Indiana Court Decisions – July 1-15, 2020

7th CircuitCourt of Appeals

July 13

Criminal — Habeas Corpus/Reversal

Raymond Marling v. Richard Brown

19-3077

The 7th Circuit Court of Appeals has reversed habeas corpus relief granted to a man in a disputed search case where police opened a locked box full of illegal drugs while executing an arrest warrant.

After Indiana police arrested Raymond Marling on a warrant while he was driving his car, officers took an inventory of its contents and found a locked box in the vehicle’s trunk. An officer opened the box with a screwdriver and found illegal drugs, which later played a role in his convictions and 38-year sentence, which included a 20-year habitual offender enhancement.

Marling’s lawyer asked the trial court to suppress the contents of the box, arguing that opening it was improper, but the argument lost in the trial court and lost again on appeal. Later on, Marling filed a collateral attack alleging that his trial and appellate lawyers had furnished ineffective assistance by not presenting the best reasons for objecting to the box’s opening. Rather, Marling argued that his counsel should have argued that opening his box damaged it, violating the police department’s policy.

That contention was rejected, until the U.S. District Court for the Southern District of Indiana issued a writ of habeas corpus, ruling that a photograph in the record shows damage to the box’s lock. Thus, the district court judge concluded that the state court’s finding had been rebutted by clear and convincing evidence.

“The district judge found both deficient performance and prejudice because Florida v. Wells, 495 U.S. 1 (1990), holds that the validity of an inventory search depends on the police department having a policy about when to take inventories. The judge read Wells to say that compliance with this policy is essential, which implies that a violation of a local policy also violates the Constitution. The judge read the local policy at issue to forbid damage to a container, which led him to find a constitutional error, which counsel had failed to call to the state court’s attention. We think that the judge has misunderstood both Wells and the local policy,” Judge Frank Easterbrook wrote for the 7th Circuit.

“The judge included in his opinion a picture showing some damage to the box’s lock. That was enough, he thought, to establish the policy’s violation, even though Marling did not draw this picture to the attention of the state’s appellate court. Let us suppose that the judges should have examined the picture anyway. Still, the policy does not forbid all damage; it forbids unreasonable damage. This box was intact, and the lock could have been fixed or replaced. Why was the damage ‘unreasonable’? The judge did not say,” Easterbrook wrote.

Noting that it did not see a violation of local policy, the 7th Circuit therefore reversed the district court’s ruling in Raymond Marling v. Richard Brown, 19-3077.

“The officer who opened and inventoried the contents of this box acted within the scope of discretion granted by General Order 49. As Wells requires, discretion under the policy is unrelated to beliefs about the container’s contents. If the officer did too much (‘unreasonable’) damage, that could have been the basis for a tort claim under state law. It is not a basis for a conclusion that the Fourth Amendment required the suppression of incriminating evidence. It follows that counsel did not violate the Sixth Amendment by omitting this line of argument,” the 7th Circuit concluded.

Indiana Supreme Court

July 6

Criminal — Dealing Methamphetamine/Sentence Reduction

Brittany Nicole Mullins v. State of Indiana

20S-CR-451

A divided Indiana Supreme Court has sided with an appellate judge’s dissent in a drug dealing case, lowering a woman’s decades-long sentence pursuant to Appellate Rule 7(B).

During the course of two weeks in August 2018, Brittany Mullins made four controlled buys of methamphetamine to undercover law enforcement. Roughly one week later, Mullins was arrested when police found meth and drug paraphernalia in her possession during a traffic stop, during which she readily admitted that the drugs were hers and that she was dealing.

Mullins pleaded guilty to Level 2 felony conspiracy to deal meth and two counts of Level 2 felony dealing meth in the controlled buys case, as well as one count of Level 4 felony dealing meth in the traffic stop case. In the controlled buy case, the Tippecanoe Superior Court sentenced her to 18 years – 16 years executed and two years suspended — on each of the three counts, with the sentences running concurrently.

Additionally, Mullins’ traffic stop conviction received a 6 1/2-year sentence — four years executed and 2 1/2 years suspended — ordered to run consecutive to the controlled-buy sentence, for an aggregate of 24 1/2 years.

A divided Indiana Court of Appeals panel affirmed her sentence, but Judge Terry Crone dissented from the majority. He argued Mullins’ sentence was “an outlier that warrants our independent review and revision pursuant to Indiana Appellate Rule 7(B).”

The majority of justices – excluding Justice Geoffrey Slaughter, who would deny transfer – agreed with the lower appellate panel that the trial court did not abuse its discretion in sentencing Mullins for her drug-related offenses. However, the high court ultimately decided to exercise its constitutional authority to revise Mullins’ aggregate sentence down to 18 years.

“Here, Mullins was relatively young — 21 years old when she was arrested for these crimes. Mullins’s childhood was difficult. She was exposed to a culture of drug use and dealing at a young age and began using illegal drugs at 14, when a relative forcibly injected her with heroin,” the per curiam majority opinion reads. “Mullins was also physically and sexually abused from a very young age. At 17, she spent a short time in a treatment center for mental health, substance abuse, and addiction issues.

“Mullins married at 18. Shortly thereafter, she and her husband became homeless, often staying temporarily with acquaintances from the drug scene. During that time, she continued to be the victim of physical and sexual abuse,” the opinion continues. “Mullins has been diagnosed with significant mental health issues that have gone largely untreated. Mullins’s criminal history is not violent and includes two previous drug-possession convictions and an outstanding warrant for auto theft from early 2016.”

Finding her 24 1/2-year aggregate sentence inappropriate, the high court ordered that Mullins’ 6 1/2-year sentence in the traffic stop case be served concurrent with her sentences in the controlled buys case, for an aggregate 18-year sentence. It remanded to the trial court to issue a revised sentencing order consistent with its opinion in the case of Brittany Nicole Mullins v. State of Indiana, 20S-CR-451.

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July 9

Civil Tort — Medical Malpractice/Unwilling Juror

Tammi Clark, as personal representative of the Estate of Kandace Pyles, deceased v. Samer Mattar, M.D.

20S-CT-109

Indiana Supreme Court justices split in ordering a new trial in a wrongful death case involving an unwilling juror and a denied for-cause challenge.

After Kandace Pyles died following complications stemming from bariatric surgery, Pyles’ estate brought a negligence claim against various medical providers, including Dr. Samer Mattar. A medical review panel issued a unanimous opinion concluding that Mattar had failed to comply with the appropriate standard of care and that the conduct was a factor of Pyles’ resultant damages.

During trial, issues arose with a prospective juror, Dennis Miller, who indicated repeatedly that he did not want to serve as a juror and that he didn’t think he should have to or would be able to put a dollar amount to non-economic damages.

Clark moved to strike Miller for cause, but the Marion Superior Court denied the motion, concluding Miller did not meet the qualifications for such a challenge. Estate personal representative Tammi Clark then used one of her peremptory challenges to remove Miller, a challenge she later could not use to remove Juror 3, who was objectionable.

The Indiana Court of Appeals reversed and remanded for a new trial, and the Indiana Supreme Court agreed. The high court agreed with Clark that Miller should have been stricken for cause, albeit for slightly different reasons.

“This particular case seems to fall somewhere outside of case law upholding use of peremptory strikes for reluctant jurors and cases where for cause challenges were appropriate to strike those jurors with a specific bias. On the one hand, Miller did not state he had some specific reason to be biased against Clark or for Dr. Mattar, and there’s no evidence that he concealed any information about his feelings that would bear on the case. On the other, he stated on his juror questionnaire that he did not want to serve and during voir dire, he said he would have trouble putting a dollar amount to noneconomic damages meaning that there’s a bias against the party seeking those damages — here, Clark,” Justice Steven David wrote for the majority, consisting of Chief Justice Loretta Rush and Justice Christopher Goff.

“Accordingly, we agree with our Court of Appeals that there is bias here. This is not to say that every unwilling or reluctant juror is biased as there are times these unwilling or reluctant jurors can be rehabilitated, but under these circumstances, Miller stated repeatedly and emphatically that he could not render a decision about noneconomic damages,” the majority wrote.

The justices further found that rehabilitation of the juror did not occur, noting that both counsel and/or the trial court “could have and should have done more” as to that point.

“Miller stated on the juror questionnaire that he did not want to serve. He made repeated, emphatic statements during voir dire about his inability and unwillingness to assess and award noneconomic damages for Clark. There was no rehabilitation effort about damages. He expressed uncertainty about whether his positive feelings for doctors would make him biased. All these things together demonstrate a potential bias against Clark necessitating Miller be struck for cause. The trial court’s failure to do so was illogical under these particular circumstances,” the majority wrote.

It also found that the circumstances in Clark’s case were different from those in Oswalt v. State, 19 N.E.3d 241, 248-49 (Ind. 2014) and a new trial was necessitated. It also found that Clark was forced to exhaust her last preemptory on Miller instead of objectionable Juror 3. Finding a new trial to be appropriate, the majority reversed and remanded for a new trial in Tammi Clark, as personal representative of the Estate of Kandace Pyles, deceased v. Samer Mattar, M.D., 20S-CT-109.

But Justices Mark Massa and Geoffrey Slaughter dissented from the majority, with Massa first expressing concern about “the disproportionate remedy of a new trial where the biased juror never served.”

“I concurred only in result in Oswalt v. State because it did not order a new trial. … My concern then and now is that error by a trial court in failing to dismiss a juror for cause will always result in a new trial, so long as the moving lawyer subsequently uses all her peremptory strikes, then objects to the last juror seated without even giving a reason, saying (even disingenuously), ‘I would have used a peremptory on this juror but I’m all out.’ Under the analogous federal rule, the U.S. Supreme Court held, unanimously, a new trial is not appropriate,” Massa opined.

Slaughter dissented further, veering away from the majority’s opinion that the trial judge erred in denying the plaintiff’s motion to strike a prospective juror for cause.

“I cannot agree with the Court’s conclusion today that it was ‘illogical’ for the trial judge, who saw counsel’s colloquy with the prospective juror first-hand, to rule as he did. Indeed, the juror’s own questionnaire recited what the trial judge found, which is that he did not want to serve as a juror,” Slaughter wrote in dissent.

“… Granting a new trial in such circumstances because of a jury-selection finding with which we disagree, despite our duty to afford ‘substantial deference’ to such findings, with no showing of resulting prejudice, strikes me as highly uneconomic.”

Indiana Court of Appeals

July 6

Civil Collection — Attorney Fees/Ex-Rep. Aaron Schock Litigation

The Bopp Law Firm, PC v. Schock for Congress and Aaron Schock

19A-CC-2421

A Terre Haute law firm is owed no additional money from one of its former clients, the Indiana Court of Appeals ruled in an attorney fees lawsuit involving former Illinois Congressman Aaron Schock and his campaign committee.

The Bopp Law Firm, P.C. appealed a Vigo Superior Court order ruling in favor of former Illinois Congressman Aaron Schock and his campaign committee, Schock for Congress, on the law firm’s complaint for unpaid legal bills totaling $159,946.37, plus interest.

Schock – who was indicted for using campaign funds to pay personal expenses and ultimately resigned from Congress on March 31, 2015 – had hired the Bopp attorneys after the congressman was given a subpoena to testify before a grand jury and was ordered to produce a variety of financial records.

The firm’s engagement letter defined the client as “Schock for Congress” and stated the client would pay the “usual and customary hourly rates” for the firm’s attorneys, which included $790 an hour for James Bopp Jr. and $550 per hour for Randy Elf. The law firm was to represent the campaign committee in investigations by the U.S. Department of Justice and the Federal Election Commission and was intended to primarily respond to a subpoena from the U.S. Attorney’s Office and to act as the trustee of the committee’s finances.

A September trial court ruling found Schock and SFC paid $94,262.38 for legal services that carried a “reasonable value” of $30,000. The firm then unsuccessfully appealed.

In its ruling, the appellate court first pointed out that although the law firm spent 14 pages of its argument discussing a claim for account stated, the firm’s complaint did not include such a claim.

“Furthermore, at no point during the litigation of the complaint, including the trial itself, did the Law Firm inject this issue into the proceedings such that it could be fairly litigated. The Law Firm directs our attention to its post-trial brief, which — for the first time in the litigation — includes authority related to an account stated claim. We can only find that an issue that was not raised during the litigation of a case cannot be snuck in via a post-trial brief,” now-Senior Judge John Baker wrote for the appellate court.

“Waiver aside, we note that it is uncertain whether the law of account stated even applies to agreements between lawyers and their clients,” Baker wrote in a footnote. “… At oral argument, counsel for the Law Firm expressed disagreement at the argument that account stated does not apply to legal services agreements, because that would require attorneys to prove the reasonableness and veracity of each item on their bills. We, in turn, express our concern that an attorney would expect a rubber stamp of his bills when those bills are questioned by a client.”

Next, the panel determined the law firm did not meet its burden as plaintiff to prove that it was entitled to recover all fees.

“Because SFC did not have to pay the Law Firm for its work for the other entities and individuals and the bills are so ambiguous that it is impossible to separate that work from the SFC work, and because SFC does not have to pay for the problematic work performed by Elf, the trial court did not err by determining that the only fees that the Law Firm may recover are those related to the document review and production performed solely for SFC,” the appellate court wrote.

Further, the panel found no error in the trial court’s conclusion that the reasonable value of the law firm’s legal services performed in the matter is $30,000, not $90,000.

Finally, the COA concluded it was unable to review the reasonableness of the law firm’s demand for costs totaling $14,370.99, regardless of the valuation of its legal services.

The case is The Bopp Law Firm, PC v. Schock for Congress and Aaron Schock, 19A-CC-2421.

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July 9

Criminal — Possession of Narcotic Drugs/Illegal Search

James W. Combs v. State of Indiana

19A-CR-1991

A Boone County man’s drug-possession convictions were reversed after an appellate panel found the warrantless search of his car following a crash violated his Fourth Amendment rights.

After driving his van into an electrical box to avoid hitting another vehicle, James Combs took photos of the damage to his van, rummaged around under the driver’s seat and then left the scene. An officer who arrived shortly after followed a fluid trail that eventually led to Combs’ home at a nearby neighborhood, where he had parked the damaged van.

Combs, who an officer suspected was under the influence of medication or drugs, then failed two field sobriety tests and stated that he had taken his prescribed Adderall medication. After agreeing to submit to a chemical test and being handcuffed for transport, but before he was taken to the hospital, Combs told officers they could look under the seat of his van but not open the black bag they had found.

Officers, however, searched the van in Combs’ driveway without a warrant after calling for the vehicle to be towed, finding a prescription bottle for Combs and white pills that later revealed to be three different controlled substances – Alprazolam, Hydrocodone, and Oxycodone. Combs’ urine drug screen eventually revealed the presence of the same substances, as did his blood screen.

Combs was then charged with numerous drug possession and operating a vehicle while intoxicated counts. The Boone Superior Court denied Combs’ motion to suppress after concluding that that the officers had probable cause to believe the van was connected to criminal activity and therefore could seize the van without a warrant.

A jury later found Combs not guilty of possession of a controlled substance, but affirmed his remaining felony and misdemeanor counts of possession of narcotic drugs; operating a vehicle while intoxicated endangering a person; operating a vehicle while intoxicated; operating a vehicle with a schedule I or II controlled substance or its metabolite in the body; leaving the scene of an accident; and public intoxication.

But the Indiana Court of Appeals partially reversed Combs’ three convictions of possession of narcotic drugs after finding that the warrantless search of his vehicle was impermissible under the open view and plain view doctrines, as well as the Fourth Amendment. It additionally noted that the record supported a finding that the officers’ inventory search was a pretext for searching Combs’ van.

“Combs admitted that he was going to contact law enforcement regarding the accident; therefore, it is not clear why the officers needed the van to solve the crime. The State presented no evidence that the van would ‘prove useful in solving’ the investigations into the charges of leaving the scene of an accident or driving while intoxicated. The damage was on the outside of the vehicle and photographs of the vehicle could have preserved the evidence. Nothing in the record indicates that the officers had probable cause to believe the van contained evidence that was related to the offenses being investigated,” Judge Elizabeth Tavitas wrote for the appellate court.

However, it found no abuse of the trial court’s discretion in admitting evidence of the chemical blood draw. Neither did the appellate court find the trial court abused its discretion in declining to replace a juror who knew one of the state’s witnesses with an alternate juror.

Lastly, the appellate court found that the deputy prosecutor did not commit misconduct and the evidence was sufficient to convict Combs of leaving the scene of an accident and operating a vehicle while intoxicated.

It therefore affirmed in part, reversed in part and remanded in James W. Combs v. State of Indiana, 19A-CR-1991.

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July 15

Domestic Relations, Children — Divorce/Division of Marital Assets, Mediation

Russell G. Berg v. Stacey L. Berg

19A-DC-3038

A woman who was awarded half of a disputed $122,000 stock account held by her former husband after the couple entered into a mediated divorce settlement agreement was stripped of that share of the stock account on appeal. However, a dissenting judge would have affirmed the grant of money to the ex-wife.

Nearly one year after the Allen Circuit Court approved the settlement agreement negotiated during mediation between Russell and Stacey Berg, Stacey filed a verified Trial Rule 60(B) motion focused on a stock account her husband held, which was valued at roughly $122,000.

Stacey alleged that the settlement agreement “did not reference and therefore omitted” the stock account and that her lawyer had inadvertently omitted the account from the marital balance sheet the parties used at mediation. She argued that had she known of the account, she would not have agreed to the property disposition in the settlement agreement.

Russell objected, arguing that any evidence concerning “what went on during mediation, what became part of the mediated agreement” was inadmissible. However, while his objection was overruled and his motion to strike was denied, the trial court also declined to grant Stacey relief.

But after Stacey filed a motion to correct error with submitted proposed findings, the trial court later found fraud, constructive fraud, mutual mistake, or misrepresentation had occurred and that Russell had breached a warranty. It therefore awarded Stacey half of the value of the account.

In reversing that decision, a split Indiana Court of Appeals panel agreed with Russell that the judgment cannot stand without evidence of what occurred at mediation.

“Here, Wife offered the evidence to either (1) avoid the Settlement Agreement or (2) enforce the Settlement Agreement. The trial court admitted the evidence for both purposes, finding that Wife was entitled to relief under either approach,” Judge L. Mark Bailey wrote for the majority, joined by Judge Robert Altice.

But the appellate court concluded otherwise as to avoidance, finding that under Indiana Supreme Court precedent in Horner v. Carter, 981 N.E.2d 1210, 1212 (Ind. 2013), “mediation evidence cannot be admitted for that non-collateral purpose.” It further noted that the evidence must be excluded under Evidence Rule 408 in light of Indiana’s “robust policy of confidentiality of conduct and statements made during negotiation and mediation.”

“Without the mediation evidence, there is insufficient evidence to find that Wife could avoid the Settlement Agreement. Thus, to the extent the judgment in favor of Wife is based on principles of contract avoidance, the trial court erred,” the majority wrote.

Turning to whether the trial court properly granted relief based on a breach of a warranty, the majority concluded that both warranties are mutual and that Russell and Stacey assumed responsibility for the factual assertions.

“Therefore, assuming arguendo that the factual assertions in both warranties were untrue, both Husband and Wife breached the warranties,” it wrote. “… As earlier discussed, Wife may not avoid the Settlement Agreement. Therein, Wife asserted that all assets had been disclosed and reflected in the terms. Wife is estopped from claiming that her assertions are untrue. Thus, we discern no proper basis to uphold the judgment on a theory that Husband breached a warranty.”

Although the majority found the trial court had erred in granting the motion to correct error and by awarding Stacey half of the value of the account, Judge Terry Crone dissented in a separate opinion. Specifically, the dissenting judge opined that Russell’s argument that Stacey’s exhibits were inadmissible under Rule 408 “falls far short of establishing that the trial court abused its discretion in relying on Wife’s exhibits.”

“Indiana Appellate Rule 46(A)(8)(a) provides that an appellant’s argument ‘must contain the contentions of the appellant on the issues presented, supported by cogent reasoning’ and citation to relevant authorities,” Crone wrote. “I would find Husband’s argument on this issue waived for lack of cogency. I find no merit in his remaining arguments, and therefore I would affirm the trial court.”

The case is Russell G. Berg v. Stacey L. Berg,19A-DC-3038.

Juvenile CHINS — Reversal/Lack of Evidence of Endangerment

In the Matter of: D.S. (Minor Child), And A.P. (Mother) v. Indiana Department of Child Services

20A-JC-777

The Indiana Court of Appeals has reversed a child in need of services finding after concluding that the child’s mother, while admitting to using marijuana, was not proven to have used it in the child’s presence or seriously endangered the child as a result.

In January 2020, the Department of Child Services filed a request for minor D.S. to be adjudicated as a child in need of services due to her mother’s use of illegal substances that DCS alleged endangered the child. The petition also sought a requirement of coercive intervention to compel the child’s mother, A.P., to comply with terms of an informal adjustment she had previously entered into with DCS.

Although A.P. had entered into the informal adjustment, she failed to submit 14 out of 22 drug screens within a five-month period and likewise failed to comply with minimal requirements of her extended informal adjustment. Mother admitted to using marijuana on several occasions and emphasized that she uses marijuana when she feels “stressed or overwhelmed,” but A.P. claimed to only use marijuana when the child is not in her care. Additionally, DCS noted that A.P. has never appeared to be under the influence.

Regardless, the Greene Circuit Court ultimately ordered to child as a CHINS and that A.P. participate in services, but an appellate panel reversed.

Citing Perrin v. Marion County Officer of Child Services, 866 N.E.2d 269, 271 (Ind. Ct. App. 2007) and Ad.M v. Indiana Department of Child Services, 103 N.E.3d 709, 713-14 (Ind. Ct. App. 2018), the appellate court noted that it reversed both cases for similar reasons: admission of a single use or evidence of one parent’s use, without more, does not demonstrate a child has been seriously endangered and is ultimately insufficient to support a CHINS determination.

“Similarly, here, despite Mother’s admitted drug use, DCS did not present any evidence that Mother used marijuana while the Child was in the home or that DCS had ever perceived Mother to be under the influence of drugs. The (family case manager) conceded that ‘the basic needs of the [Child] are being met’ and a safety plan was in effect that placed the Child with Maternal Grandmother if Mother felt overwhelmed and in need of marijuana. The FCM’s concern, without more, that ‘[i]llegal substance use impairs your thinking, your response, … your normal thought processes and action’ is not sufficient to support a CHINS determination,” Judge Patricia Riley wrote for the appellate court.

“As DCS did not carry its burden that Mother’s actions or inactions have seriously endangered the Child, we conclude that the trial court erred when it adjudicated Child to be a CHINS,” it concluded.

The case is In the Matter of: D.S. (Minor Child), And A.P. (Mother) v. Indiana Department of Child Services, 20A-JC-777.•