Indiana Court Decisions — June 21-July 3, 2018

July 11, 2018

7th Circuit Court of Appeals

July 3

Civil Tort — Class Action/Clark County Drug Court

Destiny Hoffman v. Susan Knoebel


The 7th Circuit Court of Appeals on July 3 found litigants in Clark County’s troubled drug court endured significant deprivations of their constitutional rights — including sometimes being jailed for months without due process — but offered no relief in the appeal of their dismissed civil lawsuit.

Wrongful detentions at the Clark County Jail became international news in 2014, when prosecutors discovered numerous participants in the county’s drug court program had been illegally arrested and jailed. In the instant case of lead plaintiff Destiny Hoffman, she spent five months in jail for providing a diluted drug screen without ever seeing a judge. A report later found the program had wrongly jailed 63 people.

Former Judge Jerome Jacobi, who oversaw Clark County’s troubled drug court during the time at issue, had been dismissed from this litigation. Jacobi was defeated in a May 2014 primary election.

“Under the stewardship of Judge Jerome Jacobi, the court ran roughshod over the rights of its participants, who frequently languished in jail for weeks and even months without justification,” Chief Judge Diane Wood wrote. “The jail stays imposed as ‘sanctions’ for noncompliance with program conditions were arbitrary and issued without due process.

“… While we have no doubt that the plaintiffs’ constitutional rights were violated, the question is whether these defendants were personally responsible for the systemic breakdown,” Wood wrote for the 7th Circuit panel in Destiny Hoffman, et al. v. Susan Knoebel, et al., 17-2750. “Plaintiffs have failed to make that showing, and so the district court’s judgment dismissing the action must be affirmed.”

Along with Wood, the panel included Indiana Circuit Judges David Hamilton and Amy Coney Barrett, a leading contender for President Donald Trump’s nomination to the Supreme Court of the United States. The panel affirmed an August 2017 ruling by Southern District of Indiana Senior Judge Sarah Evans Barker dismissing the remaining 17 plaintiffs’ proposed class action naming Susan Knoebel, a former drug court director, two of her subordinates and former Sheriff Danny Rodden.

The Clark County Drug Court under Jacobi was suspended by the Indiana Supreme Court after its abuses came to light. A new Clark County Drug Court was instituted under Judge Vicki Carmichael.

The 7th Circuit panel found no grounds to reinstate the suit against the defendants who wrongfully exercised police powers, raided homes, made impermissible “arrests” and detained drug court participants without due process.

“Hoffman and (plaintiff Jason) O’Connor have not told us why any part the defendants played in this unfortunate tale was so egregious that it violated their due process rights. They cannot mean that every bureaucratic slip creates a constitutional violation,” Wood wrote.

“… We have no doubt that the plaintiffs’ constitutional rights were violated during their time as participants in the Clark County DTC. But that is not the question before us,” the chief judge continued. “It is whether any of the four defendants can be held liable for those constitutional injuries. The plaintiffs cannot overcome the barriers to recovery against these four defendants.”

Indiana Supreme Court

June 27

Criminal — Manslaughter/Prosecutorial Misconduct

State of Indiana v. John B. Larkin


John Larkin, whose manslaughter charge in connection to the 2012 shooting death of his wife was dismissed, will once again face the trial court after Indiana Supreme Court justices found the dismissal to be “an extreme remedy” for police and prosecutorial misconduct and an abuse of the trial court’s discretion.

Justices reinstated the criminal charge in State of Indiana v. John B. Larkin, 46S04-1711-CR-701 at the request of the state. The Indiana Court of Appeals previously upheld the LaPorte Circuit Court’s dismissal of Larkin’s charges on misconduct and Criminal Rule 4(C) grounds.

Larkin had been charged after Long Beach Police Department officers found his wife, Stacey, dead in their home from two gunshot wounds. Larkin agreed to speak with police about the shooting only on the condition that he be charged with voluntary manslaughter, not murder. The interview was videotaped, and during a break, the recording equipment captured Larkin telling his attorneys a struggle ensued between he and his wife after she attempted to retrieve a gun from a safe.

According to Larkin, who was unaware the recording devices were still on, the struggle led to his wife being shot twice. Additionally, a separate recording captured a conversation in which two law enforcement officials discussed pressuring another officer to change his story to damage Larkin’s potential defenses.

Although then-chief deputy prosecutor Robert Neary instructed the court reporter not to transcribe the portion of the video in which Larkin and his attorneys were speaking, the privileged communications were transcribed and distributed to the LaPorte County Prosecutor’s Office. The state disclosed to Larkin that it had captured the communications between him and his attorney and stipulated Larkin would be tried within three months.

When the case was delayed due to a series of judicial and prosecutorial recusals, Larkin moved for dismissal. Criminal Rule 4(C) provides a defendant may not be held to answer a criminal charge for greater than one year, unless the delay is caused by the defendant, emergency, or court congestion.

Larkin’s trial ultimately was set for June 2016, after an interlocutory appeal and a motion for change of judge. The state appealed to the higher court, questioning if the delay was a result of that appeal and attributable to Larkin.

Justices found that the period of delay during the pendency of Larkin’s interlocutory appeal is chargeable to him and ruled that the trial court did not have jurisdiction until the interlocutory appeal was certified.

“Because the delays that occurred as a result of Larkin’s interlocutory appeal and his motion for change of judge are attributable to him and he agreed to a June 2016 trial date in May, prior to expiration of the 4(C) period, he is not entitled to discharge pursuant to Criminal Rule 4(C),” Justice Steven David wrote for the court.

In regard to the state’s misconduct, justices found that while there was no disputing its mistakes, the state’s misconduct was not so severe that Larkin’s criminal charges should be dismissed because of it.

Justices also found that State v. Taylor, 49 N.E.3d 1019 (Ind. 2016), is applicable to Larkin’s case, therefore concluding that outright dismissal is not an appropriate remedy. The state argued that under Taylor, it was entitled to a hearing to a hearing to determine what, if any, evidence was tainted by the state’s misconduct.

“The trial court will need to look at each piece of evidence and testimony and determine first, whether it is tainted and next, if so, whether the State can rebut prejudice beyond a reasonable doubt,” David continued. “If it is, the State shall be afforded the opportunity to rebut the presumption of prejudice by proof beyond a reasonable doubt. Failing that, the testimony or evidence at issue will be suppressed.”

“Finally, we note again that Taylor involved blanket suppression and not a motion to dismiss. Dismissal is an extreme remedy. As the U.S. Supreme Court has held, for constitutional violations committed by the government, ‘the remedy characteristically imposed is not to dismiss the indictment but to suppress the evidence’ gained from the violation in U.S. v. Morrison, 449 U.S. 361, 365 (1981).

“To the extent the prosecutorial misconduct in this case has caused prejudice which the State cannot rebut beyond a reasonable doubt, the appropriate remedy is suppression of the tainted evidence, not outright dismissal without taking into account other untainted evidence or giving the State an opportunity to rebut the presumption of prejudice,” the panel concluded.

Both issues were reversed and remanded. At its discretion, the trial court may either hold a hearing during which the State can rebut the presumption of prejudice for any tainted evidence or proceed to trial at which the State may attempt to meet its burden through offers of proof outside the presence of the jury.

Both the Taylor and Larkin cases involved prosecutorial misconduct by Neary. In November 2017, the Indiana Supreme Court suspended him for four years, citing eavesdropping and other misconduct in both cases. Justices wrote in his suspension order that “Neary’s actions ‘caused significant delays and evidentiary hurdles in the prosecutions of Taylor and Larkin, even assuming they still can be prosecuted at all.’

“We share the hearing officer’s view that ‘the egregious nature of respondent’s conduct cannot be overstated’ and warrants a sanction at the upper end of the disciplinary spectrum,” the justices wrote, noting the commission urged disbarment. But considering Neary’s lack of disciplinary history and the fact that he self-reported his conduct in Taylor’s case, the high court concluded “the door should not permanently be closed on (Neary’s) legal career.”

June 29

Criminal — Resisting Law Enforcement/Multiple Counts

Brian L. Paquette v. State of Indiana


A wrong-way driver who caused the deaths of three adults and one unborn child while fleeing police had two of his three convictions for resisting law enforcement overturned after the Indiana Supreme Court determined state law allows only one conviction for each act of resisting.

Brian Paquette, having drug-induced hallucinations, was driving north in the southbound lanes of Interstate 69. When an Indiana State Police trooper attempted to stop him, Paquette made a U-turn and headed south in the northbound lanes, where he collided with oncoming traffic.

Paquette pleaded guilty to multiple felony charges including operating a vehicle with methamphetamine in his body causing serious bodily injury, a Level 6 felony, operating a vehicle with methamphetamine in his blood causing death, a Level 4 felony, and reckless homicide, a Level 5 felony.

However, he reserved the right to ask the court to enter only one conviction and sentence for the resisting law enforcement by fleeing in a vehicle causing death, a Level 3 felony. The state charged him with three counts of resisting law enforcement, one for each deceased victim. Paquette argued he engaged in only one act of resisting and that his conviction on all three resisting charges violated the state and federal prohibition against double jeopardy.

The Pike Circuit Court ruled against him and imposed 16-year sentences to be served consecutively for each of the three felony resisting law enforcement convictions. In total, Paquette was sentenced to serve 55½ years.

On appeal, Paquette asserted the trial court erred. As written, Paquette argued, Indiana’s resisting law enforcement statute authorizes only one conviction for each act of resisting.

The Indiana Supreme Court agreed, reversing two of the three convictions for felony resisting law enforcement in Brian L. Paquette v. State of Indiana, 63S04-1709-CR-570.

A split Indiana Court of Appeals also reversed, relying on its own precedent in Armstead v. State, 549 N.E.2d 400 (Ind. Ct. App. 1990). The Supreme Court noted while Armstead is applicable, it does not fully resolve the issue presented by Paquette.

For that, the justices turned to analyzing the resisting law enforcement statute, Indiana Code section 35-44.1-3-1. The Court subsequently found the statute provides that a single discrete incident can be the basis for only one conviction no matter how many individuals are harmed.

“Nothing about the structure or language of the statute creates a new or independent offense and our inquiry into other similar statutes confirms our reading of Indiana Code section 35-44.1-3-1,” Justice Steven David wrote for the court. “Our legislature is aware that multiple convictions for multiple harms caused by a single violation require explicit authorization and we trust that they would have done so if that was their intent.”

The court reached the same conclusion in a similar case June 29, Matthew Edmonds v. State of Indiana, 18S-CR-50.

Criminal — Resisting Law Enforcement/Multiple Counts

Matthew Edmonds v. State of Indiana18S-CR-50

The Indiana Supreme Court ruled that Indiana Code permits only one conviction of resisting law enforcement from a single incident, regardless of how many people are harmed in an accident.

The high court reversed two of Matthew Edmonds’ three Level 5 felony resisting law enforcement convictions stemming from a fatal crash in which he struck a passing vehicle, killing the driver and seriously injuring two other passengers.

In June 2015, Edmonds was pursued in a car chase by Indianapolis police officers after he stole food and clothing items from a Beech Grove Walmart. Police called off the chase when Edmonds began driving 80 miles per hour on a 40-mile-per-hour road. Police remained on the lookout for Edmonds, and later witnessed him drive through a red light at the intersection of State Street and Prospect Avenue where his car collided with the driver’s side of a pickup truck.

The impact flipped Donna Niblock’s truck in the air, and she later died as a result of her injuries. Niblock’s daughter and grandson survived the crash, but they each suffered serious injuries.

In its decision, the high court posed the question of whether Indiana Code section 35-44.1-3-1 allows for a Level 3 felony and two Level 5 felony convictions stemming from a single act of resisting law enforcement where the act of resisting resulted in the death of one person and serious bodily injury to two others.

It applied Paquette v. State, 63S04-1709-CR-570, another case decided June 29, in which both defendants used a vehicle to flee from law enforcement and the pursuit ended in a horrific crash involving innocent motorists. Both defendants also faced multiple felony resisting law enforcement charges stemming from a single act of resisting.

While reviewing Paquette v. State, the court found that Indiana Code section 35-44.1-3-1 was intended to authorize only one Level 3 felony conviction for each act of resisting, even where multiple deaths are caused by the use of a vehicle.

“Our rationale relied on principles of statutory interpretation to conclude that each discrete incident outlined in subsection (a) constitutes a separate offense of resisting law enforcement,” Justice Steven David wrote for the court. “When more than one of those incidents occurs, we may uphold multiple resisting law enforcement convictions, but a single discrete incident can be the basis for only one conviction. We also found that subsection (b), which makes an offense under subsection (a) a felony, creates no new or independent offense; the subsection merely enhances the degree of the offenses outlined in subsection (a).”

“Applying the Paquette holding, we find that here too the statute authorizes only one conviction — that is, the highest chargeable offense,” David continued. “Whether multiple people are killed or, as in this case, some are killed and others are seriously injured, the offense continues to be a single harm to the peace and dignity of the State if it stems from a single instance of resisting law enforcement.”

Therefore, the court determined Edmonds could only be convicted of one felony of resisting law enforcement where one act of resisting causes death and serious bodily injury in Matthew Edmonds v. State of Indiana, 18S-CR-50.

It reversed the two Level 5 felony resisting law enforcement convictions, affirmed the remaining convictions and remanded for resentencing. Edmonds had been sentenced to 25 years in prison on numerous convictions.

Indiana Court of Appeals

June 26

Domestic Relation/Beneficiary Designation

Russell McCallister v. Angela McCallister


A trial court’s contempt order against a man who named his current wife beneficiary of his military survivor benefits was valid, even though the court’s order that the ex-husband redesignate his ex-wife violated federal law, the Indiana Court of Appeals found June 26.

Russell and Angela McMaster divorced in 2011 after more than 20 years of marriage. Their divorce decree stipulated that Russell, who had retired from the U.S. Air Force, would designate Angela as a beneficiary of his survivor benefit plan. But after he remarried in 2012, Russell designated his current wife as beneficiary.

Angela didn’t learn of this until 2016, after which she filed a contempt of court motion against Russell. The trial court found him in contempt, ordered him to reinstate Angela as beneficiary, and ordered Russell to pay Angela’s attorney fees. After being denied a motion to correct error by the trial court, Russell appealed to the Indiana Court of Appeals, which reversed part of the trial court’s order that it found to be in violation of federal law.

“Concluding the trial court correctly determined that Russell violated the parties’ Marital Settlement Agreement, but constrained by the federal statutes which prevent the enforcement of the trial court’s order, we are compelled to reverse and remand in part and affirm in part,” Senior Judge Ezra Friedlander wrote for the panel in Russell McCallister v. Angela McCallister, 49A02-1704-DR-887.

Under federal law, there are two ways an ex-spouse may be designated a beneficiary under survivor benefit plans. The veteran may elect his ex as beneficiary or the former spouse can file a written request that an election be deemed to have been made the designation. In both instances, the election must be made within one year of the court order directing the election.

Because Russell named his current wife beneficiary more than a year after his divorce decree, Friedlander wrote, “It appears no Indiana case has addressed the precise question posed here: whether, at the present time, it is possible to designate Angela as the beneficiary of Russell’s SBP.”

The court turned to holdings in Florida and Georgia courts for guidance.

“Accordingly, we conclude that based on the facts of this case and the specific provisions of the SBP enacted by Congress, the trial court’s order directing Russell to reinstate Angela as the beneficiary of his SBP cannot be enforced despite Russell’s violation of the terms of the Agreement,” Friedlander wrote. “Thus, because Russell failed to comply with the divorce decree and the SBP statutory deadline of one year for election of a former spouse as beneficiary and Angela did not request within one year that an election be deemed, Angela cannot now obtain beneficiary status with regard to Russell’s SBP.”

Nevertheless, the contempt order was valid, as was the trial court’s order that Russell pay $3,000 in Angela’s legal fees.

“(W)e conclude the action of reinstating Angela as beneficiary of Russell’s SBP as ordered by the trial court cannot be accomplished under the applicable federal law; therefore, we reverse and remand with instructions for the trial court to fashion an appropriate remedy to compensate Angela for the loss of her portion of Russell’s SBP,” Friedlander wrote.

June 29

Civil Plenary — Quiet Title/Summary Judgment

Terrance E. Chmiel v. US Bank National Association


A man who claims his signatures on 2005 real estate documents were forged won his appeal June 29 to reinstate a lawsuit seeking quiet title of property he claims to have had an interest in since 1991.

The Indiana Court of Appeals reversed the Starke Circuit Court’s grant of summary judgment in favor of the bank in Terrance E. Chmiel v. US Bank National Association, 75A05-1708-PL-1979. Chmiel obtained a fee simple interest in property owned by his mother and stepfather in 1991, subject to life estates in their names. In 2005, a quitclaim deed conveying that interest was conveyed back to Chmiel’s mother was registered, but he insists his signature was forged. He contends he was working as an Elkhart police officer on the days he is purported to have signed the papers, and he says he has never visited the Knox notary’s office where he is said to have signed the papers.

Afterward, Chmiel’s mother obtained a $40,000 mortgage on the property, and over time the loan was assigned to numerous various entities until finally becoming serviced by US Bank. Chmiel sent at least three letters to various lenders contesting the quitclaim deed. In 2011, the mortgage was assigned to US Bank, which foreclosed. Chmiel moved to intervene, and the foreclosure was stayed when his mother filed for Chapter 13 bankruptcy. She made monthly payments on the mortgage under the bankruptcy plan until she died in 2015.

A year later, Chmiel filed a quiet title action against US Bank, alleging he owned a fee simple title to the property and that the mortgage expired upon his mother’s death. US Bank countered that it was a holder in due course of the mortgage.

Starke Circuit Judge Kim Hall granted summary judgment in favor of the bank finding Chmiel’s action was barred by the statute of limitations and doctrine of laches, the deed was valid and US Bank was a bond fide mortgagee. A panel of the Indiana Court of Appeals reversed, agreeing with Chmiel’s arguments that the trial court erred.

“Because we conclude that: (1) Chmiel’s quiet title action was not barred by the statute of limitations; and (2) there remain genuine issues of material fact regarding whether: (a) the doctrine of laches bars Chmiel’s claim; (b) the 2005 deed was valid; and (c) U.S. Bank was a bona fide mortgagee, we agree that the trial court erred when it granted summary judgment,” Judge Rudolph R. Pyle wrote for the panel. “We reverse the trial court’s order and remand for further proceedings.”

July 3

Ordinance Violation — Nuisance/Condominium

City of Indianapolis v. Towne & Terrace Corporation, et al.


Summary judgment entered in favor of an east side Indianapolis condominium complex was affirmed when the Indiana Court of Appeals ruled that damages sought against the complex by the city for being a “nuisance” were inappropriate.

Towne & Terrace is a residential complex near the intersection of East 42nd Street and Post Road in Indianapolis. It’s a private, nonprofit Indiana corporation with the purpose of owning and maintaining the common areas of the condominium development.

Unlike more recent condominium developments, Towne & Terrace homeowners are members of Towne & Terrace and do not own any interest in its common areas. The individual lots are transferred by deed.

As of 2017, the City of Indianapolis owned at least 49 units in Towne & Terrace. Thirteen of the units were acquired as part of a settlement in an unrelated nuisance action. The remainder of the units became the city’s possession after they were not purchased at tax sales. Since being acquired, each of the city’s homes in Towne & Terrace has been left vacant and boarded up.

In 2014, the city filed an amended complaint against the corporation and four of its board members in response to increased crime on the east side of the city. The suit alleged that Townes & Terrace “failed to provide, maintain, and ensure that all common areas of the residential complex are safe from hazardous conditions, including but not limited to general lawlessness and the threat of reasonably foreseeable criminal intrusions.”

The city contended that the Marion Superior Court erred in determining that it could not maintain its nuisance claim in City of Indianapolis v. Towne & Terrace Corporation, et al., 49A02-1711-OV-2686, based on the allegation that “Towne & Terrace took no reasonable action to prevent the property from descending into criminal chaos, nor did it take any reasonable steps to ameliorate the situation.”

The city maintains it was not trying to enforce an ordinance, rule, or regulation; rather, it brought a nuisance action under I.C. § 32-30-6-7 and sought “compensatory damages for a public nuisance for which it alleges Towne & Terrace is responsible.”

However, the court found that the sought damages for resources expended by the city in response to the “unreasonable volume of investigations, reports, and citations caused by Towne & Terrace’s neglect of the residential complex and individual units” is prohibited under that code.

“Indiana Code section 32-31-1-22(i) unequivocally allows the pursuit of nuisance actions brought by a city, county or town. Even though this section (i) is silent as to the type of damages a city, county, or town may demand under a nuisance action, section (d) of the statute clarifies that the enforcement of the nuisance rules cannot be used to penalize an individual in requesting law enforcement’s assistance,” Judge Patricia Riley wrote.

On a second motion for summary judgment, Towne & Terrace contended it was not capable of controlling crime, nor enforcing criminal laws and that it merely had an obligation to maintain the common areas, not the individual units in the complex.

“Based on the foregoing, we hold that the trial court properly issued summary judgment on Towne & Terrace’s motions for summary judgment,” Riley concluded.•


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