Indiana Supreme Court
Discipline – Disbarment
In the Matter of: John Downey Pierce
A Rockville attorney accused of a dozen professional conduct violations for mismanaging his trust account and disobeying a court order has been disbarred.
The Indiana Supreme Court reached that decision in the disciplinary action against John Downey Pierce. The complaint filed by the Indiana Supreme Court Disciplinary Commission alleges in September 2015, Pierce commingled personal and client funds in his trust account and wrote three checks from that account for personal expenses, resulting in an overdraft. After the commission began an investigation into the matter, Pierce produced false documents that failed to adequately reflect deposits or transactions from the account.
The complaint also alleges Pierce failed to appear in court for his clients’ uncontested adoption hearing, and failed to complete related paperwork. The judge in the case ordered a show cause hearing, which Pierce failed to appear at, prompting the judge to file a grievance with the commission.
Finally, the complaint alleges Pierce failed to respond to the commission with respect to another grievance, which led to the initiation of show cause proceedings. Pierce also never responded to the full disciplinary complaint filed against him.
The hearing officer in Pierce’s case found his disciplinary history — which includes five completed and one pending action, according to the Indiana Roll of Attorneys — his selfish motive, his multiple offenses and his failure to acknowledge the wrongfulness of his action as aggravating factors, among others. The Indiana Supreme Court agreed and found Pierce in violation of 12 professional conduct and discipline rules.
Specifically, the high court found Pierce — who is already under indefinite suspension — to be in violation of Indiana Professional Conduct Rule 1.3; 1.15(a); 3.2; 3.4(c); 8.1(a) and (b); and 8.4(a) – (d), as well as Indiana Admission and Discipline Rules 23(29)(a)(3) and (4).
“We have disbarred other attorneys who have demonstrated similar unfitness to be entrusted with the responsibilities that accompany a license to practice law in this state,” the per curiam opinion says. “We acknowledge that Respondent may not have stolen as much money as some other disbarred attorneys, or been as pervasively dishonest or neglectful, but this offers faint praise. The nature of Respondent’s misconduct, coupled with his serial noncooperation and his failure to participate in these proceedings, persuade us that disbarment is the appropriate sanction here, as well.”
Chief Justice Loretta Rush and Justices Steve David and Christopher Goff concurred with the sanction of disbarment, but Justices Mark Massa and Geoffrey Slaughter dissented from that sanction. While they agreed with the findings, the dissenting justices would impose a three-year suspension without automatic reinstatement.
The costs of the proceedings are also assessed against Pierce.
Indiana Court of Appeals
Criminal – Incest
Kristopher L. Weida v. State of Indiana
The Indiana Court of Appeals has affirmed the three-year advisory sentence imposed on a man convicted of committing incest with his teenage niece and the imposition of sex offender probation conditions against the man, though one appellate judge found one of those conditions to be unduly intrusive.
Kristopher Weida pleaded guilty to Level 5 felony incest after having sex with his 16-year-old niece, K.M. During sentencing, the state introduced evidence that Weida had asked K.M. to show him “secret” photographs of herself and that K.M. had told Weida she had previously been molested by a non-blood relative. The evidence also alleged Weida asked K.M. if she had considered “doing stuff” with a family member.
Then during his sentencing allocution, Weida said he thought K.M. had seduced him and wanted to have sex with him. Weida also admitted to having a sexual relationship with Kendra Hughes, his sister and K.M.’s mother, but said Hughes initiated the relationship when he was 5 years old and she was 7 years old. The state’s evidence, however, included statements from Hughes claiming Weida had initiated the relationship and had also sexually assaulted her younger daughter when she was 3 years old.
The trial court ultimately imposed an advisory three-year sentence, with one year executed in the Indiana Department of Correction and two years suspended to probation. The court also imposed special probation conditions for adult sex offenders, which prohibited him from accessing websites, chat rooms or instant messaging programs frequented by children or accessing the internet without approval from his probation officer. However, Weida was granted permission to use a networking site to contact his own children.
On appeal, Weida first argued his sentence was inappropriate, but the Indiana Court of Appeals rejected that argument, with Judge Rudolph Pyle writing Weida’s offense was not “less egregious” than other acts of incest just because he did not use force against K.M. and only had sex with her on one occasion. Rather, Weida failed to take responsibility for his actions and abused a position of trust, Pyle said, and further called his character into question by willingly engaging in a sexual relationship with his sister.
Weida also argued the ban on his access to websites “frequented by children” is unconstitutionally vague, but Pyle pointed to the case of Patton v. State, 990 N.E.2d 511, 516 (Ind. Ct. App. 2013), in which the appellate court previously upheld the constitutionality of that condition. A majority of the appellate panel further upheld the probation conditions because they were “reasonably related” to his offense and because they do not constitute a complete internet ban, as Weida argued on appeal.
However, Judge John Baker dissented with respect to the condition that requires Weida to get permission before accessing the internet, finding that condition is “unduly intrusive and unnecessarily restrictive.”
“In today’s day and age, to require an individual to seek prior approval for every single use of the Internet is a tall order indeed, especially in a case where the use of the Internet was not a significant part of the underlying crime,” Baker wrote. “… In my view, the trial court could and should have imposed a narrower, more specifically tailored Internet restriction as a condition of Weida’s probation.”
Baker concurred in all other respects.
Criminal – Battery
Vicki Jo Clemons v. State of Indiana
The Indiana Court of Appeals agreed that a condition of a woman’s probation after attacking her neighbor needed further clarification, but the judges disagreed as to whether her felony battery with a deadly weapon conviction should be reversed.
Vicki Clemons attacked her neighbor, Margaret Willoughby, as Willoughby walked near Clemons’ home. The two had a history of not getting along. Clemons struck Willoughby in the head with a metal rod and threatened to end her life. During the attack, Clemons struck Willoughby’s head, wrist and back.
Clemons was charged with and convicted of Level 5 felony battery with a deadly weapon and Level 6 felony battery resulting in moderate bodily injury. The convictions were merged due to double jeopardy concerns.
At trial, Clemons never objected to the jury instructions, which did not include a definition of “serious bodily injury.” As a result, Clemons was forced on appeal to prove fundamental error by the trial court in not instructing the jury on the definition.
Judges Robert Altice and L. Mark Bailey upheld Clemons’ conviction of the Level 6 felony, finding that while an instruction on the definition of serious bodily injury would have been “desirable,” it is common sense that the metal rod used in the attack is capable of causing death, so it is logical that the weapon is also capable of causing serious bodily injury, Altice wrote.
“Thus, even in the absence of an instruction on the statutory definition of that phrase, the jury was able to determine based on its collective common sense and everyday experiences that the metal rod Clemons used to batter Willoughby was readily capable of causing serious bodily injury,” he wrote.
But Judge John Baker dissented, believing the definition was necessary, citing Kimbrough v. State, 911 N.E.2d 621, 634 (Ind. Ct. App. 2009). He also noted that the jury received the definition of “moderate bodily injury,” a new statutory category recently created by the Legislature.
“Had Willoughby’s injuries clearly constituted serious bodily injury, I would affirm, because a weapon that actually causes serious bodily injury is necessarily capable of causing such injury,” he wrote. “But I cannot say that it is a given that a jury would have found swelling, pain, and a wrist fracture to constitute serious, as opposed to moderate, bodily injury.”
The judges all did agree that a probation condition imposed on Clemons must be clarified. The court prohibited her from associating with people of bad character or reputation or with people likely to influence her to commit a crime, which is impermissibly vague, because it did not provide any context or clarity. The COA noted that this condition and similar ones are commonly used throughout the state and encouraged all trial courts to ensure probation conditions are appropriately specific.
The court remanded with instructions to the Shelby Superior Court clarify the probation condition.
Criminal – Sentence
Jordan Stafford v. State of Indiana
A speeding truck driver who smashed into a parked vehicle and killed two workers in an Interstate 69 construction zone will receive a lesser sentence after his conviction was partially vacated on appeal.
Jordan Stafford’s truck was traveling between 68 and 74 mph when it slammed into a parked work truck that struck and instantly killed workers Coty DeMoss and Kenneth Duerson on the morning of May 9, 2014. DeMoss and Duerson had been removing an operating flashing-arrow directional sign that alerted motorists to a lane closure on I-69 near 82nd Street in the Castleton area of Indianapolis.
Stafford was convicted of two counts of reckless operation in a highway work zone causing death, and he was sentenced to an aggregate term of 10 years in prison.
“Stafford contends that his one act of reckless driving in a highway work zone cannot sustain two convictions, even though it caused two deaths,” Judge Cale Bradford wrote for the panel. “In light of the Indiana Supreme Court’s holding in Kelly v. State, 539 N.E.2d 25 (Ind. 1989), we are constrained to agree. … While acknowledging the horrific results of Stafford’s recklessness, precedent requires that one of his two convictions be vacated.”
In Kelly, a man who killed one person and seriously injured another successfully challenged his convictions of operating while intoxicated resulting in death and OWI resulting in serious bodily injury. The COA, summarily affirmed by the Supreme Court, held in Kelly that two convictions based on conduct, not results, could not stand. Bradford wrote the panel found Stafford indistinguishable from Kelly.
“(W)e are required to vacate one of Stafford’s convictions for Class C felony reckless operation in a highway work zone causing death. Because we have vacated one of Stafford’s convictions, we do not reach his sentence challenge and, instead, remand for resentencing on the remaining conviction for Class C felony reckless operation in a highway work zone causing death. The trial court will impose the appropriate sentence as it sees fit under the facts of this case and the statutory sentencing range for this crime.”
The sentencing range for a Class C felony is two to eight years in prison.
Criminal – Murder/New Trial
Adrian Durden v. State of Indiana
A Marion County man convicted of murder and multiple drug charges will receive a new trial after the Indiana Court of Appeals determined the trial court erred by dismissing a juror nearly two hours after deliberations had begun.
Adrian Durden was tried in December 2016 for murder and eight drug-related offenses. Roughly one hour and 40 minutes into jury deliberations, Juror 12 sent a note to the judge asking to be excused from the case because the juror “just (couldn’t) come to a decision on the charges.”
The Marion Superior Court devised a plan in which Juror 12 would be dismissed if no verdict had been reached on any count and the second alternate would replace her to ensure one black person remained on the jury. If a verdict was reached on any count, then the court would ask the second alternate if his verdict would be the same on any of the counts that had been decided. Durden’s counsel, however, said he wanted Juror 12 to remain on the jury if a verdict had been reached on any count, but would not have a problem removing her if no verdict had been reached.
The jury foreman was then brought in, indicated he knew Juror 12 had sent the note and said the jury had reached a verdict on six counts. However, deliberations on the murder charge had not yet begun.
After further conversations with Durden’s counsel, Juror 12 was released and the second alternate was brought in. The new jury was given discretion to decide whether further deliberations were needed on the counts that had already been decided.
Durden was then found guilty as charged, so he appealed, arguing the removal of Juror 12 after deliberations had begun warranted reversal. The Indiana Court of Appeals agreed, with Judge Elaine Brown noting that the trial court failed to question Juror 12 on the record to determine if she refused to negotiate further or failed to agree with the other jurors.
Further, none of the other jurors were questioned on the record about the impact of removing Juror 12, Brown wrote. There also was no record of the trial court instructing the remaining jurors that her removal was not an approval or disapproval of her views, as is required by Riggs v. State, 809 N.E.2d 322, 327 (Ind. 2004).
“With respect to the State’s argument that Durden has not shown how it was impossible for the jury to fairly return a verdict on the law and that his defense counsel agreed to Juror No. 12’s removal, we observe that the Court in Riggs stated that unjustified removal constitutes ‘structural error’ and that ‘it is not up to the parties to show prejudice as the outcome,’” Brown wrote. “On the record before us, we conclude that Durden has established that reversal is warranted.”
Criminal – Unlawful Entry Statute
Douglas Kirby v. State of Indiana
A 2015 law meant to prohibit certain sex offenders from entering school property is unconstitutional as it applies to a Howard County man who has already completed his punishment for his 2010 child solicitation conviction, the Indiana Court of Appeals ruled.
In January 2010, Douglas Kirby was charged with Class C felony child solicitation after he was accused of using a computer to solicit a teenager for sex. Kirby agreed to plead guilty to the lesser-included offense of Class D felony child solicitation, which the trial court accepted.
As part of his plea agreement, Kirby was sentenced to a term of 18 months, all suspended to probation, and was subject to the special recommended probation conditions for adult sex offenders, including an order for him to register as a sex offender for 10 years. However, Kirby was granted permission to enter school property to attend and observe his son’s school activities.
After completing his probation, Kirby successfully petitioned to have his conviction reduced to a Class A misdemeanor in February 2015. But the following July 1, the Unlawful Entry Statute went into effect, making it a Level 6 felony for individuals convicted of certain crimes, include Kirby’s crime, to enter school property.
After learning of the statute, Kirby filed a petition for post-conviction relief, which was denied after an evidentiary hearing. He then appealed, arguing the statute, as applied to him, is unconstitutional because it amounts to retroactive punishment in violation of the Ex Post Facto Clause.
The Indiana Court of Appeals agreed and reversed the denial of Kirby’s PCR petition. In a unanimous opinion, Judge Cale Bradford wrote that under Indiana’s “intent-effects” test used to evaluate constitutional ex post facto claims, each of the seven factors in Wallace v. State, 905 N.E.2d 371, 378 (Ind. 2009), weigh in favor of being punitive against Kirby, which means the statute is a violation of the Ex Post Facto Clause as it relates to him.
“Importantly, the record is devoid of any suggestion that Kirby behaved inappropriately at any time while one school property,” Bradford said. “Also, by the time the Statute went into effect, Kirby had completed all forms of punishment imposed by the trial court, except for his continued registration on the sex offender registry. To suddenly deny Kirby of the opportunity to attend his son’s activities for no reason other than his prior conviction is excessive.”
Guardianship – Civil Contempt/Child Support
Brandis McCollum (formerly Brandis Adams) v. Indiana Family and Social Services Administration
A trial court imposed an “inconceivable” sentence for civil contempt on a mother who was in arrears on child support payments to the guardian of two of her three children, their grandmother, the Indiana Court of Appeals ruled.
Carroll Circuit Judge Benjamin A. Diener sentenced Brandis McCollum to serve the nearly three-year sentence on work release, though McCollum had not been criminally charged. McCollum owed an arrearage of $15,296 in child support, and at a civil contempt hearing in February, she acknowledged she had not made a child support payment for a year. She also told the court she had just started a full-time job paying $7.50 an hour, and had been promised another part-time job, according to the record.
Diener determined at the end of the hearing that McCollum was 150 weeks in arrears on child support, so he sentenced her to serve that time on work release. His order said she could end the sentence by paying half of the total child support she owed.
The COA affirmed the contempt finding, but the panel rejected in strong terms the sentence that it noted was a greater deprivation of liberty than the maximum 2½ years McCollum would have faced had she been tried and convicted of Level 6 felony non-support of a dependent child.
“We find it inconceivable that a court could properly sanction a defendant in a civil contempt proceeding, where the defendant has lesser constitutional protections, with a longer prison sentence than the maximum they could receive if charged criminally with all of a criminal proceeding’s constitutional protections. As Mother’s sanction here, assuming she is not able to purge her contempt, amounts to three years, it is greater than the maximum sentence the trial court could have imposed if she had been charged criminally. We cannot in good faith find such a sanction appropriate,” Judge Rudolph R. Pyle wrote for the panel.
The panel also found the amount McCollum was ordered to pay to purge her support obligation and end her imprisonment “was so excessive that it was unobtainable and, therefore, punitive rather than coercive.”
“It is axiomatic that no amount of imprisonment can coerce a defendant into completing an action that is not practically possible to complete,” Pyle wrote. “Accordingly, we conclude that the trial court’s conditions for Mother’s imprisonment were punitive in nature rather than coercive and, accordingly, not proper for a civil contempt sanction. As a result, we reverse the trial court’s sanction and remand with instructions for the trial court to impose a sanction that is coercive in nature.”
The opinion noted another COA panel found a 90-day sentence with purge order requiring 10 percent of arrears was not punitive, but rather coercive.
Criminal – Evidence/Trial Delays
Joseph K. Hoskins and Daniel McLayea v. State of Indiana
Prosecutors holding cellphones for months and then having to ask for a continuance so they could finally search the evidence raised the ire of the Indiana Court of Appeals, which subsequently tossed the charges against two defendants whose trials were delayed more than a year.
Joseph Hoskins and Daniel McLayea were both arrested and charged with dealing and possession of marijuana. Each filed a motion for discharge because their trials were delayed beyond a year from the dates they were charged in violation of Indiana Criminal Rule 4(C). Their individual motions were denied and they filed their appeals.
The defendants’ cases were prosecuted separately in two Marion Superior Courts but the Court of Appeals consolidated them for this appeal.
In each of the cases, both the defendants and state asked for continuances. However, the state requests for continuances resulted in longer delays than the defendants’ requests. Also, in each case, the state had to ask for a continuance so it could search the cellphones of the accused.
When Hoskins was arrested in June 2015, law enforcement seized three cellphones but the state did not investigate their contents. After the defendant requested his phones be returned because the state had done nothing with the items, the prosecutors then decided to search the phones. As a result, the state had to request a continuance.
“(T)he State had these cell phones in its possession from the time of Hoskins’ arrest in June 2015 until Hoskins requested their return in February 2016,” Judge John Baker wrote for the court. “That the State waited eight months to search the phones is certainly not Hoskins’ fault, and the delay caused by the State’s extraordinarily belated search of evidence is in no way chargeable to Hoskins.”
Similarly, law enforcement seized three cellphones when McLayea was arrested. In asking for a third continuance, the State said it needed time to search the cellphones.
As the deputy prosecutor trial told the court: “Generally so long as my case isn’t really crappy, I don’t get our phone analyzed, because our forensic unit is pretty overcrowded from homicide, rape cases, and things like that.”
Barker wrote, “As with Hoskins, in our view it would be unfair to charge McLayea with the delay in the trial that resulted from the way in which the State conducted its case.”
The Court of Appeals remanded for further proceedings.
Civil Tort – Duty of Care
Carol Walters v. JS Aviation, Inc. d/b/a Eagle Aircraft
The Indiana Court of Appeals has reversed summary judgment for a Porter County aviation company after finding issues of fact exist as to whether the company breached its duty of care to a woman injured on its property.
While attending an open house hosted by JS Aviation Inc. in April 2014, Carol Walters entered a pilot’s lounge that was connected to a hangar by a set of double doors, which were usually lined with chairs and signs warning people to watch their step. However, Walters had arrived at the open house early, so the chairs were not yet in place and she failed to notice a step down into the hangar from the lounge.
Walters missed the step and fell down the 5 ¼ inch drop. There were red warning signs posted throughout the lounge and hangar, though one of those signs was obscured by the open doors. There were also black nonslip mats lying on either side of the threshold, which Walters believed to be one carpet.
Walters sued in October 2014, alleging premises liability and seeking damages for injuries sustained during the fall. In response, JS Aviation moved for summary judgment, which the Porter Superior Court granted. Walters then appealed, and the Indiana Court of Appeals reversed.
In the court’s reversal, Judge Robert Altice wrote that under the specific facts of the case — including the fact that JS Aviation believed the step to be enough of a hazard to warrant multiple warning signs, the presence of the nonslip mats and the fact that the light was different between the lounge and hangar — there is an issue of fact as to whether the step presented an unreasonable risk of harm to invitees such as Walters. Further, Altice said there is a question of fact as to whether JS Aviation should have anticipated that an invitee would not see the step.
The appellate court also found there are triable issues of fact as to whether JS Aviation breached its duty of reasonable care and was a contributable cause of Walters’ injuries. Altice pointed to the fact that one of the warning signs was obscured by the open doors and the fact that the chairs with additional warning signs were not yet out.
The case was remanded for further proceedings.•