Indiana Court Decisions – Sept. 14-27, 2016

October 5, 2016

7th Circuit Court of Appeals

Sept. 23

Civil – Habeas Petition/Murder

Wayne Kubsch v. Ron Neal


The full 7th Circuit Court of Appeals has ordered that a writ of habeas corpus or a new trial be ordered for a man convicted of three murders and sentenced to death, finding that state courts incorrectly omitted a key piece of evidence in the defense’s case.

Wayne Kubsch was convicted in the 1998 murders of his wife, Beth Kubsch, Rick Milewski and Aaron Milewski, Rick Milweski and Beth Kubsch’s son, in Mishawaka. Kubsch was sentenced to death.

While the 7th Circuit Court wrote in its opinion that the jury in the case had correctly relied on circumstantial evidence to convict Kubsch of the murders, the court also wrote that one piece of evidence omitted could have been used to prove Kubsch’s innocence. The evidence was videotaped testimony of Amanda Buck, a 9-year-old girl who said in the video that she saw Aaron Milewski at 3:30 p.m. on the day of the murders, which would have undermined the state’s theory that the murders were committed between 1:53 p.m. and 2:51 p.m.

Buck was called to testify at a second trial in the case in 2005, but she claimed to have no memory of the videotaped interview with police. Kubsch’s lawyer attempted to use the transcript of the interview to refresh Buck’s memory and later to impeach her, but the prosecution objected, and the court sustained the objections. The court also refused to permit the use of Buck’s interview as a recorded recollection.

After direct appeals and post-conviction proceedings in state courts, Kubsch filed for habeas corpus relief in federal court. The district court and a panel of 7th Circuit judges found that the state court decisions passed muster, but that opinion was vacated when the full 7th Circuit Court decided to hear the case en banc.

In its opinion, the 7th Circuit Court wrote that the heart of Kubsch’s case went to whether the state had violated his rights to due process under the 14th Amendment by rendering a decision contrary to the U.S. Supreme Court’s decision in the case of Chambers v. Mississippi, 410 U.S. 284 (1973).

In that case, the U.S. Supreme Court held that, “Few rights are more fundamental than that of an accused to present witnesses in his own defense. … Although perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy have long existed.”

In applying Chambers to Kubsch’s case, the 7th Circuit Court wrote that the excluded recording of Buck’s testimony was the strongest evidence in Kubsch’s defense based on actual innocence and, as Chambers requires, was unusually reliable.

If a jury had been allowed to hear Buck’s testimony or that of her mother, the Circuit Court wrote that they could have reasonably acquitted or convicted Kubsch.

“All we are saying is that the jury should have been given the chance to evaluate the case based on all the evidence, rather than on the basis of a truncated record that omitted the strongest evidence the defense had,” the court wrote. “The facts of Kubsch’s case parallel so closely the facts of Chambers … that a failure to apply those cases here would amount to an unreasonable application of law clearly established by the Supreme Court.”

The 7th Circuit Court reversed and remanded for the issuance of a writ of habeas corpus, unless the state takes steps to give Kubsch a new trial within 120 days.

However, Judges David Hamilton, Frank Easterbrook and Diane Sykes dissented, writing in a separate opinion that the en banc majority had “crafted a new rule so narrow and case-specific as to be good apparently only for this case.”

“The residual risk or error in capital cases is deeply sobering for all of us with roles in the criminal justice system,” Hamilton wrote. “That risk offers a powerful policy argument against the death penalty. It does not provide a reason to disregard rules of evidence that apply to both sides and have been designed to ensure fair and reliable evaluation of evidence.”

Indiana Court of Appeals

Sept. 15

Expungement – Forgery/Methamphetamine

Mindy M. Cline v. State of Indiana


The Indiana Court of Appeals has reversed a Jay Circuit Court decision to deny a woman’s petition for expungement of her records after she was convicted of forgery and dealing in methamphetamine.

Mindy Cline filed a petition for expungement of her 2003 forgery conviction and 2004 dealing in methamphetamine conviction on Oct. 16, 2015, and the state did not oppose.

However, on Nov. 13, 2015, Cline’s petition was denied, with the trial court saying it was “based largely on the nature of the convictions, the severity of the offenses and the relatively short duration since release from probation/parole on the most recent convictions.” At that time, Cline had been out of supervision for five years.

At a hearing one day before Cline’s petition was denied, Jay Circuit Judge Brian Hutchinson had told Cline that he remembered her convictions, particularly her methamphetamine conviction, and that he was tired of dealing with meth and heroin offenders.

“I’ve had a belly full,” Hutchinson said of drug offenders. “I’m not doing favors for people that are causing these problems in Jay County.”

Cline appealed, saying the trial court abused its discretion by relying upon circumstances that are not statutory bars to expungement — specifically, the type of offense and length of time elapse.

The state argued that Cline was asking for the Court of Appeals to reweigh the evidence and invade the province of the fact-finder, but in its reversal, the court wrote that the state’s argument ignores the fact that the existing evidence given to the trial court pointed toward expungement.

Further, the court wrote that it seemed the trial court thought Cline had eight convictions, rather than two. Although her original expungement petition stated that she had four forgery convictions and four dealing in methamphetamine convictions, the evidence at the expungement hearing showed that she only had one conviction each.

Cline was young when she was convicted and has now satisfied the prerequisites for expungement, the court wrote. Further, the Court of Appeals said she has been consistently employed and has earned various degrees, licenses and certifications, including an associate’s degree in business administration.

However, Cline testified that she lost her job as a store manager when the store owners learned of her record. She testified that she would like to return to management and would be more able to do so if her record were expunged.

The Court of Appeals called Hutchinson’s remarks about Cline’s past convictions and drug offenders as a whole “troubling.”

“Undeniably, methamphetamine and other illicit drugs are a burden upon communities and judicial resources,” the court wrote. “That said, our legislature has provided a second chance for individuals who have in the distant past committed drug-related crimes.”

The Court of Appeals reversed and remanded the denial of Cline’s petition for expungement, with Judge Michael Barnes dissenting.

Barnes wrote in a separate opinion that although Hutchinson’s comments were “not exactly artful and (were) unnecessarily harsh,” the trial court was within its parameters to deny the expungement petition. Further, Barnes wrote that state statute is silent on what factors trial courts may consider when deciding how to exercise its discretion.

However, Barnes wrote that he would remand the case to trial court to clarify how many convictions it believed Cline had and reconsider its denial.


Sept. 20

Civil Tort – Evidence/Damages

State Farm Mutual Automobile Insurance Company v. Sean Woodgett


The Indiana Court of Appeals reversed a judgment against State Farm Mutual Automobile Insurance Co. after finding that a trial court erred in excluding evidence that could have proven the company did not play a role in an accident that led to the plaintiff suffering from severe migraine headaches.

State Farm appealed in the case after the Delaware Circuit Court entered judgment in favor of Sean Woodgett for $85,000 against State Farm and Timmie Storms, whose vehicle struck Woodgett’s van from behind in September 2011, forcing the van to roll into the back of another vehicle. Woodgett had uninsured/underinsured motorist coverage at the time of the accident.

Woodgett was taken to the hospital and treated for neck pain and headaches. After undergoing physical therapy, Woodgett reported in February 2012 that his headaches were slight and came infrequently, but later began visiting a neurologist in 2013 for very severe headaches three to four times a week. The neurologist, Dr. Wuff, eventually diagnosed Woodgett with migraines.

Woodgett filed for damages against Storms and State Farm in 2013 and moved in the 2015 trial that State Farm be precluded from presenting evidence related to another accident Woodgett was involved in during the fall of 2012.

Counsel for State Farm alleged that Woodgett’s increasing headaches, which he first reported in January 2013, were related to the second accident in 2012. But the Delaware Circuit Court ruled that there was no medical evidence that directly spoke to the issues of the injury Woodgett suffered after the second accident and, thus, granted Woodgett’s motion, prompting State Farm’s appeal after the court entered judgment in favor of Woodgett.

In its reversal, the Court of Appeals wrote that a logical nexus existed between the second accident and the subsequent migraine headaches. That nexus was sufficient enough to show that the second accident was the possible cause of the migraines and, thus, that the trial court abused its discretion in excluding evidence of the second accident, the Court of Appeals wrote.

Further, the court wrote that the trial court’s error was inconsistent with substantial justice.

“This exclusion went to the heart of the matter that the jury was asked to decide — the extent to which Woodgett’s accident with Storms caused the headaches experienced by Woodgett and, in particular, the severe migraine headaches,” the Court of Appeals wrote.

The Court of Appeals remanded the case for further proceedings.


Sept. 21

Criminal – Indigent/Fees

Andre C. Coleman v. State of Indiana


The Indiana Court of Appeals has vacated an order for a man convicted of public intoxication and found to be indigent to pay more than $600 in public defender and probation fees.

Andre Coleman was arrested on June 13, 2015, for public intoxication after Indianapolis Airport Police found him asleep in his car and under the influence of alcohol along the airport’s North Access Road. Coleman failed multiple field sobriety tests before his arrest.

After the Marion Superior Court found Coleman to be indigent, the court appointed an attorney at public expense to represent Coleman with no reimbursement requirement. He was convicted of Class B misdemeanor public intoxication in September 2015 and was ordered to serve 365 days in jail with 363 days suspended to probation and to take an alcohol and drug treatment class.

The trial court found Coleman indigent as to fines and costs, but when Coleman asked if he would have to pay for the alcohol and drug treatment class, the court responded “Yes, yeah” without inquiring about his financial situation. The court also did not list a public defender fee or any other court costs or fees in its sentencing order. The order listed his total monetary obligation as $0, and the order of probation did not designate an amount owed for probation user fees.

However, one day after sentencing, Coleman was charged with $640 in court fees, including a $50 supplemental public defender fee and a $250 fee for the drug and alcohol services, which he appealed.

The Court of Appeals vacated all fees against Coleman, writing that the imposition of the $50 public defender fee appeared to be an error on the part of the probation department and that the trial court never actually imposed that fee on Coleman in either its sentencing order or its order of probation.

Similarly, the Court of Appeals wrote that the record did not show that the Marion Superior Court imposed the probation fees, but that the trial court had said at the sentencing hearing that Coleman would be found indigent as to fines and costs. Thus, the Court of appeals vacated Coleman’s probation fees and remanded to the trial court to hold an indigency hearing.

Finally, the Court of Appeals also vacated the $250 fee imposed on Coleman, pending an indigency hearing. If the hearing shows that Coleman is able to pay the probation fees, then the trial court will be instructed to correct the order to reflect that Coleman owes $150 for the alcohol and drug services, corresponding with his Class B misdemeanor conviction. The $250 fee would only be imposed for a Class A misdemeanor.


Sept. 27

Civil Tort – Negligent Hiring

Dale Sedam, Kim Sedam, and Bryan Norris, as co-personal representatives of the Estate of David C. Hamblin, deceased v. 2JR Pizza Enterprises, LLC doing business as Pizza Hut #013413, Amanda Parker individually and as an employee of 2JR Pizza Entereprises, LLC, and Ralph Bliton


A negligent hiring claim against Pizza Hut can continue to move through Jefferson Circuit Court after the Indiana Court of Appeals found that the trial court erred when it granted summary judgment in favor of the pizza chain.

On Aug. 24, 2012, Amanda Parker’s vehicle collided with the rear of David Hamblin’s scooter on State Road 62, knocking Hamblin into the road and causing Ralph Bliton to run over Hamblin with his vehicle. Hamblin died a short time later.

Dale Sedam, Kim Sedam and Bryan Norris, who are collectively representing Hamblin’s estate, filed a wrongful death suit against Bliton, Parker and Pizza Hut, which was Parker’s employer at the time of the accident. Parker was acting in her official capacity as a Pizza Hut delivery driver when she struck Hamblin. The estate managers later amended the suit to allege that Pizza Hut negligently hired, trained, supervised and retained Parker.

Pizza Hut and Parker filed a motion for partial summary judgment in March 2015 in Jefferson Circuit Court, arguing that the trial court should enter judgment in their favor on the negligent hiring claim because Pizza Hut had already admitted that Parker was acting within the scope of her work as a delivery driver when the accident occurred. Because of that admission, Pizza Hut said it could only be held liable for negligence under the theory of respondeat superior. The trial court subsequently granted Pizza Hut’s motion.

Hamblin’s estate appealed, arguing that the Jefferson Circuit Court erred when it found that the estate could only proceed with the negligence claim only under the theory of respondeat superior.

The Indiana Court of Appeals agreed in its opinion, writing that existing jurisprudence does not always preclude a party from pursuing both a negligent hiring claim and a negligence claim under the theory of respondeat superior.

In its appeal, the representatives of Hamblin’s estate estate pointed to the case of Broadstreet v. Hall, 168 Ind. 192, 80 N.E. 145 (1907), in which the Indiana Supreme Court found that it was permissible for a jury to find a business owner vicariously liable for the negligent acts of his son and to find him liable for negligently trusting his son when he knew his reputation for recklessness.

Under stare decisis, the Court of Appeals wrote that it was bound to apply the Broadstreet decision to the negligence claims against Pizza Hut.

Further, the appellate court pointed to the Indiana Comparative Fault Act, which establishes that “in a jury trial, the trial court shall ‘instruct the jury’ to ‘determine the percentage of fault of the claimant, of the defendants, and of any person who a nonparty.’”

“Under the Comparative Fault Act, it would be illogical to disallow a cause of action that could result in the allocation of additional fault to a tortfeasor,” the court wrote.

The Court of Appeals reversed the Jefferson Circuit Court’s motion for partial summary judgment in favor of Pizza Hut and remanded the case for further proceedings.•


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