2017 Appellate Case Notes

Pirtle, Chain of Custody, and Ex-Girlfriends

The case is Dycus v. State, the successful appeal of a conviction for OWI/endangering decided December 29, 2017 in the COA. Monica Dycus stalked her former boyfriend, tailing his vehicle while he picked up a female friend and drove around Indianapolis. She drove dangerously and shouted at him whenever his vehicle stopped. Police arrived while Monica’s vehicle was stopped at an intersection, and she was yelling toward the vehicle in front of her while having one foot on the pavement and the other on her vehicle brake. The officer detained her and noticed an odor of marijuana from her breath. Monica admitted having smoked marijuana an hour earlier. The officer called Officer Winter, who is “certified” (by whom?) to conduct a drug recognition evaluation (DRE). Officer Winter requested and obtained Monica’s consent to submit to a DRE, a standardized 12-step procedure to determine drug impairment. The evaluation takes about 30 minutes. It is moderately invasive and quasi-medical. Officer Winter concluded that Monica was under the influence of marijuana.

Monica then consented to a hospital blood draw. The blood went from the hospital to the IMPD, to the Indiana State Department of Toxicology (ISDT), and then to a lab in Pennsylvania (NMS) for actual qualitative and quantitative testing. The sample was positive for THC in a concentration level regarded as evidence of impairment.¹

In the course of her jury trial Monica objected unsuccessfully to the admission of: the DRE, on grounds that she should have had a pre-consent Pirtle warning; and certain chain of custody forms and shipping documents for her blood samples, on grounds that their admission (without a personal knowledge sponsor) deprived her of her right of confrontation.

The COA provided a helpful review of Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) and Bullcoming v. New Mexico, 564 U.S. 647 (2011). This is somewhat ironic in that Dycus involved no hearsay as to lab testing.² Rather, Monica complained of the chain of custody documents admitted without the sponsorship of a personal knowledge witness.

Noted: Gaps in the chain of custody impact upon the weight of the evidence rather than admissibility. There is no denial of confrontation from the absence (at trial) of a witness who could presumably testify as to a gap in the chain of custody. But here the challenged exhibits seem to have been offered to fill in gaps in the chain of custody. The COA erred in affirming the trial court’s admission of the challenged chain of custody exhibits.

In Pirtle v. State, 323 N.E.2d 634 (Ind. 1975) the Indiana Supreme Court held that a person in police custody must first be advised of his right to the presence and advice of counsel prior to giving consent to a search. Though Pirtle should be the law everywhere, it is not. Pirtle has been held not to apply to: field sobriety testing; breath tests (for alcohol from a driver); blood tests (for alcohol from a driver); and buccal swab collection of a DNA sample. Here the COA holds Pirtle applicable to the 30-minute quasi-medical DRE. Accordingly, the DRE and consequential blood test results should have been excluded.

Dycus is a fair source of “testimonial v. nontestimonial” dicta as well as “harmless error” analysis. The State will surely request Transfer. If Transfer is accepted, there will be a risk of the undue constriction of the Pirtle doctrine…Case Note by Dave Allen.
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¹For purposes of impaired driving, Indiana has no “legal limit” (as with alcohol) for THC. Under IC 9-30-5-1(c) it is a violation to drive with any schedule I or II controlled substance (or metabolite) in one’s body, regardless of the concentration and whether or not there is impairment.
²The testing analyst testified at trial.


Dog Sniffs, Etc.

The case is Curry v. State, decided December 22, 2017 in the COA. Doran Curry unsuccessfully appealed his conviction for dealing heroin. In relevant part he asserted as error the trial court’s admission at trial (over objection) of the results of the warrantless search of his person. Curry was in the front passenger seat of a car rented by him and driven by a purported cousin. The vehicle was pulled over by a State Trooper after it was observed to be traveling at 63 mph in the “fast lane” of I-65 in a 70 mph zone. The Trooper’s apparent intent was to warn the driver of the danger of driving at that relatively low speed in the fast-moving inside lane.

The Trooper asked the driver to come to his vehicle while he checked her license (and checked for warrants). The Trooper re-approached the vehicle only after interrogating the driver about the reason for the trip. He then asked Curry in some detail about the purpose of the trip. When Curry could not answer, he “froze,” broke eye contact, and began breathing heavily. As the Trooper decided to call for backup, Trooper #2 arrived with his drug-sniffing dog, which promptly alerted during a sniff of the vehicle’s exterior. In the meantime Trooper #1 was awaiting warrant check information on Curry and the driver.

Curry was still in the passenger seat when told that the dog had alerted. He began shaking in a manner that Trooper #2 (the dog handler) saw as evidence of intended “fight or flight.” Trooper #2 “assisted” Curry out of the vehicle and announced that he would be searched for weapons due to the dog alert. Trooper #2 detected a “large hard object” that might be a gun; Curry ran as the Trooper tried to handcuff him. Trooper #1 intervened and tased Curry, who was found to have “a bag of dope in his crotch.” The entire incident took ten minutes.

Curry did not challenge the validity of the initial traffic stop. Curry did challenge the alleged delay in facilitating the dog sniff and the patdown search of his person.

The COA Opinion includes a helpful review of dog-sniff cases focusing on the delay (if any) following a valid traffic stop, the point being that reasonable suspicion is required to detain vehicle occupants beyond the time that it takes for the officer to write a ticket and check for warrants, etc. Here the COA accepted the State’s argument that the dog sniff did not prolong the traffic stop.

As for the search of Curry’s person, Trooper #2 called it a weapons search (ironically) warranted by the dog alert for drugs.¹  The COA scrapped Trooper #2’s description of the search and deemed it to be a custodial search incident to arrest. The foundational theory of the COA’s approach is that the dog alert (plus Curry’s nervous, suspicious demeanor) constituted probable cause not only to search the vehicle but to arrest Curry and to search him incident to such arrest.

The CLB is wary of the result in Curry v. State. There is a danger here in justifying an arrest (which hadn’t occurred to the Trooper) and a search incident to arrest on the basis of a dog alert and the Trooper’s subjective assessment of a nervous demeanor. Eventually, if not now, the SCOTSI will be obliged to grant Transfer on the issue of post-dog-alert protocol…Case Note by Dave Allen.
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¹See Rybolt v. State, 770 N.E.2d 935 (Ind.Ct.App. 2002) for authority (by analogy) that a dog sniff directed at drug detection is not evidence that an individual is armed and dangerous so as to warrant a weapons patdown.


Dog Bites, Etc.

The case is Martin v. Hayduk and Stafford, decided December 27, 2017 in the COA with a reversal and remand following the trial court’s summary judgment in favor of the two dog-bite defendants. Topics of the unanimous COA Opinion include: negligence per se for violation of local ordinances; the duty of care owed (under common law premises liability); fences; dangerous propensities; incurred risk relative to comparative fault; and obscured or obscure warning signs.

Colby Hayduk kept two dogs at his rural Brownsburg residence. Tiffany Stafford and her five dogs were visiting Hayduk on June 30, 2015. Hayduk utilized an “invisible” or electric fence to confine the dogs to his yard. All seven dogs wore electric collars and had been trained on the electric fence.

Plaintiff Michael Martin was a stranger who alleged an interest in buying a Volkswagen truck that was parked in Hayduk’s driveway, despite the absence of any “for sale” signage. Martin parked in the driveway and was walking toward the house when at least five dogs approached and attacked him. There were three “beware of dog” signs on the premises, though the one near the drive entrance was obscured by foliage, and all three were unobserved by Martin, according to him. There was some evidence that one or more of Stafford’s dogs had previously bitten a person.

Martin alleged negligence per se for the violation of local ordinances limiting a household’s number of dogs to four and prohibiting dogs “at large.” The COA’s reading of the ordinances produced the conclusion that the first ordinance pertained to public health and that the second was not violated when the dogs were confined to the premises by the electric fence.

Martin alleged genuine issues of material fact precluding summary judgment upon his theory of common law negligence. Martin claimed to be an invitee while the defendants deemed him a trespasser for purposes of the variable duty owed to others under the law of premises liability. The COA settled the question of duty by citing precedent that the duty owed in dog bite cases is reasonable care without regard to the status of the third party on your property.

Given the evidence of previous biting by one or more of Stafford’s dogs and the circumstance that the fence was “electric” rather than conventional, the COA held that summary judgment was precluded as to common law negligence. The defendants argued that the “beware of dog” signs compelled a conclusion that Martin “incurred the risk” of injury when he entered the property. Citing SCOTSI authority the COA held that incurred risk is an element of comparative fault which may add to the fault of the plaintiff but may not negate the duty owed by the defendant.

The CLB would add a couple of observations. The first is that a standardized duty of care (in dog bite cases) for all classes of third parties on your premises is insufficient in cases involving children or criminals. The second observation is that an “electric” fence is inherently inferior to a physical fence in that the former lacks that capacity of the latter to keep people out while keeping dogs within…Case Note by Dave Allen.


Splitting the Inventory Search From the Vehicle Impoundment

Too often I have considered the impound of a vehicle (stopped for traffic or criminal violations) and the inventory search as a single event for Fourth Amendment purposes. Sansbury v. State decided December 11, 2017 in the COA reminds me to consider the impound order and the inventory search as separate matters. Here IMPD officers stopped a Pontiac Aztek after it was seen to make a turn without any turn signal. The Aztek was stopped on the grounds of an apartment complex and came to rest on a road of the apartment complex at a distance of 1½ to 2 feet from the curb. Police determined that the driver, Richard Sansbury, had no valid driver’s license and that the registered owner was not present. Given these circumstances and the awkward position of the vehicle in a roadway, the police decided to impound the Aztek. Handguns in the vehicle were uncovered in the subsequent warrantless inventory search. Sansbury unsuccessfully challenged the search below at a suppression hearing and again at his (bench) trial. The case reached the COA by way of Sansbury’s appeal of his convictions for carrying a handgun without a license and for driving while suspended.

The COA found no fault in the police decision to impound the Aztek. That led to an examination of the related inventory search and the COA holding that the inventory search was flawed on Fourth Amendment grounds (deferring any analysis under Article 1 Sec. 11 of the Indiana Constitution).

The COA addressed the post-impoundment auto inventory search as a recognized exception to the warrant requirement. The IMPD (written) policy on impounding vehicles and conducting inventory searches was admitted into evidence below and described in the COA opinion. To be reasonable for Fourth Amendment purposes a warrantless inventory search must be conducted in accord with “standard police procedures.” Minor deviations from protocol may not invalidate the search. Major deviations may give rise to an inference of pretext.

Here the IMPD written policy called for an inventory of all property discovered during the search. Experience teaches us that police will find the drugs, weapons, or stolen goods and ignore all else in the vehicle. They do so because the ruse of an inventory search is nearly always a pretext to cover the actual search for evidence of a crime. The COA reversed the trial court on the suppression issue citing: the absence of a written inventory as required by IMPD policy; the absence on the tow slip of a description of all items of value; and the officers’ election to ignore “all property” in the vehicle other than that constituting evidence of a crime. The COA described the deviations in policy as “major.” While I like the COA’s Fourth Amendment reversal of the handgun conviction, I see a danger of vacation on Transfer. The SCOTSI may be unwilling to declare the inventory search to be invalid as a pretext.

The COA also reversed Stansbury’s DWS conviction. There was evidence at trial of a 90-day suspension of Stansbury’s license, ending a few months before his DWS arrest. There was no evidence in that record or otherwise of any post-suspension reinstatement of driving privileges. Remarkably, the COA viewed the described record (showing an end of the suspension) as evidence enough of Stansbury’s right to drive; and the COA allocated to the State the burden of proving the absence of reinstatement of Stansbury’s driving privileges. If there is a grant of Transfer, this latter part of the COA opinion is DOA in the SCOTSI…Case Note by Dave Allen.


Property or Not?

The topic is whether a financial expectancy encumbered with a condition or two is too speculative or remote to be included as property in the “marital pot” of a divorcing couple. The case is Harrison v. Harrison decided November 30, 2017 in the COA. See IC 31-9-2-28 for the definition of “property” as “all assets of either party or both parties;” and see IC 31-15-7-4(a) for the broad description of “property” for purposes of the “marital pot.”

In the case at bar Wife’s (rich) father established multiple irrevocable trusts (during the marriage) in favor of Wife and her four sisters. There were contingencies (not limited to survival) as to receipt of distributions or a remainder interest share. Though Wife had received $150,000.00 in distributions over the three years preceding Husband’s divorce petition, the trial court found her interest too speculative and remote to constitute an asset for the marital pot. By way of interlocutory appeal (permissive in this case) the COA affirmed the trial court. The COA reviewed on the deferential “abuse of discretion” standard.

Practice Tips. If Wife had lost on appeal, what would be her best backup strategy on remand to the trial court? Wife would want to cite IC 31-15-7-5(2)(B) (property acquired by inheritance or gift) to rebut the presumption of a 50/50 property division.

Having lost on appeal, what argument remains for Husband on remand to the trial court? Husband cannot share in the trusts established by his father-in-law. On the other hand, he could increase his percentage share of assets in the marital pot by citing IC 31-15-7-5(3) to the effect that the trusts (while not marital assets) enhance Wife’s “economic circumstances” so as to justify an uneven division of the marital pot in favor of Husband…Case Note by Dave Allen.


Excessive Fines & the Eighth Amendment

The subject case is State v. Timbs decided by the SCOTSI on November 2, 2017. There is a previous Appellate Case Note from the COA’s decision of October 20, 2016. The case involves the “excessive fines” clause of the Eighth Amendment in the context of the civil forfeiture of a drug dealer’s expensive motor vehicle which was used to transport heroin. The trial court held that the vehicle forfeiture would be excessive under the Eighth Amendment and also “grossly disproportional” to the offense; and the COA affirmed. While the CLB predicted Transfer from the COA’s 2/1 split decision, the basis of the SCOTSI reversal came as a surprise. Let me explain.

Congress shall make no law…” These first words from the First Amendment to the U.S. Constitution remind us how our Bill of Rights was intended (initially) to limit the federal government rather than the States. Today, however, most of the Bill of Rights has been held to be applicable to the States. How did this happen? Unbeknownst to anyone at the time the 1868 adoption of the Reconstruction Era Fourteenth Amendment created a mystical portal (embedded in its due process clause) through which parts of the Bill of Rights could be “incorporated” (into the due process clause) and thereby made applicable to the States. This selective incorporation jurisprudence began early in the last century and continues to the present, as evidenced by the splintered SCOTUS votes regarding Second Amendment incorporation in McDonald v. City of Chicago, 561 U.S. 742 (2010).

As for the Eighth Amendment, its incorporation into the due process clause of the Fourteenth Amendment may be incomplete, at least according to the SCOTSI.¹ Here is the text of the Eighth Amendment:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (emphasis added)

Now here is the text of the substantially similar Article 1 § 16 of the Indiana Constitution:

“Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense.” (emphasis added)

Here again is a description of the trial court’s finding from page 2 of the SCOTSI slip opinion:

“The amount of the forfeiture sought is excessive, and is grossly disproportional to the gravity of the Defendant’s offense.”

It is clear enough in the context of the ruling below that the trial court was referring to the Eighth Amendment “excessive fines” clause in its ruling. But what of the “grossly disproportional” finding? There is no “proportionality” clause in the Eighth Amendment, as opposed to Article 1 Section 16 of the Indiana Constitution. It would seem that the trial court couched its findings in part upon the “proportionality clause” of Section 16 though without any express citation to Section 16.

Oblivious to the hybrid legal foundation of the trial court ruling, the SCOTSI held against the incorporation of the Eighth Amendment “excessive fines” clause and thereby reversed with instructions to enter a judgment of forfeiture in favor of the State. Clearly, there is an argument (a very good argument) that the trial court’s denial of forfeiture was sustainable on grounds of disproportionality contrary to Article 1 Section 16 of the Indiana Constitution.

Through an uneven application of waiver doctrine plus a blind eye, the SCOTSI reached what bears resemblance to a result-driven decision. The SCOTSI acknowledged the State’s “choice [below and in the COA] not to wage the incorporation battle.” Such a choice normally amounts to a party’s waiver of the issue, but not here. Waiver notwithstanding, the SCOTSI ruled on the incorporation issue. On the other hand, no latitude was granted Mr. Timbs for having failed to argue applicability of the “excessive fines” clause from Article 1 Section 16 of the Indiana Constitution. The mentioned blind eye is the one with which the SCOTSI overlooked the trial court’s implicit reliance on the “proportionality” clause of Section 16.

The Timbs result unfortunately gives weight to the perception that the SCOTSI will dedicate the most effort and judicial capital to deprive a criminal of a victory that is seen as morally undeserved. There should have been SCOTSI recognition of the trial court’s “proportionality” clause basis for ruling and a deferential review on that point. Even if reversal was merited, it would have served fundamental fairness to remand for full consideration of the dispute under the Section 16 “excessive fines” clause.

Practice Tip: This case was a virtual trap. Lawyers with no obvious reason to make a redundant argument citing the Indiana Constitution (in addition to the U.S. Constitution) are finding that they erred in relying on COA precedent. Lawyers must always cite the Indiana Constitution (despite redundancy) when there is an applicable clause…Case Note by Dave Allen.
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¹The COA held as early as 2005 that the Eighth Amendment “excessive fines” clause was applicable to Indiana civil forfeiture. $100.00 v. State, 822 N.E.2d 1001, 1011 (Ind.Ct.App. 2005). In Timbs the SCOTSI looked at SCOTUS “incorporation” opinions, finding only dicta on the topic and declaring that dicta conflicting and offering “no clear direction” as to “incorporation” of the “excessive fines” clause.


“Constitutional Avoidance”

By one description or another all students of the law have read of that conservative doctrine of appellate jurisprudence favoring the deferral of constitutional issues when an appeal can be decided on other grounds. According to the doctrine a court of appellate jurisdiction should “avoid” not the Constitution but rather the practice of unnecessarily deciding constitutional questions.

Jean Baptiste v. State, 71 N.E.3d 406 (Ind.Ct.App. 2017) resulted in the COA’s reversal of a “resisting” conviction (following bench trial) on grounds of insufficient evidence and also (unnecessarily) for the denial of a jury trial to a misdemeanor defendant who demanded jury trial only after the jury demand deadline (for misdemeanor cases) set by Criminal Rule 22. The SCOTSI accepted Transfer but not for the purpose of deciding whether a procedural rule of the Indiana Supreme Court can trump a defendant’s exercise of a fundamental Sixth Amendment right. By (conveniently) concurring with the COA’s reversal for insufficient evidence, the SCOTSI rendered superfluous the COA’s jury trial holding. On October 3, 2017 the SCOTSI (per curiam) confirmed the vacation of that part of the COA decision reaching the constitutional issue. In essence, the SCOTSI decided not to decide…Case Note by Dave Allen.


Thakar on Transfer

On February 15, 2017 I posted a Featured Article discussing the COA’s Opinion from one day prior in State v. Thakar, 71 N.E.3d 27 (Ind.Ct.App. 2017). The COA had affirmed the trial court’s dismissal of the charge of “dissemination of matter harmful to minors” contrary to IC 35-49-3-3(a)(1). The SCOTSI subsequently vacated the COA decision by way of granting Transfer and, on October 2, 2017, reversed the trial court’s dismissal. Since the trial court and the COA had followed the precedent set in Salter v. State, 906 N.E.2d 212 (Ind.Ct.App. 2009), the SCOTSI expressly overruled Salter.

As in Thakar, Salter involved an adult man in Indiana transmitting a penis “selfie” to an out-of-state teen who was of the age of consent (16 years) under Indiana law but not under the law of her state of residence. The COA majority in Salter reasoned that there must be a common-sense exception to the “dissemination” statute for teens above the (Indiana) age of consent such that sending a dirty picture couldn’t be “harmful” to a minor (anyone under the age of 18) with whom consensual intercourse would be perfectly legal and during which she would likely see an actual penis. The SCOTSI rejected that premise of Salter as followed by the COA Opinion in Thakar.

One interesting aspect of the SCOTSI Opinion is the observation that a picture of an erect penis is not “patently offensive” (for obscenity purposes) as a matter of law. Rather, the offensive nature of such a photo must be proven beyond reasonable doubt by the State.

Another takeaway begs the question of whether a man (preferably a young man) with a 17-year-old girlfriend may legally transmit intimate photos of himself to her after the two have had legal consensual intercourse…Case Note by Dave Allen.


First Impression on Nuance of UM Coverage

The case is Indiana Insurance Guaranty Association v. Smith, decided September 25, 2017 in the COA. Most of us who own a motor vehicle carry uninsured motorist coverage to protect ourselves against that uninsured moron who crashes into you. In that case your UM coverage is there. But what if the other driver (the moron) had insurance at the time of the collision but then lost it due to a failure to cooperate with his insurer? Where would that leave you and your UM coverage?

Martin Torres (insured with ACCC Ins. Co.) allegedly was at fault for an accident with Carlos Smith, who carried UM coverage on his Affirmative Casualty Ins. Co. policy. Affirmative went into liquidation, and the Indiana Insurance Guaranty Association (IIGA) became its successor for purposes of the litigation initiated by Mr. Smith.

Prior to Smith filing suit ACCC, as insurer of Martin Torres, denied coverage due to the (alleged) lack of cooperation of the insured. So Smith’s suit was brought against Torres and Smith’s own UM insurer. As successor to the UM insurer, IIGA filed a motion to dismiss the UM claim arguing that ACCC’s denial of coverage did not render Torres uninsured under Indiana law or under Smith’s UM policy. The trial court denied the motion to dismiss, and IIGA appealed. The COA affirmed with one concurrence in the result.

The COA majority considered the statutory definition of “uninsured motorist vehicle” at IC 27-7-5-4(a) and concluded that the Torres vehicle fell within that definition once liability coverage was denied due to noncooperation. The concurring judge reached a similar conclusion by considering the policy language in Carlos Smith’s UM coverage clause. While the CLB likes the result here, it also predicts SCOTSI consideration on Transfer…Case Note by Dave Allen.


The COA Buys a Quadro Tracker

The initial Featured Article of the Calumet Law Blog was posted August 10, 2015 and told the cautionary tale of the Quadro Tracker, a scam device sold to numerous law enforcement departments and school districts in the 1990’s. The fraud enveloping the Quadro Tracker was obvious to anyone of average intelligence, average skepticism, and average willingness to question authority. Nonetheless, public agencies intoxicated with public funds purchased the Quadro Tracker.

The virtual equivalent of the Quadro Tracker was bought by the COA on September 20, 2017 in the case of Hope Source v. B.T., an interlocutory appeal of a trial court’s order for the conditional admissibility of “facilitated communication” from B.T., a severely autistic, nonverbal teen.

“Facilitated communication” in this context involves a keyboard and a “facilitator” holding or supporting the hand, wrist, elbow or arm of the impaired “witness” who then magically types cogent sentences despite a lack of training in spelling, writing, or keyboarding and despite the absence of any history of cogent communication without the “facilitator.”

The first con in “facilitated communication” is in persuading parents (and later, medical insurers) to pay for the training. The second con is in persuading those parents that their profoundly disabled child is actually communicating adult thoughts. Somewhere down the line there comes the consequential, collateral damage of a brazen con artist or sincere but duped parent offering “facilitated communication” as evidence in court.

A supreme irony (unmentioned by the COA) is that defendant Hope Source (being sued for the alleged mistreatment of B.T.) was both the provider of B.T.’s “facilitated communication” training and a proponent of declaring such communication inadmissible in judicial proceedings. Despite its hip-deep hypocrisy, Hope Source should have prevailed on that point.

There are at least two big questions in a case like the one at bar. The first is whether the “witness” is competent to testify. The second big question is who is communicating when the assisted typing involves two people. As for competence, it seems to the CLB that the diagnosis of “severely autistic” should constitute prima facie evidence of incompetence and (thereby) shift the burden of proof to proponents of the witness. Here the COA seems to dance around the issue of the competence or incompetence of a nonverbal, autistic witness.

The trial court by order established a protocol for evaluating competence and the question of a facilitator’s influence. For B.T. the facilitator would hold or support only “the shoulder of the shirt” on B.T.’s right side. If B.T. requires so little physical assistance to use a keyboard, then wouldn’t some inert strap or other device work as well? The COA affirmed the trial court’s protocol for allowing the human facilitator but limiting (ear plugs, etc.) that person’s ability to influence the result. While the testing protocol ordered by the trial court judge should produce evidence that “facilitated communication” is a total deception, experience teaches us that con artists are clever and resourceful. The ill-advised decision below and on appeal to grant the con artists a demonstration puts the trial court, and perhaps the whole state, just one persuasive con away from open floodgates allowing imaginary testimony to rule the outcome of serious litigation.

The CLB likens “facilitated communication” to the discredited practice of prepping a witness by hypnotic trance. See Strong v. State, 435 N.E.2d 969 (Ind. 1982) for the holding that evidence derived from a hypnotized witness is inherently unreliable and should be excluded as having no probative value. A similar rule should prevail as to “facilitated communication.” I hope for Transfer…Case Note by Dave Allen.


The Trust, the Widow, and the Elective Share

The title of the case on review is annoyingly long and awkward. I will shorten it to Sarkar v. Sarkar, decided September 20, 2017 in the COA.

It happens mostly when the old widowed patriarch marries a younger gold-digging shrew. Ere long the patriarch wishes he had not remarried. Of course, the old man didn’t consider a prenup to protect himself from a costly divorce or to safeguard the inheritance awaiting his adult children from the widow’s legal share. So the old man may get some too-little and too-late legal advice on how to sabotage his own probate estate to thereby disadvantage his wife while benefitting his children of the prior marriage.

The case at bar is a bit atypical in background. Two pathologists were married more than 50 years before husband died. Still, husband had children of a prior marriage and established and funded a Trust to benefit them to the detriment of his widow.

Husband used the tool (or ploy) of a revocable inter vivos trust favorable to his children to shrink the probate estate from which the widow could claim her intestate share (taking against the Will) when, as here, husband’s will was less than generous to her.

The helpful point of law addressed by the COA is that a trust settlor may not devise a means to defeat his spouse’s elective share in contemplation of his death. In other words, an invalid inter vivos trust, such as one that is testamentary in effect, will not withstand a widow’s election to take against the will. The question of whether a testator has established a trust in contemplation of death with the intent of depriving the widow of her statutory share is a fact-sensitive matter requiring remand…Case Note by Dave Allen.


Two Views of Probable Cause by Group

On September 7th and 8th, respectively, the SCOTSI and the COA each decided a search and seizure case involving what I will call probable cause by group or by location. The SCOTSI case is Thomas v. State. The COA case is K.C. & K.C. v. State. The SCOTSI case began with a report from a trusted confidential informant about illegal drug activity. The informant described a vehicle which police located. Police made a traffic stop when they observed a traffic infraction. Their drug-sniffing dog arrived soon and alerted near the driver’s door of the vehicle, which was then occupied by the driver and by Will Thomas. The occupants were directed to leave the vehicle while it was searched. No drugs were found in the vehicle, so suspicion naturally fell upon the occupants. The occupants were asked whether they would consent to a strip search in lieu of being held while a warrant was procured. The driver consented. Will Thomas refused consent to a strip search. He was taken to the police department and placed alone in a monitored interrogation room. Police entered and intervened when it was seen that Thomas removed something from a pocket and placed in his mouth. The object in question turned out to be a baggie of heroin. Ruling solely on Fourth Amendment grounds, the SCOTSI held that the detention and relocation to the police department interrogation room were justified by probable cause which may attach to all occupants of a vehicle in such a case.

In the COA it was an appeal in a juvenile delinquency case, K.C. & K.C. v. State. The COA affirmed the delinquency findings from below against twin brothers who resisted police officers in their Indianapolis (“Tech”) classroom. There was a complaint of the theft of a cell phone. No one had entered or left the classroom since the phone was last seen in the possession of its owner. It made sense to the police (and to me) to frisk everyone in the room until the phone was found. Then Ki. C. refused to be searched and began to resist and fight. His twin, Ke. C., joined in the fray. Ultimately they were both charged with delinquent acts involving the resisting as opposed to the theft of a cell phone. Appellate counsel for the brothers seems to have conceded the Fourth Amendment argument and instead asserted on appeal that the police conduct (searching everyone in a classroom without individual probable cause) was violative of the “reasonableness” standard of Article 1 Section 11 of the Indiana Constitution. The COA deflected the Section 11 challenge by focusing on the unsettled “new crimes” exception to the exclusionary rule. Here the resisting-related offenses were “new and distinct crimes” (as compared to the phone theft) independent (in the COA view) of any illegality in the pat-down searches…Case Note by Dave Allen.


An Invasive Roadside Search

The case is Porter v. State decided August 22, 2017 in the COA. Taccasia Porter was a passenger in a car that was pulled over on a “routine traffic stop” by IMPD Officer Tiffany Wren. Tiffany claimed to smell a strong odor of “raw” (as opposed to “burnt”) marijuana from the car. She summoned backup. Taccasia and the driver were ordered from the car. Tiffany performed an initial search on Taccasia (more than a weapons frisk) but found nothing. Tiffany searched the car and found nothing. Tiffany decided to conduct a more thorough search of Taccasia at the roadside. She: pulled Taccasia’s jeans away from her body; inserted her hand inside the jeans; felt something inside Taccasia’s underwear; inserted her hand inside the underwear in the “crotch area;” and retrieved one marijuana “blunt,” all without a warrant or evidence of exigent circumstances.

The COA considered the appeal of Taccasia’s conviction (for misdemeanor possession) after denial of her motion to suppress. In reversing that conviction, the COA held the roadside search to be violative of both the Fourth Amendment and Article 1 Section 11 of the Indiana Constitution. The Opinion includes instructive comparisons of other “underwear” searches…Case Note by Dave Allen.


Speedy Trial (Constitutionally Speaking)

The case is Johnson v. State decided August 18, 2017 in the COA. Rodrigues Lamar Johnson appealed his conviction of arson following a jury trial that commenced 52 months after his arrest. Johnson asserted on appeal the violation of his constitutional right to a speedy trial without mention of the equally familiar Criminal Rule 4(B) or (C). The constitutional right to a speedy trial resides in the 6th Amendment to the U.S. Constitution and in Article 1 Sec. 12 of the Indiana Constitution. Johnson asserted both, though it makes little difference when the analysis of a speedy trial issue is the same under the Indiana Constitution as under the 6th Amendment.¹ The seminal federal case is Barker v. Wingo, 407 U.S. 514 (1972), which (unsurprisingly) proclaims a “balancing test” to weigh the conduct of both the prosecution and the defendant. The four Barker factors are: the length of delay; the reason for delay; the defendant’s assertion of his speedy trial right; and prejudice to the defendant. A delay of more than a year is “presumptively prejudicial” and triggers the Barker analysis.

Rodrigues Lamar Johnson lost his appeal for having caused most of the delay below, failing to assert (below) his right to a speedy trial, and failing to demonstrate prejudice.

Practice Tip. Since the Barker analysis is triggered by a delay exceeding one year, it seems that the constitutional speedy trial argument should be included in any Criminal Rule 4(C) motion for discharge for delay (of a year or more)…Case Note by Dave Allen.
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¹By contrast, the Indiana Supreme Court has deliberately chosen an independent path for analysis of search and seizure under the Indiana Constitution.


Civil Forfeiture Fail

The CLB HATES civil forfeiture. The CLB celebrates those rare victories of individuals over a government bent on confiscation of private property. One of those cases is Bowman v. State, decided August 16, 2017 in the COA.

The scene was a “local shipping company” in Indianapolis where police are allowed to examine packages. Detective Thoria noticed two packages en route from Illinois to one individual in California. Both packages were also heavily taped and “paid for priority overnight.” The Detective conducted a dog sniff of the parcels. The (alleged) drug sniffing hound “alerted” on both parcels. Detective Thoria then obtained search warrants for both parcels. The warrants authorized a search within the parcels for drugs, records of drug trafficking, and “proceeds of drug trafficking.” No drugs were found. No records of drug trafficking were found. But there was cash in each parcel with a combined total exceeding $30,000.00. Naturally, police seized the cash and planned to turn that sum over to our federal friends who would then return a generous share to the locals who had seized it.

The parties in the civil forfeiture action below were the State versus the three men whose names appeared (as sender or recipient) on the two subject parcels. Counsel for the men argued unsuccessfully below but successfully in the COA that the cash had been unlawfully seized to the effect that it should be returned to his clients (who were not charged with any crime). The only cash mentioned in the warrants was “proceeds” of drug trafficking. The cash seized from the two parcels came without sufficient evidence of such an illicit source. A lawful seizure is required for the forfeiture. The warrants authorized seizure of “drug money” but not of currency in general.

Notably, there was no mention in the COA Opinion of the qualifications or reliability of the dog to establish probable cause for a search warrant.¹ The dog gave a drug alert; yet there were no drugs. Or were there? Opinion footnote 3 explains how the weight of a positive K-9 alert is diluted by the circumstance (taken as accepted fact) that most currency in circulation is contaminated with drug residue.

The AG shouldn’t request Transfer in this case but probably will, and the SCOTSI may well accept Transfer…Case Note by Dave Allen.
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¹See Florida v. Harris, 133 S.Ct. 1050 (U.S. 2013).


Parking Lot Assaults and Premises Liability

On August 15, 2017 the COA affirmed the trial court’s award of summary judgment to a pro wrestling promoter who presented an “event” in a County Fairgrounds building. The case is Jones v. Wilson. Around 11:00 p.m. event patron Crystal Jones exited the building to fetch “medication” from her car in the parking area. She claims that lighting was poor and security absent. She was attacked and injured by an unknown assailant. Crystal sued the Fairgrounds (with whom she settled) and the event promoter/temporary lessee of a Fairgrounds building. The key issue below and on appeal was whether the promoter owed a duty (of protection from assault) after the patron had left the building rented by the promoter. The promoter’s lawyers did well in producing (designated) evidence of the absence of any similar attack in recent decades. Without deciding whether the promoter owed any duty to Jones in the parking area, the COA held that he owed no duty to protect her from an unforeseeable attack…Case Note by Dave Allen.


Ownership Without Title

On August 11, 2017 the COA handed down an Opinion at the junction of zoning law and the land sale contract doctrine of Skendzel v. Marshall, 301 N.E.2d 641 (Ind. 1973). Skendzel proclaimed the equitable doctrine generally forbidding¹ the remedy of forfeiture (in favor of foreclosure) against a contract purchaser of land who defaults after having acquired “substantial equity” in the property. It is a fundamental feature of the conditional land sale contract that the vendor continues to hold “title” (at least record title) until the contract price is fully paid. But who is the “owner” of the property during the installment period?

The case of Metropolitan BZA v. Traders Point Association (decided 8/11/17 in the COA) arose in the context of a permit application to build a gas station before the imposition of a “moratorium” on new gas stations in the subject zoning classification. Ostensibly the application for an Improvement Location Permit (ILP) preceded the moratorium. Those who opposed the planned gas station hoped to alter that essential chronology by finding fault with the application sufficient for it to be deemed incomplete as of the moratorium date.

The principal attack on the permit application arose from the circumstances that the land was being purchased by contract and that the application listed as “owner” an agent of the contract vendee while record “title” remained with the contract vendor. That theory of attack lost in the BZA, won in the trial court, and lost (again) in the COA. The theory adopted by the COA is that a contract vendee in possession is, for all practical purposes, the property “owner.”

The most promising application of this Opinion lies outside of zoning law. I have seen many instances of contract sellers of land (mostly residences) being harassed by local code enforcement for the trash, weeds, or other code violations allowed by a contract purchaser. The local code enforcement pursues contract sellers on the theory that they are “owners” of the property and thereby liable for its condition. The subject COA Opinion provides a contract seller with a sound argument that he is not the “owner” regardless of his record title…Case Note by Dave Allen.
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¹Exceptions to the general rule include the case of an absconding vendee or one who jeopardizes the vendor’s interest.


ER 617 and a Place of Detention

See Fansler v. State decided August 3, 2017 in the COA. Police set up a drug sting at a local hotel. The dealer was lured there by promises of sex and a drug sale. After his arrest, he was interrogated inside the hotel room without the benefit of the electronic recording required (as a condition of admissibility) when there is a “custodial interrogation” of a suspect in a “place of detention” and there is a felony prosecution. Held: the hotel room was a “place of detention” for purposes of the recording requirement. Held: the “booking exception” to the recording requirement was inapplicable. Held: the error in admitting evidence of Fansler’s incriminating statements contrary to ER 617 was harmless in this case. It’s nice to know that there can be an ER 617 “place of detention” that is not a police department building or vehicle…Case Note by Dave Allen.


Bad Warrants, Good Faith, Thermal Imaging, and the Household “Grow Room”

A second Fourth Amendment Opinion (see K.G. v. State below for the other) from the COA on July 31, 2017 is McGrath v. State, another reversal. The Opinion features a nice review of the law of thermal imaging of a private place. The law became settled by the SCOTUS in Kyllo v. U.S., 553 U.S. 27 (2001) with the holding that thermal imaging of a home is presumptively unreasonable without a warrant. The holding means that thermal imaging was deemed to be a “search” in breach of a person’s reasonable expectation of privacy in his home.

We find cases of thermal imaging being authorized by an initial warrant and the scanning results being used to authorize a second warrant for a conventional physical search of the premises. The focus in McGrath is on the initial warrant. The investigation began following a tip from “Crimestoppers.” The tip was apparently anonymous but included enough detailed knowledge of the house and its inhabitants to suggest familiarity. Surveillance of the premises followed and resulted in the observation of suspiciously intense lighting from an upstairs window but no detectable odor of marijuana.

Suspecting a marijuana “grow room” in the house, police applied for a search warrant to employ an airborne thermal imaging system. The Affidavit cited the confirmed details of the anonymous tip and the officer’s observations of suspicious window air-conditioning and lights that appeared more intense in one room than elsewhere in the house. The warrant was issued, and the positive thermal imaging scan was used for a second warrant which resulted in the expected discovery of an indoor “marijuana grow operation.”

Brandon McGrath’s motion to suppress was denied. Seized evidence was admitted over objection at trial. McGrath appealed his conviction, which now stands reversed for want of probable cause for the initial Warrant for the thermal scan. The featured flaw was the lack of corroboration of hearsay from the unidentified tipster.

Judge Bradford of the COA dissented, citing the “good faith exception” to the exclusionary rule in light of an actual warrant and a probable cause affidavit sufficient for police to reasonably rely upon the validity of the resulting warrant. The CLB guarantees a Transfer Petition from the State (with or without a prior Petition for Rehearing). The odds strongly favor an acceptance of Transfer and review by the SCOTSI. You heard it here…Case Note by Dave Allen.


Splitting the Weapons Frisk from the Terry Stop

See the COA’s July 31, 2017 Opinion in K.G. v. State for an example of the distinction in justification for a Terry stop and the weapons frisk that so often accompanies a Terry stop. From another perspective the COA Opinion exemplifies the erosion of the familiar “officer safety” excuse for a weapons frisk of anyone an officer chooses to approach. The brief detention of a Terry stop is permissible when an officer has “a reasonable and articulable suspicion that criminal activity may be afoot.”

In the case at bar the COA was satisfied that the officer had reasonable suspicion to briefly detain a teen, possibly a runaway, who had been asking Kroger shoppers for the use of their cell phones. To employ a post-stop weapons frisk the officer needed “reason to believe” (per the “reasonably prudent man” standard) that he was dealing with an armed and dangerous individual or (stated otherwise) that his safety was in danger. Here the officer lacked a “particularized reasonable suspicion” that the teen posed a threat. The ammunition and firearm revealed by the weapons frisk should have been suppressed…Case Note by Dave Allen.


Lake County Government and The ADEA

The Seventh Circuit Court of Appeals issued its decision on July 26, 2017 in the case of Carson v. Lake County, Indiana, an ADEA case prosecuted by a group of former employees of the County. You might describe the plaintiffs as collateral damage to governmental incompetence. It’s possible that some (as government employees) contributed to that incompetence.

The background is that Lake County Government was having trouble living within its means. A fair number of its employees were 65 or older and drawing “full benefits” (part of the fiscal problem then and now). To reduce overall costs the County offered “retirement incentives” to those retirement-aged employees, offering some five years of health insurance (supplemental to Medicare) through insurer Aetna. Retirees who accepted the deal were permitted to return to work on a part-time, “at-will” basis.

One problem was that (apparently) no one had checked with Aetna about the re-hiring. It turns out that the “retirees” who took the Aetna insurance became ineligible upon re-hire.¹ The County’s solution was to discharge all the retired/re-hired employees covered by both Medicare and the Aetna Medicare Supplement. One disturbing aspect to the termination of these employees is that they were all 65 years old or older. There was enough semblance of age discrimination to fuel an ADEA (Age Discrimination in Employment Act) suit filed in U.S. District Court.²

According to the County there were four criteria for selecting the employees for termination, to-wit:

(1) they had retired from County service and were later rehired part-time; (2) they were age 65 or older; (3) they were receiving Medicare as their primary insurance; and (4) they were enrolled in the Aetna supplement.

Twenty-eight County employees met all four criteria and were terminated. Most County employees of retirement age met fewer than all four criteria and remained employed.

The District Court (Paul R. Cherry, Magistrate Judge) received cross-motions for summary judgment and denied the plaintiffs’ motion while granting the County’s motion. The Seventh Circuit affirmed, thereby saving Lake County a bundle.

Proving an ADEA claims is similar to but not exactly the same as proving a Title VII (of the 1964 Civil Rights Act) claim. The notable difference is that age must be the “but-for cause” of the adverse employment action in an ADEA case while Title VII protects against “mixed motive” discrimination. Despite this difference in the ADEA plaintiff’s burden of proof, the manner of proof is the same as in Title VII cases, including the burden-shifting framework from McDonnell Douglas v. Green, 411 U.S. 792 (1973). The Seventh Circuit held that the Carson plaintiffs failed to make a prima facie case as required to engage burden-shifting, despite the County’s mass termination of employees having a disproportionate impact on their protected age group.

The CLB is unaware of any Lake County official taking responsibility for the incompetence that preceded the firings in this matter. It is unlikely that any Lake County official has or ever will take responsibility, apologize, and accept consequences.

In ADEA cases attorney fees are generally recoverable by the victor. Will the County pursue its former employees for reimbursement? The County should but will not so long as it can charge the defense costs to the innocent you and the innocent me…Case Note by Dave Allen.
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¹The plan in question was of the “retiree-only” category and could not accommodate current employees.
²There is also concurrent state court jurisdiction in ADEA cases, though suing Lake County in a Lake County Court would constitute questionable strategy.


Truancy After Hours

The split decision of the COA in Jacobs v. State, 62 N.E.3d 1253 (Ind.Ct.App. 2016) was published November 7, 2016 and was reviewed in the CLB with two other Fourth Amendment cases from the COA’s November output. Jordan Jacobs was convicted below of misdemeanor possession of a handgun after losing the suppression fight. Then he lost again in the COA. On June 29, 2017 the four-justice SCOTSI (doing some housecleaning as it awaits a fifth member) reversed Jacobs’ conviction on grounds that the investigatory stop that led to his arrest was violative of the Fourth Amendment and Article 1 Section 11 of the Indiana Constitution.

On August 31, 2015 there were reports of young males donned in (gang color) red firing shots near an apartment complex and park in a “high crime” neighborhood of Indianapolis. Two days later around 2:00 p.m. Officer Smith spied on youths in the park from an unmarked car. He opined that some of those youths ought to have been in school. Some of the youths wore red. While he did not wear red, Jordan Jacobs had a red t-shirt slung over his shoulder for a time. The surveillance continued well beyond school hours. Jacobs was observed walking away when a “park ranger” approached in a marked vehicle. He was seen returning after the marked patrol vehicle had left. Officers Smith and Casavan had witnessed all the non-criminal behavior they could stomach and decided that Jacobs must be stopped. The two officers approached Jacobs, who was already walking away from marked police cars that had arrived. Jacobs ignored Officer Smith’s order to stop. When Officer Casavan joined in the order to stop, Jacobs complied. While handcuffed on the ground, Jacobs was assured by Officer Casavan that he was “not under arrest.” What Officer Casavan had was all the elements of an arrest (the forced detention, for example) except for a warrant or probable cause. The police doublespeak continued when Officer Smith claimed that he forced the encounter upon his own “reasonable belief” that Jacobs was a truant. Jacobs was 18 years old at the time. The officers failed to testify how old he appeared to be. I would wager that no young man in the park was spared from the “truancy” roundup by reason of an apparent age of 18 years or older. I would wager that the two officers had seldom or never before made a truancy detention without some evidence of criminal conduct. I would wager that no question was put to the handcuffed Jacobs about his age or school status. Smith’s rationale that the encounter was a truancy intervention is as genuine as Casavan’s assurance to Jacobs that he was not under arrest.

While Jacobs (still cuffed) was being herded to a central detention location, the outline of a handgun in his pocket was visible. There followed: the weapons charge; suppression denial; conviction by bench trial; a lost appeal to the COA; and (finally) the reversal by a four-member SCOTSI with Justice David concurring only in the result.

While it is commendable that the SCOTSI reversed over the suppression issue, the CLB is uncomfortable with the Opinion that would have approved the sham “truancy” intervention but for the time of day (after schools were closed). The Opinion could be read to give police officers carte blanche to temporarily detain anyone with a youthful face encountered during school hours. See IC 20-33-2-23 for the authority of law enforcement officers to take truants into custody (when found during school hours in a public place) for delivery to a school principal.

Apart from the unsettling language (holding or dicta?) opening the floodgates for school hours investigatory stops of every young person, the Opinion of Justice Massa provides some helpful clarification of other aspects of the law of investigatory stops. Held: Jacobs’ departure from the park when a marked patrol car appeared and his subsequent return (after the patrol car left) do not amount to reasonable suspicion of criminal activity.¹

Held: Jacobs’ temporary display of a red t-shirt among others wearing red may support an inference of “gang association” but does not constitute grounds for a Terry stop or arrest. To link Jacobs’ temporary display of a red shirt to the report of “shots fired” (by red-shirted youths) from two days prior would require “one inferential leap too far.”² Noted: that gang membership is not an offense…Case Note by Dave Allen.
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¹Footnote 1. to the Opinion rightly addresses the distinction between walking away from approaching police and outright flight. Absent cause for an arrest or Terry stop, a person may ignore the police by walking away. Running away, however, creates grounds for a stop.
²See the case note below from this May entitled “Decreasing Probability in Sequential Inferences” for the CLB’s concurrence.


A Transfer Wish is Granted

It was February 9, 2017 when the COA reversed the bestiality conviction of Andy Shinnock for a supposed deficit in the corpus delicti required for admissibility of his confession to police. The CLB disagreed, listed the evidence for a sufficient showing of corpus delicti, and finished the case note with these words:

“Andy Shinnock deserves prison for a very, very long while. Let’s hope that our new AG sees the merit in a Transfer Petition.”

The Transfer Petition was filed and granted, vacating the COA’s reversal of February 9, 2017. One nice point of law in the SCOTSI Opinion of June 27, 2017 in Shinnock v. State is that the corpus delicti required for admission of a confession is different and less onerous than the corpus delicti required to sustain a conviction. The SCOTSI also seems not to have considered a partial confession to the roommate as part of the corpus delicti evidence for admission of the full confession to police…Case Note by Dave Allen.


Deadly Asphalt

Prologue. This Featured Article began as an appellate case note but grew beyond the applicable albeit unofficial parameters of a case note. The article presents candid, condign criticism of the COA’s pronouncement of an unlikely and hitherto unknown “deadly weapon” that is neither deadly nor a weapon in law or in fact.

On June 23, 2017 the COA reminded us why there is an Indiana Supreme Court: to correct the mistakes, mischief, nonsense, and absurdities that flow too often from the COA. The case is Burgh v. State, decided June 23, 2017 in the COA. It was May of 2016 when Troy Burgh and his girlfriend had a physical altercation with a second woman (“victim”) in the parking lot of a CVS pharmacy. Burgh pulled the victim to the asphalt surface of the parking lot while the girlfriend slammed the victim’s head onto that surface multiple times, causing the victim to suffer a concussion.

At the least a concussion (bruising of the brain) is a bodily injury for purposes of elevating battery from a Class “B” Misdemeanor to Class “A.” A serious bodily injury would then enhance the Class “A” misdemeanor to a Level 5 Felony. See the Battery statute at IC 35-42-2-1 and the definition of “serious bodily injury” at IC 35-31.5-2-292, including unconsciousness and extreme pain. Rather than rely on the serious injury to reach felony status, the prosecution charged a Level 5 Felony as a battery committed with a “deadly weapon.” See the prohibition at IC 35-42-2-1(a)(2) and the definition of “deadly weapon” at IC 35-31.5-5-86, to wit:

IC 35-31.5-2-86
“Deadly weapon”
Sec. 86. (a) Except as provided in subsection (b), “deadly weapon” means the following:
(1) A loaded or unloaded firearm.
(2) A destructive device, weapon, device, taser (as defined in IC 35-47-8-3) or electronic stun weapon (as defined in IC 35-47-8-1), equipment, chemical substance or other material that in the manner it:
(A) is used;
(B) could ordinarily be used; or
(C) is intended to be used;
is readily capable of causing serious bodily injury.
(3) An animal (as defined in IC 35-46-3-3) that is:
(A) readily capable of causing serious bodily injury; and
(B) used in the commission or attempted commission of a crime.
(4) A biological disease, virus, or organism that is capable of causing serious bodily injury.
(b) The term does not include:
(1) a taser (as defined in IC 35-47-8-3);
(2) an electronic stun weapon (as defined in IC 35-47-8-1);
(3) a chemical designed to temporarily incapacitate a person; or
(4) another device designed to temporarily incapacitate a person;
if the device described in subdivisions (1) through (4) is used by a law enforcement officer who has been trained in the use of the device and who uses the device in accordance with the law enforcement officer’s training and while lawfully engaged in the execution of official duties.

Looking at the statutory definition of “deadly weapon,” it is not surprising to find that firearms are deadly weapons. The “catchall” portion of the definition is “other material…readily capable of causing serious bodily injury.” Some items, like scissors, may be a weapon one minute and not the next, depending on the intended use. Moreover, the “deadly” part of the definition does not require death, deadly intent, or even the slightest injury so long as the “other material” is “readily capable of causing serious bodily injury.”

In concluding that the asphalt parking lot surface was a “deadly weapon,” the COA was not above a deceptive citation to inapplicable precedent. The case cited is Majors v. State, 410 N.E.2d 1196, 1197 (Ind. 1980) wherein the SCOTSI held that a rock-like object (possibly a piece of asphalt paving) wielded in a threatening manner was a “deadly weapon” for purposes of robbery enhancement. In that case the object was actively wielded by the perpetrator, unlike the passive parking lot surface in Burgh v. State.

Beyond this error of commission the COA erred by way of the omission of at least two settled rules of statutory construction. The first such omitted rule is the general (civil or criminal) canon of construction known as ejusdem generis. When a list of words having specific and limited meaning is followed by words of more general meaning, those latter words will be construed as including only things like those designated in the preceding list. 609 Land, Inc. v. Metropolitan BZA of Marion County, 889 N.E.2d 305, 310 (Ind. 2008). This canon applied to the statutory definition of “deadly weapon” would require the construction that the “catchall” “other materials” prohibition be limited to items (like firearms or stun devices) that are active (opposed to passive) and that can be wielded by a man.

Apart from the omitted canon of ejusdem generis, the COA seems to have forgotten the fundamental rule of mandatory narrow construction of criminal statutes. See Meredith v. State, 906 N.E.2d 867, 872 (Ind. 2009). A benefit of narrow construction is the avoidance of unconstitutional vagueness, which occurs when criminal prohibitions are not clearly defined or when they invite arbitrary or discriminatory enforcement. Klein v. State, 689 N.E.2d 296, 299 (Ind. 1998).

In reading the statutory definition of “deadly weapon” one will not find reference to “asphalt parking lot surface.” So the question becomes whether an asphalt parking lot surface is included within a generalized category of the statute. Here that category is “other material…readily capable of causing serious bodily injury.” Whether an asphalt parking lot surface is within that generalized category is a matter of construction. When construction of a statutory definition becomes necessary due to generality or vagueness therein, we should consider both the totality of the statutory definition and the commonly understood meaning of the defined term. I consulted three dictionaries for the meaning of “weapon” and found in each source a reference to “instrument,” “device,” or “implement.” A “weapon” is commonly considered as something that may be wielded, operated, or triggered by a man. A weapon is active or reactive rather than passive and inert. Here is my analogy of the blacksmith’s shop. The hammer wielded with intent to harm is a weapon while the anvil is not, even when an innocent is caught between the hammer and the anvil.

To its credit, the COA conceded that “we commonly think of a weapon as a moveable object.” In holding to the contrary in Burgh v. State the COA was wrong, recklessly so. I assert it is reckless for the judiciary (in order to accommodate the prosecution) to declare an unbridled expansion of those things around us which carry criminal consequences previously unknown. The result in Burgh is unjust, not because Troy Burgh deserves a break, but because it tends to erode the freedom from criminal prosecution (or the freedom against being overcharged) of everyone else. Here’s hoping for a grant of Transfer and for a clear SCOTSI holding that corrects the error and chastises the COA.


An Unpredicted Transfer

In November of 2016 the CLB combined three “Recent Fourth Amendment Cases in the COA” for review. One was McNeal v. State, 62 N.E.3d 1275 (Ind.Ct.App. 2016) in which the COA held that the “community caretaking” exception to the warrant requirement (previously applied in Indiana to impounded motor vehicles) should be extended to allow the warrantless searching of distressed people. Mr. McNeal’s distress was that he was falling-down drunk. During a search of his person before medical transport, baggies of cocaine were found in a pants pocket. McNeal was convicted on a drug charge and appealed the trial court’s admission (over objection) of the fruits of the warrantless search.

On June 20, 2017 the SCOTSI handed down a Per Curiam Transfer decision affirming McNeal’s conviction while vacating that part of the COA Opinion declaring an expansion of the “community caretaking” function to allow the warrantless search of distressed people. The SCOTSI still approved the search as being incident to arrest for public intoxication.

McNeal’s (public defender) counsel scored something of a moral/legal victory on Transfer but without the least benefit to McNeal. It is unlikely that a fee-paying client of an attorney in private practice would ever put his own money into such a Transfer.

What is the future (in Indiana) of expansion of the “community caretaking” warrant exception? The Per Curiam SCOTSI decision could be taken as an exercise of judicial economy, deferring complex or novel resolutions when a simpler one is available. On the other hand, some may read the decision as a holding that the “community caretaking” warrant exception does not and shall not extend to searches of distressed people in Indiana…Case Note by Dave Allen.


Naegleria Fowleri

Naegleria Fowleri is an amoeba which is common in soil and in warm freshwater, more so in southern parts of the United States. If the amoeba reaches the olfactory nerve at the top of the nasal canal through the forceful entry of infected water into the nose, the result may be a fatal brain infection. Such was the case with Waylon Abel when he swam in a Southwest Indiana lake and became the first known victim of Naegleria Fowleri in the “recorded history of Indiana.” The case of Daviess-Martin County v. Estate of Abel was decided June 19, 2017 in the COA. The Estate sued a two-county Parks and Recreation Department and other government entities linked to the West Boggs Park and its 622-acre lake.

The trial court denied a motion for summary judgment filed by the two-county Parks and Recreation Department. This interlocutory appeal followed.

The COA was unanimous in holding that the two-county Parks Board and Health Departments were entitled to summary judgment; however, the COA was split 2/1 as to whether the defendants owed a duty to the decedent. The majority held that no duty was owed while the concurrence (in result) favored the recognition of a duty that was not breached.

The absence of foreseeability of harm weighed heavily in the COA holding against the existence of a duty to the decedent. But does this case prospectively modify the law by altering the factor of foreseeability? When the unforeseeable occurs, doesn’t it tend toward the rare but foreseeable?…Case Note by Dave Allen.


More on the Non-Physician Medical Expert

COA opinions of May 30, 2017 resulted in two appellate case notes on ER 702 qualifications of nurses, one of whom was a nurse practitioner. This note concerns the tender of “expert” opinion from chiropractors in the context of a medical malpractice action against another chiropractor. The case is Totton v. Bukofchan, decided June 14, 2017 in the COA.

Craig Totton pursued a malpractice claim against chiropractor Daniel Bukofchan for the (alleged) infliction of a cervical disc injury in the course of chiropractic treatment. The medical review panel consisted of three chiropractors who decided unanimously in favor of chiropractor Bukofchan on the standard issues of treatment meeting the applicable standard of care and of causation of Totton’s injuries.

Mr. Totton pursued his claim further by filing suit. The defense (per usual) moved for summary judgment and designated the review panel opinion as supporting evidence. Mr. Totton responded with the opinion of another chiropractor contradicting the medical review panel opinion. Totton’s “expert opinion” chiropractor offered his opinions that Bukofchan failed to meet the applicable standard of care and caused Totton’s injuries.

The trial court awarded summary judgment to the defense, essentially conferring expert status on the review panel of chiropractors but not to the one engaged by Totton. The COA held that all mentioned chiropractors could give opinion evidence as to the applicable standard of care and whether it was met. Moreover, a chiropractor may give opinion evidence as to the cause of an injury so long as the causation issue is “not complex.” The complexity of causation (of Totton’s injury) was determined herein by the COA upon written argument. Accordingly, no opinion from a chiropractor was competent to prove causation. Most remarkably, the COA carved out an exception (for a panel of chiropractors) to the general rule that the opinion of a medical review panel is admissible for summary judgment purposes as evidence of causation of harm.

Notably, IC 34-18-10-23 provides that the “report of the expert opinion reached by the medical review panel” is admissible in subsequent proceedings in a judicial action brought by the claimant. The COA found this statute to be at odds (in the case at bar) with ER 702. Following precedent, the COA held that ER 702 “prevails” over the statute. Because the medical review panel opinion was not admissible in court on the issue of causation, the defendant chiropractor failed to meet his initial burden (on that issue) to show with admissible evidence the absence of a genuine issue of material fact.

While the COA Opinion here was clear and rational, it would have been more helpful had it addressed the issue of a chiropractor’s opinion of a diagnosis…Case Note by Dave Allen.


The Cell Tower Heist

There are occasions when tax sale appeals can be positively entertaining. My favorite is City of Gary v. Belovich, 504 N.E.2d 286 (Ind.Ct.App 1987). The City of Gary acquired a parcel of land by deed but neglected for 15 years to record it. The City built a fire station on the parcel while real estate taxes accrued in light of the unrecorded deed (from private owners) to the City. There was a tax deed to the County Commissioners and then a Commissioner’s Deed to Joseph and Bernice Belovich, whose ownership withstood the City’s appeals.

I was reminded of Belovich by the COA’s June 12, 2017 opinion in Jenner v. Bloomington Cellular Services, Inc. Instead of buying a fire station, David and Vickie Jenner bought a cell tower (all 228 feet) and a parcel of land beneath it at a Monroe County tax sale. Unfortunately for David and Vickie, their tax deed was set aside for lack of statutory compliance. In a bizarre split (1/1/1) opinion the “holding” of the COA respecting notice to holders of an interest outside the chain of title is supported by only one judge. How’s that for legal clarity?

It seems that Bloomington Cellular became the owner of the real estate in 1988 and had its interest recorded. Then it merged with Westel without any change to ownership records. Then Westel leased “maintenance and operation” of the cell tower to Crown Castle and followed with a supplemental lease in the tax year 2000 that was recorded but not in the chain of title. Then Crown Castle sublet to T-Mobile, and the sublease agreement was recorded but not placed in the chain of title, which seems to have shown Bloomington Cellular as the (sole) owner.

Taxes went unpaid. There was a tax sale. The Jenners purchased the tax sale certificate and followed up with a title search that listed only Bloomington Cellular as an interest holder in the chain of title. Accordingly, the Jenners gave notice of the tax sale purchase to Bloomington Cellular and to no one else. There was apparently a sign at the property bearing the name of Crown Castle and contact information. The Jenners contacted Crown Castle after their tax sale purchase. Jenners and Crown Castle couldn’t reach an agreement for the release of Jenner’s claim (a/k/a cell tower ransom), and Crown Castle intervened in the tax sale proceedings. Since a tax deed had been issued, Crown Castle filed a TR 60(B) motion to set it aside as void.

Crown Castle’s better theory was that it had two recorded leases in evidence of its interest in the property. A problem was that those recorded leases did not appear in the chain of title and would thereby be missed in a typical title search. Crown Castle’s lesser argument was that signage on the property gave actual notice of its interests.

The trial court and the COA (by a “majority of one”) agreed that the Jenners failed to comply with IC 6-1.1-25-4.5 respecting notice prior to issuance of a tax deed. The Jenners were obligated to give notice to any holder of “a substantial property interest of public record,” not limited to such interests appearing in a chain of title.

Noting the difficulty of complying with the tax sale notice requirement, the COA aptly observed that “a tax-sale purchase is a gamble.” That seems to be the case now more than ever before. The COA dispensed with Crown Castle’s alternate argument that notice of its interest existed in signage on the property. Since the sign was not recorded or otherwise entered into public record, it was held to be of no consequence.

For the tax sale practitioner the question becomes what sort of title search is adequate to identify every holder of a substantial interest of public record. A criticism here of the COA holding is that the remedy of voiding the tax deed exceeded that harm of failing to notify a party to a lease. Perhaps the interest of Crown Castle per the recorded leases should have been protected while otherwise preserving the tax deed. An additional criticism is that this fractured, chaotic ruling which settles nothing should have been dispatched to the realm of NFP’s. Given the danger of the “majority of one” holding on notice being used as precedent, it would be a mercy for the SCOTSI to take Transfer…Case note by Dave Allen.


ITCA Notice of Claim and Legal Malpractice

The case is Mundia v. Drendall Law Office, P.C., decided May 31, 2017 in the COA. When a plaintiff’s lawyer misses a jurisdictional deadline and the client sues for malpractice, that erring lawyer may seek to defend, or to mitigate, by trashing the merits of the principal case. That is what happened here when attorney Stephen Drendall signed up a tort claim client at least a month and one-half prior to the deadline for serving a notice of tort claim on the prospective defendants. Then Mr. Drendall neglected to serve the notice. See IC 34-13-3-8.

Lucy Mundia’s estranged husband had been arrested and was in custody for invasion of privacy for violating a protective order. Lucy Mundia had obtained a protective order for herself and for her six-year-old daughter Shirley. The police report mentioned only the protective order in favor of the child. The Prosecutor’s office performed a superficial search under the husband’s (probably misspelled) name only and failed to perform a “protected person” search using the name of Lucy or daughter Shirley. The search produced no evidence of an active protective order, and the Prosecutor’s Office released the husband from jail. Within 72 hours the husband returned to Lucy’s house and killed Shirley while inflicting severe injuries on Lucy, who blamed the police and Prosecutor. Even if the police and Prosecutor had been less incompetent, the husband might have been released from jail on bond or otherwise after being charged. Against the police and Prosecutor Lucy bore the burdens of proving duty (to her), breach of duty, and proximate cause while overcoming the broad immunity afforded to Prosecutors and to police. See, for instance, IC 34-13-3-3(7) and (8).

Lucy’s narrow chance of prevailing was dashed when her attorney failed to serve a Notice of Tort Claim. His defense to Lucy’s malpractice suit was to admit his breach of duty while asserting that Lucy’s claim was doomed from the beginning. The trial court agreed and awarded summary judgment to attorney Drendall. Here is a cited rule:

“To establish causation and the extent of harm in a legal malpractice case the client must show that the outcome of the underlying litigation would have been more favorable but for the attorney’s negligence.”

The significant distinction is that the malpractice plaintiff’s burden as described is her burden at trial and not her burden in response to a summary judgment motion. Accordingly, the COA reversed and remanded…Case note by Dave Allen.


May 30, 2017 in the COA

As the SCOTSI takes a break (or at least a partial break awaiting restoration to its full complement of five Justices), the COA has the appellate opinion stage all to itself. May 30, 2017 was a big day for published opinions of interest or consequence. Here are some summaries and comments.

The “Expert” Nurse Practitioner

The case is Aillones v. Minton, an interlocutory appeal of an evidentiary ruling. After being rear-ended in an automobile accident, Charles Aillones was treated by a nurse practitioner for typical cervical/lumbar symptoms. The nurse was deposed. Objections were raised against opinion testimony as to causation of his patient’s condition. Aillones (by counsel) asked that the trial court qualify the nurse practitioner as an expert (for purposes of expert medical opinion testimony). The trial court declined, and this appeal followed.

Confirming dicta from prior opinions, the COA held that there is no per se rule (under ER 702) against a nurse practitioner being qualified as an expert. Caveat: there is probably still a different rule applicable to causation opinions in medical malpractice cases. Noted: a medical expert who is not a witness to an auto accident may not opine as to absolute causation of subsequently observed injuries but may testify that such injuries are consistent with injuries from an auto accident. Criticism: the COA failed to mention (in its historical review) the case of Swoaks v. State, 519 N.E.2d 149 (Ind. 1988) wherein the SCOTSI approved the testimony of a mere licensed practical nurse against a mere criminal defendant as to the cause of certain flesh wounds. Query: will the present ruling be applied generally to registered nurses who are not nurse practitioners?…Case note by Dave Allen.

The Not-So-Expert Registered Nurse

On the same day as Aillones (above) a separate COA panel (without mention of Aillones) reached an opposite conclusion in the matter of the contested ER 702 “expert” qualifications of a registered nurse (with a Master’s degree in molecular biology). The case was Duby v. Woolf. Myra Duby is the grandmother/Guardian of a young, autistic child born to a drug-abusing mother. In the course of the child’s medical attention, tests uncovered an elevated level of lead in the child’s blood. Myra sued her landlord for the child’s toxic exposure and asserted that lead paint/dust in her rented home caused the child’s autism.

As one might expect, the landlord obtained the expert opinion (of a neurologist) that the child’s autism was congenital and due to genetic factors and/or mother’s drug abuse while pregnant. The landlord designated this expert opinion in support of a motion for summary judgment. Myra attempted to rebut (and thereby avoid summary judgment) with the “expert” opinion of R.N. Boyd, who had experience in the field of lead poisoning. Nurse Boyd offered the opinion that lead toxicity causes autism but lacked the ability to explain the scientific basis of her opinion. The trial court excluded Nurse Boyd’s opinion and awarded summary judgment to the landlord. The COA affirmed.

The Duby Opinion is a useful source of law for the method of proof in a toxic exposure case. It should be noted that Duby was deemed to have waived her argument (on appeal) that the landlord should be denied summary judgment on her new alternate theory of breach of federal requirements for lead paint disclosure…Case note by Dave Allen.

The Illusory ROFR?

B&R Oil Company v. Stoler is a rare right-of-first-refusal case. The Stolers leased several parcels of land from B&R Oil. The parcels were used as gas stations. There was apparently a lease for each of the several locations, and each lease had a right of first refusal to purchase “the leased premises” in the event of a bona fide offer (to lessor) to purchase the “the leased premises.” In the midst of this contractual context there came “Empire” offering to buy (as a package deal) substantially all of B&R Oil’s assets, including the several parcels leased to the Stolers and about 16 other locations. B&R Oil submitted to the Stolers (for exercise of the right of refusal) this package offer ($80,000,000.00) rather than some pro-rated offer for each of Stoler’s several locations. The Stolers responded with a declaration of intent to exercise the ROFR on each of their several locations and requested from B&R the respective purchased prices and other terms (from Empire’s offer) as to those locations. B&R answered that it was a package deal: $80,000,000.00 for all its assets or nothing. The Stolers sued for breach of the ROFR when B&R refused to sell each leased location to the Stolers before the bulk sale to Empire. The Stolers won summary judgment as to the breach, and B&R took this interlocutory appeal.

The majority of the split COA panel agreed with the trial court that B&R’s interpretation ($80,000,000.00 or nothing) would nullify the Stolers’ right of first refusal. Under the Hamlin doctrine an owner may not circumvent or sabotage a contractual ROFR by presenting to the right-holder a third-party offer that includes another unrelated property…Case note by Dave Allen.

Domesticated No More

Sekerez v. Grund & Leavitt is a Lake County case of some procedural interest though it could be over-simplified as merely a (rare) TR 12(B)(8) dismissal (“same action pending in another state court of this State”). Darlene Sekerez, an Indiana resident, hired Chicago lawyers to represent her in an Indiana custody dispute with her former husband. The custody case was resolved with a negotiated settlement. Having paid $50,000.00 to her Chicago lawyers, Sekerez was told she owed an additional $62,439.00. She declined to pay. The attorney employment contract had an ADR/arbitration clause. The lawyers sued Sekerez in Illinois to establish their unpaid fees. She filed a “special appearance” and objected to personal jurisdiction. The Illinois court ordered the parties to arbitrate, and they did so in Indiana. The lawyers claimed their unpaid fees while Sekerez countered with claims for fraud and legal malpractice. The arbitrator ruled substantially in favor of the Chicago lawyers on their claim for fees and declared the counterclaims for fraud and malpractice to be nonarbitrable.

Back in the Illinois court, the lawyers moved to confirm the arbitration award and reduce it to judgment. Despite a continuing (personal) jurisdiction objection from Sekerez, the Illinois court entered judgment on the arbitration award.

Meanwhile, in Crown Point Darlene Sekerez, pro se, filed a Circuit Court motion to vacate the arbitration award pursuant to terms of the Indiana Uniform Arbitration Act and later added her “nonarbitrable” claims for fraud and legal malpractice. After the Chicago lawyers unsuccessfully moved to dismiss the Circuit Court case, they filed a new action in the Lake Superior Court to “domesticate” the Illinois judgment. Sekerez noted that the Circuit Court case contested the arbitration award upon which the Illinois judgment was based. Nonetheless, the Lake Superior Court “entered the Illinois judgment as a final judgment.” This appeal was from that Superior Court action. Remarkably, Ms. Sekerez proceeded pro se in the appeal and the Chicago lawyers filed no appellees’ brief.

The COA found that Sekerez met her burden of prima facie error and reversed the Superior Court judgment which was based on the Illinois judgment which, in turn, was based upon the arbitration award under challenge in the Circuit Court. In the view of the COA, the Chicago lawyers should have filed their domestication request as a counterclaim in the Circuit Court where a challenge to the predicate arbitration award was pending.

Comment: I found no mention in the COA Opinion of IC 34-54-11, the Uniform Enforcement of Foreign Judgments Act. This is the Act for the domestication of certain judgment of foreign states (as opposed to foreign countries). The holding in Sekerez supports the argument for a broad array of defenses to an action to domesticate a foreign judgment…Case note by Dave Allen.

“Man with a Gun” Revisited

It was May 9, 2017 when the departing SCOTSI Justice Robert Rucker wrote for a unanimous Court in Pinner v. State. The CLB case note came under the caption “Careless Carry” and expressed surprise at the SCOTSI’s willingness to follow federal precedent to hold that the mere possession of a handgun (as seen in a public place) is not sufficient evidence of criminal activity to justify an investigatory stop.

On May 30, 2017 the COA expressed its own surprise with Pinner by distinguishing it from a remarkably similar police encounter so as to approve the admission below of a handgun seized from the defendant. The newer case is Redfield v. State.

In the early morning hours of June 15, 2014 the Anderson Police Department received a report (as in Pinner) of a man with a gun in a public place. The tip included scant (but sufficient) descriptive details of the suspect. Officer Bailey arrived quickly to the “Birdhouse” bar and spotted outside a man, Deshawn Redfield, matching the description of the man with a gun. So far the relevant circumstances run parallel to those in Pinner.

As Redfield spoke with another man, Officer Bailey (then without backup) approached, speaking to and performing a weapons frisk on the non-suspect individual before announcing the report of a man with a gun. That was when, according to Officer Bailey, Redfield began to move away from Officer Bailey in a suspicious fashion as though Redfield was preparing to draw a weapon. Up to that point there was no investigatory stop. In other words, Redfield was entitled to move away when he began to do so. Then came the predictable sequence of: Officer Bailey ordering Redfield to halt; Redfield ignoring the order and continuing to walk away; Officer Bailey tasing Redfield (twice); and Officer Bailey recovering a handgun and drugs from Redfield. Naturally, Redfield had a felony record and (necessarily) no carry permit. The handgun and drugs recovered from Redfield were admitted at trial, and Redfield was convicted on multiple counts.

The best part of the COA affirmance is the helpful reminder that determinations of reasonable suspicion and probable cause are reviewed de novo while “findings of historical fact” are reviewed only for clear error. These standards apply equally to Fourth Amendment challenges and to those under Article 1 Section 11 of the Indiana Constitution.

The worst part of the COA affirmance is everything else. The COA seems to reason that by moving away from an ostensibly consensual encounter with Officer Bailey, Redfield thereby conferred upon this nervous lone Officer legal grounds for an investigatory stop. The distinctions between Redfield and Pinner are paper thin. If the post-Rucker SCOTSI is serious about the holding in Pinner, it should take Redfield on Transfer to disapprove the investigatory stop and the admission below of the recovered handgun and drugs…Case note by Dave Allen.

Long Beach Update

From the trove of case law handed down on May 30, 2017 the least significant may be Osborne v. Town of Long Beach, the unsuccessful appeal of beach front lot owners against the denial of Town permission to build “sea walls” to prevent further lake erosion of their septic fields. The suit below (by plaintiff owners) was filed as an action for declaratory and injunctive relief rather than for judicial review. The COA agreed with the Town that owners had failed to exhaust administrative remedies and that the trial court thereby lacked subject matter jurisdiction.

The interesting part of the case is that Gunderson v. State (decided 12/7/2016 in the COA) is now facing vacation by way of Transfer to the SCOTSI, all as predicted by the CLB case note captioned “Long Walks on Long Beach.” Given the unsettled state of affairs, determination of an owner’s lake-side lot line is an impossibility, raising the question of whether the proposed sea walls were intended for public or private property…Case note by Dave Allen.


The Not-So-Expert Registered Nurse

On the same day as Aillones (above) a separate COA panel (without mention of Aillones) reached an opposite conclusion in the matter of the contested ER 702 “expert” qualifications of a registered nurse (with a Master’s degree in molecular biology). The case was Duby v. Woolf. Myra Duby is the grandmother/Guardian of a young, autistic child born to a drug-abusing mother. In the course of the child’s medical attention, tests uncovered an elevated level of lead in the child’s blood. Myra sued her landlord for the child’s toxic exposure and asserted that lead paint/dust in her rented home caused the child’s autism.

As one might expect, the landlord obtained the expert opinion (of a neurologist) that the child’s autism was congenital and due to genetic factors and/or mother’s drug abuse while pregnant. The landlord designated this expert opinion in support of a motion for summary judgment. Myra attempted to rebut (and thereby avoid summary judgment) with the “expert” opinion of R.N. Boyd, who had experience in the field of lead poisoning. Nurse Boyd offered the opinion that lead toxicity causes autism but lacked the ability to explain the scientific basis of her opinion. The trial court excluded Nurse Boyd’s opinion and awarded summary judgment to the landlord. The COA affirmed.

The Duby Opinion is a useful source of law for the method of proof in a toxic exposure case. It should be noted that Duby was deemed to have waived her argument (on appeal) that the landlord should be denied summary judgment on her new alternate theory of breach of federal requirements for lead paint disclosure…Case note by Dave Allen.


Decreasing Probability in Sequential Inferences

You might say that the COA’s partial reversal of May 11, 2017 in Perry v. State has more to do with wife beating than with the chosen title of this note. Still, the nuances of evidence review in this “sufficiency” case are more informative than the disconcerting details of domestic battery. Hence this note is about evidence and inference in the context of a prosecution for domestic battery and a present but recanting victim.¹

A nice reminder from Perry is that the trial court standard of “proof beyond a reasonable doubt” extends to every element of the offense, as required by the Due Process Clause of the Fourteenth Amendment. Is there a parallel requirement of proof beyond reasonable doubt in the Indiana Constitution?²

The trial court standard of proof beyond reasonable doubt is diminished on appellate review where the tribunal will neither reweigh the evidence nor assess the credibility of witnesses. Where evidence conflicts, the appellate tribunal will consider only that evidence most favorable to the jury’s verdict.

More bad news for defendants is that a conviction may rest solely on circumstantial evidence which need not counter every reasonable hypothesis of innocence. The COA panel in Perry turns to Black’s Law Dictionary for the definition of “circumstantial evidence” as that based on inference as opposed to personal knowledge or observation.

To its substantial credit the COA panel in Perry made the observation (based in reason and arithmetic) that “the probability of a given inference being accurate decreases with each [sequential] inferential building block.” Accordingly, there is an under-appreciated exception to the rule of sufficiency of circumstantial evidence. The exception is that a conviction cannot be sustained when the proof of an essential element of the offense is an inference based solely upon another inference.³ Here is an example of sequential inference. John has a red convertible in a town where there are very few red convertibles. A red convertible was observed near an arson fire. One might infer that the red convertible was John’s. The sequential inference that John drove his red convertible to the crime scene would be less probable and less reliable.

You will also find in Perry a useful review of the venue requirement. While venue is not an element of the offense, it must still be proved by a preponderance standard…Case note by Dave Allen.
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¹Anyone whose life or practice is touched by domestic violence should know the doctrine of Crawford v. Washington, 541 U.S. 36 (2004) respecting limits to a defendant’s confrontation rights when a complaining witness is absent from trial after having made “nontestimonial” excited utterances near the time of the offense. Young v. State, 980 N.E.2d 412 (Ind.Ct.App. 2012) is a fair example of the Crawford doctrine.
²See the statutory standard of proof beyond reasonable doubt at IC 35-41-4-1(a) for criminal cases and IC 31-37-14-1 for juvenile delinquency adjudications.
³Poor editing of a source quote makes for a disappointing description in Perry of the sequential inference exception. A far better description is found at Landress v. State, 600 N.E.2d 938, 942 (Ind. 1992).


Careless Carry

The case is Pinner v. State, an interlocutory appeal of the trial court’s denial of Thomas Pinner’s motion to suppress evidence of the handgun found in his waistband when he was confronted by police. On May 9, 2017 the SCOTSI handed down its unanimous reversal. The SCOTSI reversed on Fourth Amendment grounds and declined to make a parallel analysis under Article 1 Section 11 of the Indiana Constitution.

An Indianapolis cab driver reported to police that a black male wearing a blue jacket and in the company of a blonde black woman dropped a handgun, thereby causing the cabbie to fear a robbery which did not follow. Police reported to the Studio Movie Grill where Thomas Pinner was seen seated on a bench with a wall behind him. Thomas was black, wearing a blue jacket, in the company of a blonde black woman, and in the establishment named by the alarmed cabbie.

Two police officers approached, and one announced the report of a handgun possessed by a man of Pinner’s description. Pinner denied having a handgun while fidgeting in a typically nervous manner. When he obeyed a police directive to stand up (with hands raised), the handgun in his waistband was visible. You know that Mr. Pinner lacked a carry permit. Otherwise, there would be no case. In defense of the weapons charges that followed, Mr. Pinner filed a motion to suppress the evidence from the described police encounter.

While the CLB supports the right of (legal) concealed carry, a concurrent obligation of the carrier is to keep the gun concealed. Flashing a deadly weapon in public is dangerous, rude, anti-social behavior that should be condemned. When someone drops his handgun in a cab and then enters a public establishment, what should the police do? According to the SCOTSI, the police did exactly the right thing for public safety purposes but still violated the Fourth Amendment rights of Mr. Pinner.

The SCOTSI reasonably decided that the encounter began as or became an investigatory stop (a/k/a “stop & frisk”) as opposed to a consensual encounter. The investigatory stop (a seizure) required a predicate of specific, articulable facts supporting a “reasonable suspicion” that the subject was (or was about to be) engaged in criminal activity. Here the deficit in the “reasonable suspicion” recipe was the handgun itself. Held: that possession of a handgun (as seen in a public place) is not sufficient evidence of criminal activity to justify an investigative stop. While based upon federal precedent, this holding by our SCOTSI was unexpected.

An afterthought is that the SCOTSI recognized here that reasonable police behavior may still violate Fourth Amendment protections in such a way that the “good faith exception” to the exclusionary rule is unavailable…Case note by Dave Allen


Indisputable Contradiction: Still Another Transfer Prediction Fulfilled

The case is Love v. State decided May 11, 2017 in the SCOTSI. The case involved: a motorist stopped by police after a pursuit; allegations of post-stop resisting; and a police car dash cam video that seemed to contradict some critical police testimony at trial. The COA panel majority reversed on sufficiency grounds. See the CLB Featured Article of September 12, 2016.

The CLB predicted Transfer for the SCOTSI to announce a rule for the appellate review of video evidence (admitted at trial) that may be at odds with other evidence supporting a conviction. The announced rule is that video evidence will be reviewed on appeal like any other evidence (meaning that it will not be reweighed) unless the video “indisputably contradicts the trial court’s findings.” The “indisputable” standard is met only when no reasonable person can view the video and come to a different conclusion.

While the COA majority had applied virtually the same standard of appellate review in order to reverse Royce Love’s conviction, the SCOTSI reached the opposite conclusion and affirmed the conviction below. The SCOTSI clearly rejected (as had the COA) the notion that video evidence may be reviewed de novo…Case note by Dave Allen


Another Transfer Prediction Fulfilled

The case of Zanders v. State decided in the SCOTSI on May 4, 2017 was previously reviewed in the CLB at the COA level. The CLB review of the COA’s August 4, 2016 2/1 decision was titled “Transfer Bait from the COA.” Transfer was predicted, and Transfer was granted. It came as no shock to the CLB that the SCOTSI disagreed with the COA panel majority respecting cell phone privacy and the warrant requirement. The COA majority reversed Marcus Zanders’ robbery and weapons convictions due (in part) to the warrantless acquisition by police of “CSLI” or cell-site location information which placed Zanders in the vicinity of two liquor stores soon after they were robbed. That evidence was used to obtain a search warrant leading to other evidence that was more directly incriminating.

As explained in Chief Justice Rush’s majority opinion, there are multiple versions of cell phone tracking. The version used by police in the Zanders investigation is described as network-based, historical, active CSLI, and the SCOTSI holding is limited to that tracking format. Cell phone tracking may also be “real time” (as opposed to historical), passive (as opposed to active), hand set based (involving GPS data), or network-based enhanced by pinging or triangulation. CJ Rush deferred “to another day” the evaluation of such alternate forms of cell phone tracking.

Zanders appealed on grounds including the admission below of the cell phone location evidence over his Fourth Amendment objection and corresponding objection based on Article 1 Section 11 of the Indiana Constitution. The Fourth Amendment challenge was decided 5/0 against Zanders. Under the “third party doctrine” one has no reasonable expectation of privacy (for Fourth Amendment purposes) in information that is already in the hands of a third party (here Sprint).

In partial dissent Justices David and Rucker adopted the position that the warrantless acquisition of historical CSLI data was not shown to be reasonable under Article 1 Section 11 of the Indiana Constitution. Note the three factors balanced in a Section 11 analysis. Here the SCOTSI majority and the dissenters declined to consider the (federal) “third party doctrine” in a Section 11 dispute. Rather, the two sides dispute the level of intrusion in the (warrantless) acquisition of cell phone location information and whether law enforcement needs were sufficiently urgent and acute to act without a search warrant. Notably, the initial police request for service provider tracking information alleged a nonexistent “emergency.” Police activity beginning with a lie should be deemed unreasonable by reason of the lie…Case Note by David Allen


Specific Performances, Lis Pendens, Statute of Frauds, and a Grand Family Fight

The case is Knapp v. Wright decided May 4, 2017 in the COA. The Wrights owned and lived upon 56 acres in Elkhart County. The acreage included a private lake. To their daughter Rosalea and her husband William Knapp the Wrights leased an acre of that land, including a residence. Later there was a land sale contract for the Knapps to purchase the previously leased one acre (according to the Wrights) or that one-acre parcels plus two adjoining acres (according to the Knapps). As with many land sale contracts, the agreement here referenced a “commonly known as” address in its text while deferring a boundary description to the familiar attached Exhibit “A.” A critical problem is that no Exhibit “A” was attached. The Knapps paid contract installments for a number of years (while failing to pay for taxes and insurance as required) and then sought a deed to three acres, thereby sparking a grand family battle waged in the theater of the judiciary.

The Statute of Frauds (making enforcement of an agreement dependent upon a signed writing) applicable to land sale contracts is found at IC 32-21-1-1. While there was a writing in this case, the absence of a useful property description called into question the sufficiency of the writing. Even though it was the Wrights’ lawyer who prepared the land sale contract, they were able to persuade the trial court that the omission of a property description rendered the contract unenforceable. Thus, the Knapps’ claim for specific performance was tossed without regard to whether the intent had been to transfer one acre or three. Likewise, the lis pendens notice filed by the Knapps to inhibit any sale of the contested property was discharged. The COA affirmed.

The CLB finds it ironic that the Wrights were allowed to exploit their own negligence (the absent property description) to scrap the land sale contract, particularly after having accepted contract installments for a period of years. Moreover, it seems that the Knapps should have had a residual equitable claim against (at least) one acre to the extent that they reduced the contract balance and gained equity in the real estate. Forfeiture of such vendee’s equity is disfavored. See Skendzel v. Marshall, 301 N.E.2d 641 (Ind. 1973)…Case note by Dave Allen.


Case of the Underemployed Nurse Practitioner

It would be prudent to maintain a Transfer watch on the 2/1 COA decision of April 26, 2017 in Salser v. Salser. The dispute involved child support for a child of thirteen and educational support for her older brother, a Purdue student with a Navy ROTC scholarship. Father is a fully employed pharmaceutical salesman while Mother is a nurse practitioner who elected part-time employment over available full-time work. If she worked full-time, Mother’s income would roughly equal Father’s income. Both parties could earn bonuses.

Notably, the trial court made findings, including a finding that Mother was voluntarily underemployed (for purposes of imputation of income for child support purposes) and that the bonuses which might be earned were “uncertain and not predictable” and (thus) excluded from the parties’ Weekly Gross Income. Upon these findings (and an award of 50/50 shared physical custody of the daughter) the trial court allocated some expenses of the daughter (like private school) 50/50 and some of the son’s college expenses 50/50 without either parent paying periodic child support to the other.

It seems that there was sufficient evidence below to support the trial court’s findings regarding the inclusion of Mother’s imputed income and the exclusion of possible bonus income from the child support/education support calculations. Nonetheless, the COA majority declared both findings “clearly erroneous” and reversed. Mother had cited her “passion to be a mom” as her “just cause” for not working full-time. Yet parenting time was split 50/50, and the thirteen-year-old was engaged in several out-of-home activities. Is there a hint here of gender bias in the COA in this indulgence of an underemployed Mother? As for the reversal over the exclusion of bonus income, the COA suggested a “percentage to be paid on a periodic, predetermined basis.”

In dissent, Judge Bradford cited evidence supporting the trial court’s findings and the doctrine of deference to trial court judges in family law matters…Case note by Dave Allen.


A Mountain Bike Wipeout and (ITCA) Premises Liability

The case is Hoosier Mountain Bike Association, Inc. and City of Indianapolis v. Kaler decided March 23, 2017 in the COA. Richard Kaler made two runs on a municipal mountain bike trail. On his second, ill-fated run he elected to take a challenging path (but not beyond his level of skill and experience) at an optional “technical feature” of the trail described as a banked wooden turn or berm. Taking the berm’s “high line” on his second run, Kaler wiped out and suffered internal injuries.

Kaler then filed suit against the City and against the Mountain Bike Association which maintained the trail. He settled with the Association. Kaler’s Complaint against the City sounded in premises liability. Pursuant to the Indiana Tort Claims Act the City was entitled to a contributory negligence defense (as opposed to comparative fault) that could totally bar recovery. The City predictably filed its Motion for Summary Judgment which the trial court denied before certifying the matter for interlocutory appeal.

Kaler was an invitee participating in a sport activity. The City’s duty to him was tempered by his own duty to take precautions against these common risks that he appreciated or should have appreciated. The City’s duty would be enhanced if a condition of the land were held to present an “unreasonable risk of harm” of a nature that invitees might reasonably fail to appreciate. Finding the risk of the berm’s high line not to be unreasonably dangerous and noting Kaler’s skill and experience, the COA held that the City was entitled to summary judgment based on contributory negligence.

Some analysis. The holding here should be limited to cases of an experienced, adult rider on a government-sponsored trail. For private enterprise bike trails comparative fault would supplant the ITCA contributory negligence defense seen here.

COA footnote #4. The COA’s footnote #4 cautions that the SCOTSI “redrew the premises liability landscape” in Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016) distinguishing between injury from a condition of the land and injury from activities on the land. The COA then elected to analyze the Kaler case as an injury from the condition of the land (the berm) as opposed to the activity (biking) upon it…Case Note by Dave Allen.


Time to Lead on Criminal Discovery

The case is Beville v. State, a 5/0 decision handed down March 17, 2017 by the SCOTSI. Marvin Beville’s interlocutory appeal pertained to his unsuccessful efforts below to obtain a personal viewing of a video recording of a “controlled” drug transaction between him and a purchasing confidential informant. Beville was not satisfied that his public defender¹ was allowed to view the video and was undeterred when the prosecution claimed the “informer’s privilege.” The defense alleged that the State intended to use the video at trial and that Beville’s personal viewing was “fundamental” to preparing a defense. The CLB is more familiar with cases of informer’s privilege being used (rather than at trial) to conceal the identity of an informant referenced in a search warrant affidavit where the informant would not be a trial witness.

The SCOTSI cited the venerable case of Dillard v. State, 274 N.E.2d 387 (Ind. 1971) on criminal case discovery and viewed the case at bar as the collision of the informer’s privilege and the rule of Dillard. The Dillard rule (in short) is that the defense’s sufficiently designated discovery request for items material to the defense should be granted absent a showing by the State of a “paramount interest” in nondisclosure. The informer’s privilege allows the withholding of an informer’s identity except when a defendant can show that disclosure is “relevant and helpful” or “necessary for a fair trial.” Schlomer v. State, 580 N.E.2d 950 (Ind. 1991). If the defendant meets his burden, the State may still demonstrate in rebuttal that disclosure is not necessary to the defense’s case or that disclosure would threaten its future ability to recruit and use confidential informants. Then the trial court must weigh/balance the public interest against that of the defense.

Here the SCOTSI holds that the Dillard rule is inapplicable where the State has properly asserted the informer’s privilege. In other words, Dillard is held to apply only to nonprivileged evidence. Still, the burden of establishing privilege is with the State. Here that would require a showing (never made by the State) that Beville’s personal viewing of the video would reveal the informant’s identity. Notably, the State failed to request an in camera viewing by the trial court.

After holding that the State missed its chance to prove privilege, the SCOTSI declared that Beville should have prevailed anyway (had privilege been proved) in that the video was “likely a key piece of evidence for the State.”…Case Note by Dave Allen

Afterthoughts. The SCOTSI cited the Trial Rules generally with respect to discovery and TR 26(B)(5) specifically as to resolution of a privilege claim. The citation to rules of civil procedure in criminal cases tends to amuse and confound the CLB.

Here’s a pop quiz: How many of the SCOTSI’s 26 Rules of Criminal Procedure pertain to discovery?…NONE! Can a criminal defendant take witness depositions per TR 30?…Yes. Can a criminal defendant propound interrogatories to the State?…Apparently Not. Can a criminal defendant serve TR 36 Requests for Admission?…Apparently not. According to TR 1, what is the applicability of the Trial Rules?…To all suits of a civil nature. So how is it that trial rules on civil discovery are cited in criminal cases?…See the first question and answer in this pop quiz.

It is the official view of the CLB that criminal rules of discovery are overdue by several decades. The CLB urges the SCOTSI to remedy this oversight.
______________________
¹If the profit in drug dealing is proportionate to the risk, then why do so few drug case defendants have the money (cash) for private counsel?


A Failed Gift Causa Mortis

Former Chief Justice (now Senior Judge) Shepard authored this March 9, 2017 COA Opinion in the case of Garrison v. Garrison. The late Thomas Garrison lived only two weeks after his diagnosis/prognosis of terminal lung cancer. During that time he transferred title to a late model Corvette and another vehicle to his son Jay. Thomas was then married to Pamela Thomas, stepmother to Jay. Nine days after Thomas died Pamela opened an estate and filed a petition to recover the vehicles from her stepson for the benefit of the estate.

Pamela’s theory in the trial court was that the gift was inter vivos (as opposed to causa mortis) and that it was invalid due to Thomas’ incompetence. After conducting a hearing and finding the (conflicting) evidence pertaining to competence to be in equipoise, the trial court ordered Jay to turn over the vehicles and certified its order for interlocutory appeal. Accordingly, the trial court implicitly imposed a presumption of incompetence such that Jay would lose by failing to prove competency by a preponderance. The COA disapproved the trial court’s reasoning explaining that Pamela was the party whose burden was unmet for purposes of the “straight claim of incompetence” that was her theory of the case below. Still, the trial court’s order that Jay return the vehicles was affirmed, on grounds other than those considered in the trial court.

Without really deciding the obvious point that Thomas had made a gift causa mortis (as opposed to inter vivos) the COA introduced the issue of undue influence and the consequent presumption of constructive fraud inherent in the relationship (father to son) between donor and donee. In this context the donee takes on a burden of proving competence of the donor. Since the trial court had found the evidence pertaining to competence to be in equipoise, Jay loses on this alternate theory not tried below.

While the CLB hates appellate decisions (other than remands) made on grounds not considered below, it regards Senior Judge Shepard’s Opinion as a treasure of gift law. For instance, a gift causa mortis must be established by clear and convincing evidence including evidence other than the sole uncorroborated testimony of the donee…Case Note by Dave Allen.


Husband, Wives, and Tenants in Common

I don’t think I predicted Transfer but there was some criticism in my review of the COA Opinion of March 23, 2016 in Underwood v. Bunger, 52 N.E.3d 829 (Ind.Ct.App. 2016) vacated on transfer. At a minimum there was sarcasm in the case note title “When Tenants in Common Aren’t.” See now the SCOTSI Transfer Opinion (5/0) of March 6, 2017 reversing the trial court holding (affirmed by the COA) that a self-contradicting deed failed to rebut the presumption of joint tenancy (between husband & wife) by describing them plus one unrelated individual “all as Tenants-in-Common.” The context of the dispute involved a judgment creditor of husband (but not Wife) and husband’s death. At issue was whether the judgment creditor had a judgment lien against that undivided portion of the real estate owned by husband as a tenant in common. If husband’s sole interest was an entireties interest with his wife, then husband’s creditor would have no lien.

On Transfer the SCOTSI began with acknowledgment of the presumption of joint tenancy (entireties) when husband and wife share ownership of an interest in real estate. The deed in question referred to husband and wife as such but then added (after mention of a 3rd grantee) “all as tenants-in-common.” The SCOTSI held that the latter phrase was sufficient to rebut the presumption of joint tenancy between husband and wife…Case Note by Dave Allen


WHEN TENANTS IN COMMON AREN’T
LOOK ABOVE FOR SCOTSI TRANSFER OPINION OF MARCH 6, 2017

See the March 23, 2016 Opinion of the COA in Underwood v. Bunger. The controversy of the case was forged in 2002 when an unidentified author (likely a careless lawyer) drafted a warranty deed (to property in Bloomington) from one grantor to three grantees, two of whom were husband and wife. The deed was self-contradicting in that it described the two married grantees as “husband and wife” and then stated (of the three grantees) “all as Tenants-in-Common.” The reference to the married grantees as “husband and wife” was sufficient to create the presumption of entireties ownership between the two of them. Was the reference to “Tenants-in-Common” enough to rebut the entireties presumption? The unanimous COA panel affirmed the trial court ruling that the married grantees owned their interest by the entireties, such that a money judgment against husband (but not wife) did not amount to a lien against the entireties interest, and wife became the sole owner (of the married grantees) on husband’s death.

The Opinion contains educational discussion of tenancy in common, joint tenancy, and tenancy by the entireties. There are some nuances. For instance, a deed to three unrelated tenants in common creates a presumption of three undivided one-third shares. A deed to a married couple (identified as “H & W”) and to their partner presumptively creates two undivided one-half shares. Another counter-intuitive nuance can be found in the case (cited in Underwood) of Ramer v. Smith, 896 N.E.2d 563 (Ind.Ct.App. 2008) wherein two married couples (“A & B” and “C & D”) were grantees as joint tenants such that when husband “A” died, his interest passed (by survivorship) in equal shares to the three survivors and not exclusively to his widow. The parties’ intent may never be known. The point is that there is danger in the careless drafting of deeds, and some lawyers should refrain from deeds altogether…Case Note by Dave Allen.


 

“What Do You Mean Line-Up…?”

Albee v. State is the case decided February 28, 2017 in the COA. The category of the appeal is pretrial identification/show-up. The result was the unanimous reversal of Neil Albee’s convictions for felony voyeurism and misdemeanor residential entry at a Purdue sorority house. Co-ed Margaret was in the shower when she saw a tall, dressed figure through the obscured glass door of the shower stall. She did not get a good look at the figure while she showered. At one point during her shower she found the (magnetically) latched door inexplicably opened about an inch. She finished her shower and returned to her bedroom where she sat on her bed texting a friend. She heard the bedroom door open. (No, this is not my screenplay for a slasher flick.) Looking into a full length mirror, she saw the reflection of a man not known to her. Margaret and the man “made eye contact” (by way of the mirror) for a few seconds. Then the man left.

Officers of the Purdue University Police Department arrived and searched the area. Around an hour and three-quarters after Margaret’s encounter, the officers found Neil Albee in a nearby parking lot. Officers escorted Margaret to the parking lot to view “the suspect.” There were police cars and multiple officers. The suspect was handcuffed. In the darkness of night his face was illuminated by the glare of a squad car spotlight. Margaret viewed Albee from a distance of about 30 yards. Her identification of Albee was much less than certain and based in part on the observation that Albee was too old to be hanging out on sorority row.

To “facilitate a more certain identification” Margaret was taken to the campus police station to view Albee in better lighting (via cctv). Officers also showed digital photos of Albee to Margaret. Ultimately Margaret identified Albee as the man in her sorority house.

Albee was charged. He filed an unsuccessful motion to suppress Margaret’s pretrial identification. At trial (following an initial hung jury mistrial) Albee objected to the pretrial and in-court identification. He was convicted of voyeurism and unlawful entry.

The relevant point of law is that due process requires the suppression of evidence of an impermissibly suggestive pretrial identification. A “show-up” identification of a detained suspect is inherently suggestive and may result in the suppression of a resulting in-court identification. Still, there is no per se exclusionary rule for a suggestive pretrial identification. If a witness had a good opportunity to view a suspect from a reasonably close distance in good light, then the pretrial identification by the witness may be sufficiently reliable to overcome the “corrupting influence” of a one-on-one “show-up” or similarly suggestive procedure.

In the subject case there was the one-on-one show-up in the campus parking lot resulting in less than a certain identification. Then Margaret viewed the lone suspect on cctv and sorted through digital images of him alone before she concluded he was the man she had seen inside her sorority house. There was no effort to create a line-up or even a simple photo array of different men.

Purdue police officer Jared Baer testified as follows when asked about the possibility of arranging a line-up:

“What do you mean line-up…We don’t do that and I’ve never heard that.”

This testimony from a trained police officer is equally hilarious and sad while confirming unflattering stereotyped opinion of campus cops. Given the absence of evidence of the reliability of Margaret’s identification the COA unanimously reversed, subject to an unlikely retrial…Case Note by David Allen

Spoiler Alert: This case note is a prelude to a Featured Article Series that will probably be named “Odd Cops” and commence with an analysis of college campus cops in Indiana.


Total Loss Damages for the Leased Car

Magistrate Michael Pagano of the Lake Superior Court County Division has once more stirred the pot of “totaled” vehicle measure of damages. Many of us lawyers have relied upon Persinger v. Lucas, 512 N.E.2d 865 (Ind.Ct.App. 1987) to claim “loss of use” damages for a reasonable time pending replacement of a totaled vehicle. In Persinger the COA allowed 30 days of lost use and storage damages. The COA affirmed a loss of use compensation of $20.00 per day for a 9-year-old Chevrolet Vega. I saw no expansion of Persinger until the 2013 appeal in Jasinski v. Brown, 3 N.E.3d 976 (Ind.Ct.App. 2013). In that case Magistrate Pagano had awarded lost use damages (for a $2,000.00 vehicle) of about $52.00 per day for 84 days. Now when I draft a complaint for loss of use of a vehicle, I ask for 84 days of damages (unless there was an earlier repair or replacement).

The case at hand is Bokori v. Martinoski decided February 15, 2017 in the COA. Magistrate Pagano presided over the small claims trial of Jasmina Martinoski against Jason Bokori. It seems that Jason drove negligently, crashing into and totaling Jasmina’s leased Toyota Corolla. Jasmina owed more than $22,000.00 on her lease while the Corolla was worth around $5,000.00 less, according to the settlement accepted by the vehicle lessor from Jason’s insurer. The lessor (Toyota Financial) demanded that Jasmina pay the difference between the lease balance and the sum that it had accepted from Jason’s insurer.

Notably, Jasmina did not own the damaged Corolla. Rather, she had a leasehold interest in the vehicle that was more liability than asset. It appears that Jasmina sued on the small claims docket to recover a sort of consequential damage (generally not recoverable in tort) occasioned by the depreciation on her nearly new Toyota exceeding the balance reduction on her lease. Judge Pagano, however, seems to have couched his ruling in favor of Jasmina in terms of fair market value and his weighing of conflicting evidence on that issue.

A split COA panel affirmed, even though the pro se Jasmina filed no Appellee’s Brief. If Jason Bokori had not totaled Jasmina’s Corolla, she would have paid (over the remaining term of the lease) a sum exceeding $22,000.00 on a vehicle worth thousands less just before it was totaled. But because the $5,000.00 deficiency became due all at once, Jasmina was somewhat disadvantaged. I tend toward agreeing with the dissent that Jasmina’s consequential financial disadvantage was not compensable. I will look for a Transfer Petition in this case…Case Note by Dave Allen.


Corpus Delicti and the Defiled Doggy

Corpus delicti may be described as the physical evidence of a crime, such as the bullet-riddled corpse of a shooting victim. The concept is relevant where (as in Indiana) an out-of-court confession to a crime is insufficient by itself to sustain a conviction. Sometimes the rule of corpus delicti is misdescribed as a rule of evidence requiring physical evidence of a crime as a precondition to admission of a confession. The order of evidence is not critical. A confession may be admitted first so long as there is subsequent evidence of corpus delicti. Accordingly, the CLB describes corpus delicti as a rule of substantive due process.

Corpus delicti may be proved circumstantially and need not be proved beyond reasonable doubt. The “physical” evidence of the offense is not always tangible. See Swafford v. State, 421 N.E.2d 596 (Ind. 1981) for the (controversial) holding that one confession may serve as the corpus delicti for another. The purported purpose of the rule is to prevent a confession-based conviction for a crime that never took place.

The case at hand is Andy A. Shinnock v. State, decided February 9, 2017 in the COA. It seems that Paul Moore shared a residence with his two dogs and with parolee Andy Shinnock. Paul arrived home from work to the absence of any canine greeting. He called his dogs, and neither responded. He called a second time, and only the male dog responded. He noticed the unusual circumstances of dog feces on the floor and dog food scattered about. He opened the door of Shinnock’s bedroom to find his female dog running out the door to safety under the couch. Shinnock was seen to be sporting boxer shorts and an erection. Shinnock admitted (to the house mate) an attempt to have intercourse with the dog. When police arrived, Shinnock admitted to having sex with the dog.

A bench trial ensued on a charge of bestiality, a Level 6 Felony, contrary to the prohibition of IC 35-46-3-14. Shinnock’s defense counsel made unsuccessful corpus delicti objections to admission of the two confessions, and the Court found Shinnock guilty but mentally ill.

Given the absence of rape kit evidence or vaginal exam evidence on the dog, the COA found an absence of the requisite corpus delicti to support the confession. The view of the CLB is that the (first) confession (to the attempt) plus the collateral evidence of the dog’s distress and Shinnock’s arousal constitute sufficient evidence of corpus delicti. Andy Shinnock deserves prison for a very, very long while. Let’s hope that our new AG sees the merit in a Transfer Petition…Case Note by Dave Allen


Limits to Dram Shop and Respondeat Superior Liability

Two COA Opinions in the past few days serve to limit liability in causes of action for dram shop liability and for respondeat superior liability. The earlier of the two cases is Harrison County Sheriff’s Dept. v. Ayers decided January 31, 2017 in the COA. The Sheriff’s Dept. waged a successful appeal after being handed an adverse jury verdict. Suit was filed against the Sheriff after an off-duty deputy argued with the deputy’s suicidal wife and then left a gun with her. The wife shot (and killed) herself, and her estate sued the Sheriff. Held: there was insufficient nexus between the deputy’s job and the facts of the case. It would be good to remember the general rule against respondeat superior in § 1983 suits against law enforcement officers. The present case alleged state law torts.

The second case of the pair is Neal v. IAB Financial Bank (an unlikely dram shop defendant) decided February 2, 2017 in the COA. A motorist who was likely under the influence pulled into a bank parking lot to attend to a flat tire. The motorist received some assistance from bank employees, who began to suspect intoxication only after the tire was changed. The motorist left, and the bank employees called 911 to report their suspicions of a drunk driver (whom they had aided). The motorist was then involved in a traffic accident that injured Rachel Neal, who sued the bank. Not surprisingly, the bank won SJ from the trial court. Held: the bank owed no requisite duty to Rachel to support her negligence claim; nor did the bank assume such a duty when its employees assisted the tire-changer. Though deserving of greater mention, Opinion footnote 4 dispenses with the dram shop issue (IC 7.1-5-10-15.5) with the observation that no bank employees “furnished” alcohol to the impaired driver they assisted…Case Notes by Dave Allen.


No “Alford Plea” for Hoosiers

This is right out of “Guilty Pleas 101.” The case is Demajio Ellis v. State decided January 26, 2017 in the SCOTSI. The result is a rare reversal of a denial of post-conviction relief. The COA had affirmed that denial by way of NFP decision.

Amid evidence that he and another had robbed and slashed the throats of two other men (who survived) Mr. Ellis made a deal for some measure of leniency in exchange for his guilty plea and agreement to testify against the co-defendant. The problem is that Mr. Ellis maintained his (unlikely) innocence both at his change of plea and at the subsequent sentencing. The SCOTSI (Rucker, J.) distinguished the case at bar from cases in which a defendant is inconsistent in maintaining his innocence while pleading guilty. Mr. Ellis also had tried to rescind his guilty plea prior to sentencing.

There must be, of course, a factual basis for a guilty plea before a court may accept the plea. See footnote 5 of this Rucker Opinion for a description of four recognized methods for eliciting evidence to prove a factual basis, one of which requires no admission from the defendant other than the plea itself.

The “Alford” referenced in the title of this case note is from North Carolina v. Alford, 400 U.S. 25 (1970) wherein the SCOTUS held there was no federal constitutional barrier against acceptance of a guilty plea from a defendant who maintains his innocence at least where there is a strong factual basis for the plea. The SCOTSI continues adhering to its view that no “Alford” plea is valid in Indiana…Case Note by Dave Allen.


Priority of a Defective Lien and the “BFP” Defense

Here is a case that is relatively interesting within the generally dull genre of mortgage foreclosure. The case is U.S. Bank, National Association v. Jewell Investments, Inc. decided January 26, 2017 in the COA. The dispute was between a “first-in-time” mortgagee (which recorded a defective mortgage missing a legal description) and the “second-in-time” mortgagee which recorded a compliant mortgage. The trial court denied the subsequent recorder’s motion for SJ, and the COA reversed on interlocutory appeal.

Given the absence of a legal description from the first-in-time mortgage, there was no constructive notice to the second-in-time mortgagee, which claimed the status of bona fide purchaser without notice of the earlier defective mortgage. Such notice may be actual or constructive. Constructive notice may be provided by the recording of a mortgage in the proper county and with an accurate legal description. The result here is that the second-in-time mortgagee (lacking actual or constructive notice of the prior, defective lien) was entitled to lien priority despite the chronology. See IC 32-21-4-1(b) for the general rule favoring liens by the chronology of their recording…Case Note by Dave Allen.


The Gun in the Car

One car, one handgun, and multiple occupants are the foundational circumstances of this appeal (Ericksen v. State decided 1/18/2017 in the COA) from a conviction of “carrying” a handgun without a license in violation of IC 35-47-2-1. By way of undercover operation, arrangements were made for the purchase of a Taurus .45 handgun from Jeremiah Ericksen. On the way to the transaction rendezvous Ericksen’s car (owned and driven by his wife) was stopped and then searched (pursuant to a warrant). A Taurus .45 handgun was found under the driver’s seat. Ericksen had been a backseat passenger while his wife drove and his son occupied the front passenger seat.

There was sufficient collateral evidence that Ericksen exerted control over the weapon so as to have “constructive possession” of it. The question on appeal was whether Ericksen could “carry” the handgun without having it on his person or otherwise carrying it. While Ericksen’s appellate counsel made an excellent point, it was to no avail in light of Henderson v. State, 715 N.E.2d 833 (Ind. 1999) wherein the SCOTSI held that mere “constructive possession” equals “carrying.” How can this be given the rule of narrow construction of criminal statutes? The answer to my rhetorical question is “because the SCOTSI said so.” Henderson was wrongly decided and should be overturned. No Justice on the unanimous Henderson Court remains on the SCOTSI.