ILNews

COA differs on when 'critical stage' starts

Jennifer Nelson
January 1, 2008
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A panel of Indiana Court of Appeals judges agreed that a defendant's motion to suppress evidence of a polygraph test should have been granted by the trial court. But the judges had differing reasons for granting the reversal of the trial court, with the majority deviating from precedent on when the right to counsel begins.

In Thomas E. Caraway v. State of Indiana, No. 47A01-0709-CR-416, Thomas Caraway appealed the trial court's denial of his motion to suppress and exclude all evidence of a polygraph examination. Caraway, who had difficulty reading, was read the stipulation agreement by a detective, who didn't mention a Miranda warning or notify Caraway of his right to counsel regarding the polygraph examination. It wasn't until an Indiana State trooper read Caraway his Miranda warnings from a form - including the right to seek the assistance of counsel - right before Caraway was to take the test that he was made aware of that right.

The judges looked to previous caselaw and the federal and Indiana Constitutions to determine whether Caraway's motion should have been granted by the trial court. In Kochersperger v. State, 725 N.E.2d 918 (Ind. Ct. App. 2000), Kochersperger signed an agreement to undergo a polygraph examination after he was read his Miranda warning and was advised of his right to counsel. He later raised a motion to suppress the results of the polygraph test, which the trial court denied.

The Court of Appeals affirmed the denial because Kochersperger was fully advised of his right to counsel and waived that right. That panel also stated the filing of an indictment or information begins the formal criminal process, and because Kochersperger hadn't been arrested, arraigned or indicted during the polygraph test, those periods didn't constitute critical stages of criminal proceedings that required a right to counsel.

However, in the instant case, the majority disagreed with the Kochersperger court and other Indiana caselaw, and ruled the right to counsel can attach earlier than the initiation of criminal proceedings.

"In this case, the application of Kochersperger would derogate from the protections guaranteed by the Sixth Amendment and the Indiana Constitution," wrote Judge Patricia Riley for the majority. "... Although Caraway was not arrested, arraigned, or indicted at the time he stipulated to the polygraph, he waived any objection to the admission of an unreliable form of potentially incriminating evidence. This can be nothing less than a critical stage."

When a defendant finds him or herself in a critical stage, their right to counsel can't be denied simply because they haven't been formally indicted yet, she continued. As a result, the absence of Caraway's right to an attorney derogated his right to a fair trial and because he was never informed of his right to counsel before stipulating to the results of the polygraph test, he couldn't have waived it.

Judge Margret Robb concurred in result in a separate opinion but disagreed as to why the trial court should have granted Caraway's motion to suppress. As a concurring judge in Kochersperger, Judge Robb wrote she continues to believe the right of counsel doesn't attach until criminal proceedings are initiated by the filing of an information or indictment.

"The timing of the advice of rights is an important distinction between Kochersperger and this case," she wrote. "On the basis that Caraway was not advised of and did not waive his right to counsel before signing the stipulation, rather than on the basis of the Sixth Amendment, I agree that the trial court should have granted Caraway's motion to suppress, and I therefore concur in result."
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  1. Actually, and most strikingly, the ruling failed to address the central issue to the whole case: Namely, Black Knight/LPS, who was NEVER a party to the State court litigation, and who is under a 2013 consent judgment in Indiana (where it has stipulated to the forgery of loan documents, the ones specifically at issue in my case)never disclosed itself in State court or remediated the forged loan documents as was REQUIRED of them by the CJ. In essence, what the court is willfully ignoring, is that it is setting a precedent that the supplier of a defective product, one whom is under a consent judgment stipulating to such, and under obligation to remediate said defective product, can: 1.) Ignore the CJ 2.) Allow counsel to commit fraud on the state court 3.) Then try to hide behind Rooker Feldman doctrine as a bar to being held culpable in federal court. The problem here is the court is in direct conflict with its own ruling(s) in Johnson v. Pushpin Holdings & Iqbal- 780 F.3d 728, at 730 “What Johnson adds - what the defendants in this suit have failed to appreciate—is that federal courts retain jurisdiction to award damages for fraud that imposes extrajudicial injury. The Supreme Court drew that very line in Exxon Mobil ... Iqbal alleges that the defendants conducted a racketeering enterprise that predates the state court’s judgments ...but Exxon Mobil shows that the Rooker Feldman doctrine asks what injury the plaintiff asks the federal court to redress, not whether the injury is “intertwined” with something else …Because Iqbal seeks damages for activity that (he alleges) predates the state litigation and caused injury independently of it, the Rooker-Feldman doctrine does not block this suit. It must be reinstated.” So, as I already noted to others, I now have the chance to bring my case to SCOTUS; the ruling by Wood & Posner is flawed on numerous levels,BUT most troubling is the fact that the authors KNOW it's a flawed ruling and choose to ignore the flaws for one simple reason: The courts have decided to agree with former AG Eric Holder that national banks "Are too big to fail" and must win at any cost-even that of due process, case precedent, & the truth....Let's see if SCOTUS wants a bite at the apple.

  2. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

  3. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

  4. Please I need help with my class action lawsuits, im currently in pro-se and im having hard time findiNG A LAWYER TO ASSIST ME

  5. Access to the court (judiciary branch of government) is the REAL problem, NOT necessarily lack of access to an attorney. Unfortunately, I've lived in a legal and financial hell for the past six years due to a divorce (where I was, supposedly, represented by an attorney) in which I was defrauded of settlement and the other party (and helpers) enriched through the fraud. When I attempted to introduce evidence and testify (pro se) in a foreclosure/eviction, I was silenced (apparently on procedural grounds, as research I've done since indicates). I was thrown out of a residence which was to be sold, by a judge who refused to allow me to speak in (the supposedly "informal") small claims court where the eviction proceeding (by ex-brother-in-law) was held. Six years and I can't even get back on solid or stable ground ... having bank account seized twice, unlawfully ... and now, for the past year, being dragged into court - again, contrary to law and appellate decisions - by former attorney, who is trying to force payment from exempt funds. Friday will mark fifth appearance. Hopefully, I'll be allowed to speak. The situation I find myself in shouldn't even be possible, much less dragging out with no end in sight, for years. I've done nothing wrong, but am watching a lot of wrong being accomplished under court jurisdiction; only because I was married to someone who wanted and was granted a divorce (but was not willing to assume the responsibilities that come with granting the divorce). In fact, the recalcitrant party was enriched by well over $100k, although it was necessarily split with other actors. Pro bono help? It's a nice dream ... but that's all it is, for too many. Meanwhile, injustice marches on.

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