7th Circuit Court of Appeals
Criminal – Firearm/Robbery
United States of America v. Deandre Armour
A man convicted of attempted robbery in Indiana federal court will be resentenced after the 7th Circuit Court of Appeals found that the jury failed to find that the defendant had actually aided and abetted the brandishing of firearms during the robbery.
On June 26, 2013, Deandre Amour and two other men attempted to rob a bank in an Indianapolis suburb at gunpoint, with Armour directing the scheme. When the teller of the bank was unable to open the safe, Armour directed his team to abort the robbery, and the three men fled the bank after stealing the teller’s car.
Armour’s accomplices pleaded guilty and testified against him at his trial. The jury found Armour guilty on the charges of conspiracy to commit armed bank robbery, aiding and abetting bank robbery, and aiding and abetting using or carrying and/or brandishing a firearm during and in relation to a crime of violence. He was sentenced to 27 years in prison, including a seven-year consecutive sentence on the crime of aiding and abetting with a firearm, the mandatory minimum sentence for that crime.
When Armour appealed, he only argued that his sentence was based on the incorrect finding that he was a career offender because two prior convictions for robbery should no longer qualify as “crimes of violence.” Further, Armour argued that the firearm conviction should be reversed because attempted armed bank robbery should not qualify as a “crime of violence.” But if his conviction stands, then Armour argued that the seven-year mandatory sentence should be vacated because the jury did not find that he aided and abetted the brandishing of the firearms.
The 7th Circuit Court of Appeals disagreed with Armour’s first two arguments, writing that Indiana robbery does qualify as a crime of violence because it may be committed by “putting any person in fear.” In Indiana, the definition of putting a person in fear means “fear of bodily injury,” and Indiana courts have interpreted the related statute to mean that fear of bodily injury “involves an explicit or implicit threat of physical forces and therefore qualifies as a violent felony.”
Similarly, the appellate court wrote that attempted armed robbery in Indiana does qualify as a “crime of violence” because the crime of attempted robbery at a federal level qualifies as a crime of violence, which the U.S. Supreme Court has held is not unconstitutionally vague. Further, the 7th Circuit also rejected Armour’s argument that robbery by intimidation is different than robbery by force or violence, writing that the threshold for the violent force that must be feared for robbery by intimidation to be considered a crime of violence is low enough that even the fear of being slapped in the face is enough.
However, the 7th Circuit agreed with Armour’s argument that the jury did not find that he aided and abetted the brandishing of the firearms used in the robbery. The court wrote that the jury did not find that Armour was responsible for brandishing the firearms and that the jury instructions and verdict form did not require jurors to distinguish among using, carrying and brandishing a firearm. Thus, applying the minimum seven-year sentence for that charge was plain error, Judge David Hamilton wrote.
The appellate court vacated Armour’s seven-year mandatory minimum consecutive sentence and remanded the case to resentence him on the prison portion of the firearm charge, but also noted that the verdict still supports the five-year mandatory minimum sentence for using or carrying a firearm.
Indiana Supreme Court
Civil Tort – Negligence/Foreseeability
April Goodwin, Tiffany Randolph and Javon Washington v. Yeakle’s Sports Bar and Grill, Inc.
After deciding that foreseeability in the context of duty in a negligence case is different than the in the context of proximate cause, the Indiana Supreme Court held that a Grant County bar was not negligent in a bar shooting that injured three people because the shooting was not foreseeable.
In August of 2010, April Goodwin, Tiffany Randolph and Javon Washington were together with friends at Yeakle’s Bar and Grill in Marion. Sitting nearby was Rodney Carter and his wife. At some point, Carter thought he heard Washington make a derogatory comment about Carter’s wife, so Carter pulled out a handgun and fired at Washington, striking Washington, Goodwin and Randolph.
All three victims survived, and Carter pleaded guilty to three counts of battery with a deadly weapon. However, the trio of victims also sued the bar for damages, alleging negligence. The bar moved for summary judgment, arguing that Carter’s actions were unforeseeable, and the Grant Superior Court granted the bar’s motion. The Indiana Court of Appeals reversed, writing that “reasonable foreseeability is not part of the analysis with respect to the Bar’s duty” and also noted that the issue “has created confusion at every level of our judiciary.”
Writing for the high court, Justice Robert Rucker agreed that caselaw surrounding the issue of duty in the context of a negligence claim “has been less than perfectly lucid,” particularly because, in most negligence cases, foreseeability is a component of proximate causation only.
“But in the case before us, foreseeability is not only a component of the proximate cause element of negligence, it is also a component of the duty element of negligence, as well,” Rucker wrote. ”And … whether a duty exists is a question of law for the court to decide.”
Rucker pointed to the case of Goldsberry v. Grubbs, 672 N.E.2d 475 (Ind. Ct. App. 1996), which held that the foreseeability component of a duty analysis must be lesser than the foreseeability component of proximate cause, because if the components were equal, the proximate cause element of negligence would be unnecessary. Rucker wrote that the court was choosing to adopt the Goldsberrry case as the most accurate framework for assessing foreseeability in the duty of context.
When determining foreseeability in the duty of context, Rucker wrote that the court must assess whether the likelihood that someone may be harmed is serious enough that the situation would prompt a reasonable person to take action to avoid the situation.
Looking at the case of the Marion bar shooting, the justice pointed to testimony that stated the bar was considered safe, that there had never been a shooting at the bar, that no one had ever seen a gun at the bar and that Carter had a reputation as a jokester, not a fighter.
Based on those facts, the Indiana Supreme Court held that the bar could not have anticipated that a patron would be armed. The justices, therefore, unanimously affirmed summary judgment in favor of the bar.
Civil Tort – Negligence/Alcohol
F. John Rogers, as personal representative of Paul Michalik, deceased and R. David Boyer, trustee of the bankruptcy estate of Jerry Lee Chambers v. Angela Martin and Brian Paul Brothers
The Indiana Supreme Court held that a woman whose party guest died at her home after a drunken brawl can be considered negligent because she did not seek care for the guest, but not on the basis of supplying the alcohol that led to the fight and death.
The case against Angela Martin began in May 2010, when she hosted a party with her now-husband Brian Brothers for roughly 50 people at Martin’s home. Among the guests were Jerry Chambers and his significant other, Paul Michalik.
Brothers purchased a keg of beer for the party using a debit card he shared with Martin. Throughout the night, Brothers had a couple of shots and a few beers, despite his probation for an operating while intoxicated conviction. At 3:30 a.m., Brothers told Chambers and Michalik that it was time to leave, and a fist fight ensued between the three of them. When he woke up, Brothers asked Martin to help him to get Chambers and Michalik to leave.
When Martin walked down to the basement where the couple had been sitting, she saw Michalik lying motionless on the floor with his eyes closed. She, Chambers and Brothers confirmed that Michalik was still breathing, so Martin did not call the police. However, the police did arrive shortly thereafter and found Michalik lying dead in the yard. Brothers was arrested and was incarcerated for violations to his OWI parole.
Complaints were filed against Martin and Brothers on behalf of Chambers and Michalik’s estate, alleging that Martin was liable because she had negligently caused Michalik’s injuries and had caused Chambers and Michalik’s injuries by furnishing alcohol to Brothers, who was intoxicated. The Allen Superior Court granted summary judgment to Martin on both claims, but the Court of Appeals reversed, writing in 2015 that she owed a duty to Michalik to render aid and that there was a question of fact as to whether she furnished Brothers with the beer.
Chief Justice Loretta Rush wrote in a unanimous opinion that although Martin was not liable for failure to protect Michalik from an unforeseeable fistfight, there was still a question of fact as to whether her inaction after finding Michalik on the floor breached her duty to protect him from the foreseeable exacerbation of the injuries he sustained at her home.
Concerning that question of fact, the high court decided that homeowners should reasonably expect that a party guest who is injured on the premises could suffer from an exacerbation of those injuries. Thus, based on the undisputed evidence that shows that Martin did not act when she saw Michalik lying motionless on the floor, Rush wrote that she had breached her duty to him and, thus, held that summary judgment in favor of Martin on the negligence charge was improper.
But on the charge of liability against Martin on the basis that she furnished alcohol to Brothers, the Indiana Supreme Court decided that summary judgment was proper. Chambers and Michalik’s claims referenced the Indiana Dram Shop Act, which holds that a person who furnishes alcohol to a visibly intoxicated person who then causes injury is liable for the injuries. But Rush wrote that because Brothers and Martin jointly purchased the keg of beer with the shared debit card, Martin’s actions could not be considered furnishing alcohol to Brothers because he already possessed it.
Indiana Court of Appeals
Domestic Relations – Custody/Marital Assets
Jennifer R. Quinn v. Daniel P. Quinn
After a couple’s contentious battle in court over custody of their children and possession of their home, the Indiana Court of Appeals decided their marital estate had not been correctly divided. However, it affirmed the decision to award custody of the children to their father.
In January 2013, Jennifer Quinn, who was married with three children, left her family and moved into an apartment, leasing it in the name of her husband, Daniel Quinn, without his knowledge. When she tried to return to the family home two weeks later, he would not let her in, so Jennifer Quinn subsequently took out a protective order against her husband, which forced him to vacate the home.
Daniel Quinn filed for divorce shortly thereafter. The preliminary divorce agreement awarded Jennifer Quinn with physical custody of their children and the exclusive possession of the house, as well as the responsibility to pay the first mortgage, while Daniel Quinn would pay the second mortgage.
A few months later, Daniel Quinn filed a petition for custody of his youngest daughter, M.Q., and a modification of his child support. Jennifer Quinn subsequently filed two contempt motions, alleging that her estranged husband had not paid the proper child support. The two never reached an agreement, and M.Q. voluntarily moved in with her father after her 18th birthday.
During the divorce hearing in Marion Superior Court, witnesses testified that Daniel Quinn had been the children’s primary caretaker, and the father himself testified that he was especially close with his son, D.Q. Daniel Quinn requested custody of D.Q., 13, at the hearing and also asked for the protective order against him to be dismissed.
When the court issued the dissolution decree in August 2015, it awarded Daniel Quinn with sole physical custody of M.Q. and D.Q., ordered Jennifer Quinn to pay $69.48 a week in child support, ordered that the family house be sold and awarded 53 percent of the net marital estate to Daniel Quinn and 47 percent to his ex-wife.
Jennifer Quinn appealed, arguing that her ex-husband should not have received custody of D.Q., that the child support payment was not correctly calculated and that the property she shared with Daniel Quinn was not properly distributed.
The Indiana Court of Appeals disagreed with Jennifer Quinn’s custody and child support claims, writing that the evidence showed that Daniel Quinn had historically been his son’s caretaker and that the two had developed a very close relationship, even when Jennifer Quinn tried to keep them apart.
Further, the appellate court wrote that Jennifer Quinn’s argument that her ex-husband’s overtime pay should have been considered in the child support calculation was incorrect because Daniel Quinn’s overtime was not guaranteed.
However, the Court of Appeals agreed with Jennifer Quinn that the trial court had failed to include all of the couple’s property in the marital pot, including part of Daniel Quinn’s pension, the family home and the first mortgage. Thus, the court reversed the distribution of the estate and remanded the case with instructions to the trial court to include all property and recalculate the division of the estate.
Criminal – Home Detention
Justin S. Johnson v. State of Indiana
A Greene County man whose home detention was revoked in favor of imprisonment will now be sent to a work-release facility after the Indiana Court of Appeals found that his financial situation and documented mental illnesses were mitigating factors in his sentencing.
In December 2014, Justin Johnson pleaded guilty to neglect of a dependent resulting in serious bodily injury as a Level 3 felony. At a sentencing hearing the following month, the Greene Superior Court admitted two reports from health care professionals at Johnson’s request. One of the professionals wrote in their report that Johnson had been admitted for psychiatric hospitalizations multiple times and that he would likely meet the criteria for mild mental retardation if he were formally tested.
However, the trial court chose to sentence Johnson to 11 years in prison, with seven years served on home detention through community corrections and four years suspended to probation. Additionally, Johnson was ordered not to have any contact with his victim as a condition of his probation.
In December 2015, the Greene County Community Corrections filed a notice that Johnson was behind in home detention fees and that he had violated the terms of his home detention on multiple occasions.
At a hearing in January 2016, a case manager testified that although Johnson was originally sentenced to home detention, he had agreed to move to a work release center until he qualified for support through the Bloomfield Housing Authority. The case manager also testified that Johnson, who was on a $720 monthly fixed income, was having difficulty paying his home detention fees because he also needed to pay for his rent and food, but that he had indicated that he could apply for food stamps and receive assistance from local food banks.
Johnson’s counsel requested that he be placed at the work release facility, but the trial court chose to modify Johnson’s sentence to seven years executed in the Department of Correction, with 640 days credited to him.
Johnson appealed, arguing that his violations of home detention were minor, that he did not commit any new offenses or violate the no-contact order and that when he did violate his home detention, he was still close to being in compliance. Further, Johnson argued that it was undisputable that he had previously been successful in the work release program, and that his financial burden would have been eased in work release.
The Indiana Court of Appeals agreed with Johnson’s argument that when he was in violation of his home detention, he was still close to being in compliance and, further, that well-documented mental limitations were relevant mitigating factors.
Additionally, the Court of Appeals wrote that “to the extent the court’s decision to revoke Johnson’s placement was based in part on his failure to make full payment of his fees…the record does not establish that Johnson had the ability to make full payment of the fees.” Further, the appellate court wrote that Johnson could more easily afford the work release placement fees if he did not have a rent payment.
Thus, although Johnson did violate terms of his home detention, the Court of Appeals decided that under the circumstances, the trial court abused its discretion in ordering Johnson to serve the rest of his sentence in prison. Thus, the case was remanded with instructions to enter an order that Johnson be placed on work release.
Criminal – Search/Handgun
Jordan Jacobs v. State of Indiana
The admission of a gun obtained without a warrant from a man later convicted of carrying a handgun without a license did not violate the man’s constitutional protections against unreasonable search and seizure and, thus, does not warrant the reversal of his conviction, the Court of Appeals held.
Indianapolis Metropolitan Police Department Officer Terry Smith was at the Blackburn Terrace Apartments at approximately 2 p.m. in September 2015 when he observed a group of mostly juveniles gathered in the parking lot. Some members of the group, including Jordan Jacobs, were wearing the color red, which was known as the color of a violent gang in that area of Indianapolis.
After observing the group for several hours, Smith noticed that when a park ranger in a marked vehicle approached the area, Jacobs and another individual, both of whom Smith assumed to be juveniles, left the group and did not return until the park ranger left. Smith also noticed during his observations that several members of the group, many of whom were wearing the gang color, were coming and going, so he called for assistance from other officers in marked units in “stopping” the group.
When the marked police vehicles began to arrive, Jacobs and the other individual again began to walk quickly away from the group and picked up the pace as the police came closer. Smith instructed the two to stop, but Jacobs continued walking. IMPD Officer Jeremiah Casavan then joined Smith, and together the two officers ordered Jacobs to the ground and were able to handcuff him, although he was not yet under arrest.
Casavan then noticed the outline of a handgun in Jacobs’ front right pocket, but Jacobs claimed he did not have any weapons on him. Casavan then reached inside Jacobs’ pocked, removed the handgun and placed him under arrest.
During Jacobs’ trial in the Marion Superior Court, the state sought to admit the handgun as evidence, but Jacobs objected, saying it was recovered in violation of the Fourth Amendment of the U.S. Constitution and Article I, Section 11 of the Indiana Constitution, which protect against unreasonable search and seizure. The trial court admitted the handgun, and because Jacobs did not have a license to carry the gun, he was found guilty of Class A misdemeanor carrying a handgun without a license.
Jacobs appealed, arguing that the trial court abused its discretion by allowing the admittance of the handgun as evidence in violation of his state and federal constitutional rights. But a divided Indiana Court of Appeals rejected both of Jacobs’ constitutional arguments and affirmed his conviction.
In regard to the Fourth Amendment claim, Judge Cale Bradford wrote for the majority joined by Judge Robert Altice that Smith established that he believed Jacobs was a juvenile and, thus, was truant. Further, Bradford wrote that Jacobs’ repeated flight away from the group each time a law enforcement official approached could have reasonably led Smith to believe that Jacobs had a consciousness of guilty for not being in school.
Based on those facts, and the fact that Casavan could see the outline of the handgun, the officers had a reasonable suspicion that Jacobs was guilty of an offense, which gave them the right to recover the firearm, Bradford wrote.
Similarly, in regard to Jacobs’ claim of violation of his state constitutional rights, Bradford wrote that “the totality of the circumstances (were) sufficient to give rise to a high degree of suspicion that criminal activity or delinquent activity was occurring or had just occurred.” Bradford did concede, however, that the officers’ degree of intrusion against Jacobs was high because he was forced to the ground and handcuffed before his arrest.
Judge Terry Crone dissented, writing that “in holding that the police did not invade his right to privacy by ordering him to the ground and handcuffing him based on a tenuous suspicion of truancy, the majority has impaired the Fourth Amendment and Article I Section 11 … for innocent Hoosiers who wish to exercise their constitutional rights to walk away from approaching officers who have no valid reason to detain them.”•