A VICTORY NONETHELESS

Moving traffic violations that are infractions are seldom threatening enough to move a client to “dig deep” to retain me. Even then I can’t guarantee any particular result for the money. I’m sure that I have said “pay the fine” more than once, when asked for advice about a pending citation. After all, experience shows that most of those ticketed for a traffic infraction are guilty. The slightly less obvious lesson of experience is that the innocence of the minority of traffic court defendants may be unavailing where the quality of justice is not guaranteed.

The defendant was a retired academic, no stranger to pro se representation, and a client of mine on an unrelated matter when he was involved in an intersection collision and charged with Disregarding an Automatic Signal contrary to that version of IC 9-21-3-7 effective prior to July 1, 2015. Notably, IC 9-21-3-7 contains at least six identifiable sections, but the charge against the defendant didn’t advise which prohibition was violated.

When Basil Halkides went to court to represent himself, he had my blessing. I expected that he would represent himself capably, and he did. The other driver was not called to testify, so the only two witnesses were the investigating police officer (who arrived after the collision) and Basil Halkides.

Within the first two pages of his transcribed testimony the officer mentioned (as grounds for the ticket) the input of “a witness,” and was about to quote the unidentified witness when Basil made a timely hearsay objection. Remarkably, the hearsay objection was overruled. Basil then artfully converted his hearsay objection into a continuing objection. The imminent hearsay that triggered Basil’s objection was never uttered.

So it seemed that the State’s case-in-chief would come down to the officer quoting Basil’s comments from the accident scene. Basil insisted at the scene (and at trial) that he had entered the intersection on a yellow light that had turned from green too late for him to stop safely in front of the intersection. While heading straight through the intersection Basil’s vehicle was struck on the driver’s side by a motorist attempting to turn left from the opposite direction. Nonetheless, the officer opined (over Basil’s timely but overruled objection) that Basil was “at fault” for the collision.

At the close of the State’s evidence, Basil made a TR 41(B) motion for involuntary dismissal based on the absence of evidence of a traffic light violation. That motion was overruled (and then waived) when Basil presented his defense. Focusing more on the collision than on the traffic light citation, Basil had photographs of his vehicle showing the driver’s side impact that he viewed as relevant.

As for the traffic light citation (as opposed to the collision), Basil freely admitted that he entered the intersection on a yellow light. There was no evidence as to the color of the light when Basil exited the intersection.

After taking the matter under advisement for several weeks, Lake Superior Court Catheron Paras∗ found Basil guilty and assessed a fine of $10.00 plus costs. I heard of this on the very last day for the timely filing of a Notice of Appeal. I gave Basil some emergency assistance with a pro se Notice of Appeal but declined to enter my appearance until I could read the Transcript.

One quick tour through the Transcript left me eager to appear for Basil and to handle his appeal. Put simply, there was no evidence in the Transcript of the violation of any prohibition from the several sections of IC 9-21-3-7. Those sections include Sec. 7(b)(2)(A) explaining the transitory role of a yellow light and Sec. 7(b)(3)(A) requiring that a motorist facing a steady (not flashing) red signal stop before entering the subject intersection or crosswalk. What Sec. 7 most obviously lacks is: (a) any prohibition against entering an intersection on a yellow light and (b) any requirement that a motorist (after entering the intersection on green or yellow) clear the intersection prior to the light changing to red. All of this was lost on the Magistrate.

What would the Attorney General think? What would the Court of Appeals think? The office of the Attorney General served an Appellee’s Brief that was obviously on the thin side. I opened it to find the Attorney General agreed that the evidence presented did not establish a violation of IC 9-21-3-7. While I was gratified by the Attorney General’s candid confession of error, I was a bit disappointed by the loss of my anticipated opportunity to write a compelling Reply Brief.

The Court of Appeals agreed with me and with the Attorney General in its NFP decision of May 24, 2016. The COA found evidence that Basil entered an intersection on a yellow light and that he did not thereby violate IC 9-21-3-7. The COA declined to discuss my observation that a failure to clear an intersection (entered legally on a green or yellow light) prior to the signal turning red is likewise not prohibited by the statute. A small, narrowly written reversal that will never be cited as precedent is still a victory, isn’t it?

My dissatisfaction with the entire process comes from reflection on the circumstance of a capable and prepared pro se litigant doing all the right things in court to no avail. In a colloquy at the end of the bench trial, the Magistrate asked “Do you know what a yellow light means?” The answer to that question resides in the actual text of the statute and not in common assumptions about the text. The lesson for my fellow practitioners is two-fold. First, never send a client to traffic court alone without a sincere warning. Second, don’t be afraid to read the statute cited on the client’s ticket. You may find that the client’s conduct does not match the statutory prohibition.

*This is the same Magistrate who recently generated publicity with the accusation that she was intimidated in her office by lawyer/former Sheriff Rogelio Dominguez, who was subsequently “cleared” by a Special Prosecutor.