Indiana Court decisions – Nov. 20-Dec. 4, 2018

Indiana Supreme Court

Dec. 3

Criminal — Murder/Guilty But Mentally Ill

Lori Barcroft v. State of Indiana

18S-CR-135

A bench verdict of guilty but mentally ill against a woman twice convicted — and twice cleared by reason of insanity — in the 2012 shooting of a Southport pastor will stand after a majority of the Indiana Supreme Court found sufficient demeanor evidence to reject the woman’s insanity defense. But the two-justice dissent pointed to testimony from three experts to support their opinion that Lori Barcroft was unable to appreciate the wrongfulness of her conduct at the time of Jaman Iseminger’s murder. 

Justice Mark Massa began the 3-2 majority opinion affirming Barcroft’s conviction in Lori Barcroft v. State of Indiana, 18S-CR-135, by noting she had a “great” childhood and was never formally diagnosed with any psychiatric disorder other than attention deficit hyperactivity disorder. Despite that, Massa said Barcroft’s “cognitive faculties continued to wane” after her divorce in the early 2000s, and by 2007, she was exhibiting “increasingly odd behavior.”

Specifically, Barcroft’s son, Jordan Asbury, said his mother, who lived with him and his wife, claimed to see messages on the refrigerator, was obsessed with the color of cars and would ramble in nonsensical codes. Those oddities culminated in early 2012 when Asbury — acting on the advice of Iseminger, the family pastor — told his mother that she could no longer live with him.

A few months later, in May 2012, 29-year-old Iseminger and Jeff Harris, a church volunteer, were working at the church early in the morning when Harris saw Barcroft dressed in black and carrying a backpack. After asking Harris where Iseminger was, Barcroft opened fire and fatally shot the pastor before fleeing and hiding among some weeds.

Once found, Barcroft surrendered without incident and told police that she killed Iseminger because he was a member of the Mexican mafia who planned to “pick off” her family members “one by one.” She also told officers she did not plan on getting caught.

Barcroft was subsequently charged with murder and proceeded to a bench trial, where three mental health experts testified that she was legally insane at the time of the shooting. But the Marion Superior Court found Barcroft guilty but mentally ill, noting that despite her “complex delusions,” demeanor evidence showed she understood the wrongfulness of her conduct. The trial court also noted Barcroft had a motive to kill Iseminger: his advice to Asbury to ask her to leave her son’s house.

The Indiana Court of Appeals initially overturned Barcroft’s conviction in 2015, then again in December 2017, finding last year that the demeanor evidence relied upon by the trial court was “of no probative value due to Barcroft’s lengthy history of a mental illness.” Barcroft’s counsel advanced a similar argument before the Indiana Supreme Court in April, relying on Galloway v. State, 938 N.E.2d 699 (Ind. 2010), while the state urged the high court to affirm the guilty but mentally ill verdict by relying upon Myers v. State, 27 N.E.3d 1069 (Ind. 2015).

In upholding Barcroft’s conviction, the majority joined by Justice Steven David and Chief Justice Loretta Rush agreed there was “ample demeanor evidence” from before, during and after the shooting to support the rejection of the insanity defense. Massa specifically pointed to the fact that Barcroft purchased a handgun, prepared a goodbye letter for her family, spared Harris’ life despite his presence at the shooting and “(took) great pains to conceal herself under the foliage of an overgrown lot,” among several other examples of demeanor evidence.

Further, Massa said the three experts who opined that Barcroft was insane disagreed on the reason for her insanity, splitting on whether she should be diagnosed with schizophrenia, paranoid type, or delusional disorder, persecutory type. And even without those and other inconsistencies, the majority noted Barcroft’s doctors had never formally diagnosed her with an acute mental illness.

“In sum, we hold that evidence of Barcroft’s demeanor — taken together with the flaws in the expert opinion testimony and the absence of a well-documented history of mental illness — was sufficient to support an inference of sanity,” Massa wrote for the majority. “Although some evidence could had lead to a contrary finding, we cannot say that the ‘evidence is without conflict and leads only to the conclusion that the defendant was insane when the crime was committed.’”

But in a dissenting opinion, Justice Christopher Goff, joined by Justice Geoffrey Slaughter, reached the opposite conclusion. Writing that the majority’s holding deviates from the analysis of expert testimony and demeanor evidence laid out in Galloway — for which David was in the majority — Goff said the demeanor evidence “is wholly consistent with the experts’ unanimous conclusions that Barcroft was legally insane when she shot and killed Pastor Iseminger.”

Specifically, Goff said Barcroft underwent both outpatient and in-patient treatment in the late 1990s, 2000s and early 2010s and had “reported a history of depression, bipolar disorder, and alcohol abuse in her father.” Further, the dissenting justices said the demeanor evidence relied upon by the majority “is neutral at best because it points just as fairly to insanity as it does to sanity for this particular defendant.”

“While judges and juries sit as the final authorities on a defendant’s sanity, our Galloway opinion instructs that their authority cannot, and should not, go unchecked,” Goff wrote. “In my view, the majority loosens Galloway’s limitations on demeanor evidence and thereby erodes Indiana’s insanity defense. I respectfully dissent.”

Indiana Court of Appeals

Nov. 21

Mental Health — Civil Commitment/Judge’s Signature

In the Matter of the Civil Commitment of T.W. v. St. Vincent Hospital and Health Care Center, Inc.

18A-MH-1148

For the second time in little more than one month, the Indiana Court of Appeals has addressed the issue of the Marion Superior Court ordering civil commitments by the judge summarily approving commitment orders signed by commissioners or magistrates without signing the orders. But unlike a prior ruling, a majority of the Indiana Court of Appeals found that issue waived, though a dissenting judge argued litigants cannot waive the issue of a judge’s failure to perform a statutory duty.

The issue of possibly defective commitment orders came before the court again in In the Matter of the Civil Commitment of T.W. v. St. Vincent Hospital and Health Care Center, Inc., 18A-MH-1148. After being diagnosed with schizophrenia in 2013, T.W. began participating in treatment and taking anti-psychotic medication at times despite rejecting his diagnosis. When he was on medication, T.W. was “very friendly, very engaging, [and] amiable,” but during a time when he was not taking his medication, T.W. physically attacked his mother, according to the record.

T.W. was not charged after the attack, but he was ordered take medication and began living with his paternal grandmother. But in December 2017, T.W. unilaterally decided to go off of his medication, which resulted in increased paranoia and multiple reports to the FBI, including a report claiming his friend was a member of ISIS.

The FBI responded to the reports by threatening to file criminal charges against T.W., prompting his father to set up an emergency appointment at the Aspire treatment center. T.W. was aggressive toward the Aspire staff, so he was recommended for emergency detention and was admitted to Community North Behavioral Health.

After being transferred to the St. Vincent Stress Center, Dr. Erika Cornett opined that T.W. presented a substantial risk to others and recommended that he be temporarily committed. Marion Superior Commissioner Kelly M. Scanlan presided over the commitment hearing and ordered T.W.’s commitment after finding clear and convincing evidence that T.W. was a danger to others and was gravely disabled. Scanlan signed the commitment order, but Marion Superior Court probate judge Steven R. Eichholtz did not.

On appeal, T.W. argued first that his commitment order was defective because only Scanlan had signed it. However, the majority of the appellate court — judges Robert Altice and Elaine Brown — found that issue was waived because he “failed to timely object to the order… .”

But in a dissenting opinion, Judge Elizabeth Tavitas relied on last month’s decision in In Re Civil Commitment of L.J., No. 18A-MH-152, slip op. at pp. 4-6, 8 (Ind. Ct. App. Oct. 18, 2018), to find that T.W.’s commitment order was defective and was not a final appealable order.

In L.J., the appellate court ruled that “the trial judge’s entry of a blanket business record order summarily approving all of the commissioner’s recommendations without review by the trial court warranted dismissal of the respondent’s appeal and remand to the trial court judge to review the matter and enter a final order.” Because there was no evidence the judge had specifically referenced L.J.’s civil commitment, the court was “left without any assurance that the trial court fulfilled its obligation to review and enter to final order.”

“Here, the trial court judge was required to enter a ‘decision’ pursuant to Indiana Code section 33-33-49-16(a) and failed to do so,” Tavitas wrote. “The waiver analysis employed by the majority falls short under these unique circumstances because the respondent is penalized for failing to ‘timely’ urge the trial court judge to perform his or her statutory duty. A litigant cannot waive a trial court judge’s exercise of statutory responsibility.”

“… I suspect that clarification, by statute or trial rule, of a litigant’s risk of waiver under circumstances such as these may be necessary,” Tavitas continued. “… A trial rule or statute that discusses waiver and prescribes a time frame for raising the issue before the trial court would put such a litigant on notice in cases in which the underlying order was not duly approved and counter-signed by the trial court judge.”

In a footnote, Altice responded to Tavitas’ argument by saying that despite the majority’s understanding of “the strong desire to address the clear impropriety of the trial court’s handling of the matter, which appears to be a pattern,” the majority disagreed with the decision in L.J. to dismiss the appeal.

The court also found sufficient evidence to support the finding that T.W. is dangerous, with Altice pointing to evidence that “when unmedicated, T.W.’s schizophrenia takes over and he becomes aggressive, paranoid, delusional, and dangerous.”

Miscellaneous — Order to Return Seized Cash

Michael Hodges v. State of Indiana

18A-MI-78

The Indiana Court of Appeals has ordered the return of more than $60,000 in cash seized by an Indianapolis detective who was checking packages at a parcel-shipping company. The same detective’s prior seizure of cash in a similar manner set the precedent in a 2017 case that such searches are unlawful.

The appellate court ordered the return of $60,900 in cash that was seized last year from a package being shipped by Michael Hodges of Illinois to a recipient in California. Indianapolis Metropolitan Police Department Detective Brian Thorla had set the package aside because he suspected drug or money laundering activity. Based on his training, this suspicion was because its shipping costs had been paid in cash, extra tape had been added to a self-sealing box, the box was a new one from the shipping company, and Thorla’s K-9, Hogan, alerted to the presence of an odor of controlled substances on the package.

Thorla obtained a warrant to open the package and search for drugs, money or evidence of drug trafficking or money laundering. He found a parcel containing the cash — vacuum sealed tightly-banded quantities of $20 bills. The state moved to transfer the money to the U.S. government in November 2017, alleging it was confiscated as proceeds of narcotics trafficking and money laundering. The Marion Superior Court agreed and ordered the seized money turned over to the feds.

“Hodges filed an answer objecting to the State’s motion to transfer wherein he argued that the seizure of the $60,990 was unlawful because it exceeded the scope of the search warrant. In support of his objection, Hodges cited Bowman v. State, 81 N.E.3d 1127 (Ind. Ct. App. 2017), modified on denial of rehearing, trans. denied, cert. denied, which involved the same detective and facts similar to his own case,” Judge Rudolph R. Pyle wrote in reversing the trial court.

In the Bowman case, the COA reversed the seizure of $30,000 being shipped in a similar manner by two Illinois men to a man in California.

In Bowman, Pyle wrote, “(W)e explained that the only evidence that this money was obtained through drug trafficking was: (1) the parcels were being shipped to California; (2) they were being sent to the same recipient; (3) they were heavily taped; (4) they were shipped priority overnight; and (5) a K9 unit alerted to the parcels. … We further explained the insignificance of this evidence as it related to drug trafficking as follows:

‘We can easily dispense with the first four pieces of evidence. We are confident that a voluminous number of parcels meeting those criteria and having nothing to do with drug trafficking are shipped in this country every day. If all money shipped in heavily taped parcels mailed to California via priority overnight mail could be seized as proceeds of drug trafficking, many last-minute gift recipients at holiday and birthday time would be sorely disappointed (and surprised).’

“…We also explained that the remaining fact that a K9 unit gave positive alerts on both parcels meant only that at some point, someone handling the parcels transferred an odor of controlled substances to them. … We further explained that this could have been the parcels’ senders or any number of individuals involved with handling the parcels in transit.”

Hodges testified that he is an NBA agent who owns a company that resells tickets to sporting events, and that the money was meant to purchase World Series tickets that he planned to resell. The COA rejected the state’s argument and the trial court’s finding that the money could be seized simply because the warrant included bulk cash smuggling.

But Pyle noted there is no state statute criminalizing bulk cash smuggling, even though federal law prohibits smuggling of more than $10,000 in cash outside the country. That was not alleged in this case.

“As we explained in Bowman … where no evidence of unlawful activity was found in the parcel, and there has been no allegation that Hodges has been charged with any state or federal offenses in connection with the parcel, no reasonable person would conclude that the currency discovered in the parcel was the proceeds of bulk cash smuggling, drug trafficking, or money laundering,” the court ruled in Michael Hodges v. State of Indiana, 18A-MI-78.

“The seizure of the currency was therefore unlawful, and the trial court’s order granting the State’s motion to turn the currency over to the United States was erroneous,” Pyle said. “… We therefore reverse and remand this case with instruction to the trial court to order the return of the currency to Hodges.”

Nov. 26

Criminal — Theft, Criminal Mischief/Double Jeopardy

Trey A. Smith v. State of Indiana

18A-CR-1023

A man convicted of trying to steal a catalytic converter got his misdemeanor overturned after the Indiana Court of Appeals reviewed the matter, sua sponte, and ruled the same evidence was the fuel for two convictions.

Trey Smith was stopped by Columbus police officers on the evening of Dec. 6, 2017, because he matched the description of a man who had allegedly tried to remove a catalytic converter from a car parked in a lot. Confronted by law enforcement, Smith said he had been visiting at a residence down the street. However, when Officer Ron May went to the residence, the owner said he did not know Smith.

Subsequently, Smith was arrested and charged with Level 6 felony attempted theft and Class B misdemeanor criminal mischief. During trial, Smith objected to May’s testimony on hearsay grounds. The court permitted the testimony and the jury found Smith guilty as charged.

On appeal, Smith argued the Bartholomew Superior Court abused its discretion in admitting May’s testimony. Although the Court of Appeals agreed the testimony was hearsay, it found the error was harmless because other evidence supported Smith’s conviction for attempted theft.

However, the Court of Appeals then addressed on its own whether Smith’s convictions violated his right to be free from double jeopardy. The unanimous panel concluded Smith was being punished for the same act.

“Here, Smith’s behavior underlying the attempted theft is coextensive with the behavior necessary to establish an element of criminal mischief,” Judge Najam wrote for the court in Trey A. Smith v. State of Indiana, 18A-CR-1023. “In particular, the only evidence showing that Smith took a substantial step toward theft of the catalytic converter from (the victim’s) car was his partial removal of it. … And that same behavior was also the only evidence that Smith had damaged or defaced (the) car, which was the basis for his criminal mischief conviction.”

The Court of Appeals reversed Smith’s criminal mischief conviction and remanded to the Bartholomew Superior Court with instructions to vacate it.

Nov. 28

Civil Tort — Medical Malpractice/‘Reasonable Diligence’

Anonymous Physician, Anonymous Medical Practice, Anonymous Hospital v. Michelle Kendra, as Personal Representative of the Estate of John Kendra, Deceased

18A-CT-323

Finding that it was not necessary to pinpoint the trigger date for when the clock began running on the statute of limitations in a medical malpractice case, the Indiana Court of Appeals reversed the denial of summary judgment against a physician, medial practice and hospital.

Three years after her father, John, died from congestive heart failure and chronic obstructive pulmonary disease in June 2012, Michelle Kendra filed a medical malpractice complaint. The unnamed physician, medical practice and hospital filed a motion for summary judgment, asserting Kendra’s lawsuit was untimely filed.

Kendra countered the cardiac pacemaker with defibrillator implanted into her father in 2006 was medically unnecessary and was used as a basis for the physician to perform numerous other procedures. She also asserted the statutory limitation period should be tolled because her father could not have known he did not meet the criteria for having the pacemaker implanted.

The Lake Superior Court pointed out Kendra did not become aware that what her father experienced in the last six years of his life had the potential of forming a basis for a claim of medical malpractice until October 2014. Acknowledging that ultimately it could be determined that the pacemaker and subsequent procedures were not the cause the father’s death, the trial court held the Kendra family should be not denied access to the courts because they did not know or did not discover any link to the implant.

Before the Court of Appeals, the physician, medical practice and hospital argued Kendra and her father were aware of the heart problems that led to the implantation. Moreover, Kendra contended her father suffered several physical and mental injuries as a direct consequence.

The appellate panel agreed that under Indiana Supreme Court precedent nothing else was required to trigger a duty to investigate the possibility of malpractice. It reversed the denial of summary judgment in Anonymous Physician, Anonymous Medical Practice, Anonymous Hospital v. Michelle Kendra, as Personal Representative of the Estate of John Kendra, Deceased, 18A-CT-323.

“Even if John and Michelle had no reason to suspect malpractice, reasonable diligence required them to inquire into the possibility of a claim before the proposed malpractice complaint was filed in 2015,” Judge Terry Crone wrote for the court. “We need not pinpoint the trigger date, but it was certainly no later than the date of John’s death in 2012, more than three years before the complaint was filed.”

Civil Tort — Declaratory Judgment/Wrongful Death

United Farm Mutual Insurance Company v. Stacy B. Matheny, Earl R. Matheny, et al.

18A-CT-515

An insurance company is under no obligation to defend or indemnify a southern Indiana father whose son shot and killed a man on their property, the Indiana Court of Appeals ruled, reversing a trial court order denying summary judgment for the insurer.

The COA reversed the Perry Circuit Court, which denied an insurance company’s motion for summary judgment in United Farm Mutual Insurance Company v. Stacy B. Matheny, Earl R. Matheny, et al., 18A-CT-515.

Stacy Matheny lived with his father, Earl, in an apartment on the second floor of Earl’s home, after Stacy was released from prison. “Earl thought Stacy was not allowed to live in a house with guns. Earl stored his long guns off-site but kept his handgun with him for personal protection. Earl kept the gun under his pillow and took it with him in a bag when he travelled,” Judge Melissa May wrote for the panel.

Earl also had three mobile homes that he rented to tenants including Pete Paris, who had a frequent visitor, Phillip Chase. Earl and Stacy wanted Chase to stay away because they suspected he was making drugs on the property.

On March 26, 2016, Earl and Stacy stopped at Paris’ mobile home to ask him to clean up about 30 trash bags outside, and Stacy, who noticed Chase’s car present, asked Paris to have Chase come out so they could talk. “Stacy shot Chase in the head with Earl’s handgun. Chase died. Earl did not know when or how Stacy obtained his gun,” May wrote.

Chase’s estate filed a wrongful death action against Earl, claiming he had been negligent in storing the gun and controlling his son. The estate alleged a special relationship between Earl and Stacy, who it alleged “had a history of violent and criminal activity, had been in prison for shooting someone, had an ‘emotional and/or mental disturbance,’… and was prohibited from owning or using a handgun because he is a convicted felon.”

Earl had homeowner’s insurance with United Farm Mutual Insurance Co., but the insurer in February 2017 moved for summary judgment. It argued under its policy that it was not obligated to defend or indemnify Earl or Stacy because the policy included an exclusion for damages resulting from a criminal act.

In January of this year, the trial court denied United Farm’s summary judgment motion, ruling that Stacy was not listed on Earl’s policy and that he lived alone in his own apartment and had no access to Earl’s home.

But the panel took exception to many of the trial court findings. “… Stacy received all his mail at the single address for the home and Earl paid all Stacy’s expenses. Stacy paid no rent. Earl stated several times that Stacy lived with him. Maybe most important, Earl, without being directed to do so by law enforcement, removed all the long guns from the downstairs because he believed Stacy, as a felon, could not live in a house with guns. Earl admitted he nevertheless kept the handgun for personal protection.”

Further, Stacy had access to Earl’s part of the house, where he spent considerable time and regularly ate meals with his father. Therefore, Stacy qualified as a resident of Earl’s house and an insured under the policy, which provides insureds no coverage for damages resulting from criminal acts.

“Because no question of material fact existed as to whether Stacy was a resident of Earl’s household, the trial court erred in denying summary judgment to United,” the panel concluded. “Accordingly, we reverse and remand with instructions to grant summary judgment in favor of United.”

Criminal — Criminal Recklessness, Pointing a Firearm/Double Jeopardy

Larry Ervin v. State of Indiana

18A-CR-965

A man who opened fire in a busy Indianapolis intersection after he claimed he was trying to make a citizen’s arrest of a suspected iPad thief was improperly convicted of one of two charges that may have constituted double jeopardy, the Indiana Court of Appeals ruled.

The appellate panel vacated, sua sponte, Larry Ervin’s Level 6 felony conviction of pointing a firearm, finding this may have included acts for which he also was convicted when a Marion County jury found him guilty of the more serious count, Level 5 felony criminal recklessness.

Ervin was sentenced to three years in prison, with six months executed. He was convicted for firing a gun at a vehicle after he had used his “Find My Phone” app to track his iPad that was missing after he had helped a neighbor with a car repair. As he saw the device moving around the city on the app, he decided to follow it. He used the app to track the iPad’s apparent location to a black truck that he thought he’d seen while he was helping his neighbor.

Ervin then stopped his truck in the middle of the intersection of Southeastern Avenue and Sherman Drive in Indianapolis and approached driver Anthony Hines in an attempt to get his iPad back, shouting “Stop, freeze, stop,” according to court records. 

“Hines then noticed Ervin was pointing a gun at him,” Judge Melissa May wrote for the panel. “Hines did not realize a vehicle was behind him, and he put his truck in reverse and backed into that vehicle — a Kia Sorento. Without stopping, Hines made a ‘right U-turn[,]’ … and started to drive away. He heard Ervin start firing at him, ‘like [Ervin] peppered [Hines’] truck.’ Hines executed the U-turn on the shoulder near a gas station. After verifying Ervin was not following him, Hines called 911 and went home. Hines talked to police at his home.”

Ervin also called police who quickly responded to the scene where an officer said he saw “several people in the [gas station] parking lot, in the grass area, yelling and waving their hands.” They were yelling that Ervin was the shooter and had a gun.

After talking to the Kia driver and multiple other witnesses, Ervin was arrested and ultimately convicted as charged.

On appeal, Ervin challenged jury instructions, arguing the court erroneously failed to provide his instruction on property defense and defense of others. That argument fails, the COA reasoned, because “Ervin could not have been acting in defense of his property or others as he was not in a place he was allowed to be — blocking an intersection — and as he instigated and provoked the situation.”

The COA also found sufficient evidence was presented to support Ervin’s conviction, turning back his other argument on appeal. But the panel on its own found cause to vacate his conviction on the charge of pointing a firearm.

“While the jury may have based its verdict on the fact Ervin approached Hines’ truck with the gun pointed at the truck, an action that could reasonably be presumed to be separate from Ervin pulling the gun immediately prior to shooting, the jury was also free to use the drawing of the gun immediately before Ervin started firing to support both charges. Therefore, there is a reasonable probability that a double jeopardy violation occurred. Accordingly, the lesser charge of pointing a firearm must be vacated,” May wrote for the panel.

The case is Larry Ervin v. State of Indiana, 18A-CR-965.

Nov. 29

Criminal — OWI/Breath Test Procedure

Brian Harold Connor v. State of Indiana

18A-CR-442

The Indiana Court of Appeals reversed a man’s operating a vehicle while intoxicated conviction when it found the admission of his chemical breath test was an abuse of discretion.

In March 2017, Brian Connor was arrested after Indianapolis Metropolitan Police administered a series of field sobriety tests on him at a sobriety checkpoint and found him to be intoxicated. Police then took Connor to a local police station and administered a breath test using the Intox EC/IR II machine.

During the first Intox test, Connor blew too hard and registered a “maximum flow exceeded” message on the instrument. A second test showed that Connor had an alcohol concentration equivalent to 0.097 gram of alcohol per 210 liters of breath.

Conner was ultimately convicted of Class C misdemeanor operating a vehicle with an alcohol concentration equivalent to at least 0.08 gram of alcohol but less than 0.15 gram of alcohol per 210 liters of breath. At trial, Conner moved to suppress the results of the Intox chemical breath test, arguing that the results were inadmissible because the officer administered the test using a procedure not approved by the Department of Toxicology.

The Indiana Court of Appeals agreed in Brian Harold Connor v. State of Indiana, 18A-CR-442, finding the trial court abused its discretion in admitting the test results because the department had not designated the proper procedure to be followed when administering a breath test after having received a “maximum flow exceeded” error message.

“…Contrary to the State’s assertion, there is no single protocol for a test operator to follow when administering an additional breath test after having received an error message,” Judge Edward Najam wrote for the court. “Rather, there is a significant difference in the procedure to be followed depending on the error message. Without direction from the Department of Toxicology on how to properly proceed following the ‘maximum flow exceeded’ error message, we cannot say that Captain (Don) Weilhamer’s decision to simply wait three minutes before administering a second test using the same machine was correct.

“In sum, the evidence does not show that the technique Captain Weilhamer used to administer the second breath test to Connor was an authorized technique that produced an accurate test result,” Najam continued.  “When Captain Weilhamer received an error message for which there was no corresponding protocol in the administrative code, he improvised. Because the technique he used had not been approved in accordance with a rule promulgated by the Department of Toxicology, as a matter of law the results of the breath test were not admissible.”

Nov. 30

Criminal — Drug Convictions/Suspicionless Search

James E. Jarman v. State of Indiana

18A-CR-1034

Although caught by Tippecanoe County Community Corrections with his ex-wife in the attic and drugs in the basement, a man had his convictions overturned after the Indiana Court of Appeals determined his consent to warrantless searches did not include suspicionless searches.   

Two community corrections officers went to James Jarman’s house in March 2015 on a tip that his ex-wife was living at the residence and that he had been drinking and possibly abusing his Adderall medication. The officers found Jarman’s ex-wife in the attic of the house and “a knotted baggie containing an unknown white powdery substance” in his pocket. Using a key Jarman gave to them to a locked cabinet in the basement, the officers discovered “methamphetamine, several bags of a green, leafy substance (that was not marijuana), a synthetic urine kit, two handwritten ledgers, stamp baggies, a cut straw, a scale, and a glass smoking device.”

At an ensuing bench trial, Jarman moved to suppress all the evidence on the grounds that the search violated his Fourth Amendment protections against searches and seizures. The state countered that Jarman had signed an agreement waiving his Fourth Amendment rights as a condition of admission to community corrections.

The Tippecanoe Superior Court was convinced and denied motion to suppress. The trial court subsequently found Jarmon guilty of possession of methamphetamine, dealing in a synthetic drug or synthetic drug lookalike substance and possession of paraphernalia. He was sentenced to four years, with two years to be served in community corrections.

The Court of Appeals, however, reversed Jarman’s convictions in James E. Jarman v. State of Indiana, 18A-CR-1034.

Before the appellate panel, Jarman argued his consent to searches without probable cause did not mean he also consented to suspicionless searches. The state responded that Jarman gave his consent when he agreed to the community corrections rules.

The unanimous Court of Appeals agreed, ruling that even though Jarman signed the waiver that allowed searches “without a warrant and without a probable cause,” that did not “unambiguously authorize” suspicionless searches.

“Given this well-established distinction between ‘probable cause’ and lesser degrees of suspicion, the statement ‘I agree to a search without probable cause’ does not unambiguously mean ‘I agree to a search without reasonable suspicion,’” Chief Judge Nancy Vaidik wrote for the court. “If the State wanted Jarman to be subject to suspicionlesss searches as a condition of entering community corrections, it should have included in its waiver form language like ‘without suspicion,’ or ‘without reasonable suspicion,’ ‘without reasonable cause,’ or ‘without cause.’”

In a footnote at the end of the opinion, the Court of Appeals hinted that the state missed an opportunity to possibly get the conviction affirmed. The appellate court noted the Indiana’s brief cited United States v. Robinson, 414 U.S. 218, 235 (1973) which held that a search of a person lawfully arrested is an exception to the Fourth Amendment. 

However, the Court of Appeals pointed out, the argument could not be considered because it was not fully explored as required by Indiana Appellate Rule 46(A)(8)(a).

“To the extent the State meant to suggest that the search of Jarman fell within the search-incident-to arrest exception to the warrant requirement, it waived the issue by failing to develop a cogent argument,” Vaidik wrote. “…In the sentence following the citation to Robinson, the State returned to its argument that Jarman ‘waived’ the protection of the Fourth Amendment in order ‘to participate in community corrections.’”•