2020 Appellate Case Notes

Premises Liability at Church

The case on review is Henderson v. New Wineskin¹ Ministries Corporation as decided December 28, 2020 in the COA. The case involves icy parking lot pavement outside the defendant church and the injurious fall of churchgoer Pamela Henderson. The case also involves IC 34-31-7-2, 2005 legislation limiting the duties of a church (or “nonprofit religious organization”) owed to persons “who enter premises” with actual or implied permission. Those duties are: (a) to warn of known yet hidden dangers and (b) to refrain from intentional harm to the person who enters. This list omits the “reasonable care” duty owed by most property owners to persons invited to enter.

What is meant by “premises?” The term premises in the statute is not expressly defined but is described in the statute as “premises . . . used primarily for worship services.” Apart from the Covid-era adaptation of parking lot church services, the customary use of a church parking lot is to park. Worship inside, parking outside is the norm.

In the case on review the trial court awarded summary judgment to the defense on the erroneous grounds that premises primarily for worship include the parking lot. The COA panel unanimously and erroneously affirmed. One reason for a narrow construction of the meaning of “premises” in IC 34-31-7-2 is that the legislation is in derogation of the common law of premises liability. The COA panel seems not to have appreciated that point of law.

If church parking lots are to become sanctuaries from premises liability, that is for the General Assembly to declare (clearly) and not for the courts. Transfer is warranted . . . Case Note by Dave Allen

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¹ In the New Testament Gospels there is the parable to the effect that one should not pour new wine (Jesus Christ?) into an old wineskin (the tired, old Judaism of the Pharisees?) See, for example, Matthew 9-16 to 17.

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Good Cause and Lack of Prejudice

The case on review is Campbell v. State as decided December 21, 2020 by a split COA panel. The COA majority reversed Ike Campbell’s habitual offender enhancement imposed after his (jury trial) conviction of unlawful possession of a firearm by a serious violent felon and other crimes.

Campbell was arrested March 23, 2018 and charged on March 27, 2018 with the mentioned unlawful possession as an SVF offense plus other felonies and misdemeanors. On May 22, 2018 the State filed a Notice of Intent to file the habitual offender enhancement if no plea agreement was reached. No plea agreement followed though there were reciprocal offers and reciprocal rejections. On August 1, 2018 the State filed and served certified copies of Campbell’s prior convictions that would support the habitual enhancement.

After two trial settings and two continuances sought by the State, trial was set for February 7, 2019. Six days prior to the trial setting a prosecutor emailed defense counsel with a lame inquiry about a plea agreement. On February 5, 2019 after the defense declined to change its plea requirements, the State filed its motion to amend the Information by adding the habitual offender enhancement. The motion alleged “no substantial prejudice” to the defense in the proposed 11th hour amendment. On February 6, 2019 the trial court granted the State’s Motion before the defense could file an objection, which it did in late evening of the same day. Campbell’s trial was continued to June 27, 2019, well over four months from the motion to amend.

While amendments of civil pleadings are generally governed by Trial Rule 15, the amendment of a criminal information is governed by criminal procedure statute IC 35-34-1-5(b). For a commonplace (felony) amendment there is the general requirement under IC 35-34-1-5(b) of notice to the defense not less than 30 days before the omnibus hearing date. However, a commonplace (felony or misdemeanor) amendment may be filed any time prior to commencement of trial if the tardy filing does not prejudice the substantial rights of the defendant. Notably, the State’s motion below to amend asserted the “no prejudice” standard.

But there is a distinctly different statutory section governing an amendment to add an habitual offender charge. IC 35-34-1-5(e) pertains to habitual offender amendments and sets a deadline of 10 days after the omnibus date, or later (but prior to trial) upon a showing of good cause. Section 5(e) does not reference prejudice to the defense, though “good cause” should be deemed “not good enough” where prejudice is shown.

The COA majority followed precedent in holding that “good cause” must be more than a mere lack of prejudice (as asserted by the State). While “ongoing plea negotiations” have previously been held to excuse the tardy filing of an habitual offender charge, the COA majority declined to accept that excuse on the record before it.

COA Judge Brown dissented. The majority Opinion is seen by the CLB to be correct yet in jeopardy of being vacated on Transfer . . . Case Note by Dave Allen

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The Nose Knows

The case on review is Bunnell v. State as decided December 18, 2020 in the COA. Jesse Bunnell succeeded, by way of interlocutory appeal, in winning a reversal of the trial court’s denial of his motion to suppress evidence (marijuana and paraphernalia) recovered in the search of his home pursuant to a search warrant.

The dispositive issue on appeal was whether the affidavit in support of the search warrant was sufficient to establish probable cause. Deputy Elmore was dispatched to Bunnell’s residence for a welfare check. He found three exterior doors and knocked on each one. No one answered. The third door was atop exterior stairs leading to what may have been an upstairs apartment. While his knock went unanswered, Deputy Elmore’s nose scored a response of sorts at the second floor door: the “smell of raw marijuana emitting from the door.” Deputy Elmore and a second officer both claimed to detect that odor based upon their respective “training and experience.” Those allegations in the affidavit were enough for a judge to issue a search warrant but not quite enough for the unanimous COA panel to affirm.

The deficiency which kept the “Probable Cause Affidavit” from establishing probable cause was the lack of information therein about the detecting Officers’ relevant “training and experience” leading to the conclusion that raw marijuana was nearby. The COA Opinion noted that the affidavit in this case offered no evidence of criminal activity other than the alleged scent of raw marijuana. There was no “controlled buy” at the Bunnell residence. There were no reports of drug activity there. There was no productive traffic stop search of vehicles departing the residence. The holding is that smell, standing alone, does not confer carte blanche authority to search, with or without a warrant.

Here the COA tried to make its reversal very narrow so as to avoid the disapproving scrutiny of the SCOTSI. Time will tell whether the correct (but controversial) holding will stand . . . Case Note by Dave Allen

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The John Doe Employee and Respondeat Superior

The case on review is Hogan v. Magnolia Health Systems as decided in the COA on December 14, 2020. The trial court had granted summary judgment in favor of employer defendant Magnolia Health. The COA panel unanimously reversed.

Mary Hogan resided in an assisted living facility and used a wheeled walker to get around. That’s about all we learn from the COA Opinion about Mary’s life prior to her accident. On the day of the accident Mary was near the buffet table at the assisted living facility and was supported by her walker. Suddenly the buffet table was pushed into Mary’s walker, causing Mary to fall to the floor and to sustain injury. Several months later Mary sued the assisted living facility and a “John Doe” employee. The theory of liability against the “John Doe” employee was that he or she behaved negligently in a fashion that caused injury to Mary. The theory of liability against the facility was respondeat superior: the vicarious liability of an employer for the wrongful act of an employee committed within the scope of employment. Mary sued the employee as a “John Doe” in that the identity of the responsible person had not been established.

Mary died during the litigation and was replaced in the suit by her personal representative. The discovery process resulted in what appears (in hindsight) to be a fairly reliable explanation¹ of how the buffet table was propelled into Mary’s walker and whose actions precipitated that event. While it seems that John Doe had a name within two years of Mary’s fall, counsel for her personal representative filed an amended complaint against that person only after the two-year anniversary.

The dietary manager (employee defendant) responded with a successful limitations defense.² The facility (employer defendant) then argued that the respondeat superior case against it could not stand after the employee was dismissed from the suit. The trial court agreed and awarded summary judgment to the Magnolia Health facility.

The COA rightly followed precedent and held that the respondeat superior claim could proceed without the employee . . . Case Note by Dave Allen

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¹ According to a facility “incident report” a named dietary manager placed three “charts” on a curio cabinet. The weight of those charts caused a front leg of the curio cabinet to collapse, causing the cabinet to fall into the table which was then propelled into Mary’s walker. The identification of the dietary manager seems reliable while the claimed consequence of three charts on a curio cabinet does not.

² There is no mention in the COA Opinion of the “relation back” of amendments per Trial Rule 15(C) naming a new party defendant. Moreover, the dismissal of the dietary manager is not an appealed trial court ruling.

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Forum Selection Clause Held Invalid

The case on review is The Sullivan Corp. v. Rabco Enterprises as decided December 7, 2020 in the COA. Sullivan was the customer and Rabco the contractor for a Noblesville construction project. Alleging Rabco’s breach of contract, Sullivan filed suit in the local (Hamilton County) Superior Court. Rabco responded with a motion to dismiss for improper venue, citing its contractual venue selection clause providing for “exclusive venue” in Orange County, Florida. The trial court dismissed. The unanimous COA panel reversed and remanded.

The point of law separating the trial court and the COA arises from the construction of IC 32-28-3-17, as found within a code chapter pertaining to mechanic’s liens on real estate. Here is the text of section 17:

“[a] provision in a contract for the improvement of real estate in Indiana is void if the provision: (1) makes the contract subject to the laws of another state; or (2) requires litigation, arbitration, or other dispute resolution process on the contract occur in another state.”

The trial court construed section 17 as somehow restricted to mechanic’s lien issues which were absent from Sullivan’s cause of action. The COA acknowledged the general rule that forum selection clauses are enforceable but held section 17 applicable to this case of a “contract for improvement of real estate in Indiana” despite the absence of any mechanic’s lien issue.

Though the CLB agrees with the COA, it is troubled by COA citation to an unpublished Federal District Court decision construing section 17. There is no reason for our courts to consider unpublished Federal District Court decisions when decisions from Indiana trial courts may not be cited as authority . . . Case Note by Dave Allen

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A Terry Patdown and a Slaughter, J. Dissent

The case on review is Johnson v. State decided by a 4/1 SCOTSI on December 1, 2020. Michael D. Johnson was convicted below of dealing in a “look-alike” substance (baking powder) falsely offered as “white girl” or cocaine to patrons of the Hoosier Park Casino in Anderson, Indiana. One such patron who declined the offer informed “security officers” of Johnson’s misconduct. A “gaming enforcement agent”¹ viewed video surveillance, conferred with the witness, located Johnson within the casino, and invited him to an interview room for discussion of the report of an attempted drug sale.

The description is that the Johnson went “voluntarily”² to the interview room, where the officer announced his perceived “need” of a weapons patdown. As per usual, the warrantless “weapons” patdown yielded the “plain feel” discovery of a “giant ball” in one of Johnson’s pockets. Though the “ball” did not bear the feel of a weapon, the officer concluded that it felt like a “ball of drugs.” The officer removed the baggie from Johnson’s pocket to see “white powder” inside. He then arrested Johnson. The baggie contents resembled cocaine but were later identified as common baking soda.

Products of the patdown were admitted at trial despite Johnson’s Fourth Amendment³ objection. He appealed his conviction for “look-alike” dealing to the COA and won a (temporary) reversal there on Fourth Amendment grounds. The COA decision at 137 N.E.3d 1038 (Ind. Ct. App. 2019) was vacated by the acceptance of Transfer. The SCOTSI majority of four affirmed Johnson’s conviction and the trial court’s admission of patdown evidence. Both the majority Opinion and the lone dissent of Slaughter, J. analyze the treatment of Mr. Johnson under Terry v. Ohio, 392 U.S.1 (1968), the seminal stop & frisk Opinion pertaining to police encounters where there is suspicion but no probable cause for arrest.

The CLB concurs with the SCOTSI majority and the dissent on the preliminary issue of whether there was cause for a “stop” of Mr. Johnson. That determination leaves the question of whether there was then a factual basis for the weapons frisk.⁴ On the frisk issue, the CLB favors the dissent on grounds that the stop of a drug suspect does not automatically authorize a weapons patdown and that the circumstances at the casino did not include the requisite additional cause for a warrantless weapons frisk. The CLB would like very much to see a Petition for Certiorari in this case . . . Case Note by Dave Allen

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¹ Gaming enforcement officers are within the definition of “law enforcement officer” at IC 9-13-2-92 and IC 35-31.5-2.185. See also IC 4-33-20-9 for arrest powers.

² Absent voluntariness escorting a Terry detainee to an interrogation room would be excessive.

³ It should be noted that Johnson was deemed (in an Opinion footnote) to have waived any assertion under Article 1 Section 11 of the Indiana Constitution for want of specific argument.

⁴ The CLB’s 2017 Appellate Case Note titled “Splitting the Weapons Frisk from the Terry Stop” shows an earlier consideration of Mr. Johnson’s appellate argument, including the erosion of the familiar “officer safety” excuse for the weapons patdown of anyone approached by an officer.

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The Lost Art of Reading Comprehension

Here’s the relevant statute as edited by the COA in its unanimous (Judge Bradford) Opinion of November 17, 2020 in Harris v. State:

IC 35-35-1-2: “The court shall not accept a plea of guilty . . . without first determining that the defendant has been informed that if (A) there is a plea agreement . . . and the (B) court accepts the plea [emphasis added]; the court is bound by the terms [emphasis added] of the plea agreement at the time of sentencing.”

The statute clearly pertains to plea agreements and clearly provides that if the court accepts the plea (from a plea agreement) then the court is bound by terms of the plea agreement.

In the case on review Tyler Wayne Harris was initially charged with Level 1 felony neglect of a dependent resulting in death. Then there came a plea agreement for Harris to plead to Level 3 felony neglect of a dependent and to be sentenced to a term of nine years with eight of those years suspended. Then the court accepted the plea of guilty to the Level 3 felony but reserving acceptance of the rest of the plea agreement while awaiting a pre-sentence investigation report. After reviewing that report the court rejected the plea agreement, vacated the guilty plea, and set the case for trial on the initial Level 1 felony charge. Harris was convicted and sentenced to 30 years of incarceration.

In his appeal Tyler Wayne Harris asserted that the trial court, having accepted his plea of guilty to the reduced charge, was bound by terms of the plea agreement. After all, that is exactly what the cited statute provides. Here is the COA’s response:

“We do not interpret this statute to mean that once a court accepts a guilty plea that it automatically accepts the plea agreement.”

There is no need to “interpret” or otherwise construe a statute that is absolutely clear. By accepting the bargained for guilty plea, the trial court bound itself to terms of the plea agreement. The trial court’s comments about reserving such approval were contrary to law and a nullity. When a trial court is doubtful of the propriety of a plea agreement it should reserve acceptance of plea and plea agreement until the doubts are resolved in favor of the agreement or against it.

While citing Reffett v. State, 571 N.E.2d 1227 (Ind. 1991) as its guiding precedent the COA concedes that Reffett and the case at bar are distinguishable. Accordingly, the COA was pronouncing new law and doing so erroneously. Once again, Transfer time is here . . . Case Note by Dave Allen

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Found Money and Theft

Williams v. State is the case on review. The COA decision of November 12, 2020 reversed the theft conviction of Michael D. Williams for taking $83.00 in cash from the currency change dispenser at a self-checkout station of a Richmond, Indiana Kroger grocery store. It seems that a careless, distracted shopper using the self-checkout station had paid for a small purchase with a $100.00 bill and then left the area without collecting the paper money in the currency change dispenser. Sometime later the shopper realized what he had done and returned to Kroger to report the matter. A review of surveillance footage¹ revealed that Michael D. Williams had taken the cash as he used the self-checkout station to make a purchase. Kroger refunded the lost currency to the shopper because Michael D. Williams was an “off-duty associate” of the store. Kroger then reported the incident to police.

The charge against Michael D. Williams was Class A Misdemeanor theft which is committed (according to IC 35-43-4-2) when one exerts knowing or intentional control over the property of another with intent to deprive and when (as here) the property is valued at less than $750.00 and there are no aggravating circumstance for elevation of the offense to a felony. A bench trial resulted in conviction, and Williams appealed.

Apart from the reversible error of an absence of evidence at trial of the identity of the owner of the cash, the COA held that Indiana’s theft statute does not criminalize the taking of lost or mislaid property. The COA held that a statutory repeal in 1976 de-criminalized the taking and retention of lost or mislaid property whose owner could be identified.

While the CLB loves to see the narrow construction of a criminal prohibition, the COA has gone too far. The theft statute does not exempt the actions of Williams. His knowing or intentional exertion of control over the property of another with intent to deprive satisfies the elements of theft. The 1976 repeal of legislation pertaining to “found money” cases did not repeal the principal theft statute.

Time for Transfer . . . Case Note by Dave Allen

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¹ You do know, don’t you, that Big Brother records your every move at the self-checkout station?

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Larkin at Last?

Second Update: I was wrong in my calculation of the deadline for the Transfer request. Here there was a time period of 45 days plus a few more over the Christmas holiday and a weekend. Transfer was requested on the 49th day after the COA opinion. The SCOTSI affirmed Larkin’s conviction, as the CLB feared it would. See the CLB Featured Article of October 29, 2021.

Update: According to my appellate docket check on December 10, 2020, no Transfer Petition was filed by the December 9th deadline. The CLB applauds the good judgment of outgoing AG Curtis Hill.

The case on review is Larkin v. State as decided November 9, 2020 in the COA. The LaPorte County homicide prosecution of John Larkin for the shooting death of his wife Stacey has drawn CLB attention at least four (4) times, starting with an Appellate Case Note on the September 30, 2015 COA decision. That initial note described how John Larkin was in the company of his lawyer to give a voluntary statement to police and prosecutors about the fatal wounding of his wife during the struggle over a handgun produced and brandished by her. During a break Larkin and his lawyer remained in the interview room and had what they thought to be a private lawyer-client conversation. But there was no interlude in the video recording. Chief Deputy Prosecutor Robert Neary (now suspended from the practice of law) used and disseminated a transcript of the confidential conversation and failed to give immediate notice to the defense. Notably, John Larkin’s case was the second time that Robert Neary had engaged in such a 6th Amendment outrage. See Taylor v. State, 35 N.E.3d 287 (Ind. Ct. App. 2015) and (on Transfer) 49 N.E.4d 1016 (Ind. 2016).

Then there was “Larkin II” in the COA in 2017. See 77 N.E.3d 237 where a split COA panel affirmed the trial court’s grant of a CR 4(C) discharge for delay plus a dismissal for the State’s impairment of Larkin’s right to counsel. The SCOTSI granted Transfer and reversed the trial court’s dismissal and discharge for delay, thus sending the case back to Laporte County for a trial on the charge of voluntary manslaughter.

On remand Larkin was convicted, but not on the charge of voluntary manslaughter. Rather, Larkin was convicted of the supposed “lesser included” offense of involuntary manslaughter. The trial court had instructed the jury on involuntary manslaughter on the motion of the State and over the objection of the defense. Here is the three (3) step process in deciding whether to instruct a jury on a “lesser included” offense of the charged crime:

1. Whether the alleged lesser included offense is an inherently included offense;
2. and (if not) then Whether the alleged lesser included offense is a factually included offense;
3. and (in the case of inherent and/or factual inclusion) Whether there is a “serious evidentiary dispute” regarding the offense element that distinguishes the lesser offense from the principal charge.

The COA held that involuntary manslaughter is not inherently included in the offense of voluntary manslaughter but may be factually included when (and only when) the charging instrument alleges that a battery (an element of involuntary manslaughter) accomplished the killing. Here the COA concluded that the Information charging voluntary manslaughter by way of a deadly weapon failed to allege any battery. Notably, the State’s position at trial was that the requisite battery was the shoving of Stacy as she and John struggled over the handgun that she had produced and brandished. Moreover, the COA found merit in Larkin’s argument that the request (after the close of evidence) for an involuntary manslaughter instruction impaired his right to clear notice of the charge against him.

This is a case in which the State could but should not request Transfer. The record is replete with egregious violations of Larkin’s constitutional rights and very little consequence. Moreover, the record of his one trial (and his acquittal of voluntary manslaughter) seems to be supportive of the defense theory that Stacey’s fatal wounding was accidental during a struggle over the handgun which she produced and brandished . . . Case Note by Dave Allen

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Arrestee Strip Search¹ and Section 11

The case on review is Reagan v. State, decided November 6, 2020 in the COA. Stephanie J. Reagan unsuccessfully appealed her conviction below for possession of cocaine that was discovered post-arrest (on other offenses) at Marion County’s “Arrestee Processing Center” in the course of a strip search by a deputy. The deputy had apparent discretion to conduct a strip search or not. Stephanie’s losing argument at trial and on appeal was that the strip search that yielded the cocaine baggie was unreasonable under Article 1 Section 11 of the Indiana Constitution. There was no parallel Fourth Amendment argument given SCOTUS precedent in favor of strip searches of arrestees about to enter a jail’s general population. See Florence v. Board of Chosen Freeholders, 132 S. Ct. 1510 (2012).

The Opinion by COA Judge Bailey includes an interesting analysis of what case law must be considered in assessing the “reasonableness” of a strip search for purposes of Section 11. There is Litchfield v. State, 824 N.E.2d 356 (Ind. 2005) dealing generally with warrantless searches and Edwards v. State, 759 N.E.2d 626 (Ind. 2001) dealing specifically with strip searches. The answer is that both cited decisions are to be considered.

The COA majority held against Stephanie’s assertion that the strip search was unreasonable under the circumstances (such as the strength of suspicion, the needs of the State, and the intrusiveness of the search) while new COA Judge Weissmann dissented, sounding much like the appellate defender that she had been until recently.

A grant of Transfer is unlikely . . . Case Note by Dave Allen

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¹ It is important to note that this case review does not involve body cavity searches or strip searches away from a jail setting.

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Speedy Trial and the Magna Carta

I count ten Opinions now since January 1, 2000 in which the Indiana Supreme Court (“SCOTSI” in the CLB) has cited or at least mentioned the Magna Carta. The case on review is Watson v. State decided October 21, 2020 by way of a CJ Rush Opinion. All Associate Justices concurred fully except for Justice Slaughter’s reservation as to one noncritical issue.

Stanley Watson was serving a sentence of 80 years for a single drug conviction when the trial court vacated his 30-year habitual offender enhancement to the base sentence of a mere 50 years. While the State was granted permission to retry Stanley on the habitual offender allegation, more than six years passed before the retrial took place. Stanley filed a motion to dismiss ahead of his habitual offender retrial. The trial court denied the motion. Stanley was found to be an habitual offender. Stanley appealed, and a split COA panel reversed on Criminal Rule 4(C) grounds without apparent consideration of the constitutional speedy trial guarantees of the Sixth Amendment and Article 1 Section 12 of the Indiana Constitution.¹ See Watson v. State, 135 N.E.3d 982 (Ind. Ct. App. 2019). COA Judge Kirsch dissented on grounds that CR 4(C) was inapplicable.

On Transfer the SCOTSI agreed with Judge Kirsch’s dissenting view of the inapplicability of CR 4(C). The CJ Rush Opinion cites prior holdings that CR 4(C) does not anticipate mistrials or retrials. The obvious reason is that the one-year speedy trial deadline of CR 4(C) is triggered on the date of arrest or the date charges are brought (whichever is later) and that neither such event takes place in the typical retrial, at least not when the defendant is incarcerated on other grounds.

Unlike the COA majority, the SCOTSI looked beyond CR 4(C) to the constitutional speedy trial guarantee. For historical context the CJ Rush Opinion cited the 1225 A.D. Magna Carta’s protections against “prolonged detention without trial” and unreasonable “delay without trial.” Then the segue to the American right to a speedy trial, described by the CJ as “one of this country’s most basic fundamental guarantees.”

To determine whether the Sixth Amendment speedy trial right has been infringed, the SCOTSI favors the “balancing test” from Barker v. Wingo, 407 U.S. 514 (1972). Such balance testing considers: duration of delay; reason for delay; the defendant’s assertion (if any) of his speedy trial right; and resulting prejudice. This balancing test has also been applied to speedy trial infringement claims under Article 1 Section 12 of the Indiana Constitution. The balancing in this case resulted in reversal of the habitual offender finding.

Since resulting prejudice may be hard for a defendant to prove, it is good to know what duration of delay is “presumptively prejudicial.” Delays “approaching one year generally satisfy the presumptively prejudicial threshold” per Vermillion v. State, 719 N.E.2d 1201 (Ind. 1999) . . . Case Note by Dave Allen

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¹ In fairness to the COA I should mention the generally accepted judicial policy of avoiding constitutional issues when a decision can be made on other grounds.

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Early Release Blues

The case on review is Temme v. State decided October 20, 2020 in the COA. Jordan Allen Temme was charged with an array of offenses from felony rape and confinement down to misdemeanor drug and alcohol charges. He was allowed to avoid the more serious charges by pleading to two Level 6 felonies and eight misdemeanors. He was sentenced to an aggregate executed term of nine years. Obviously, there was an imposition of consecutive sentences. Jordan was entitled to credit against that sentence for the substantial time he spent in jail as a pretrial detainee.

While Jordan was serving his prison term the Indiana Department of Correction (DOC) seems to have given him credit a second time for the pretrial detention time that had already been applied. The net result was that Jordan was released erroneously with about two and a one-half years remaining on his sentence. Within a month of the premature release the State filed a motion in the trial court for a re-examination of credit time. Jordan did not deny his erroneous early release but argued (through counsel) for application of the “doctrine” of “credit for time erroneously at liberty.” The trial court denied Jordan’s request and (though staying the order pending appeal) held that Jordan return to prison to serve the remainder of his sentence without credit for his time out of custody. The COA affirmed despite evidence that Jordan had shared with the DOC his candid concern that his release date was premature and despite evidence that he had been living as a productive, rehabilitated person.

The rejected equitable doctrine of “credit for time erroneously at liberty” was described in the Opinion as having “roots” in federal jurisprudence and having been adopted in “many states,” but not Indiana. The origin of the doctrine is White v. Pearlman, 42 F.2d 788 (10th Cir. 1930). There it was reasoned that the sentence of a prisoner erroneously released through no fault of his own should continue to run while the person is at liberty. There is no doubt of the government’s right to reincarcerate a prisoner who has time to serve. The question is whether he should be given credit against his sentence for the time he was at liberty.

A fine example of the doctrine in the 7th Circuit comes from Judge Posner’s Opinion in Dunne v. Keohane, 14 F.3d 335, 336 (7th Cir. 1994):

“[U]nless interrupted by fault of the prisoner (an escape, for example) a prison sentence runs continuously from the date on which the defendant surrenders to begin serving it . . . [T]he government is not permitted to delay the expiration of a prisoner’s sentence . . . Punishment on the installment plan is forbidden.”

Despite the inescapable logic of the Posner holding the COA declined acceptance of the doctrine at least where (as here) the premature release resulted from “mere negligence” of the State. A grant of Transfer is appropriate here . . . Case Note by Dave Allen

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Science Ignored in the SCOTSI

The case on review is the Termination of the Parent-Child Relationship of K.R., et al. decided October 15, 2020 in the SCOTSI by a 4-0-1 vote (C.J. Rush concurring in result). The trial court terminated parental rights of mother and father. The COA affirmed at 133 N.E.3d 754 (Ind. Ct. App. 2019) with a decision that was vacated when the SCOTSI granted Transfer.

The general issues on appeal were whether the trial court erred in the admission of the parents’ drug test results (over objection) and, if so, whether such error was harmless in light of other evidence supporting a termination of parental rights. The more specific issue was whether laboratory drug test results are admissible in court proceedings under Ind. Evidence Rule 803(6) as “records of a regularly conducted activity” (f/k/a business records). Notably, admission of the records of drug test results took place at the termination hearing through the telephonic testimony of a witness described as the lab “Director,” not necessarily a forensic scientist, trained technician or the person who conducted the testing. According to the COA Opinion, the witness was also a records custodian.

I wanted to access the Briefs and the Record on Appeal. I wanted to read the parents’ objections to the admission of drug test records. From the Briefs I wanted to search for “Daubert.”¹ Those case records were unavailable in the online docket given the “JT” (termination of parental rights) case designation. Accordingly, my knowledge of the case is limited to the COA and SCOTSI Opinions.

Here the SCOTSI acknowledged a split in COA Opinions about whether drug tests fit the business records exception to the hearsay rule. The SCOTSI adopted the position that “drug test records fall under the records of a regularly conducted business activity.”

In a criminal case (which this case is not) there would be an issue of confrontation of the adverse witness, being the lab tech who ran the tests or the supervisor of that person. In any case there should be the issue of Daubert evidence of the scientific foundation behind the drug testing. A lab tech is likely to lack the expert qualifications to lay such a foundation. Evidence from the lab director that all procedures were followed means nothing without a scientific foundation for those procedures.

One stray circumstance gleaned from the online case record is a September 8, 2020 motion to withdraw the appearance of attorney Leanna Kay Weissmann, presumably due to her appointment to the COA. Although she was appellate counsel until her withdrawal, a fair inference is that she was not trial counsel. Her involvement suggests (to me) the likelihood of briefed issues exceeding the scope of those revealed in the COA and SCOTSI Opinions.

The decision here is dangerous precedent worthy of a Petition for Certiorari though I am unable to identify a clear federal issue . . . Case Note by Dave Allen

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¹ See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). While Daubert is not binding precedent for state courts, it is frequently cited favorably in Indiana respecting ER 702 expert witness issues. One example is McGrew v. State, 682 N.E.2d 1289, 1290 (Ind. 1997).

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UIM Coverage and Stacking

The case on review is Glover v. Allstate, decided unanimously in the SCOTSI on October 8, 2020. I commend Justice Slaughter for writing an Opinion organizing and simplifying the details of the case and of the UIM policy.

Shelina Glover died in a car crash that was not her fault. Though she lived with her parents in their home, at the time of the crash she was a passenger in a vehicle driven by her (estranged) husband. Fault for the crash was with the drivers of two other vehicles. Insurers for the two responsible drivers paid policy limits in the total sum of $75,000.00. Shelina’s estate sought UIM (underinsured motorist) payments on three separate policies.

Shelina’s own auto insurance policy and her husband’s policy each resulted in payment of $25,000.00. Then there was the Allstate Insurance policy held by Shelina’s parents with UIM coverage for them and for “resident relatives.” The Allstate policy had UIM coverage capped at $100,000 less payments received by or on behalf of a person or entity “legally responsible” for the injury. This was the Allstate “anti-stacking” clause. Following its own precedent, the SCOTSI held that “legally responsible” sources were the liability insurers for the two drivers at fault. Accordingly, the $75,000.00 received from those insurers would count against the $100,000.00 UIM coverage cap while the $50,000.00 received in UIM payments from Shelina’s policy and her husband’s policy would not.

As to “resident relative” coverage, Shelina was entitled to summary judgment on the designated evidence. Allstate had argued successfully in the trial court and in the COA that Shelina was not covered for UIM purposes until her parents gave notice to Allstate that a new “resident relative” should be added to their policy. The parents gave no such notice. By a simple reading of policy language, the SCOTSI discerned that the policy notice requirement applied only to “operators,” presumably those who would be driving a vehicle insured by the parents.

The result is that the Estate was entitled to $25,000.00 from Allstate ($100,000 UIM coverage less $75,000.00 in liability insurer payments). The first lesson is to never trust the insurance company to interpret its policy. The second lesson is that sometimes there is no correct holding in the trial court or even in the Court of Appeals. The third lesson is that lawyers for the Estate did absolutely the right thing by pursuing this case to the SCOTSI for the reasonably modest sum of $25,000.00 . . . Case Note by Dave Allen

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Impunity for the Superannuated Juvenile Delinquent

The offense of child molesting is supposed to feature a comfortably long limitations period for bringing charges. According to IC 35-41-4-2(e)(1) a charge of child molesting may be commenced at any time prior to the victim’s 31st birthday. But if I claimed that the limitations period for child molesting could be as short as three years and a day, would you believe me? The consolidated cases on review are D.P. v. State and State v. N.B., unanimously decided September 8, 2020 in the SCOTSI. There were allegations of the juvenile equivalent of child molesting in each case. It is alleged that D.P. and N.B. each (while less than 18 years of age) committed an act which would constitute child molesting if committed by an adult. There was delay in bringing charges such that D.P. and N.B. were 23 and 21 years of age, respectively, when charged by way of delinquency petition in juvenile court. At age 21 or older neither D.P. nor N.B. was still a child¹ who could be adjudicated a delinquent in a juvenile court. But could they be waived from juvenile court to an adult criminal court? That was the question answered in the negative by the SCOTSI. Since D.P. and N.B. had each been charged by way of delinquency petition, those cases had to be dismissed.

An Opinion footnote recognized the “tangential” unanswered question of whether D.P. and N.B. could be charged directly in an adult criminal court for the misconduct of their juvenile years. Opinion author C.J. Rush declared the issue “not before us.” Rest assured that county prosecutors will charge D.P. and/or N.B. in adult court and that appellate review (of the denial or granting of motions to dismiss) will follow. The position of the CLB is that there is no jurisdiction in adult criminal court without the prerequisite waiver which the juvenile court lacks jurisdiction to order.

Once again, it is the General Assembly’s legislative malpractice at fault . . . Case Note by Dave Allen

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¹ Under juvenile delinquency law a “child” must be under 18 years for some purposes and under 21 years for purposes of commencement of a delinquency petition for conduct while the person was under 18 years.

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Guards at the Gurdwara

The case on review is Singh v. Singh, decided September 8, 2020 in the COA with a reversal of the trial court’s award of summary judgment to co-defendant Gurdwara Har Gobind Sahib Ji Corporation. There is some uncertainty as to the correct wording. An Opinion footnote and SOS records suggest Gurdwara Shri Guru Hargobind Sahib Ji Corporation as the correct designation of the nonprofit entity operating a Sikh¹ place of worship in Greenwood, Indiana.

Harjinder Singh (plaintiff below) went to the gurdwara (some say “temple”) in Greenwood to attend a day of religious celebration. Apparently, there were factions competing for control of the gurdwara, and a fight broke out. Plaintiff Harjinder Singh was stabbed in the back and was otherwise injured, allegedly at the hand of assailant Amardeep Singh. Harjinder sued Amardeep and later added the Gurdwara corporation.

The Gurdwara corporation had engaged off-duty Greenwood police officers plus private security personnel to provide security for large events. Though security was provided, Harjinder alleged it was not proper security. Though having provided security, the Gurdwara corporation claimed that the ensuing violence was not foreseeable, such that it would owe no duty to protect the “business invitee” plaintiff from the assault which injured him.

Remarkably, there is no mention of the First Amendment “free exercise” clause in the COA Opinion. The COA treated the case as though it were a common premises liability claim, as in the case of a gunman entering a tavern and opening fire on the customers. Considering the evidence of factional struggle for control of the Gurdwara, the COA seemed to conclude that violence was foreseeable and that a duty of protection was owed to the plaintiff.

I can guarantee a Transfer Petition . . . Case Note by Dave Allen

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¹ Sikhism was founded in the late 15th to early 16th century in the Punjab region of India amid Moslem and Hindu populations. Sikh history emphasizes the necessity of self-defense from religious persecution. In addition to their beards and turbans, Sikh men are known for the ceremonial dagger worn on the belt. The “Kirpan” dagger is religious paraphernalia, like a crucifix or skull cap for those of other faiths.

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Med Mal and the Nursing Home Arbitration Agreement

The (Lake County) case on review is Estate of King v. Aperion Care, decided September 2, 2020 in the COA with a reversal of the trial court’s denial of the Estate’s motion to compel arbitration prior to submission of the nursing home medical malpractice claim to a medical review panel and a panel opinion. The late Sandra King had been a patient at Aperion Care, a qualified healthcare provider under the Indiana Medical Malpractice Act. Her estate alleged malpractice in her care. After filing a proposed complaint with the Department of Insurance but prior to submission to a medical review panel, the Estate learned through discovery that Sandra had signed an agreement that all claims against Aperion “be resolved exclusively by arbitration.” The Estate seems to have preferred arbitration to the burden of review panel submission and moved to compel arbitration. The trial court initially granted the motion but then reversed itself. The Estate appealed.¹ Notably, the language of the arbitration clause was very broad as to scope such that medical malpractice would be included.

The trial court elevated the (waivable) statutory requirement of the medical review panel over the arbitration agreement, reasoning that referral to arbitration would be premature before that procedure. The COA panel reversed. A Transfer Petition is a certainty.

If the COA Opinion stands or if its central holding is affirmed on Transfer the lesson will be that the arbitration clause popular with nursing homes to (theoretically) make it harder to prosecute an adverse claim in fact has the opposite effect . . . Case Note by Dave Allen

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¹ Though not mentioned in the COA Opinion, the Indiana Uniform Arbitration Act at IC 34-57-2-19 creates the right of an interlocutory appeal of an order denying a motion to compel arbitration.

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Plaintiff’s Lawyers: Beware of “CAPSA”

Say your client was injured and incurred property damages when his car was rear-ended by a school bus owned and operated by a local school district. You serve an ITCA notice of tort claim well in advance of the 180-day deadline and commence unavailing settlement efforts. You finally get client authority to file suit and do so 9 days prior to your 2-year limitations deadline. Then, after the limitations deadline, counsel for the school district files a motion to dismiss, and you break out in a cold sweat.

The case on review is Smith v. Franklin Twp. Community School Corp., decided August 25, 2020 in the SCOTSI. The plaintiff’s lawyer for the Marion County case was a duly licensed lawyer with a Louisville, Kentucky firm. That circumstance leaves me only slightly less sympathetic. The Louisville lawyer had missed the enactment of “CAPSA” (Claims Against Public Schools Act) that had taken effect about 4 months prior to the filing of suit. According to IC 34-13-3.5-4 and 7 there must be an additional pre-suit notice to the school corporation, and the absence of such pre-suit notice requires dismissal without prejudice. But when the order of dismissal “without prejudice” is entered after the limitations deadline, the dismissal is effectively with prejudice to re-filing. Such was the case below.

The Louisville lawyer who filed suit without the prior CAPSA notice (not the lawyer for the appeal) then bungled what could have been a remedy, to the effect that the SCOTSI found a “forfeiture” of the right to appeal. Had it been me in the shoes of the Louisville lawyer, I might have argued to the trial court that my ITCA Notice of Tort Claim satisfied (or was in substantial compliance with) the CAPSA pre-lawsuit requirement. I might have argued against retro-active application of CAPSA to existing causes of action not yet filed. And I might have argued (in desperation) that filing the action without the prior CAPSA notice tolled the running of limitations such that I would have 9 days after the dismissal order to serve a CAPSA notice and re-file the Complaint.

The point of this Note is to warn any plaintiff’s lawyer who may ever sue a school corporation. If you have not read CAPSA, then read it . . . Case Note by Dave Allen

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Saved by the Body Cam

The case on review is Hurt v. State, an August 21, 2020 COA reversal of the domestic battery and disorderly conduct convictions of Zackery Hurt. Zackery and wife Katherine Hurt were at the home of Katherine’s aunt, supposedly dog sitting while stinking drunk and inclined toward fighting. A Sheriff’s Department Sergeant was dispatched to the aunt’s home following an incomplete 911 call. When the Sergeant was allowed inside both Hurts (an apt name) showed signs of minor facial injury.

Zackery’s version of events was that Katherine had been the physical aggressor. Katherine told the Sergeant at least three conflicting explanations for her bloody nose and cut lip. One was an accidental fall. Another was an accidental elbow (from Zackery) to her face. The final explanation was that Zackery had intentionally elbowed her in the face. Zackery was charged with misdemeanor domestic battery and disorderly conduct.

Most of these appeals involve a wife or girlfriend absent from court. Katherine was there for Zackery’s bench trial but wasn’t much of a witness. She testified that intoxication at the time in question left her without recollection of how she was injured or of her conversation with the Sergeant. Over Zackery’s hearsay objection, the trial court admitted the Sergeant’s testimony (of what Katherine had said the night in question) and his body camera recording that interview.

The State offered three ER 803 hearsay exceptions for overruling Zackery’s hearsay objection. The first was that the Sergeant’s account of what Katherine had reported was “recorded recollection.” That excuse was rejected in the COA because Katherine could not (by her testimony) remember giving the statement, let alone vouch for its accuracy at the time it was made. The next ER 803 excuse was “excited utterance.” The State claimed that Katherine was too drunk “to reflect or make a coherent falsehood.” The State obviously ignored the fact that Katherine’s accusation of Zackery was her third version of events.

Rather than scold the State for its lame attempt at deception, the COA viewed the body cam video and concluded that Katherine had not shouted some excited utterance. This may be the first time in a published Indiana Appellate Opinion that body cam video has won reversal for a convicted appellant. The third ER 803 excused of “present sense impression” is deemed too uninteresting for comment . . . Case Note by Dave Allen

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Quo Warranto

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The End of Days

The counting of days seems to get far more appellate attention than the topic deserves. That which ought to be simple turns again and again into a dispute requiring judicial resolution.

The case on review is King v. State, decided by the COA on August 13, 2020 with a reversal of Tyson King’s conviction for misdemeanor driving while suspended. It was October 24, 2018 when motorist King was caught speeding by Trooper Hart. The Trooper “ran King’s driver’s license” through the ISP database. The report was that the license was suspended for King’s failure to pay child support. The State charged King with misdemeanor DWS and produced evidence at trial of the BMV record of a suspension effective “8/30/2018″ with an expiration date of “10/24/2018,” the very day of King’s traffic stop. When a suspension is set to expire on a certain date, what time of day does the expiration take place?

At this point your blogger found himself confused, even more than usual. The quasi-familiar child support enforcement statute at IC 31-16-12-7 permits the suspension of driving privileges of the seriously delinquent who are in intentional violation of the support order. The statute begins with “If a court finds . . .” The suspension under this statute is “until further order.” Presumably, such a suspension of driving privileges involves the notice and hearing requirements generally mandated by due process. This seemed not to be the case with Tyson King’s suspension.

Opinion footnote 5 shows the COA sharing my confusion about the child support enforcement suspension with an expiration date. The footnote mentions the presumed “order of suspension” (absent from the appellate record) from “the Title IV-D agency to the BMV.” Here is where a good appellate argument could have been waived. Was the suspension imposed in a fashion consistent with statutory authority and (otherwise) consistent with due process? Notably, no statutory authority was mentioned for license suspensions “ordered” by a IV-D office without judicial involvement and pre-deprivation notice and opportunity for a hearing.

As it turned out Mr. King didn’t need my argument attacking the suspension. Reversing the trial court, the COA held that a suspension that expires on the 24th of October does so at the very beginning of the day rather than at the very end of the day.

The King Opinion presents a treasure trove of dicta on how days are counted for other purposes before deciding the “expiration” issue as one of first impression. Though it should not, the State will likely request Transfer . . . Case Note by Dave Allen

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CR 4(C) and the Interlocutory Appeal

It looks like the SCOTSI is resuming business after its summer break from issuing Opinions. After a per curiam decision of August 4, 2020 the SCOTSI handed down a conventional Opinion on August 5, 2020 in the case of Battering v. State. Brandon Battering had been charged with child molestation. He moved to suppress a statement given during a custodial police interrogation which continued after he had invoked his right to remain silent. The trial court granted the motion to suppress; the State pursued an interlocutory appeal; and the COA affirmed the trial court’s suppression order in State v. Battering, 85 N.E.3d 605 (Ind. Ct. App. 2017). Meanwhile, time was passing.

Criminal Rule 4(C) is a manifestation of the 6th amendment¹ right to a speedy trial for those who have been both charged and arrested and provides for “discharge for delay” when a person is held to answer a criminal charge for more than a year, excluding periods of delay on the defendant’s motion, or the defendant’s acquiescence to an untimely trial date, or court congestion preventing a timely trial. The SCOTSI has created another exception (not found in the text of the rule) to the effect that a stay of proceedings will toll the running of time for purposes of CR 4(C). In the case of Brandon Battering there was a continuance of a scheduled trial (when the State took its interlocutory appeal) but no declared stay of proceedings.

Brandon’s public defender filed a CR 4(C) which was denied. A second interlocutory appeal followed. The COA affirmed. After granting Transfer, the SCOTSI reversed unanimously and ordered the CR 4(C) discharge of the accused child molester. Though the State claimed that its own interlocutory appeal of the suppression order was effectively a stay (for purposes of tolling the running of time), the SCOTSI cited Appellate Rule 14(H) to the effect that an interlocutory appeal “shall not stay proceedings in the trial court” unless so ordered. There is no stay by implication . . . Case Note by Dave Allen

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¹ See also the speedy trial right at the Indiana Constitution Art. 1 Sec. 12.

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Cell Phones Make You Stupid(er)
OR Confession is for Catholics

The case on review is Elliott v. State decided July 17, 2020 with the COA affirming the conviction of Patrick Elliott and his lengthy sentence for the murder of his wife. Patrick and wife Donita had a “problematic” relationship. Donita was diagnosed with bipolar and anxiety disorders in the 4th year of the 18-year marriage. In August of 2017 Donita was “off her meds” while tensions soared between her and Patrick.

Soon after midnight on the 8th of August, 2017 Patrick entered the marital home to deal with Donita who had gone to a motel the previous day and returned to the home for the purported reason of picking up her belongings. Rather than pack a few boxes of personal effects Donita argued incessantly with Patrick and made clear her intent to remain in the house.

Patrick wanted Donita to be committed to a mental health facility and perceived the need to gather evidence of the requisite threat posed by Donita against herself or others. Accordingly he was (covertly) making an audio recording on his cell phone as he entered the home that 8th of August. Donita died that morning of a bullet wound from a handgun wielded by Patrick, and it was all recorded on his cell phone.

Patrick called the Tippecanoe County Sheriff’s Department within minutes of the shooting. His version of events as related to the responding Officers was that he shot his wife in self-defense after she charged at him with a knife. While Donita had been exquisitely disagreeable, mean-spirited, and profane with Patrick, she did not attack him with a knife. The knife at the scene (for viewing of the officer) had been “planted” by Patrick after the shooting. The audio recording came to light a few days later when officers recovered Patrick’s cell phone and discovered an audio record of events contradicting Patrick’s claim of self-defense. Patrick then admitted that Donita was not attacking him with a knife when he shot her. We may never know why Patrick kept the audio recording of his crime or why he allowed the phone to be in a location where it could be recovered by law enforcement.

Patrick and Donita had been members of the Reformed Presbyterian Church of Lafayette. Pastor Keith Evans visited Patrick in jail, and Patrick eventually confessed to him that the shooting was not in self-defense. Prior to his trial Patrick moved to suppress all statements made to Pastor Evans on grounds of privilege. The trial court refused to suppress. The Pastor testified. The jury found Patrick guilty.

For Patrick’s legal theory see IC 34-46-3-1(3)(A) covering confessions to a clergyman in the course of a “discipline enjoined” by the church. While “discipline enjoined” is painfully inartful wording, the point seems to be whether confession is a sacrament or other honored and recognized practice of the pastor’s church. In the absence of written rules governing the church’s theology, the privileged or unprivileged status of a confession may be consigned to the whim of the pastor.

The COA rightly rejected the State’s absurd position that the privilege of a religious confession could be asserted only by the clergyman.¹ The matter of suppression boiled down to whether “confession” was a “discipline enjoined” by the Reformed Presbyterian Church. Pastor Evan thought that it was not. The COA affirmed. Transfer will be requested, though odds of a grant are maybe 2 to 1 against . . . Case Note by Dave Allen

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¹ A more interesting case might be that of a pastor who prefers not to testify and raises the privilege on his own without the support or opposition of the person who confessed.

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The Pretextual Impound

Update: See SCOTSI Transfer decision of June 3, 2021 in 2021 Appellate Case Notes.

The case on review is Combs v. State, decided July 9, 2020 in the COA by way of another Opinion from Judge Tavitas. Motorist James Combs swerved his gold van to avoid another vehicle but struck an “electrical box.” Though damaged, the van was operable, and Combs drove it from the scene before police arrived, proceeding to his nearby Lebanon, Indiana home. Officer Koontz of the Lebanon Police Department arrived at Combs’ residence as Combs was exiting the van from the driver’s seat. The van was parked in Combs’ driveway and featured a flat front tire and a fluid leak trail.

It appeared to Officer Koontz that Combs was under the influence but not of alcohol. Apart from that, Combs was certainly ripe for arrest for having left the scene of an accident. Other officers arrived including Lieutenant Rich Mount¹ of the Lebanon PD.

At one point during the driveway encounter, Combs gave permission to Officer Koontz to look under the van’s driver’s seat. Koontz found and removed a black bag but Combs told the officers not to open it. No warrant was requested for a search of the van or black bag. Combs was transported to the hospital for a blood draw. Lieutenant Mount remained on the scene and telephoned the Boone County Prosecutor’s Office. Then officers called for an impound tow of the van, which was then parked legally in the owner’s driveway.

There was no apparent excuse for calling for an impound tow of the van, but the call itself was the excuse for an “inventory search.” The inventory search (naturally) turned up pills later identified as controlled substances. An array of charges followed, including drug possession counts arising from the inventory search. Combs moved in the trial court to suppress evidence obtained from the search of his van. The trial court denied suppression while buying the theory that the van was impounded (and searched) due to it being evidence of the crime of leaving the scene of a property accident.

Combs’ appeal followed his continuing objection to the van search evidence at trial and his conviction on drug possession charges. Judge Tavitas declared it “clear from the record that the towing and impound search were merely pretextual means by which officers could search the vehicle for incriminating evidence.” Accordingly, the COA reversed three possession convictions. Transfer will be requested but need not be granted . . . Case Note by Dave Allen

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¹ This is the son of Rick Mount, Lebanon’s own high school basketball scoring machine who had a pretty good college run at Purdue until the finals of the 1969 NCAA Men’s Basketball tournament finals when he conceded victory to UCLA by missing his first 13 or 14 shots. He went on to a mediocre ABA career and then back to Lebanon.

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Self-Defense for the Unlawfully Armed

The case on review is Gammons v. State, decided June 26, 2020 in the SCOTSI. Anthony Gammons, Jr. had a confrontation with an unarmed but drunk and aggressive Derek Gilbert. Anthony was carrying a handgun without a license and used it, shooting Derek multiple times but not fatally. Anthony was convicted of attempted murder and carrying a handgun without a permit. He claimed self-defense at trial, but the self-defense jury instruction given by the trial court seemed to prohibit the exercise of self-defense by the unlawfully armed. Anthony’s appeal claimed error in that instruction.

The statute at issue is IC 35-41-3-2 which begins by allowing self-defense for the protection of people and property and then denies that right of self-defense to a person who “is committing . . . a crime.” According to the SCOTSI “we do not strictly apply that statute,” citing the prospect of “an unjust or absurd result.” Rather, the SCOTSI requires that the disqualifying commission of a crime have an immediate causal connection to the subject confrontation.¹

The trial court gave a pattern jury instruction embracing the statute more than the SCOTSI’s case law standard, such that the jury could have (wrongly) concluded that a man carrying a handgun without a permit is thereby prohibited from the exercise of self-defense by means of that weapon. The SCOTSI reversed and remanded for a new trial.

To its substantial credit, the SCOTSI declined the State’s theory that the instructional error was “harmless” in that no properly instructed jury could have found it was self-defense to shoot at an unarmed man eight times (striking him six times). The SCOTSI held that the issue was for a jury to decide after evidence and a proper instruction. Notably, the cited self-defense statute allows the use of deadly force (like bullets from a handgun) when a person “reasonably believes” that such force is necessary to prevent serious bodily injury. The man you shoot in self-defense need not be armed if otherwise capable of inflicting serious bodily injury on you or upon someone else whom you wish to protect . . . Case Note by Dave Allen

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¹ The SCOTSI approach may be harmonious with the CLB position that there is an inherent, natural right of self-defense, whether or not a statute allows it and (to substantial extent) whether or not a statute purports to prohibit it.

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Jury Unanimity and the Baker Instruction

The case on review is Giden v. State, decided June 24, 2020 in the COA by way of a unanimous Opinion from Judge Tavitas. Montel Giden was on home detention as a condition of his release on bond on two felony charges. The home detention order strictly limited Giden’s trips away from home. The order likewise warned Giden that he could be prosecuted for escape in the event of an unauthorized absence from home.¹ Giden also wore a bracelet for tracking his location. He was convicted of two counts of escape and appealed those convictions.

One of Giden’s convictions was for a violation of the home detention order (by way of an unauthorized absence from home) on August 25, 2019. There was evidence of four trips away from home on that date. The jury was instructed generally that its verdict must be unanimous. The jury was not instructed specifically that unanimity requires agreement of all jurors to one or more of the alleged acts of escape on the subject date. Accordingly, the jury may have convicted without unanimity as to any one of the four alleged acts of escape.

When a jury is offered a choice of multiple acts to constitute a single offense the jury should be instructed that conviction requires unanimous agreement that at least one such act was committed. The absence of such instruction from Giden’s trial was not preserved by any objection to instructions given or by the tender of a proper instruction under Baker v. State, 948 N.E.2d 1169 (Ind. 2011). The Tavitas Opinion held that the error was not fundamental and affirmed Giden’s convictions.

The case stands as a necessary reminder to the criminal defense bar to tender a Baker instruction at trial whenever a jury is provided evidence of multiple acts to constitute a single offense . . . Case Note by Dave Allen

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¹ IC 35-44.1-3-4(b) provides that violation of a home detention order or removal of a tracking bracelet constitutes the Level 6 felony of escape.

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Everett’s “Lost” Will and Testament

The case on review is Trowbridge v. Estate of Trowbridge, decided June 11, 2020 by the COA. Everett Thomas Trowbridge and Christal Trowbridge married in 2003 and divorced in 2012. Apparently within the marital estate was a house. While the property settlement agreement called for Christal to quitclaim her interest in the house to Everett, she did not, and it seems that Everett never demanded that she do so.

Everett had apparently made a will in 2012 a couple of months after the divorce.¹ That document was very favorable to ex-wife Christal. Everett died in 2018, survived by his father and brother Michael who would share the estate as heirs at law if Everett’s death was intestate (without a will). Michael opened an estate alleging Everett’s intestacy and was appointed Personal Representative. A few months thereafter ex-wife Christal filed a Petition for Probate of Will and Appointment of Co-Personal Representative. Michael promptly objected to probate of the will. While the will made provisions for Michael, it was less generous to this surviving brother than intestate succession.

There was a problem with the will. At a hearing on Michael’s objection he testified that he and his father went to Everett’s house promptly after Everett’s death and opened the safe to find “many important papers” inside but no will. Michael had “no idea” why Everett might have “destroyed” the will believed to have been in the safe.

Michael’s lawyer turned witness to testify about Christal’s presentation to him of the will. He recounted (his version of) Christal’s explanation that Everett had given her the document and had written on it the combination of the safe (at Everett’s house) where the “original” will would be kept. The lawyer concluded then that the will produced by Christal was “therefore a signed copy or duplicate of the original will.” There are no “duplicates” of wills. There can be only one. As for “signed copies” here’s the problem. Let’s say that I execute a will. Then I sign a “copy.” By signing the “copy” I have revoked the original. If I sign a second “copy” then I have revoked the first “copy” in addition to the original. There can only be one. See IC 29-1-5-6 for revocation law. There may be revocation by destruction or by written revocation duly signed, subscribed, and attested. Similarly, any sufficient new will revokes the previous one.

Christal testified that her will was the original and denied telling Michael’s lawyer that the original was in Everett’s safe. She explained that Everett had kept her as beneficiary on financial accounts despite their history of divorce.

The trial court denied probate of Christal’s tendered will. The governing principal of law that the trial court attempted to follow was the (rebuttable) presumption that a will in the testator’s possession and later found missing must have been destroyed by the testator with the intent to revoke it. See Estate of Fowler v. Perry, 681 N.E.2d 739, 741 (Ind. Ct. App. 1997).

The first appeal ended with an NFP decision of September 11, 2019 reversing the trial court’s refusal to probate the tendered will on grounds that the finding of revocation by intentional destruction was not accompanied by the requisite predicate finding that the original will was possessed by Everett.

After the COA’s reversal/remand the trial court held another hearing and considered evidence old and new. While giving new testimony Christal sponsored the rational suspicion that Michael would have destroyed any will (original or copy) found in Everett’s home if such will disfavored him.

After the post-remand hearing the trial court again denied probate of the will² tendered by Christal. The trial court handled its previous omission of a “possession” (of the original will) finding by concluding that the original had been in Everett’s possession in his safe. Since the original went missing from Everett’s safe, there was the (rebuttable) presumption of destruction with intent to revoke. The trial court concluded that Christal had not overcome the presumption of revocation. Christal appealed.

The COA accepted sufficiency of the evidence to conclude that Everett retained possession of his original will which was not found after Everett’s death. Accordingly, the estate was entitled to the presumption that Everett destroyed his will with an intent to revoke. But what about rebuttal?

The correct standard for rebuttal (of the presumption of revocation) was central to Christal’s appeal. The trial court erred in concluding that Christal’s rebuttal failed because she did not possess the original will. The point here is that the presumption of revocation requires an absence of the original will. Concluding that there was evidence that could suffice to rebut the presumption, the COA reversed and remanded for reconsideration of Christal’s rebuttal evidence by way of “proper analysis.”

Commentary: Far too often a death in the family evokes the worst in people. In Trowbridge it seems likely that either Michael or Christal is behaving in a most vile manner. It seems incongruous that Michael, if he discovered the original will and found it to be insufficiently generous to him, could create a presumption of revocation by destroying it and cautiously discarding the remains. We could use a better system for the safeguarding of wills (with full preservation of privacy) while still allowing for their revocation when such is the testator’s intent while being both competent and free of undue influence. For some 2018 legislation on the topic of “Electronic Wills,” see IC 29-1-21. The CLB fears that Information Technology is not a solution to the problem but rather fertile new ground for the dishonest . . . Case Note by Dave Allen

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¹ A bequest to one’s spouse will typically be deemed revoked by a subsequent divorce. The law of disinheritance by divorce is found at IC 29-1-5-8.

² It is interesting that the trial court noted the absence of expert testimony about the signature (original or photocopy) on the will tendered by Christal. The trial court declined to find that the signature was original.

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Interrogation’s End

The case on review is State v. Glaze, decided May 14, 2020 with the COA affirming the trial court’s suppression of statements given by April Glaze after her ignored request to end a custodial¹ interrogation. Suppose that you are not formally under arrest but find yourself in a cramped interrogation room at the police department or prosecutor’s office. A couple of bulky cops sit between you and the closed door. You listened to your Miranda rights being read and complied by signing the acknowledgment of rights and “voluntary” waiver put in front of you. Then come the questions, each one more accusatory than its predecessor. Innocent or not, you sense that things are not going well. How do you end this “custodial” interrogation?

The two most commons ways to terminate a custodial interrogation such as the one described are a verbal request to stop (“I’m done talking,” for instance) or a verbal invocation of right to counsel (“I want a lawyer,” for instance). Far too often a custodial interrogation somehow continues after the witness/suspect requests an end to the questioning. In such cases the interrogating officers just keep talking and keep posing questions, ignoring the request to stop. Within the coercive atmosphere of the interrogation room too many people who have requested a cessation of questioning will resume giving answers. Then comes the motion to suppress.

The appellate standard is that a request to end a custodial interrogation (an exercise of the right to remain silent) must be “clear and unequivocal” in order to obligate the interrogators to stop. And then there is always the detained suspect who successfully closes an interrogation but finds himself being questioned again a few hours later. On the other hand “I want a lawyer” is a phrase nearly guaranteed to end the questioning or (otherwise) to create the best foundation for the suppression of incriminating statements made post-invocation.

In the case on review April Glaze (who had no car) was given a ride to the courthouse (where there was a prosecutor’s interrogation room) for questioning about the sexual abuse of her daughters. She was clearly a target of investigation at that point. She had been told that such questioning was part of the process of regaining custody of the daughters from county wardship. That was simply a lie but not (thereby) grounds to suppress evidence. Alice was Mirandized and signed the Acknowledgment of Rights and Waiver. Cops occupied the space between her and the interrogation room door. She answered questions for a while and then attempted to end the interrogation by saying “I just want to get this over with, Dave . . . I want to go back home.” Her interrogators continued. The trial court rightly suppressed April’s statements made after her request to end the interrogation. The COA rightly affirmed . . . Case Note by Dave Allen

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¹ This case note does not examine in detail what circumstances are necessary for the “custodial” interrogation of a person not formally under arrest.

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The Irrelevance of Truth

When truth is irrelevant, there is a reciprocal irrelevance of falsehood. Such is one lesson from Abbott v. Individual Support Home Health Agency, Inc., decided May 13, 2020 in the COA. It seems that Tiffany Abbott and other Appellants were licensed nurses in the employ of a home-healthcare agency (the “Agency”) when they made reports to the Indiana State Department of Health (ISDH) that the employer had forged their signatures on documents related to patient care. The ISDH regulates home-healthcare agencies. The Agency alleged that the Appellant nurses’ reports of forgeries were false and that the Appellant nurses encouraged other employers to make false reports to the ISDH and to quit their employment (after the Appellant nurses quit). The ISDH agreed with the Agency to the extent that it concluded that the forgery reports were “not substantiated.”

The Agency filed suit against the Appellant nurses for defamation, and for tortious interference with a contract (with clients?) and with a business relationship (with other employees?). The Appellant nurses filed a TR 12(B)(6) motion to dismiss. The trial court’s denial of that motion was the subject of the Appellant nurses’ interlocutory appeal.

The Appellant nurses’ motion to dismiss was based on the assertion that their reports to the ISDH are “cloaked with absolute privilege” such that they were immune from civil liability. The general Indiana rule created by the judiciary (for civil cases) is that there is absolute privilege protecting all relevant statements made in the course of judicial proceedings regardless of underlying falsehood or malicious intent. The cited reason for that rule is to preserve the due administration of justice by gifting participants in judicial proceedings with civil impunity for telling malicious lies (or telling the truth as the case may be). The CLB sees it as bad policy to give such impunity to the teller of intentional lies with malicious intent, particularly when that telling occurs in a judicial proceeding.

The award of civil (and/or criminal) immunity for policy reasons should (generally, at least) originate in the General Assembly. For instance, IC 12-10-18-6 grants limited immunity to broadcasters and newspapers for airing or printing accounts of “missing endangered adults.” That statutory immunity does not protect intentional misconduct; nor should it. Sometimes there are immunity provisions paired with provisions mandating reports. For instance, IC 31-33-5-1 requires those having reason to believe that a child has been abused to report the same. IC 31-33-22-1 criminalizes the breach of the obligation to make a report of suspected child abuse. Then there are IC 31-33-6-1 and 2 awarding civil (and criminal) immunity to a reporter of suspected child abuse except when the reporter has acted maliciously or in bad faith.

Though it could find grounds for criticism of these legislative provisions, the CLB applauds the General Assembly for granting broad, but not quite absolute, immunity in situations where there is a need for citizen reporting but where malicious false reporting poses a danger to public and/or private interests.

Suppose that you make an honest but mistaken report of criminal conduct resulting in the detention of your neighbor. Are you civilly liable for damages? Probably not. Case law would afford you “qualified privilege” in making your report. The doctrine of “qualified privilege” serves the public interest of encouraging the free, undaunted reporting of criminal activity. See Williams v. Tharp, 914 N.E.2d 756 (Ind. 2009). Being “qualified,” the privilege has limits and does not cover an inaccurate report motivated primarily by ill will or made without belief in its truth. Qualified immunity served the Hoosier State well. Then there came an expansion of “absolute privilege” in Hartman v. Keri, 883 N.E.2d 774 (Ind. 2008). “Absolute privilege” had existed for a long while and afforded civil immunity to a person for all relevant statements made in the course of a judicial proceeding, regardless of the truth or motive behind the statements. In Hartman there was no actual judicial proceeding. Rather, there was a university’s handling of a sexual harassment complaint from two female students against a male professor. The indignant (former) professor sued the students for defamation and interference with his employment contact. The Indiana Supreme Court held that the administrative procedure at the university¹ level was “quasi-judicial” to the effect that the students’ otherwise applicable qualified privilege should be elevated to absolute privilege. In so holding, the SCOTSI may not have clearly seen the floodgates being nudged open.

In the case on review the COA panel was tasked with reviewing the trial court’s denial of the Appellant nurses’ TR 12(B)(6) motion to dismiss their former employer’s suit against them for (allegedly) making false, defamation reports to the ISDH. The panel followed Hartman too eagerly in concluding that the nurses’ unsubstantiated claims of forgery lodged with the ISDH against their employer Agency were part of a “quasi-judicial” proceeding entitling them to absolute privilege.

Absolute privilege is a license to lie. Whether or not the grant here was good law based on Hartman, it is bad policy. The CLB urges the General Assembly to intervene with legislation curtailing the expansion of absolute privilege . . . Case Note by Dave Allen

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¹ The university was a State entity, the IU/PU extension at Fort Wayne. It is uncertain whether an internal sexual harassment complaint at a “private” school would be deemed quasi-judicial for purposes of absolute privilege.

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When an Emergency is not an Emergency

The case on review is Speedy Wrecker Service v. Frohman, decided April 29, 2020 in the COA. Daniel Frohman parked his car in downtown Bloomington in a privately owned parking lot reserved for permit-holders paying a monthly fee for a reserved parking space. It happened to be a Saturday (not mentioned by the COA) at 4:00 p.m., and Daniel saw no other vehicles parked in the lot nor any signage about the requirement of a permit. When Daniel returned to the lot an hour or so later, his car was gone. It had been towed by the Speedy Wrecker Service which was under contract with the property owner to do exactly what it had done. Daniel was able then to see signs about the parking restrictions. He paid $240.00 to bail out his car from the tower’s storage and then sued the tower and the property manager.

If you should park your vehicle in my (residential) driveway without my consent and for purposes other than to visit me, I would likely resort to self-help to abate the trespass and to restore the driveway to my own use. But what statutes are there that might limit my self-help activities?

Indiana’s “abandoned vehicles” law is found at IC 9-22-1. At IC 9-22-1-15 and 16 one finds provisions pertaining to abandoned vehicles discovered on private property and removal of such vehicles by towing. Remember that towers are highly regulated. IC 9-22-1-16(a) states the general rule that a grace period of 24 hours must precede the towing of a vehicle “believed to be abandoned” from private property. IC 9-22-1-16(b) states the exception (to the general rule) that an abandoned vehicle left on private property may be towed forthwith in an “emergency situation.” That term is then defined (in relevant part) at sec. 16(b) as when the abandoned vehicle “interferes physically with the conduct of normal business operations of the person who owns or controls . . .”

The trial court determined that the “emergency situation” exception did not apply to the facts at hand and granted partial summary judgment to Daniel in the interlocutory order which was appealed by Speedy and the property manager. The COA declared an “emergency situation” from Daniel parking his vehicle in an empty lot that would probably be staying empty or nearly so until the following Monday morning. In so doing, the COA took indecent liberties with the statutory definition of “emergency situation” and totally ignored the equally relevant statutory definition of “abandoned vehicle” at IC 9-13-2-1. The relevant portion of that statutory definition pertaining to a vehicle left on private property without the owner’s consent requires that such circumstances persist for more than 48 hours! In the case below Daniel’s car was parked around 11 minutes before the tow. Whether or not Daniel’s freeloader parking created an “emergency situation,” the vehicle was not an “abandoned vehicle” such that the statutory provision for an immediate tow would apply.

In reversing the trial court’s partial summary judgment in favor of Daniel and directing full summary judgment in favor of the tower and the property manager the COA has made extremely bad law that presents a compelling case for correction on Transfer . . . Case Note by Dave Allen

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When the Mother is not the Mother

The case on review is Paternity of A.J., decided April 27, 2020 in the COA. The unanimous COA panel affirmed the trial court’s award of child custody and support order entered in a paternity action separate from the parties’ divorce.

Coby Jent and his wife Jerrilee, while married, used a surrogate (per the COA) to “become the parents of the child.” According to a paternity affidavit executed after birth of the child, Coby was the biological father while Jerrilee was without any biological link to the child. It may have been planned that Jerrilee adopt the child during the marriage. But that did not happen, and the marriage was dissolved. Notably, the dissolution of marriage case did not include the fate of the child, probably because she was not a “child of the marriage.” In affirming the paternity court’s award of custody and support to Jerrilee the COA cited no statutes in its legal analysis.

The implicit reason for the paternity action was for Coby to establish his primacy over the surrogate mother, the respondent in that action. Jerrilee intervened in the paternity action. Worth noting here is IC 31-17-2-3 to the effect that a nonparent may file an action for child custody in a court of general jurisdiction. There is no parallel paternity law statute. IC 31-14-4-1 declares who may commence a paternity action; Jerrilee as a nonparent custodian is not among those entitled to file. As a nonparent de facto custodian Jerrilee certainly could have filed a guardianship petition under IC 29-3-5-1.

There is no doubt at the CLB that Jerrilee was a more caring and more deserving custodian than Coby. In terms of doing that which was best for the child, the paternity court did the right thing, and the COA affirmed. What is beyond the understanding of the CLB is how the COA panel could declare the child a “child of the marriage” while affirming a paternity court ruling. Another statute left unmentioned by the COA is IC 31-9-2-13(a)(2) defining “child of the marriage” as one “born or adopted during the marriage.” And what of the real mother? It should be mentioned that Indiana case law is ill at ease with gestational surrogacy. For instance, a surrogate mother’s (agreed) action to “disestablish maternity” of the child she carried is “not cognizable.” In the Matter of the Paternity and Maternity of Infant T., 991 N.E.2d 596 (Ind. Ct. App. 2013) (Transfer denied). Then there is Indiana statutory law voiding surrogacy agreements. IC 31-20-1-2.

Beyond the factual absurdity of declaring the biological stranger of a child to be its “mother” without the benefit of adoption¹ the COA panel gave zero mention (in its legal analysis) to the standard of “clear and convincing evidence” (of best interests) normally applicable to a nonparent’s quest to gain custody of another’s child. Look for Transfer . . . Case Note by Dave Allen

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¹ The COA cited Levin v. Levin, 654 N.E.2d 601 (Ind. 1994) as precedent for its holding that a child carried by a surrogate is “of the marriage.” Levin held (on first impression) that a child carried by the wife after artificial insemination consented to by the sterile husband was a child of the marriage and that the husband was estopped to deny that the child was of the marriage. For the COA to equate the facts of Levin to the case at bar is to confuse the carrying of a child by a married woman with a married man’s donation of semen.

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Senioritis in the Calumet

The case on review is The 487 Broadway Co., LLC v. Robinson, et. al., decided April 23, 2020 by a unanimous COA panel. The “senior” trial judge on review is the Hon. Thomas W. Webber, Sr., who retired from the Porter County bench a number of years ago and has since been a familiar sight on the Lake County bench as an appointed judge pro tem during periods of a judicial vacancy. Judge Webber had been appointed judge pro tem of the Lake Superior Court Room Four in late January of 2019; he served in that capacity pending the selection and arrival of the Hon. Kristina C. Kantar.

While filling in at Room Four Judge Webber presided over the mentioned case wherein the Limited Liability Company (“LLC” hereinafter) that had purchased a downtown Gary building (487 Broadway) from Calumet Township. The Township had advertised for purchase bids for an “as is” sale.¹ The LLC was the successful bidder and agreed to pay or deposit in full the purchase price of $72,100.00 well prior to closing. There is no mention in the COA Opinion of any designated purchase agreement to supplement the bidding process.

Between the bid and the closing the Township seems to have removed lighted signs that had been affixed to the building exterior and “pictures and artifacts” that had been “secured” to interior walls, all in apparent violation of the “as is” term of sale. The LLC complained to the Township about the changes in condition of the property but elected to close as scheduled.

Nearly two years after closing the LLC filed suit requesting compensation for the Township’s pre-closing damage to the building. The LLC asserted theories of negligence and breach of the “contract.” The Township consistently denied any wrongdoing and filed what it titled as a motion to dismiss (for failure to state a claim) pursuant to TR 12(B)(6). The first glitch in that matter was that the motion to dismiss (and its supporting memorandum) made factual allegations and involved documentary exhibits. It is fundamental that a TR 12(B)(6) motion tests the sufficiency of the Complaint and not the sufficiency of supporting evidence.

Senior Judge Webber did the right thing by treating the motion to dismiss as a motion for summary judgment. That was the last thing that he did right in the case on review. Judge Webber’s first error came on the day that he declared the motion to be one for summary judgment in that his Order to that effect gave the LLC a mere twenty days to file a reply. The error is evident from the text of TR 56(C) giving the non-moving party thirty days to respond to a motion for summary judgment. An “alteration of time” under TR 56(I) requires the motion of a party. The LLC waited twenty-one days to file not a summary judgment reply but rather a motion to stay summary judgment proceedings pending discovery. Such a motion is common following a summary judgment motion filed early in the litigation process.

Senior Judge Webber treated the motion to stay as a summary judgment response that failed to refute “facts” set out by the Township in its motion and supporting memorandum. Senior Judge Webber awarded summary judgment to the Township without a hearing. While granting summary judgment without a hearing is not in violation of the Trial Rules, it is generically rude and reckless to the extent that judges oftentimes need the benefit of oral argument in order to craft a proper decision.

In the case before him Senior Judge Webber committed a second glaring error in accepting for summary judgment purposes assertions of fact not supported by affidavit along with unverified exhibits. The requirements of TR 56 respecting the use of affidavits on personal knowledge and the verification of evidentiary exhibits are fairly simple and extremely well known. The LLC was finally granted a hearing on its motion to correct error which Senior Judge Webber denied. The LLC filed a motion to reconsider and initiated the appeal after that final motion was denied.

“Thirty days” as set out in TR 56(C) means thirty days. Such was the holding of the COA. Criticism of Senior Judge Webber’s reliance upon unqualified evidence was thrown in for guidance on remand, which ought to come before Judge Kantar. While the CLB has no sympathy for the Township in this matter it cannot resist making the observation that the doctrine of “merger by deed” (look it up) should be prominent in the next round of argument. “Merger by deed” was not mentioned in the appellate briefing and (accordingly) was not mentioned in the COA Opinion . . . Case Note by Dave Allen

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¹ See IC 36-1-11-4 for procedures pertaining to the sale of real estate by local government.

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From Terry Stop to “in Custody”

The last time that I found myself in a (large) room with many others (more than one hundred) was March 10, 2020 at the college campus formerly known as Purdue Calumet.¹ While scoring some CLE credits I witnessed two oral arguments before an “Appeals on Wheels” COA panel featuring the Calumet’s very own Judge Elizabeth Tavitas. The more interesting of the two cases was Atkins v. State, decided by that COA panel on April 3, 2020 with Judge Tavitas writing for the unanimous panel.

Several hours after Bloomington police received a report of an armed residential robbery and the taking of marijuana and four laptop computers officers gathered at an apartment complex where one suspect (of two) was believed to live. The police located a vehicle apparently registered to the local suspect whose cousin Tony Atkins was reportedly visiting him from Indianapolis on that day. Then there came two men exiting an apartment building. Officers approached the two men who identified themselves as Glen Williams (the local suspect) and Tony Atkins. Officers separated the two men.²

An officer frisked Atkins’ person for weapons and found none. But Atkins had a backpack. The officer advised Atkins that his name came up in a burglary investigation. Atkins responded with the alibi that he had just arrived from Indianapolis 20 minutes earlier. The officer asked whether there were any weapons in the backpack, and Atkins responded in the negative. The officer requested permission to check the backpack. Atkins consented. The officer had advised Atkins of his right to decline, to demand a warrant, or ask for a lawyer. The two stepped to a lighted area where Atkins opened his backpack to reveal multiple laptops. No weapons were seen. The officer asked for a closer look at the laptops. Atkins’ response was to zip the backpack and complain of the attempted intrusion. To this point police interaction with Atkins was probably no more than a Terry stop.

Atkins claimed to have a witness to his alibi of recent arrival and started to walk toward that person. The officer “requested” Atkins to come back and told him repeatedly to sit on a curb. During a suppression hearing the officer admitted that Atkins was then “not free to leave.” Atkins announced that he needed to use the restroom³ and was told to sit back down.

Officers continued to solicit consent for an examination of the laptops, and Atkins continued to refuse. Meanwhile, Atkins’ alibi (of recent arrival) was busted by the report of Glen Williams, the cousin who was also being detained. After about 30 minutes from the beginning of the encounter Atkins (after claiming to have purchased the laptops just before the police arrived) relented and removed the laptops from his backpack for closer examination. One of the laptops had a username of one of the armed robbery victims. Soon after Atkins was handcuffed and transported to the police station.

After being charged with multiple felonies Atkins filed a motion to suppress evidence from the backpack and his statements to police. Issues included whether he was “in custody” for purposes of a Pirtle warning before giving consent to a search of the laptops and for purposes of a Miranda warning while he was being interrogated. The trial court judge granted suppression and then retired. A subsequent judge granted the State’s Motion to Correct Error and vacated the Suppression Order. Atkins appealed.

The COA rightly reversed, thus restoring the suppression order. There is a helpful discussion in the Tavitas Opinion of how a police encounter may evolve from a Terry stop to the point of being “in custody” and entitle a detained person to a Miranda warning before custodial interrogation and a Pirtle warning (at least in Indiana) before being asked to consent to a search.⁴ To be deemed “in custody” a person need not be the subject of a formal declaration of arrest and need not be handcuffed or jailed. A person in the midst of a police encounter who is not free to leave is likely “in custody.”

The State should be able to convict Atkins without the suppressed evidence but will probably file a Transfer Petition. If the State petitions for Transfer it should consider the argument that the officer’s comment to Atkins about having a lawyer (from the 3rd paragraph of this Case Note) was sufficient for Pirtle purposes. However, this suggestion provides no help to the State respecting the Miranda violation. The CLB supports the COA holding . . . Case Note by Dave Allen

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¹ By March 10th it was becoming apparent that large gatherings should be avoided due to the emerging coronavirus threat.

² Up to this point the police work was nothing short of exemplary.

³ It is a fair inference that a man who has just recently left an apartment building for a parking lot has no immediate excretory needs.

⁴ The rule of Pirtle v. State, 323 N.E.2d 634 (Ind. 1975) is that a person in police custody is entitled to the presence and advice of counsel before consenting to a search and that the right if waived, must be explicitly waived.

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The Crime of Talking to an Adverse Witness

In civil litigation and in criminal defense the other side doesn’t own its friendly witness. The CLB applauds the lawyer (or paralegal or lawyer’s investigator) who approaches an adverse witness as part of trial preparation and does so despite the inherent social awkwardness. But what if it’s the lawyer’s client who confronts the adverse witness? And what if the client had no questions of the witness (who had already given a deposition) but rather just a stern demand that he bow out. What if the stern demand could be taken as a threat of financial consequences? If I were being sued by a neighbor on false allegations supported by a “nonparty witness” neighbor, I could see myself approaching that adverse witness with a stern warning to stop the perjury. I would consider such a barrage of words (no weapons, of course) as being well within the scope of First Amendment protected speech.¹ Then again, prosecutors, trial court judges, and a COA panel majority may differ.

The case on review is Cook v. State, the March 31st affirmance (by split COA panel) of Jennifer Cook’s conviction (by way of bench trial) of the Level 6 Felony of “Attempted Obstruction of Justice.” A relevant background allegation is that Jennifer was an annoyingly noisy neighbor. The COA doesn’t share whether it was nighttime music through outdoor speakers, power tools at 5:00 a.m., or some other irksome noise. One neighbor was suing her. Another was Darren Collins, a mere witness for the civil suit plaintiff. After he had given a deposition in that proceeding his neighbor confronted Darren while he was mowing the yard of a cousin. Jennifer stood in the path of the riding mower and “motioned” for Darren to stop. He complied. According to Darren’s testimony, in the ensuing criminal prosecution of Jennifer, she complained (inaccurately), that he was suing her and demanded that he “bow out” in order not to “lose everything.” Darren felt intimidated and complained to authorities.

For the described incident and one other Jennifer Cook was charged with both Attempted Obstruction of Justice and Intimidation. The Intimidation charges were dismissed by the State prior to trial. At trial Jennifer was acquitted of one Attempted Obstruction charge while being convicted upon the incident described. See IC 35-44-2-2 for the Obstruction offense. Jennifer was tried for Attempted Obstruction in that her efforts to persuade Darren to “bow out” of the civil suit were unsuccessful. The theory of the prosecution was that Jennifer knowingly or intentionally attempted to induce Darren to withhold his testimony in the civil proceeding and did so by “threat or coercion.” While Jennifer’s intent in speaking to Darren seems clear enough there was no “coercion” and only a veiled “threat” of financial consequences, hardly any different than the common threat of a counterclaim against the plaintiff in many civil suits.

The COA majority affirmed. The CLB agrees with the dissent that Jennifer’s rude, confrontational words did not constitute a crime. A Petition for Transfer is likely and ought to be granted . . . Case Note by Dave Allen

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¹ Reference is made to the free speech rights of the ordinary citizen and not the lesser rights of free speech afforded (by the judiciary) to lawyers.

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Jack Crawford, Redemption, and the Fourth Amendment

Who remembers Jack Crawford? I think there’s a photo of him hanging in the lobby of the Courts Building (at the Lake County Government Center) alongside other former Lake County Prosecutors. ¹ His name in bronze has dishonorable mention on a large plaque viewable on the ground floor of the Administration Building where three “County Court” courtrooms were added during Jack’s tenure as County Prosecutor. Jack was Judge of the Hammond City Court and then Lake County Prosecutor for nearly all of the 1980’s until his 1989 appointment as the very first executive director of the Indiana Lottery.

Not long after Jack took the Lottery post the mud hit the fan. Mary Cartwright had worked for Jack in the Hammond City Court and Prosecutor’s Office before moving to Marion County to work for Jack in the Lottery Commission. The history of Mary’s employment with Jack and her sexual relationship is set out in Nobles v. Cartwright, 659 N.E.2d 1064, 1066 (Ind. Ct. App. 1995). ² Before suing anyone, Mary complained to staff of Gov. Evan Bayh of sexual exploitation at the hands of her boss. Governor Bayh could probably have kept the matter quiet, accommodated Mary with other State employment, and saved the position and reputation of Jack Crawford, but none of that happened. Within days of Mary’s complaint, Jack was gone from the Lottery Commission but remained in the Indianapolis area. Back in Lake County droves of former friends suddenly harbored contempt for Jack. His wife filed for divorce with the representation of one of those former friends.

Away from public office (and public paychecks) Jack had been a capable lawyer. After his public humiliation, he began practicing law in Indianapolis. Now and then I see his name as counsel on an Appellate Opinion and find myself rooting for Jack in his post-public-service incarnation as a lawyer in private practice.

The case on review is one of Jack’s appeals, Tigner v. State. On March 18, 2020 the unanimous COA panel handed down its decision reversing (on interlocutory appeal) the trial court’s denial of Andrece Tigner’s motion to suppress evidence recovered from a search “incident to arrest.” It appears that Andrece challenged whether there was probable cause for his warrantless arrest and whether the search incident to that arrest was excessively broad. The COA decided solely on the probable cause issue.

Andrece was visiting Isiah Williams (who was on home detention) when there was a “home visit” by police and community corrections. Isiah was very slow in opening the door in response to persistent knocking. When the door opened there was an odor of marijuana.

During a “protective sweep” of the apartment the Community Corrections Officer found raw marijuana on the dining table and a firearm in a kitchen cupboard. Those discoveries were used to obtain a search warrant and the discovery of concealed marijuana and pills for which Isiah had no prescription. Andrece was arrested for visiting a common nuisance contrary to IC 35-45-1-5. Probable cause for that warrantless arrest required evidence that Isiah’s apartment was a place where “continuous or recurrent” prohibited activity took place and the visitor’s knowledge of such. The COA rightly found a deficit in probable cause for the arrest. The open evidence of drugs (weed on the dining table and an odor wafting out an open door) did not prove continuous or recurrent episodes.

In searching Andrece incident to arrest police discovered $1,000.00 in currency (not a crime) and two key fobs. From the apartment balcony overlooking a parking lot an officer pressed one key fob to activate the lights and horn of a parked minivan. Then came the drug-sniffing police dog and his “alert,” a search warrant for the vehicle, and the discovery of marijuana, crack cocaine, and heroin. When an arrestee is nowhere near his vehicle at the time of arrest, a search incident to arrest cannot include the vehicle. Still, it was unnecessary for the COA to rule on this issue.

The State should not ask for Transfer but probably will. The CLB congratulates Jack Crawford for his contribution to Fourth Amendment jurisprudence and for his commendable representation of Andrece Tigner . . . Case Note by Dave Allen

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¹ See the CLB Featured Article of September 9, 2015 titled “A Monument to Corruption” describing the plaque in question and the rogue’s gallery of names featured on it.

² The position of the CLB is than an office-holder’s use of public money to buy sexual favors and a public employee’s sale of sexual favors for a public salary are equally despicable.

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Graveyard Follies IV

Though titled “Graveyard Follies IV,” this review arises from what might be called “Salyer III.” The first COA Opinion came November 23, 2016 in Salyer v. Washington Regular Baptist Church Cemetery, 63 N.E.3d 1091 (Ind. Ct. App. 2016). Kathy Salyer had purchased five burial spaces for her family members and herself. When three of those spaces were thought to be occupied, Kathy discovered that a fourth space (intended for Kathy’s mother) held the remains of a stranger, Lowell Johnson. Kathy sued ( a smart decision) in small claims (a stupid decision) seeking relief including the disinterment of Mr. Johnson. Since she had filed suit in a court lacking the jurisdiction (on its small claims docket) to order a disinterment, the COA could not bestow that relief on appeal but (generously) remanded for a determination of whether Kathy’s suit should be relitigated on the plenary docket of the trial court.

The remand led to the second trial court denial of Kathy’s demand for disinterment of Lowell Johnson. Her appeal to the COA was decided October 30, 2019 and titled “Graveyard Follies III.”¹ “Follies III” was reviewed in a Featured Article posted November 4, 2019. There was substantial criticism therein of the split (2/1) COA decision denying Kathy’s demand for disinterment of Lowell Johnson despite the clear statutory mandate of IC 23-14-59-2 that a cemetery “shall correct” a wrongful burial. The COA majority decided that correction of a wrongful burial was an equitable remedy, such that enforcement of the statute was discretionary. The COA majority was wrong, at least according to a 3/2 majority of the SCOTSI in a rare per curiam Opinion. Justices Massa and Goff dissented without opinion. The SCOTSI majority held that a weighing of equities was not available to the trial court and remanded to the trial court for an order of disinterment of the remains of Lowell Johnson . . . Case Note by Dave Allen

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¹ The title Graveyard Follies II was claimed by the case of Mullett v. Baker and the City of Butler as reviewed in a case note of that March 8, 2019 decision.

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Livestock at Large

You’re driving down a narrow country road. Just as you round a sharp curve where your view of the road ahead is blocked, all of a sudden there are cows on the right of way. You may crash into one (or more), or you may drive into a ditch (or worse) to avoid the bovine collision. The cows most likely sought greener pastures across a defective fence. That typical circumstance of cows on a country road was altered somewhat in the case on review wherein horses had escaped confinement, and one of them collided with a man (the plaintiff) and (allegedly) caused injury to him. See Gacsy v. Reinhart decided March 4, 2020 in the COA, reversing the trial court’s dismissal (with prejudice) of the Complaint for the alleged violation of an order in limine excluding evidence of prior escapes of the defendant’s horses.

There is no strict liability for cows on the road. There is no res ipsa loquitur presumption of negligence for cows on the road. While some cases mention a statute relating to livestock there appears to be no precedent for a “negligence per se” theory for a livestock owner’s violation of statute.¹ Rather, a plaintiff in such a case must pursue a theory of “negligent confinement” and bears the burden of proving that the fencing was defective such that escape through it was foreseeable. Obviously, a history of livestock escape suggests knowledge of defective fencing and foreseeability of future escapes.

Remarkably (and inexplicably), the trial court judge excluded evidence of the horses’ prior escapes.² The plaintiff was prepared to prove such an escape just a couple of months prior to his injury. As recognized in the COA Opinion, the Order in Limine put the plaintiff’s counsel in an “impossible position,” leading to counsel’s resistance to the Order, a mistrial, and the dismissal with prejudice. The COA held that counsel’s comment cited to warrant dismissal did not violate the Order and further that the Order should not have been entered. At the post-remand trial the plaintiff will be entitled to introduce evidence of prior escapes of the defendant’s horses . . . Case Note by Dave Allen

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¹ See, for instance, IC 15-17-18-8(a) declaring the Class B misdemeanor of knowingly or intentionally permitting livestock to run at large.

² The trial court seems to have relied upon Greathouse v. Armstrong, 601 N.E.2d 419 (Ind. Ct. App. 1992) wherein the COA affirmed the trial court decision to exclude evidence of equine escapes 4 and 5 years prior to the subject escape which followed by 3 years the replacement of the old fence.

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Roundabout Chaos

I grew up in and near Indy with its “Monument Circle,” a sort of roundabout not found elsewhere in the “Circle City.” At the age of 19 en route to Montreal (in a VW minibus) I had a nightmarish first encounter in Rhode Island (or maybe Massachusetts) with what was called a “rotary.” This was the Monument Circle with homicidal intent. A few decades passed before I drove (in Plainfield) my first Hoosier roundabout other than the Monument Circle. Today there are roundabouts near and far, but none that I prefer to the old-fashioned perpendicular intersection with only right angles and with unambiguous right of way.

The case on review concerns a roundabout in Kosciusko County and the legal issue of whether a motorist exiting the roundabout is bound by statute to signal a turn. See State v. Davis decided February 28, 2020 in the COA affirming the trial court’s suppression of evidence (drugs, paraphernalia, etc.) acquired when an officer stopped the vehicle of Clifton Davis for exiting a “three-spoke” roundabout without having utilized a turn signal. The trial court agreed with the defense that the turn signal statute asserted by the State (IC 9-21-8-5) is simply inapplicable to roundabout navigation. For instance, roundabouts typically offer less than 200 feet (the pre-turn distance for signaling a statutory turn) between exits. Moreover, passing through a roundabout to proceed on the same road and in the same direction as prior to entry may not entail a distinct “turn.”

The next question for the COA was whether the police officer’s mistake of law was “objectively reasonable” so as not to destroy his claim of reasonable suspicion for the traffic stop. The trial court had found that the State had failed to prove that the Officer’s mistake of law was objectively reasonable. Deferring to the trial court’s finding of fact, the COA agreed. The State will probably request Transfer. The SCOTSI should decline . . . Case Note by Dave Allen

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A (Lying) Lawyer on the Jury

Update: Transfer was requested and granted. On December 9, 2020 the SCOTSI affirmed the convictions below while dismissing the gross jury misconduct as harmless error.

The case is Loehrlein v. State decided February 21, 2020 in the COA. Clinton Loehrlein was found guilty by a jury of crimes including the murder of his wife and the attempted murders of his two daughters. He posed at trial a failed insanity defense. His appeal asserted error in the rejection of a jury instruction respecting the insanity defense and error in the denial of the defense motion to set aside the verdict by reason of juror misconduct. A divided (2/1) COA panel reversed on grounds of juror misconduct.

The trial court’s “jury questionnaire” asked the prospective jurors whether they, an immediate family member, or a close friend had ever been charged with or convicted of a crime. The next question was whether they, an immediate family member, or a close friend had ever been a witness or victim in a criminal matter. “L.W.” was a prospective juror who was also a lawyer, mostly but not exclusively on the civil side of the law. To each of the described questions she wrote “N/A,” which the COA took as a “No” response. The defense, which had reviewed the questionnaires with a jury consultant and was generally wary of lawyer jurors, did not challenge L.W. for cause or use a peremptory challenge to remove her.

The defense learned after the verdict that L.W. had lied on her questionnaire. She herself had been charged with domestic battery, though the charge was eventually dismissed. Moreover, L.W. claimed after the verdict to have been a victim of domestic violence on multiple occasions. The defendant’s trial counsel and the jury consultant testified that they would have disfavored L.W. as a juror but for the false answers on her juror questionnaire.

The COA majority Opinion mentions SCOTUS precedent (from a civil case) that juror deceit (intentional or not) in a questionnaire warrants a new trial only when the deceitful response is to a material question and then only when a correct response would have provided grounds for a challenge for cause. But Indiana SCOTSI authority seems to establish a different two-part test in such matters: (1) that there was gross juror misconduct that (2) probably harmed the defendant. Adopting the latter two-part test, the COA majority ordered a new trial.

A Petition for Transfer is guaranteed. A grant of Transfer is probable though not guaranteed. The CLB would like to see a disciplinary case against the lawyer who lied on her jury questionnaire . . . Case Note by Dave Allen

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The “Stolen” GPS Tracker

Say that I’m airing up a leaky tire on my vehicle and drop the valve cap such that its retrieval requires me to reach under the vehicle with my face within the wheel well. Then I see a foreign device attached to the vehicle in a spot normally out of sight. The device appears in the form of a plain, unmarked, black plastic box measuring around 4 inches by 6 inches.¹ I would surely remove the device for examination and/or destruction. Moreover, I would feel absolutely justified in the removal and in the examination and/or destruction of the device even if I presumed it to be the property of a law enforcement agency.

The case on review is Heuring v. State decided 5-0 in the SCOTSI on February 20, 2020. CJ Rush wrote for the Court in reversing the trial court’s (and COA’s) refusal to grant suppression of evidence on Fourth Amendment grounds and further on grounds of Article 1 Sec. 11 of the Indiana Constitution. It is delightful to witness the SCOTSI’s robust defense of the Exclusionary Rule.

As suggested in the opening paragraph, the search in Heuring commenced with the attachment of a GPS tracking device to the motor vehicle of Derek Heuring, a suspected drug dealer. The attachment (by a County Sheriff’s Dept.) of the tracking device was pursuant to a warrant that is not challenged in Heuring’s interlocutory appeal.²

The GPS device worked as expected for about a week and then stopped transmission of location data. After 10 days of no tracking input, “Officer Young” approached the vehicle (surreptitiously, I think) to retrieve the device in order to reset it into working mode. But the device was gone. Officers concluded that Heuring had stolen the tracker from his own vehicle and that it was stored in his home or in his father’s barn, both being locations frequented by Heuring and his vehicle. A magistrate received Affidavits and issued search warrants for both locations. While pretending to search for the missing GPS tracker, officers came across drugs, paraphernalia, and a handgun. Each search was stopped until the new evidence was utilized to obtain new warrants expressly authorizing a search for narcotics at each location. More drugs were found (along with the GPS tracker). Clearly, the last warrants were derivative of the preceding warrants authorizing search for the missing GPS tracker.

Heuring filed a pretrial motion to suppress challenging the validity of the search warrants issued after the GPS tracker went missing. The trial court denied the motion to suppress, and the COA affirmed by way of NFP decision on Heuring’s interlocutory appeal.

The primary dispute on appeal is whether the probable cause affidavits supporting the challenged search warrants show a “fair probability” that a crime has been committed. Here the crime alleged was theft of the missing GPS tracker. The affidavits avowing the absence of data transmission, a missing device, and not much else were held (by the SCOTSI) to be insufficient in showing the commission of theft. Perhaps the most satisfying and quotable sentence of the SCOTSI Opinion is this:

“To find a fair probability of unauthorized control [an element of theft] here, we would need to conclude that Hoosiers don’t have the authority to remove unknown, unmarked objects from their personal vehicles.” Slip Opinion p. 7

The secondary issue raised by the State is that the search warrants should be salvaged by the “good-faith exception” to the exclusionary rule. CJ Rush reviewed case law on the “good-faith exception” and Indiana’s statutory “good-faith exception” rule codified at IC 35-37-4-5. Under either standard the “good-faith exception” requires an affidavit (held insufficient on review) that was so nearly adequate as to merit the reasonable belief of law enforcement officers in its validity. Our unanimous SCOTSI held that the affidavits were so devoid of information linking the GPS device to a crime that any law enforcement reliance on the resulting warrants was objectively unreasonable . . . Case Note by Dave Allen

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¹ The Opinion to be reviewed recites evidence of the width and length of the box, but not its thickness.

² See United States v. Jones, 132 S.Ct. 945 (U.S. 2012) for the holding that the warrantless attachment of a GPS tracker to a motor vehicle may be a prohibited search.

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The Stigma of Repair

The case is Shield Global Partners v. Forster decided February 19, 2020 in the COA reversing a trial court’s denial of compensation for the “inherent diminished value” of a motor vehicle damaged in an accident and then repaired. The trial court characterized the alleged diminution-of-value damages as “stigma” damages and declared the same unavailable in Indiana. Here, the unanimous COA panel recognized the likelihood of diminished market value of a damaged but repaired vehicle as compared to an otherwise identical vehicle that had never been damaged.

Held: the plaintiff in a property damage claim may recover the cost of repairs and the residual loss of fair market value post-repair. This is good law . . . Case Note by Dave Allen

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When a Lease is Not a Lease

The case is Vic’s Antiques and Uniques, Inc. v. J. Elra Holdingz, LLC decided February 18, 2020 in the COA. The case was filed below as a small claims eviction proceeding. The result below was an order of eviction requiring Vic’s to vacate real estate titled in the name of J. Elra. “Landlord” J. Elra sued for eviction pursuant to a document titled “Lease Agreement” and describing: the parties as “Lessor” and “Lessee;” monthly payments as “rent;” and the real estate as “demised premises.”

Vic’s, as the alleged Lessee, argued that the “Lease Agreement” was in fact a Land Sale Contract as to which no remedy of eviction was available, at least not prior to foreclosure upon the vendee’s lien. Vic’s pointed to several provisions in the Agreement including: (a) an option to purchase for $1.00 at the end of 20 years of “rent” payment; (b) a provision that Vic’s pay the property taxes; (c) the similarity of rent to an amortized payment schedule; and (d) a provision for compensation to Vic’s in the event of a “taking” by the State.

The backstory of the “Lease Agreement” seems to involve an existing mortgage and an intent between the parties to make a land sale contract without triggering a due-on-sale clause within that mortgage. There had also been an effort by “Lessee” Vic’s below to present evidence of prior litigation between the parties resulting in a mediated resolution including the “Lease Agreement.” Since the trial court sustained J. Elra’s objection to Vic’s inquiry into the “context and background” of the “Lease Agreement,” the backstory clues exist in the record (and in the COA Opinion) in the form of Vic’s offer of proof to the trial court. The trial court seems to have concluded that the “Lease Agreement” was unambiguously a lease such that extrinsic (parol) evidence beyond the four corners of the document need not be considered. The COA panel likewise found a lack of ambiguity while reaching an opposite result. The CLB sees ambiguity in the “Lease Agreement” regarding its very nature and supports the consideration of parol evidence to resolve that ambiguity.

The unanimous COA panel (Judge Tavitas concurring) held that the “Lease Agreement” was “in operation and effect” a land sale contract. Since the case was not a possessory action between a landlord and a tenant and since the property to be recovered exceeded $6,000.00 in value, the panel held that the small claims court also lacked jurisdiction over the case under IC 33-29-2-4. It seems paradoxical (though not necessarily erroneous) that the COA panel required a dismissal in the trial court for the want of jurisdiction while still making holdings declaring Vic’s the winner should J. Elra re-file in a court of general jurisdiction. Don’t be surprised if there is a Petition to Transfer . . . Case Note by Dave Allen

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When the Father is not the Father

Pardon my revision of an old Yiddish joke (an operative definition of schlemiel, I think). So what do you call a moron with a pen in his hand? . . . You call him Father. The case under review is the February 7, 2020 COA decision from In RE the Support of J.O.. The unanimous COA panel reversed the trial court’s granting of “Father’s” motion to dismiss the action for child support after genetic testing (per court Order) proved that he was not the biological father.

The legal starting point for establishing paternity of a child born out of wedlock is IC 31-14-2-1, to-wit:

Exclusive methods of establishing paternity
Sec. 1. A man’s paternity may only be established:
(1) in an action under this article; or
(2) by executing a paternity affidavit in accordance with IC 16-37-2-2.1
[Pre-1997 Recodification Citation: 31-6-6.1-9(b) part.]
As added by P.L. 1-1997, SEC. 6.

The Indiana Code citation within the quoted section takes us to a very lengthy statutory section detailing the particulars of a paternity affidavit that a mother and the suspected father may sign (generally at a hospital) after the birth of a child born out of wedlock. The paternity affidavit requires many declarations including the mother’s sworn statement that the man in question is in fact the child’s biological father and the man’s statement of his belief that he is the biological father. Experience with mothers of children born out of wedlock (remember Maury Povich?) teaches that such mothers may lie about the identity of the biological father or speculate about the identity of the father when they have had multiple sexual partners.

In the case under review mother Abriel told Jonathan Michael Ortiz that he was the father. He was warm to the notion of fatherhood but less than certain of his biological paternity of the child. When he should have waited for DNA testing, Jonathan took the pen in hand and signed.

The paternity affidavit statute provides a temporary escape route to the man who signs too soon. Such an affiant is allotted 60 post-signature days to rescind his affidavit by filing a court action requesting an order for genetic testing. Then there is a narrow exception to the 60-day rescission limit but only when a court determines that the paternity affidavit (more than 60 days old when challenged in court) arose from “fraud duress, or material mistake of fact.” Some paternity courts have been generous in ordering genetic testing in cases involving a paternity affidavit. Then when the (putative) father is excluded there will be a finding of (at least) material mistake if fact. That seems to have been the practice of the St. Joseph Circuit Court when it accommodated the request for genetic testing and then allowed rescission of the paternity affidavit when the genetic testing excluded Jonathan. It does appear from the recital of trial court evidence that mother Abriel held a sincere but erroneous belief that Jonathan was the biological father of her child. Notably, the trial court made no finding of fraud or duress. Another notable circumstance (too often contributing to bad decisions) is that Jonathan filed no appellee’s brief in response to the State’s¹ appeal. The COA recited its policy (more the creature of appellate decision than the mandate of statute) that escape from a paternity affidavit aged more than 60 days when challenged should be allowed only in “extreme and rare circumstances.”

Here the COA seems to conclude that the “material mistake of fact” listed at IC 16-37-2-2.1(l)(1) must be mutual to provide any relief to the male affiant who is not the biological father. The CLB sees nothing in the statute suggesting a need of mutuality as to a material mistake of fact.² Nonetheless, the COA focused on Jonathan’s initial doubts of his paternity and the preliminary confirmation (within 60 days) of those doubts by way of a drug store test kit.

Another unwarranted conclusion of the COA is borrowing from post-divorce/in-wedlock cases where there is a different presumption of paternity in the husband (a/k/a res judicata). If a man divorces while acknowledging paternity of an in-wedlock child any subsequent effort to rescind paternity must be based upon “accidental” evidence.³ An example would be the diagnosis of a child with sickle cell anemia and the doctor’s summoning of the father for a blood test (for therapeutic purposes) that (surprisingly) excludes him as a biological parent. See Fairrow v. Fairrow, 559 N.E.2d 597 (Ind. 1990). There is no sufficient cause in reason or in law for the COA suggestion that the rule of “accidental” evidence applicable to post-divorce/in-wedlock cases is likewise applicable to out-of-wedlock cases governed by the cited statute.

Here there is no doubt that Jonathan is not the biological father. There is also no doubt that he is the father for all purposes legal and that he has no remedy in the COA. While the CLB is short on sympathy for men (like Jonathan) who sign too soon and attempt rescission too late, the CLB holds the COA decision to be erroneous. Given the absence of a participating appellee, there is no substantial chance of Transfer . . . Case Note by Dave Allen

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¹ The St. Joseph County Prosecutor filed the support action at mother’s request.

² You may compare/contrast to the contract defense of mutual mistake of fact that should have no bearing in the matter of rescission of a paternity affidavit.

³ A husband who doubts his paternity (of an in-wedlock child) while a divorce is pending can expect to prevail on a motion for genetic testing.

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2020 Transfer Bait

The COA case in question is City of Bloomington BZA v. UJ-Eighty Corporation decided January 30, 2020. Transfer to the Indiana Supreme Court seems likely (or at least appropriate) in that the COA (by 2/1 majority) declared a municipal zoning ordinance provision unconstitutional and did so in controversial fashion.

The context of the case involves the phenomenon of fraternity/sorority houses that are commonly found on privately owned land adjacent to or near college campuses. A fraternity house typically features multiple unrelated residents. Such housing is frequently a subject of zoning ordinances that tend to favor single family residences. The City of Bloomington created an “institutional zoning district” wherein appellee Landlord UJ-Eighty Corporation (“Landlord”) acquired a house in 2002. The local zoning ordinance permitted 26 uses within institutional zoning, including five residential uses, of which “fraternity/sorority house” was first on the list. The zoning ordinance definition (from 1995) of “fraternity/sorority house” was relatively easy to satisfy. Then in 2015 the Bloomington Common Council amended that definition to require for “fraternity/sorority house” qualification that all “students” dwelling there be IU enrollees and that the frat or sorority be recognized as such by Indiana University. Thereafter in August of 2016 Landlord leased the house to the TKE fraternity through May of 2019. No later than February of 2018 IU withdrew its recognition of the local TKE chapter, and Bloomington gave notice that TKE members could no longer reside on the premises. Though not discussed in the COA Opinion, it seems likely that the house remained available to fraternity members for institutional uses other than residency. The problem was that two members of the suspended TKE chapter continued to reside on the premises.¹ Bloomington cited Landlord which appealed to the BZA and lost at that level before appealing for judicial review. Landlord prevailed at the level of judicial review on the theory that the zoning ordinance provision defining “fraternity/sorority house” violated 14th Amendment Due Process and Article 4 Sec. 1² of the Indiana Constitution by way of an unconstitutional delegation of legislative power to Indiana University to decide what groups qualified as fraternities or sororities.

The COA majority declined to rule on the Article 4 Sec. 1 constitutional challenge in that it held the subject ordinance provision unconstitutional under the Due Process Clause of the 14th Amendment for its delegation of legislative authority to Indiana University. Notably, there was no constitutional claim of inverse condemnation from the municipality’s 2015 legislative action tightening the requirements for “fraternity/sorority house” qualifications. More notably, Landlord was the only party contesting the ordinance. The (former) TKE members who ignited the controversy by refusing to vacate were not parties to this litigation. Even more notably, there is no apparent discussion of Landlord’s standing to complain of IU’s withdrawal of the recognition of his TKE chapter tenant. The lease in question was not in the appellant/BZA’s appendix such that Landlord’s entitlement to enforce the lease post-suspension is not discernable. The City of Bloomington might well have been better off by citing the recalcitrant residents of the TKE house rather than targeting Landlord. Still, Landlord seems to have been subject to citation when his property was being used contrary to a presumptively constitutional zoning ordinance. While the CLB does not agree that there was unconstitutionality in the definition of “fraternity/sorority house” it is pleasant to see a property owner making a stand against municipal authority.

If a municipal zoning ordinance allows a barber shop or a tavern in a particular district doesn’t the barber or tavern keeper have to show licensing from a non-legislative third party? If the barber loses his license, can’t the municipality order the closing of the shop? It is not the least bit irrational or unfair that a zoning applicant’s status for a specific permitted use should depend upon the approval or licensing from a non-legislative third party. Such was the case with the suspended TKE chapter and Indiana University. The trial court was wrong. The COA majority was wrong.

Look for Transfer . . . Case Note by Dave Allen

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¹ The TKE Grand council also declared a closure of the Bloomington chapter until the fall semester of 2021.

² Article 4 of the Indiana Constitution establishes State Legislative authority in the General Assembly.

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A Refreshing SCOTSI Split on Stale Protective Order Evidence

The SCOTSI split was 3/2 in the January 31, 2020 reversal of the trial court’s extension or renewal of a protective order expiring after two years. Husband and Wife had a violent physical altercation during the divorce. Husband agreed to a two-year protective order. There were no children of the marriage. Husband (now ex-husband) moved 200 miles away. There was no contact with Wife though she imagined an attempt at “indirect” contact.

The COA affirmed the trial court’s extension of the Protective Order on stale evidence. See IC 34-26-5-13 for rule that a PO may not be denied solely because of lapse of time between the violence and the petition. The SCOTSI majority (per Slaughter, J.) emphasized that a PO petitioner must prove a credible, current threat in order to obtain a new PO or to extend an old one. Absent violence with a perpetual threat, the lapse of time makes a difference. The SCOTSI reversed on sufficiency (of evidence) grounds. There is no presumption from a PO that renewal or extension is appropriate. While the CLB favors the SCOTSI majority here, the dispute has legislative roots, to-wit: the requirement of proof of a credible, current threat against the inconsistent, illogical declaration that the mere passage of time (from a violent act) cannot warrant the denial of a PO Petition . . . Case Note by Dave Allen