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COA reverses blanket exclusion for testimony of eavesdropping officers

June 10, 2015

In a split decision, the Indiana Court of Appeals decided on interlocutory appeal that a trial court should not have issued a blanket exclusion order preventing all of the officers who eavesdropped on a defendant’s conversation with his attorney from testifying in any matter in the case.

“While the conduct of these officers surely merits and warrants the sternest of disapproval from us, we recognize such an extreme remedy has not been generally approved,” Judge Michael Barnes wrote in State of Indiana v. Brian J. Taylor, 46A04-1407-CR-316.

Taylor was under arrest for the murder of his girlfriend when he met with attorney David Payne at 4:12 p.m. in an interview room at the Michigan City Police Department. Some officers and LaPorte County Chief Deputy Prosecutor Robert Neary were able to hear some parts of the conversation from a nearby room, and they heard crucial information regarding Taylor’s guilt. It also led officers to the location of the weapon used in the murder.

Neary informed Taylor’s counsel of the eavesdropping. Several officers involved in the matter invoked their Fifth Amendment right against self-incrimination during discovery depositions and hearings on the motion to suppress regarding the eavesdropping. Taylor wanted all evidence discovered after 4:12 p.m. to be suppressed.

The state agreed to suppress evidence of the gun and all evidence obtained after 4:12 p.m. that cannot be sourced independently from the privileged information.  The trial court decided to exclude all testimony of the police officers who asserted their Fifth Amendment right to remain silent.

The appellate judges noted their “disappointment, displeasure and disgust at the conduct of all the law enforcement officers.”

“The integrity of the entire judicial system is called into question by the conduct engaged in here by all who should know better,” Barnes wrote.

“Although the trial court found that the eavesdropping was ‘in all likelihood critical to [Taylor’s] defense,’ we think it is premature and speculative to make that determination at this juncture of the proceedings,” Barnes wrote. “At this point in the prosecution, we do not know which officers will be needed to testify, the subject of each officer’s direct testimony, and whether the eavesdropping will relate in any manner to their direct testimony or would be collateral. It is necessary that the trial court perform such an analysis of each officer’s testimony.”

Barnes and Judge Rudolph Pyle III also held the trial court’s exclusion of the officer’s testimony is not sustainable at this time based on Taylor’s Sixth Amendment right to counsel, the Fourth Amendment or the principles of prosecutorial misconduct.

Judge Melissa May dissented, believing the trial court correctly excluded all testimony by the police officers because the Sixth Amendment violation arising from the prosecution’s interference with the relationship between Taylor and his counsel requires it. She wrote that the court can presume prejudice at this point without Taylor having an obligation to demonstrate it, citing decisions from other jurisdictions.

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