that.

“More concerning is the judge’s next request: ‘I’m asking you to answer that at this time.’ The government argues that this was a neutral inquiry intended only to clear up the uncertainty in Juror 32’s responses. We see it differently,” Sykes continued. “By this time there was no uncertainty about Juror 32’s position. He had already said he was ‘forced into’ the verdict, and he did not retreat from that position when asked two more times.

“Whether the judge intended to merely clear up the uncertainty is irrelevant. Our inquiry focuses on the juror’s perspective. Viewed through that lens, continuing to press Juror 32 for a different answer was unnecessarily coercive.”

Concluding that the manner in which the judge conducted the poll “unnecessarily risked coercion,” among other things, the 7th Circuit found that the totality of the circumstances created a clear and obvious risk of juror coercion.

“Juror 32’s ‘forced into’ response to the poll question is powerful evidence of impermissible coercion. And the circumstances that followed — the judge’s repeated pressing for another answer, the incomplete cautionary instruction, the late hour, and the brief duration of the renewed deliberations — only amplify our concern,” the panel concluded. “Because the risk of juror coercion was clear and obvious, we presume that the error prejudiced Banks and seriously affected the fairness of the proceedings. … The judgment must be vacated.”

The case is United States of v. Tanisha A. Banks, 19-3245.

Civil Tort — Personal Injury/$0 Damages Award

Richard Spinnenweber v. Robert Laducer and Red River Supply, Inc.

20-1534

A man who was initially awarded $1 million by a jury for a run-of-the-mill car accident case will have to stick with the zero-dollar judgment he asked for in a new trial after the U.S. District Court for the Northern District of Indiana found the original verdict to be “outrageous.”

Three months after his vehicle was rear-ended by truck driver Robert Laducer, Richard Spinnenweber told his doctor he was suffering from tinnitus and bouts of short-term memory loss. Just days after the accident, Spinnenweber went to an urgent care center to treat neck pain and possibly tinnitus but had refused medical treatment at the scene of the accident.

Spinnenweber eventually sued Laducer and his employer, Red River Supply Inc., seeking compensatory damages for the physical injuries that the accident allegedly caused. However, he never asked for punitive damages, sought to recoup medical costs or lost wages, and didn’t make a claim for psychiatric, psychological, mental or emotional injuries.

During a trial, the only testimony Spinnenweber provided was his own and the recorded deposition testimony of his doctor and that of family and friends. Although the medical expert testified that Spinnenweber had whiplash from the accident, none of his other physical ailments were connected to the crash. Even so, a jury awarded him $1 million in compensatory damages.

The Indiana Northern District Court was “understandably shocked” by the verdict and granted the defendants’ motion for a new trial after they argued the award was “grossly excessive and unsupported by the evidence.” It offered Spinnenweber the choice of accepting $250,000 or a new trial, and he chose the latter. But when Spinnenweber presented no evidence and requested an award of $0 in damages at the new trial, described as a “verdict of silence,” the court granted it and a jury awarded him exactly that.

“The bizarre nature of these events is not lost on us. But Spinnenweber walked away with the $0 he asked for. And now, represented by counsel, he appeals his final judgment of $0 and the district court’s order granting Defendants’ motion for remittitur or a new trial,” Circuit Judge Michael Kanne wrote for the 7th Circuit.

Asking itself two questions, the 7th Circuit questioned whether the district court abused its discretion by finding that Spinnenweber’s evidence showed that he potentially suffered just whiplash and a mild concussion from the accident. It then asked whether the district court abused its discretion by finding that the $1 million verdict for those injuries was so outrageous that it warranted remittitur or a new trial.

The appellate panel ultimately answered no to both in the case of Richard Spinnenweber v. Robert Laducer and Red River Supply, Inc., 20-1534.

First, the 7th Circuit noted that because no expert testimony or other medical evidence linked Spinnenweber’s alleged head injury or tinnitus to the accident, it would have been conjecture or speculation for the jury to find that the crash caused those ailments. It further pointed out that given the whiplash and mild concussion Spinnenweber sustained, the district court did not abuse its discretion in finding the $1million verdict to be outrageous.

“We recognize that the result of our decision is that Spinnenweber gets no money on a claim for which Defendants conceded liability and indisputably owed him something. But Spinnenweber was hoisted with his own petard. He did not have to seek $0 in his second trial, and we can’t change that he did,” the 7th Circuit concluded.

Indiana Supreme Court

Dec. 18

Civil Plenary — Theft, Damages and Fees Award/Remand for New Trial

Kyung Sil Choi, Bo Kang Park, and Han Chong v. Jung Hee Kim

20S-PL-706

The Indiana Supreme Court reversed a $350,000 verdict and attorney fee award for a Monroe County woman, remanding for a new trial on her theft claims.

In April 2019, a jury returned a $350,000 verdict for Jung Hee Kim on her theft claim against Kyung Sil Choi, Bo Kang Park and Han Chong. Kim, who had moved to the United States from South Korea on an investor E-2 visa, had filed a complaint sounding in contract, conversion, fraud and theft against Choi, Park and Chong. The Monroe Circuit Court in Kim’s case also awarded her attorney fees totaling $38,648.54.

On appeal, the defendants argued the trial court erred in communicating with the jury after deliberations began, thus requiring a new trial. They also argued the evidence did not support Kim’s theft verdict.

A panel of the Indiana Court of Appeals unanimously held that the communication error emphasized certain jury instructions relating to the theft claim and was reversible. But instead of remanding for a new trial, the majority turned to the second issue, held that Kim failed to prove theft and reversed.

Judge Elizabeth Tavitas dissented in part, saying whether the evidence supported the verdict need not be addressed “given the need for a new trial at which different evidence could be presented.”

The Supreme Court agreed with Tavitas in a per curiam opinion, reversing its denial of the defendants’ motion for judgment on the evidence and motion to correct error.

“Accordingly, we grant transfer and summarily affirm the Court of Appeals’ decision, except its discussion on sufficiency of the evidence, which remains vacated. … We reverse the trial court’s judgment (including its attorney’s fees award) and remand the case for a new trial on Kim’s theft claim,” the high court concluded.

The case is Kyung Sil Choi, Bo Kang Park, and Han Chong v. Jung Hee Kim, 20S-PL-706.

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Dec. 22

Expungment — Reversal/Remand for Eligibility Reconsideration

Brian J. Allen v. State of Indiana

20S-XP-506

A trial court has been ordered to reconsider its decision to deny a man his petition for expungement of a crime he committed nearly 20 years ago after the Indiana Supreme Court found him to be eligible.

At 19, Brian Allen and three other friends conspired to burglarize the home of a couple in West Harrison in southeast Indiana in 2002. The burglary resulted in homeowners Larry and Judith Pohlgeers to be hit with a lead pipe by two of the men, while Allen and another friend waited outside.

Allen pleaded guilty to Class B felony conspiracy to commit burglary and was sentenced to 16 years in prison with eight years suspended. His sentence was later modified, and after serving nearly three years in prison, Allen was placed on probation. He successfully completed probation and was eventually released in 2015, but he was denied an expungement petition in 2018.

The Indiana Court of Appeals reversed earlier this year, finding that the Dearborn Superior Court had improperly interpreted the Permissive Expungement Statute and, because the crime of which Allen was convicted didn’t result in serious bodily injury, the trial court improperly denied his petition for expungement.

After granting a petition to transfer, the Indiana Supreme Court reversed and remanded upon finding that the trial court “may have denied the petition on the erroneous belief that Indiana Code section 35-38-9-4(b)(3) rendered the defendant ineligible for expungement.”

The justices first noted that although Allen was eligible for expungement, the question remained as to whether his conviction for Class B felony conspiracy to commit burglary was eligible or ineligible for expungement under the serious bodily injury exclusion. It concluded that Allen isn’t excluded from eligibility for expungement under the exclusion because he wasn’t “convicted of a felony that resulted in serious bodily injury to another person.”

“The fact that Allen was eligible for expungement doesn’t end the inquiry, however, because, unlike the Mandatory Expungement Statute at issue in (Trout v. State, 28 N.E.3d 267, 271 (Ind. Ct. App. 2015.)) the Permissive Expungement Statute vests discretion in the trial court to deny expungement,” Justice Christopher Goff wrote for the unanimous high court.

Justices next noted that although a trial court evaluating an expungement petition may consider facts incident to the conviction, the trial court here gave the justices “nothing to go on.”

“In this case, significant evidence supported Allen’s petition: testimony about his role as a committed father, husband, and provider; letters of recommendation from family, friends, and coworkers; and support from the victims themselves. The trial court, however, didn’t articulate its reasons for denying Allen’s petition for expungement. And because the trial court in this case did not articulate why it denied Allen’s petition, we’re unable to determine what consideration the court gave the evidence presented at the hearing or if it entirely failed to consider the evidence favoring expungement based on a mistaken belief that Allen was ineligible for expungement,” the high court concluded.

The case is Brian J. Allen v. State of Indiana, 20S-XP-506.

Indiana Court of Appeals

Dec. 17

Criminal — Suppressed Evidence Reversal/Failure to Signal at Least 200 Feet Before Stop

State of Indiana v. Emmanuel Torres, et al.

20A-CR-943

Incriminating evidence found when two separate drivers were stopped for failing to signal a turn in advance can be used against them, the Indiana Court of Appeals has ruled, though one judge is calling on the Legislature to review traffic laws that lead to “arbitrary” traffic stops.

Chief Judge Cale Bradford authored the reversal in the consolidated case of State of Indiana v. Emmanuel Torres, et al., 20A-CR-943.

The cases begin in January 2019, when Frankfort Police Officer Kaleb Thompson stopped Ramon Sanchez after observing Sanchez stop at a stop sign, activate his turn signal, then turn left. When he approached Sanchez, Thompson discovered Sanchez’s license was suspended, so the driver was charged with Class A misdemeanor driving while suspended and Class C misdemeanor operating a motor vehicle without ever receiving a license.

The following May, Thompson observed Emmanuel Torres make the same traffic infraction: coming to a stop, signaling and then turning left. The officer discovered that Torres had never received a driver’s license, so he was charged with Class A misdemeanor operating a vehicle without ever receiving a license.

Both men filed motions in August 2019 seeking to suppress evidence obtained following the stops of their vehicles. Specifically, they argued that they had not violated Indiana Code § 9-21-8-24 because their failure to signal before stopping did not affect any pedestrians or other motorists, and that the stops were pretextual.

The Clinton Superior Court determined in January that the defendants had complied with I.C. 9-21-8-24, but not with I.C. 9-21-8-25 because they failed to signal at least 200 feet before their turns. However, the court ultimately granted the motions to suppress because “in many circumstances within a normal city block it is impossible to comply” because some city blocks are less than 200 feet.

In reversing that decision, Bradford noted that neither Torres nor Sanchez filed appellate briefs. He then noted that the relevant statute has “no restrictions that it only applies in certain situations or roadways,” citing Datzek v. State, 838 N.E.2d 1149, 1155 (Ind. Ct. App. 2005).

“… (T)he trial court’s focus was misplaced,” Bradford wrote. “Whether or not compliance with Indiana Code Section 9-21-8-25 was possible for Sanchez and Torres under the circumstances, their failure to signal a turn until they reached a stop sign was certainly enough for Officer Thompson to establish a reasonable belief that Indiana Code Section 9-21-8-25 had been violated, and that is all that is required. The judge of the trial court is reversed, and we remand for further proceedings.”

Judge Paul Mathias authored a concurring opinion, though he noted that he concurred “only because I must – under the facts presented, the law, and the wording of the appealed order.”

“Yet it is quite clear that the trial judge was as frustrated as I am to be required to apply a statute that authorizes a traffic stop on any city street if the driver does not continuously signal for at least 200 feet before turning or changing lanes,” Mathias wrote.

Mathias noted that Torres and Emmanuel were not speeding, and both did signal their turns. The problem, however, was their failure to signal for 200 feet before turning.

“Anyone who has ever operated a motor vehicle observes multiple violations of this statute each and every day,” Mathias wrote. “… Whether cited as justification to stop a vehicle exiting a roundabout, State v. Davis, 143 N.E.3d 343, 346-47 (Ind. Ct. App. 2020), or a vehicle turning from a city street into a parking lot, State v. Rhodes, 950 N.E.2d 1261, 1264-65 (Ind. Ct. App. 2011), this precise statute appears to be employed often to make arbitrary traffic stops.

“… I respectfully request that our General Assembly review Section 9-21-8-25 and the traffic code in general to correct statutes where conforming conduct is often impossible. All Hoosiers will appreciate and benefit from a traffic code that reduces the opportunity for arbitrary enforcement.”

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Dec. 18

Criminal — Marijuana Suppression/Officer’s Training to Detect Smell

Jesse R. Bunnell v. State of Indiana

20A-CR-981

The Indiana Court of Appeals has reversed the denial of a motion to suppress drug-related evidence found during a search of a Greene County man’s home. The appellate court ruled on an issue of first impression that probable cause for a search warrant cannot be based only on an officer’s detection of the smell of marijuana without additional information about the officer’s training.

While responding to a domestic violence call at Jesse Bunnell’s home, two Greene County Sheriff’s Department deputies observed the smell of raw marijuana emitting from one of the doors of the residence. After securing a search warrant for the home on that basis, the officers found nine pounds of marijuana, marijuana plants and other drug paraphernalia. With a second search warrant, the officers found additional marijuana in a recreational vehicle on the property.

Thus, Bunnell was charged with Level 6 felony dealing in marijuana, Level 6 felony possession of marijuana, Level 6 felony maintaining a common nuisance and Class C misdemeanor possession of paraphernalia. The Greene Superior Court denied Bunnell’s motion to suppress evidence recovered from the home and RV, in which he alleged that the search and seizure violated both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution.

In an interlocutory appeal, Bunnell argued that “the only evidence that supports” probable cause was the deputies’ detection of the odor of raw marijuana, which was based on their “training and experience.” However, he claimed that because there is no information about either deputies’ relevant training or experience in detecting the odor of raw marijuana, the affidavit was insufficient to establish probable cause.

As such, Bunnell argued the evidence seized pursuant to both the initial search warrant and the subsequently issued warrant must be suppressed. The appellate panel agreed under what it called “unique facts and circumstances.”

“To explain why, we address a narrow issue of first impression: whether law enforcement’s detection of the odor of marijuana based on unspecified ‘training and experience’ by itself provides a warrant-issuing judge with a substantial basis for concluding that probable cause exists to search a home,” Judge Paul Mathias wrote for the appellate court.

The court noted that the smell of marijuana emanating from a residence, when detected by law enforcement that is qualified to identify and distinguish the odor, by itself can establish probable cause for issuance of a search warrant.

“But when the smell of marijuana is the only evidence constituting probable cause, the search-warrant affidavit — or information otherwise before the issuing judge — must include some information regarding the detecting officers’ relevant qualifications, experience, or training in identifying and distinguishing the odor,” Mathias wrote. “To conclude otherwise would sanction a categorical presumption that every law-enforcement official is adequately trained in detecting and distinguishing the smell of marijuana.”

Turning to the search warrant affidavit in Bunnell’s case, the appellate court concluded it did not demonstrate that the officers were qualified to identify and distinguish the odor of raw marijuana. Specifically, the panel noted the affidavit did not include any information regarding the deputies’ relevant qualifications, experience or training that demonstrated either deputy could identify or distinguish the smell of raw marijuana.

Nor did the affidavit include information about how long the deputies had been in law enforcement, their involvement in investigating marijuana offenses or in making marijuana-related arrests, the panel continued. Also, the affidavit contained no information about specialized training that either deputy had undergone in detecting the odor of raw marijuana.

“Because there was no probable cause to issue the warrant, the initial search of Bunnell’s home was illegal, and the exclusionary rule requires suppression of the evidence seized,” Mathias concluded. “Further, ‘it was by exploitation of that illegality’ that law enforcement secured a search warrant for Bunnell’s RV. As a result, that evidence must also be suppressed.”

Finding that the trial court erred in denying Bunnell’s motion to suppress, the appellate court reversed in the case of Jesse R. Bunnell v. State of Indiana, 20A-CR-981.

Civil Tort — Medical Malpractice/Reversal of Judgment on the Evidence

Pamela Jane Scholl v. Mohammed E. Majd, M.D.

20A-CT-571

A woman suing her doctor for medical malpractice won a reversal in her favor after the Indiana Court of Appeals found she provided sufficient evidence regarding the applicable standard of care.

In 2017, Pamela Scholl sued orthopedic surgeon Dr. Mohammed E. Majd after he performed lumbar fusion surgery and a subsequent revision procedure on her spine. Scholl, who alleged that Majd committed medical malpractice during those procedures, brought in Dr. Robert F. Sexton to testify as an expert witness during a jury trial.

Sexton – a retired neurosurgeon who performed over 12,000 spine surgeries over a period of 60 years, including over 10,000 laminectomies and 150 fusions – testified that he disagreed with a medical review panel and its finding that Majd did not fall below the mythical standard of care while performing spine surgery on Scholl. But after Scholl rested her case, Majd moved for judgment on the evidence on the basis that Sexton did not demonstrate a familiarity with the applicable standard of care, and the Floyd Superior Court granted the motion.

Scholl subsequently filed to correct error, arguing the trial court erred in granting Majd’s motion for judgment on the evidence. However, the trial court denied Scholl’s motion.

But the Indiana Court of Appeals reversed in Scholl’s favor, agreeing that she did provide sufficient evidence regarding the applicable standard of care to defeat Majd’s motion for judgment on the evidence.

The appellate panel first disagreed with Majd’s argument that Sexton, like the expert in Overshiner v. Hendricks Regional Health, 119 N.E.3d 1124 (Ind. Ct. App. 2019), misstated the standard of care and left the jury to speculate as to the applicable standard of care.

“Dr. Sexton quoted a doctor from the medical review panel’s deposition testimony that the standard of care is ‘what a reasonably skilled doctor with reasonably skilled training would do in a given situation.’ While this was not a word-for-word recitation of the legal definition for standard of care, it demonstrates Dr. Sexton was at least somewhat familiar with the legal bar for what constitutes medical malpractice,” Judge Melissa May wrote for the appellate court.

The court further concluded that unlike the expert in Overshiner, Sexton was familiar with treating patients suffering from the same condition as the plaintiff and had performed the same type of surgery performed on Scholl and other similar spine surgeries. Thus, it determined Sexton could speak to what a reasonably skilled, careful and prudent doctor would do and would not do in treating a patient like Scholl.

Additionally, the appellate court concluded that while Sexton’s comments were imprecise, they did not show a lack of familiarity with the applicable standard of care.

“Therefore, we reverse the trial court’s entry of judgment on the evidence in favor of Dr. Majd, and we remand the case for further proceedings not inconsistent with this opinion,” May concluded.

The case is Pamela Jane Scholl v. Mohammed E. Majd, M.D., 20A-CT-571.

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Dec. 22

Domestic Relation — Divorce/Division of Retirement Assets, Prenuptial Agreement

William Thomas Thompson v. Lora Lou Wolfram

19A-DR-2622

A dispute over the terms of a prenuptial agreement has resulted in the division of part of a man’s nearly $1 million retirement accounts with his ex-wife. A dissenting judge, however, would not award the wife any portion of the retirement funds.

The day before their wedding in 1996, William Thompson and Lora Wolfram signed a premarital agreement to protect and keep their separate property in case of divorce. When Wolfram filed for divorce in 2016, all of her separate assets and investments listed in the agreement had since been liquidated, transferred into another format or placed in both names.

Thompson’s separate property, however, was still in existence, including his retirement accounts, which were listed only in his name at the time of the parties’ dissolution hearing. His 401(k) and IRA accounts were valued at $994,523.

Both parties disagreed about how to treat the retirement accounts, with Thompson asserting that no part of them was divisible marital property. Wolfram, on the other hand, argued that although the $97,477 starting value of the retirement accounts at the time of marriage should be set aside to Thompson, the remaining value should be considered property of the marriage to be divided equally.

Agreeing with Wolfram, the St. Joseph Superior Court ordered the increase in Thompson’s retirement accounts since the marriage to be split equally between the parties. It thus awarded Thompson $97,477 plus one-half of the appreciation to his retirement accounts and awarded Wolfram the remaining one-half of the appreciation. It likewise scheduled a future hearing to determine the value and distribution of the parties’ pension plans.

In an interlocutory appeal, Thompson argued against the trial court’s ruling in William Thomas Thompson v. Lora Lou Wolfram, 19A-DR-2622, asserting the trial court erred by failing to properly interpret the premarital agreement.

However, the appellate majority concluded that the plain language of the agreement indicated the then-current value of Thompson’s retirement accounts was his separate property. It thus concluded that the trial court correctly found the increase in value from the date of the agreement was marital property subject to division upon divorce.

The majority noted that the retirement accounts as listed on Exhibit A included a specific value as of a certain date, with no provision for how to treat increases in that value through contributions or otherwise. To the extent the specific words used in the agreement create an ambiguity, the majority construed them against the drafter – Thompson, by his counsel.

“The dissent argues this result interjects language that is not in the Agreement. On the contrary, the decision is firmly grounded in the actual language and organization of the Agreement,” Judge Margaret Robb wrote for the majority, joined by Judge Nancy Vaidik.

“I must diverge from the majority’s reasoning because I believe the plain language of the Agreement dictates that Thompson’s Retirement Accounts and any contributions and earnings throughout the duration of the marriage must remain as his separate property in their entirety in order to maintain the integrity of the Agreement and uphold the intention of the parties,” Judge Melissa May wrote in dissent. “To interject language that is simply not present into the Agreement controverts not only the intent of the parties but well-established contract law. Based thereon, I respectfully dissent.”

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Dec. 23

Post Conviction — Ineffective Assistance of Counsel/Conviction Vacated, Remanded

Tyre Bradbury v. State of Indiana

20A-PC-620

A split Indiana Court of Appeals has reversed the denial of a teenager’s petition for post-conviction relief of his murder conviction, finding his attorneys performed deficiently in a 2017 trial related to the fatal shooting of a South Bend toddler. The panel vacated his conviction and remanded for a new trial.

When Tyre Bradbury was 15 years old, his 19-year-old friend Robert Griffin shot and killed a toddler while firing at a rival in 2014. The bullets fired by Griffin missed the intended target and instead hit 2-year-old John Swoveland Jr., who was playing in a yard nearby. Bradbury, who unsuccessfully tried to stop Griffin from shooting, was charged as an adult with murder as Griffin’s accomplice.

During his trial, Bradbury’s attorneys stipulated to a major element of the state’s case — the fact that the adult shooter, Griffin, had been convicted of murder. By doing so, counsel admitted one of the contested elements of Bradbury’s crime. His attorneys also failed to request a jury instruction on the lesser-included offense of reckless homicide as an accomplice.

Although Bradbury filed a petition for post-conviction relief claiming his counsels’ performance on the two issues was deficient and that he was prejudiced as a result, the St. Joseph post-conviction court denied Bradbury’s petition. It concluded that the stipulation and the omission of lesser included offenses was strategic and, therefore, not the product of ineffective assistance of counsel.

But a split Indiana Court of Appeals panel reversed for Bradbury, finding two issues dispositive: whether trial counsel was ineffective in stipulating as to Griffin’s murder conviction and in failing to request a jury instruction on a lesser included offense. First, the appellate majority agreed with Bradbury that Griffin’s intent was as central to Bradbury’s prosecution as it was to Griffin’s.

“The primary issue in both the Griffin and Bradbury prosecutions was whether Griffin intended to kill his rival, L.B., or just frighten L.B. by recklessly firing in his general direction when the stray bullet from his gun struck toddler J.S. Bradbury’s jury was not bound by the verdict of Griffin’s jury. Yet, informing Bradbury’s jury of that verdict sent the opposite message: another jury had found beyond a reasonable doubt Griffin fired with the intent to kill, so Bradbury’s jury must follow suit. Trial counsel’s stipulation to elements of the offense which he thought the State would have had difficulty proving cannot be deemed reasonable. Moreover, the stipulation wholly undercut trial counsel’s litigation strategy of establishing

Griffin did not act with specific intent to kill,” Judge Leanna Weissmann wrote for the majority, joined by Judge L. Mark Bailey.

As for the lesser-included offenses, the appellate majority concluded that evidence did not support the post-conviction court’s conclusion that Bradbury’s attorneys were not ineffective in failing to request a jury instruction on lesser included offenses because the decision was strategic.

“Bradbury’s counsel specifically testified that he normally seeks as many lesser included offense instructions as the evidence will support, particularly in murder cases. Counsel also made clear that he would have tendered a lesser included offense instruction if the evidence against Bradbury supported it, and any failure to do so in the presence of such evidence was counsel’s error,” the majority wrote.

It thus concluded that the performance of Bradbury’s attorneys was deficient with respect to the stipulation and omission of lesser included offense instructions and that but for the deficient performance, there was a reasonable probability that the result of the proceeding would have been different.

As such, it found the post-conviction court erred by denying his PCR petition and ultimately reversed and remanded in Tyre Bradbury v. State of Indiana, 20A-PC-620. But Judge Nancy Vaidik dissented in a separate opinion, asserting that the post-conviction court judge, who also presided over the jury trial, correctly concluded Bradbury’s counsel were not ineffective.

Finding that “reasonable minds differ” on the issues of whether counsel’s decisions were strategic and whether there is a reasonable probability the result of the trial would have been different, the dissenting judge concluded, “I cannot say the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the postconviction court. I would defer to the judgment of the post-conviction-court judge, who also presided over Bradbury’s jury trial, and affirm on these and the other issues raised by Bradbury.”

Bradbury was one of at least seven people convicted in the shooting linked to a gang fight, and the jury found Bradbury had gang ties, enhancing his sentence. He ultimately was sentenced to 60 years in prison.•