Miranda Goes to School
The case is D.Z. v. State, decided February 22, 2018 in the COA and reversing a juvenile delinquency adjudication for the trial court’s admission, over objection, of incriminating statements made by an accused juvenile student to a school official without the benefit of a Miranda warning or parental consultation.
The offense was sex-themed graffiti in the boys’ room. Surveillance video of entries into the boys’ room helped Assistant Principal Dowler and cop/school employee Officer Flynn to identify D.Z. (Let’s call him “Doug.”) as their prime suspect.
Assistant Principal Dowler called “Doug” to his office for a “discussion.” Officer Flynn was not present, but Dowler’s office door was closed. Doug was not afforded a chance to speak with a parent. Doug was not advised of his right to remain silent or of any other rights. Dowler laid a hard accusation on Doug, who promptly confessed. Dowler announced a 5-day suspension and then left briefly to inform Officer Flynn. While Dowler was finally notifying Doug’s father, Officer Flynn entered Dowler’s office (where Doug remained) for an interview with Doug, all without Miranda rights or parental consultation. At the end of the interview Flynn advised Doug that he was being charged with a crime.
The facts of Doug’s case are strikingly similar to those of B.A. v. State,¹ decided March 29, 2017 in the COA. In B.A. there was an unsuccessful challenge to the trial court’s admission, over objection, of evidence of an interrogation in a school administrator’s office. The student was suspected of scrawling a bomb threat on the wall of a middle school boys’ room. While the interrogation was conducted mostly by the school administrator, multiple school police officers were in the room. No Miranda rights were given. No pre-interrogation parental consultation was offered. The student who confessed was first suspended (pending expulsion) and then arrested. The COA Opinion in B.A. was authored by Judge Brown, seen again in dissent to the reversal in D.Z. The CLB is happy to announce that the COA’s affirmance in B.A. was vacated on Transfer. The CLB looks forward to the SCOTSI decision.
As you know, Miranda warnings should be given prior to any “custodial² interrogation” by police or by persons with police-like powers. Parents, of course, needn’t Mirandize their miscreant children. Schools exercising in loco parentis authority or administrative authority over scholastic (rather than criminal) matters seem to have enjoyed an exemption from the Miranda obligations of police. But times change, and the line between police and school administration blurs.
In contrast to the facts of B.A., there was no police officer in the room when Doug was interrogated by Assistant Principal Dowler. Yet an officer was nearby and was alerted by Dowler after Doug’s confession. Notably, Officer Flynn continued the interrogation without benefit of Miranda advisements. The trial court suppressed Doug’s statements to Officer Flynn but not his statements to Dowler. The COA’s 1-1-1 decision reversed both the denial of suppression and the delinquency adjudication.
With the difference being the relative proximity of police officers to an interrogation conducted by a school administrator, it could be possible for the SCOTSI to hold for suppression of evidence in B.A. and against suppression in D.Z., assuming that Transfer is requested and granted…Case Note by Dave Allen.
¹I meant to draft a disapproving case law note on B.A. until I became distracted by the actual practice of law.
²There needn’t be an arrest for an interrogation to be “custodial.” If a reasonable person in similar circumstances would believe he is not free to leave, then an interrogation is custodial. An interrogation at the police station will more readily be deemed custodial than one at the schoolhouse.
“Sudden Heat” Explained (at last)
The case is Brantley v. State, decided February 16, 2018 in the SCOTSI. Billy Brantley’s conviction (by jury trial) of the voluntary manslaughter of his brother-in-law had been reversed in the COA over the issue of sudden heat, which is the factor distinguishing voluntary manslaughter from murder. Most often voluntary manslaughter is seen as a “lesser included” offense where murder is the lead charge. In Billy Brantley’s case, the Marion County Prosecutor rightly decided (on the evidence) against charging murder. The lead or sole charge against Brantley was voluntary manslaughter as defined at IC 35-42-1-3(a) and providing in relevant part that “a person who knowingly or intentionally…kills another human being…while acting under sudden heat commits voluntary manslaughter.” Sec. 3(b) of the same statute describes sudden heat as a mitigating factor (distinguishing voluntary manslaughter from murder) rather than as an element of the offense.
Brantley claimed self-defense and introduced evidence in support of that defense. The State purported to establish the mitigating factor of sudden heat by concession. Brantley even conceded to a jury instruction to that effect. While sudden heat seems to preclude rational deliberation, self-defense may be said to require it. Nonetheless, the SCOTSI held that the two theories are “not inherently inconsistent” so as to preclude (in a proper case) jury instructions on both.
Even though sudden heat is a mitigating factor as opposed to an element of the offense, there must be some evidence of it to support a jury instruction or conviction. The SCOTSI found “scant” evidence of record of sudden heat, and “scant” generally means sufficient…Case Note by Dave Allen.
Long Beach Dispute Settled?
In my case note from December of 2016 (“Long Walks on Long Beach”) I predicted (rightly) the grant of Transfer while predicting (wrongly) the adoption on Transfer of a more practical and more certain method of determining the Lake Michigan “Ordinary High Water Mark” or OHWM. The SCOTSI Opinion in Gunderson v. State was handed down February 13, 2018. The 4-0 SCOTSI (Slaughter, J. not participating) Opinion wades through a mind-numbing mix of state and federal authority. Held: the owners of land adjacent to the beach own only above the OHWM. The beach below the OHWM is owned by the State as a public trust, where the proletariat are free to romp and howl to the great annoyance of owners of the adjacent beach houses.
But where, exactly, is that defining OHWM? The SCOTSI agreed with the COA that the OHWM would be determined by the venerable but imprecise common law standard. The SCOTSI did not disclose how often the OHWM should be reset in this era of highly variable lake levels. The clear result of the Opinion is that owners of beach houses cannot claim a “private beach” to the water’s edge.
The next battleground in the war for beach access will likely be access. Beach house owners may seek to limit the public’s access to its public beach…Case Note by Dave Allen.
Dead Dog Venue?
The case is Bagsby v. Snedeker, decided February 9, 2018 in the COA. The Complaint of Kelly and Aaron Bagsby alleged that their neighbor, Riley Snedeker, shot and killed their dog in Warren County while all parties lived in Warren County.¹ The Bagsbys took their deceased dog to Tippecanoe County for a necropsy and then filed suit against Snedeker in Tippecanoe County. Snedeker moved to transfer venue to Warren County. The case reached the COA on the Bagsbys’ interlocutory appeal (as a matter of right) of the trial court’s order correcting the venue to Warren County. The COA affirmed.
All litigators know or should know that preferred venue counties are described in the 10 subsections of TR 75(A). When preferred venue lies in more than one county, there is no hierarchy among the subsections of TR 75(A). This means that the plaintiff (by the act of filing his complaint in a particular county) has the discretion to choose among counties of preferred venue. Venue is correct when filed in a county of preferred venue even when there are other counties of preferred venue viewed as more convenient by a defendant.
Here is the troublesome description of preferred venue from TR 75(A)(2):
(2) the county where…the chattels or some part thereof are regularly located or kept, if the complaint includes a claim for injuries thereto…
The dog, of course, was (tangible) personal property or “chattel.” According to the COA Opinion, the Bagsbys asserted TR 75(A)(2) preferred venue in Tippecanoe County due to the transfer there of the dog’s remains. A problem with TR 75(A)(2) and chattel-based venue is that chattels are portable so as to invite forum shopping. The solution in the COA is to hold (as it and the SCOTSI have previously done) that the SCOTSI rule does not mean what it says. It would be preferable for the SCOTSI to amend TR 75(A)(2) so that a reasonably careful reader could discern its meaning by the words alone…Case Note by Dave Allen.
¹Though the COA had a record including the Complaint, it did not explain any circumstance of the alleged shooting.
Attenuated Fruit, Anyone?
The case is Wright v. State, decided January 24, 2018 in the COA reversing child molestation convictions on grounds of the trial court’s admission (over objection) of Wright’s confession to police given on the third day following an unreasonable search and seizure.
David Wright lived in a basement apartment of a large home that had been “subdivided” into apartments. He shared a street number (220) with a family with children which occupied a main floor apartment. Upstairs from the main floor there was the owner’s apartment identified by a slightly different street number (220½). The owner supplied internet service to his tenants by way of an account identified with the owner’s street number.
Then came the F.B.I. with a federal search warrant from Washington, D.C. to search for child pornography on computers at street number 220½ (which was the address linked to the internet account for the whole building).
F.B.I. agent Robertson discovered the street number snafu only after arrival at the scene with a crew of armed federal and state officers. Note here the language in the Fourth Amendment and also in Article I Sec. 11 of the Indiana Constitution requiring a search warrant “particularly describing the place to be searched.” Though too stupid to do some simple reconnaissance before the staged raid, F.B.I. agent Robertson was smart enough to see that his search warrant was useless as to the “220” street number where Wright and the family with children lived. Rather than seek a parallel warrant (locally or in D.C.) for street number 220, Robertson improvised by rousting the occupants of number 220 (Wright and the family with children) and coercing their “consent” to his warrantless seizure of all their “electronic devices” in order to scan the same for child pornography.¹
A few days after the warrantless seizures agent Robertson returned to street number 220 to return the devices taken from the family but not the two computers taken from Wright. He agreed to discuss the matter in Robertson’s vehicle (probably not a conventional police vehicle). Wright was advised (at first) that he was not in custody and was free to go at any time. After being advised that evidence of child porn was found on a computer from his residence, he began confessing to acts of molestation (recorded on his computer) against two young children of the main floor family. Robertson halted the discussion at that point and contacted local police whom he obliged by arresting Wright and delivering him to the police station. There a local officer “Mirandized” Wright before taking his full confession.
As explained below in footnote 1 the trial court granted suppression of evidence from the seized computers. On the other hand, the trial court denied suppression of the confession that followed days later. The trial court seems to have concluded that the violation of the coerced warrantless seizure of computers was attenuated by time and/or Miranda rights such that the subsequent confession could be admitted in evidence under a federal exception to the exclusionary rule for derivative evidence. Such federal exceptions applying to derivative evidence (a/k/a “fruit of the poisonous tree”) related to an antecedent violation of search and seizure law include the mentioned attenuation as well as “independent source” and “inevitable discovery.”
But what about Article I Sec. 11 of the Indiana Constitution? Doesn’t it accommodate the federal exceptions to the exclusion of derivative evidence subsequent to a search and seizure violation by the State? The answer is a comforting NO. The COA reversed on Section 11 grounds and remanded for a new trial. Expect a Petition to Transfer from the AG on grounds that no SCOTSI decision has settled the relevant point of law…Case Note by Dave Allen.
¹The COA made no substantial analysis of the coercive seizure of electronic devices (two computers) from Wright. The trial court had granted that part of his suppression motion directed at incriminating evidence from the computer search. Since the State did not appeal that trial court ruling, it became the law of the case.
The “Send Button” Fail
The case is CRIT Corp. v. Wilkinson, decided January 23, 2018 in the COA. It involves a disgruntled client suing his lawyers over an undisclosed conflict of interest. Attorney Peter Trybula and his firm Barnes & Thornburg were defendants below and appellees in the COA after the client’s original and amended complaints against them were dismissed in the trial court.
Peoplelink, a “nationwide staffing solutions business” based in South Bend, was owned privately by the Wilkinson family until the 2011 sale of a controlling interest to CRIT. William Wilkinson stayed on for the next several years as President and CEO of Peoplelink. When William separated from Peoplelink and sold his interest in the company to CRIT, he was represented by attorney Trybula and Barnes & Thornburg. The separation of Wilkinson from Peoplelink included a non-compete agreement¹ to keep him out of the staffing business.
After the deal was done, Peoplelink (owned by CRIT) used Wilkinson’s lawyer Trybula and Barnes & Thornburg for legal services. But around seven months after his separation from Peoplelink and his non-compete agreement, William Wilkinson was looking to re-enter the staffing business by acquiring “JIT,” an Ohio-based staffing company located only 250 miles from Peoplelink’s South Bend headquarters. Moreover, Wilkinson was apparently still utilizing the services of attorney Trybula and Barnes & Thornburg.
The “send button” incident occurred July 1, 2016 when the new President/CEO of Peoplelink (after Wilkinson’s departure) received an email from attorney Trybula, who had intended the message for his old/current client William Wilkinson. The email pertained to Wilkinson’s prospective purchase of “JIT.” It seems that attorney Trybula soon realized his error and was disappointed with the lack of an “undo ” button for misdirected email while CRIT and the new management at Peoplelink were disappointed that one of their lawyers would abet Wilkinson in an apparent (albeit anticipatory) breach of the non-compete agreement.
CRIT and Peoplelink filed suit against Wilkinson² for “anticipatory breach” of the non-compete agreement and against Trybula and Barnes & Thornburg to express some old-fashioned outrage. The initial complaint against the lawyers alleged a breach of fiduciary duty arising from an alleged conflict of interest. That initial complaint was dismissed by the trial court. The (second) amended complaint alleged legal malpractice, fraud, and constructive fraud arising from the same conflict of interest. CRIT and Peoplelink seemed to believe that Indiana Rule of Professional Conduct 1.7³ was a benefit to their case…They were wrong. Their invocation of the (allegedly) violated Rule of Professional Conduct encouraged the trial court to dismiss on grounds of lack of subject matter jurisdiction per TR 12(B)(1) and failure to state a claim per TR 12(B)(6) in that lawyers may not be sued for a breach of fiduciary duty based solely on the breach of a Professional Conduct Rule. Rather, a suit against a lawyer for breach of fiduciary duty must have an “independent common law basis.” The (second) Amended Complaint alleging the same operative facts was likewise dismissed.
The COA affirmed both dismissals on appeal. According to the online Roll of Attorneys (visited January 23, 2018) attorney Trybula is still with Barnes & Thornburg and has “no disciplinary history.” It appears so far that Trybula and Barnes & Thornburg have escaped consequences for what appears to have been a blatant, undisclosed conflict of interest. In terms of the civil (as opposed to professional) liability, the CLB is forced to wonder whether CRIT and Peoplelink incurred any actual monetary damages from the apparent infidelity of counsel…Case Note by Dave Allen.
¹The geographic and durational bounds of the covenant against competition were not described in the COA Opinion.
²The claims against Wilkinson were dismissed by the trial court, but he remained (technically) a party on appeal.
³Professional conduct Rule 1.7 generally prohibits representation of one client when such representation will be “directly adverse” to another client.
Negative Child Support
The case is Marshall v. Marshall, decided January 18, 2018 in the COA. The matter appealed was (mostly) a post-decree child support modification with a curious result which the CLB will describe as “negative” child support.
Father and Mother are the divorced parents of two children in Father’s physical custody. Mother has parenting time determined by an agreement. The COA Opinion does not share Mother’s number of overnights for CSOW purposes, though the CLB speculates that the number exceeds 120 per year.
Mother was initially ordered to pay no support. On modification she was ordered to pay $52.00 per week. Then she petitioned to modify child support. The resulting order (subject of the appeal) required Father (the custodian) to pay child support of $58.00 per week to noncustodial Mother. We always knew that the Support Guidelines could be confounded by the combination of a huge disparity in income favoring the custodial parent and a high number of noncustodial overnights. Still, this is a rare result and possibly the first published appellate opinion approving (in principal) an obligation of child support to a noncustodial parent where the noncustodial parent was not, for instance, paying a substantial sum for child health insurance. See Grant v. Hager, 868 N.E.2d 801 (Ind. 2007) for the holding that a custodian could be ordered to pay support to the noncustodial parent but that such would constitute a Guidelines deviation requiring a judicial explanation.
A less remarkable oddity of the case is an appearance from amicus curiae (here the “Neighborhood Christian Legal Clinic”) in a family law case. Look for Transfer…Case Note by Dave Allen.
State Farm and “Moral Obliquity”
The case is Earl v. State Farm, decided January 16, 2018 in the COA. The case is a helpful reminder of the intrinsic evil of insurance companies (even the reputable ones). The title reference to “Moral Obliquity” comes from Opinion text quoting an assertion of the appellant (against State Farm) that seems understated on the recited circumstances.
Motorcyclist Jerry Earl was injured in a crash with a hit-and-run semi driver. He (prior to his death by unrelated causes) and wife Kimberly sued their insurer, State Farm, on their policy’s UM coverage, which featured limits of $250,000.00. In the course of that litigation the Earls propounded an interrogatory asking for information about their own coverage (and coverage limits) through State Farm. Though aware of a second State Farm umbrella policy with UM coverage of $2,000,000.00, State Farm disclosed only the motor vehicle policy and its UM coverage limited to $250,000.00.
The UM claim proceeded to a trial in which evidence of UM coverage limits of $250,000.00 was admitted over objection.¹ The jury awarded Jerry’s estate and Kimberly a combined sum of $250,000.00. A week later State Farm belatedly disclosed the additional $2,000,000.00 in UM coverage through the umbrella policy. Plaintiffs filed a motion to correct error but later withdrew it to pursue a separate action for fraud and bad faith. The separate action resulted in summary judgment for the defendants and the present appeal brought by Jerry’s estate and Kimberly.
In the separate action for fraud and bad faith State Farm had success below arguing that the new suit was an “impermissible collateral attack” on the judgment from the first suit and that relief was otherwise unavailable or waived. Remarkably, State Farm asserted that the plaintiffs could not “reasonably rely” on information from State Farm in the answer to the described interrogatory.²
The COA held the separate action for fraud and bad faith did not “overlap” with the prior UM contract claim, such that there would be no collateral estoppel. The COA further held that whether the plaintiffs reasonably relied on State Farm’s lies presented a question for the jury. Moreover, the COA held that the issue of fraud was likewise for the jury. The CLB agrees with the COA but expects a Transfer petition from State Farm…Case Note by Dave Allen.
¹State Farm appealed the UM judgment asserting prejudicial error in the admission of evidence of policy limits. The COA reversed at 3 N.E.3d 1009 (App. 2014), and the SCOTSI affirmed the trial court. State Farm v. Earl, 33 N.E.3d 337 (Ind. 2015) concluded that here was judicial discretion to admit evidence of policy limits in this contract (as opposed to tort) claim by policyholders against their insurer. Compare the general rule of keeping liability insurance and its limits a secret in tort litigation.
²It certainly is curious how the Earls seemingly failed to read their own umbrella policy but rather asked State Farm to disclose all UM coverage.
Escape from Home
The case is Keith v. State decided January 11, 2018 in the COA. On the sixth day of her 180-day home detention sentence Amber Keith was away from home (with permission) to be fitted with a GPS ankle bracelet. The home detention officer in charge of the fitting instructed Amber “to go directly home.” She did not go directly home, though she reached home eventually only to depart again without authorization. Amber was charged with a new offense, escape, contrary to IC 35-44.1-3-4(c). The COA case is Amber’s failed appeal of her conviction. Her theory on appeal was that she could not “escape” from her home in that her home was not a requisite “place of lawful detention.” The COA disagreed and held that a home is a place of lawful detention for an individual sentenced to home detention. Notably, Amber was charged with “escape” not for departing a place of detention but for failing to return after temporary leave.
It seems a shame that Amber’s attorneys did not object to the testimony of the home detention officer about the wondrous capabilities to GPS tracking to determine location. Whether or not there was a Daubert objection at trial, no such issue was raised on appeal. With a proper contemporaneous objection the State should have been required to lay a foundation of expert testimony prior to introducing GPS evidence. A probable majority of GPS tracking cases will arise as probation revocation actions and, accordingly, may not involve the full panoply of evidentiary protections afforded to someone (such as Amber) being tried for a new offense…Case Note by Dave Allen.
Delinquent in Absentia
The case is R.R. v. State, a juvenile delinquency case decided by split decision in the COA on January 11, 2018. At age 17 R.R. failed to appear in court for the “combined factfinding hearings” in his juvenile delinquency and probation violation cases. The court conducted the hearing in R.R.’s absence and found that he had committed the subject delinquent act and that he had violated his probation. Notably, the court deferred the dispositional hearing (akin to an adult sentencing) until R.R. was in custody.
The COA majority and the dissent agreed that a juvenile has a constitutional right to be present at a delinquency factfinding or probation revocation hearing. The majority concluded that a juvenile could waive that right by knowingly and intentionally failing to appear. The dissent accepted R.R.’s argument that his right to be present could not be waived by his choice to be absent but rather only in accord with the juvenile waiver of rights statute at IC 31-32-5-1. Under that statute there is no opportunity for waiver of a juvenile’s constitutional rights in the absence of the juvenile. The statute purports to set forth the only means for such a waiver.
If we compare juvenile procedure to adult criminal procedure, the factfinding hearing corresponds to a trial. An adult who fails to appear for his trial thereby waives his sixth Amendment right to be present and may be tried in absentia. Freeman v. Statute, 541 N.E.2d 533, 535 (Ind. 1989). There is no known Indiana statute purporting to control how an adult may waive his constitutional right to be present at his trial.
Here are some factors rendering R.R.’s case more troublesome than it should be. To begin, there is the old lame myth that juvenile delinquency cases are civil (as opposed to criminal) in nature. While accepting that misdescription of juvenile delinquency cases, the SCOTUS nonetheless recognized the liberty interests at stake and held that most constitutional rights applicable to criminal prosecutions (notably excepting the right to trial by jury) are applicable as well to a juvenile delinquency proceeding. In re Gault, 387 U.S. 1 (1967).
A second factor making R.R.’s case more troublesome is the insouciant General Assembly presuming (by its legislative authority) to declare first the waivability of constitutional rights of juveniles and second that it can prescribe an exclusive methodology of waiver. The incongruity of the General Assembly modifying constitutional rights by way of legislation seems to have been missed by the COA panel in the case of R.R.
The essence of the disagreement between the majority and the dissent resides in the “absurdity doctrine” as applied to IC 31-32-5-1 (the juvenile waiver statute) which expressly requires that an unemancipated juvenile voluntarily join in any waiver of rights sponsored by his attorney or parent. As written, the statute would allow a miscreant juvenile to game the system with strategic failures to appear. The COA majority declares that circumstance to be an absurdity which the legislature could not have intended, despite clear language to the contrary. In contrast, the dissent would not construe an unambiguous statute to relieve the juvenile justice system from legislative stupidity.
The CLB sides with the majority as to the result, but for a reason not embraced by the majority. In the view of the CLB the juvenile waiver statute is simply an incompetent expression from the General Assembly relating to the waiver of constitutional rights. That area of law is vested in the judiciary. Accordingly, the juvenile waiver statute should be ignored rather than construed. It would be helpful to have a clarifying SCOTSI decision on Transfer…Case Note by Dave Allen.