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Indiana Court decisions – Nov. 8-19, 2018

November 28, 2018

7th Circuit Court of Appeals

Nov. 7

Criminal — Attempted Bank Robbery/Acquittal, Resentencing

USA v. Duprece Jett, et al.

17-2051, -2052, -2060

The 7th Circuit Court of Appeals reversed three men’s attempted robbery convictions for lack of evidence but affirmed their remaining convictions and ordered them resentenced.

In 2015, Duprece Jett, Damion McKissick and Earl Walker were charged with conspiracy and attempted bank robbery after committing a string of armed robberies over a four-month period while disguised in 1970s-themed apparel.

Jett and McKissick robbed an Indianapolis Advance America Check Cashing Service as well as two Indiana Members Credit Union branches in Indianapolis and Avon. Officers suspected that a fourth robbery was imminent on Dec. 12, 2015, and apprehended Walker and McKissick after a car chase resulted in them crashing in a ditch.

Walker was sentenced to six years in prison, three years supervised upon release and ordered to pay $4,167.23 in restitution. Both Jett and McKissick were sentenced to 24.4 years in prison, received a three-year supervised release and ordered to pay restitution. McKissick was ordered to pay $137,427.03.

On appeal, Jett, McKissick and Walker raised several challenges to purported errors in the district court, insufficient evidence, jury instructions and the admission of certain expert and lay testimony.

First, the defendants argued there was insufficient evidence to convict them of attempted robbery on the day of their apprehension by police on Dec. 12. The 7th Circuit agreed and ordered the men acquitted of that charge, finding that “law enforcement arrested McKissick and Walker well before they had an opportunity to approach the Credit Union they planned to rob, and Jett never neared the Credit Union that day.”

The 7th Circuit remanded for each defendant to be resentenced accordingly, but affirmed their conspiracy convictions. It found the district court’s decision not to instruct the jury on an overt-act requirement was proper and that no reversible error was found in the admission of certain expert evidence and lay testimony.

“Nor was there cumulative error. The evidence we have identified as sufficiently and persuasively incriminating — the footage, the cell-phone data, the DNA — would be admitted even if each of the defendants’ arguments were correct,” Circuit Judge Amy St. Eve wrote for the court.

In an argument unique to Walker, he contended, among other things, that the reversal of his attempted robbery conviction requires reversal of his conspiracy conviction. Specifically, Walker argued that without the attempted robbery conviction, the conspiracy conviction is “gutted.”“That argument reflects a misunderstanding of what is required to prove an inchoate offense,” St. Eve concluded in USA v. Duprece Jett, Earl Walker and Damion McKissick, 17-2051, 17-2052 and 17-2060.

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Nov. 8

Civil Tort — Police Shooting/Qualified Immunity

Craig Strand v. Curtis Minchuk

18-1514

The 7th Circuit Court of Appeals has upheld the denial of summary judgment to a police officer who shot a truck driver during a fight over parking tickets, finding the record does not demonstrate that the officer was entitled to qualified immunity, making a trial necessary.

The altercation between Officer Curtis Minchuk and Craig Strand, a semi-truck driver, began in 2013, when Minchuk issued two parking tickets to Strand. Strand asked the officer to void the tickets, claiming he had been told he could park where he was and did not see any parking signs, but Minchuk allegedly responded by asking for a bribe.

Strand then tried to take photos of the area to document the lack of “no parking” signs, but an altercation ensued when Minchuk knocked Strand’s phone out of his hands. The two ended up on the ground, where Strand held the officer by the throat and repeatedly punched him in the face, before Strand stood up, walked several feet away and said, “I surrender.”

Minchuk, however, unholstered his gun and shot Strand in the abdomen. In a subsequent proceeding in Indiana state court, Strand was convicted of felony battery of a police officer, then sued the town of Merriville and Minchuk for the use of excessive force.

An Indiana Northern District judge denied the town of Merrillville and Minchuk’s motion for summary judgment, concluding that a material question of fact existed as to whether the rapidly evolving nature of the altercation justified Minchuk’s use of deadly force, and whether Strand had been subdued prior to Minchuk shooting him. The judge also determined the defendants were not entitled to qualified immunity.

On appeal, Minchuk argued the district court erred when it rejected his qualified immunity argument as a matter of law, but the 7th Circuit Court affirmed the district court’s ruling in Craig Strand v. Curtis Minchuk, 18-1514.

The 7th Circuit Court determined that a “reasonable jury could find that Officer Minchuk violated Strand’s constitutional right to remain free of excessive force,” and that for Minchuk to prevail, the record must show that he fired while Strand still posed a threat.

“Instead, the record shows that Strand had backed away, voiced his surrender, and up to five, ten, or fifteen seconds may have elapsed while Strand stood with his hands in the air,” Judge Michael Scudder wrote for the court. “And that is why the district court rightly determined, after a close and careful analysis of the record, that Minchuk was not entitled to qualified immunity as a matter of law at summary judgment on the merits of Strand’s claim.”

“The existence of the substantial factual dispute about the circumstances and timing surrounding Minchuk’s decision to shoot Strand precludes a ruling on qualified immunity at this point. This is not to foreclose the availability of qualified immunity to Officer Minchuk at trial,” Scudder continued. “At trial a jury may resolve these disputed facts in Officer Minchuk’s favor, and the district court could then determine he is entitled to qualified immunity as matter of law. But we cannot make such a determination at this stage on this record.”

Indiana Supreme Court

Nov. 16

Attorney Discipline — Suspension/Professional Misconduct

In the Matter of Tia R. Brewer

18S-DI-299

A Marion attorney already under interim and administrative suspensions has been suspended from the practice of law for at least three years for professional misconduct, including her continual abuse of cocaine.

The Indiana Supreme Court imposed an additional suspension Nov. 16 against Tia R. Brewer, who received an interim suspension in May for her guilty plea to a charge of Level 6 felony possession of cocaine. On Friday, the high court ordered Brewer be suspended from the practice of law at least three years without automatic reinstatement when it found her to have committed numerous counts of attorney misconduct.

Specifically, it found that Brewer neglected clients’ cases, failed to appear at show cause hearings or to withdraw from cases when her abuse of cocaine rendered her unable to assist her clients. The court found she also committed a crime that reflects adversely on her fitness as a lawyer and failed to cooperate with the disciplinary process.

Brewer has 13 charges against her, 11 of which include separate client cases she neglected to represent by failing to appear, failing to inform and by abusing cocaine at the time of her counsel, rendering her unable to assist her clients.

In Count 12, Brewer was found to be incoherent and impaired when served with a bench warrant in May 2017, resulting in her arrest on charges of possession of cocaine, marijuana and drug paraphernalia.

Similarly in Count 13, Brewer failed to respond to demands for a response to an investigation by the commission. After receiving no response, the commission filed a motion for rule to show cause as to why Brewer should not be suspended for noncooperation and ordered she respond within 10 days. Brewer then complied and was ordered to reimburse the Commission $519.89. Brewer was admitted to practice in 2004.

Justices concluded Brewer violated Indiana Professional Conduct Rules 1.3, 1.4(a)(3), 1.16(a)(2), 1.16(d), 8.1(b) and 8.4(b).

The Indiana Roll of Attorneys shows four disciplinary actions opened against Brewer, including one that ended in a public reprimand in 2009 and two that were dismissed in October 2017.

Brewer’s latest suspension is for at least three years without automatic reinstatement, effective immediately. After the suspension period, Brewer may be reinstated only after proving by clear and convincing evidence all of the factors enumerated in Admission and Discipline Rule 23(18)(b), which include genuine remorse for her misconduct, exemplary conduct since the discipline was imposed, and her fitness to practice law. The costs of the proceeding are assessed against her.

Indiana Court of Appeals

Nov. 8

Miscellaneous — Police Demotion/Bond

Stephan M. Poiry v. City of New Haven, Indiana

18A-MI-1066

The Indiana Court of Appeals reversed a trial court’s grant of summary judgment to a northeastern Indiana city when it found the lower court failed to fix a bond amount for a disciplined police officer by the time of judgment.

Stephan Poiry is a city of New Haven police officer. In August 2017, disciplinary charges were filed against Poiry, and the New Haven Police Department Merit Board ultimately determined the charges were proven and Poiry should be demoted in rank.

Poiry filed an appeal with the trial court in November 2017 against the city, seeking judicial review of the board’s decision. When he filed his appeal, Poiry claimed he was unaware of the required bond amount, so he did not file a bond simultaneously with his appeal.

A bond amount had still not been determined at the time summary judgment was entered by the trial court in favor of the city. Poiry filed a motion to correct error in April 2018, but the trial court denied his motion.

On appeal, Poiry argued the trial court erred in granting summary judgment in favor of the city and in denying his motion to correct error. Specifically, he asserted that Indiana Code section 36-8-3.5-18(b)(4) is ambiguous in that it required that a bond be filed, but does not state in what amount the bond should be and how the required bond is to be determined.

He also contended he was not aware of the amount he should pay to satisfy the bond requirement when he filed his appeal of the commission’s decision because it was ambiguous.

The appellate court found that although Indiana Code section 36-8-3.5-18 subsection (b)(4) clearly states a bond must be filed when an appeal is filed, “the statute is not clear or unambiguous in directing how that bond is to be determined and in what amount it is to be paid.”

“Because the trial court failed to fix a bond amount, Poiry was unable to pay the bond required under Indiana Code section 36-8-3.5-18 for his appeal of the Board’s decision,” Judge James Kirsch wrote. “Based on this, we conclude that the trial court erred when it granted summary judgment in favor of the City and when it denied Poiry’s motion to correct error.

“We, therefore, reverse the trial court and remand with instructions for the trial court to set a bond amount it considers adequate and a time frame within which the bond must be posted. If Poiry does not post the bond within the time frame, the trial court may enter an order dismissing the appeal. If the bond is properly paid in the amount set by the trial court and within the time frame, the case is to continue on the merits.”

The case is Stephan M. Poiry v. City of New Haven, Indiana, 18A-MI-1066.

Guardianship — Immigrant Juvenile Status/Findings

In the Matter of the Guardianship of Irma Elisabeth Avila Luis; Ramiro Velasquez Avila

18A-GU-1312

A trial court judge who refused to make federal findings regarding a minor litigant’s immigration status because he was “irritated” by having to deal with federal law must now consider the immigration questions after the Indiana Court of Appeals found the judge’s refusal was erroneous.

After her father died and her mother was no longer able to care for her, 16-year-old Guatemalan native Irma Elisabeth Avila Luis was sent to the United States and was taken into federal custody at the U.S.-Mexico border. Irma was eventually released into the custody of her brother, Seymour resident Ramiro Velasquez Avila.

Irma has continued to live with her brother and attend school in Seymour since 2016, so in March 2018 Avila petitioned to be appointed as his sister’s guardian and requested that the Jackson Circuit Court make findings necessary to help Irma seek special immigrant juvenile classification. At a hearing on that petition, Judge Richard W. Poynter said he had a “real problem” making such findings pursuant to federal statute, saying the government “(t)hrowing it on (him) to make factual findings for them (is) irritat(ing).”

“It should be made by (f)ederal officials. They’re the one that makes the decision of who comes in the United States, who leaves the United States, not me,” Poynter said. “And that’s why I have a problem with this … Immigration (j)udges are (i)mmigration (j)udges for a reason.”

Poynter appointed Avila as Irma’s guardian, but declined to enter the factual findings pursuant to. On appeal in In the Matter of the Guardianship of Irma Elisabeth Avila Luis; Ramiro Velasquez Avila, 18A-GU-1312, Avila argued Poynter erred by not entering the federal factual findings.

The Indiana Court of Appeals agreed, with Judge Patricia Riley writing that the juvenile court must make the relevant findings — whether reunification with a parent is not viable and whether it would be in the immigrant’s best interest to be return to their home country — while the final decision rests with the federal government.

“The predicate order issued by a state court is merely a prerequisite that must be fulfilled before a juvenile can submit his or her application for SIJ status to (U.S. Customs and Immigration Services) in the form of an I-360 petition,” Riley wrote. “… Thus, a state court’s role in the SIJ process is not to determine worthy candidates for citizenship, but simply to identify abused, neglected, or abandoned alien children under its jurisdiction who cannot reunify with a parent or be safely returned in their best interests to their home country.”

“Thus, although state courts do not make immigration decisions, it is inescapable that a minor seeking SIJ status is dependent upon a state court to make the prerequisite findings in a predicate order for the minor to qualify for such status under the scheme established by federal immigration law,” Riley continued. “… In this unusual setting, where a state court is charged with addressing an issue relevant only to federal immigration law, we cannot affirm the trial court’s Order without some positive indication that the court actually addressed Avila’s request.”

The case was remanded with instructions for the trial court “to consider the request for SIJ findings in light of the evidence presented and articulate the relevant determinations... .” Avila’s appointment as Irma’s guardian also was affirmed.

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Nov. 13

Criminal — Self-Representation/Sovereign Citizen

Yusuf Hotep-El v. State of Indiana

18A-CR-477

The Indiana Court of Appeals has affirmed the termination of a man’s self-representation after determining he engaged in deliberately obstructive behavior that threatened to undermine the proceedings of his case by claiming to be a “sovereign citizen.”

In August 2016, Yusuf Hotep-El was charged with possession of cocaine and two counts of possession of a narcotic drug, all as Level 5 felonies; Level 6 felony possession of a controlled substance; Class A misdemeanor driving while suspended; Class B misdemeanor possession of marijuana, and; was alleged to be a habitual offender. Though initially appointed counsel, Hotep-El was granted permission to represent himself in February 2017. But at a hearing the following April, the Marion Superior Court terminated Hotep-El’s self-representation, finding his abundant inappropriate filings and his statements and behavior in court raised concerns regarding his mental fitness.

After a psychiatric examination, Hotep-El was found competent to stand trial and was appointed counsel. The proceedings continued and in January 2018, the state dismissed the driving while suspended count and a jury found Hotep-El guilty on all remaining counts.

On appeal, Hotep-El argued the trial court improperly terminated his self-representation. However, the appellate court noted that although he had a right to defend himself, it was “not a license to abuse the dignity of the courtroom.”

In upholding the termination of Hotep-El’s pro se rights, the Court of Appeals noted that between July 2017 and February 2018, Hotep-El filed several pro se documents, even after he was appointed counsel. Some of those documents were entitled “Averment of Jurisdiction – Quo Warranto,” “Affidavit of Fact – Writ of Discovery” and “Affidavit of Error,” and several copies were sent to the United Nations, International Criminal Court, International Court of Justice, Interpol, the president of the United States, the U.S. Department of State and the U.S. Justice Department.

Further, many of Hotep-El’s filings contained the heading “The Moorish National Republic Federal Government Northwest Africa” and “The Moorish Divine and National Movement of the World.” Discovery during the psychiatric examination concluded Hotep-El was a follower of a set of fringe political beliefs known as the sovereign citizen movement, and the appellate court noted sovereign citizen litigants are typically unwilling to cooperate with the proceedings and counsel and attempt to frustrate court proceedings.

“Once the court was informed that Hotep-El was found competent, it was clear that his filings, statements, and behavior that disrupted and delayed the proceedings were not disruptions related to an inability to understand the proceedings or to self-representation without a legal education; rather, they were deliberate and calculated tactics,” Senior Judge Ezra Friedlander wrote. “Further, the trial court’s decisions were based, not on conjecture, but on firsthand observation of Hotep-El’s behavior each time he was present in court and with every filing.

“We thus conclude that given these facts it was not improper for the trial court to decline to reinstate Hotep-El’s pro se status when his deliberate obstructive behavior did and further threatened to undermine the proceedings and compromise the court’s ability to maintain order and efficiency of its courtroom and caseload,” Friedlander wrote.

The case is Yusuf Hotep-El v. State of Indiana, 18A-CR-477.

Criminal — Carrying a Handgun Without a License/Destruction of Gun

Marques D. Trice v. State of Indiana

18A-CR-697

A divided panel of the Indiana Court of Appeals has reversed an order to destroy a man’s handgun, finding the man did not misuse the firearm, despite his expired permit.

In March 2017, an Indianapolis police officer stopped a vehicle for its lack of illumination for the license plate. When asked if there were any guns, knives or other weapons in the vehicle, Marques Trice, the driver, said that he had a handgun in the console.

Upon learning Trice’s firearm permit had expired in 2015, the officer took possession of the handgun and arrested Trice. He was subsequently convicted of Class A misdemeanor carrying a handgun without being licensed. As part of his sentence, the Marion Superior Court ordered that Trice’s gun be destroyed.

On appeal, Trice argued the trial court erred by ordering the destruction of his handgun. Specifically, his argument in Marques D. Trice v. State of Indiana, 18A-CR-697 was that carrying a handgun without being licensed does not amount to “misuse” of a firearm.

A majority of the appellate court agreed, finding the phrase “misuse of a firearm” had not been “legislatively defined in Indiana for purposes of Indiana Code section 35-47-3-2(b).” Looking at the dictionary definition of “misuse,” the appellate court said the word is defined as “incorrect or improper use,” “an occasion when something is used in an unsuitable way or in a way that was not intended” or “the act of using something wrongly or in a dishonest way.”

“The evidence shows that Trice’s handgun was in the console of his vehicle, and the officer became aware of its existence when Trice answered affirmatively and honestly the officer’s inquiry as to whether Trice had any weapons in the vehicle,” Senior Judge Betty Barteau wrote for the court. “However, although Trice possessed the handgun, he did not use the handgun.”

“Therefore, the definitions of the term ‘misuse’ can best be applied here to mean that a conviction for the misuse of a firearm must involve some use of the firearm that is incorrect, improper, or unsuitable,” Barteau concluded. “Trice did not use the handgun; rather, he was merely in possession of it. Thus, it defies logic and relevant precedent to say that he misused the handgun.”

The majority of the panel ultimately reversed and remanded the trial court’s order to destroy Trice’s handgun.

Judge Terry Crone dissented from the majority, arguing that carrying a handgun without a license is a misuse, just as driving a motor vehicle without a license is misuse of the vehicle.

“Carrying a handgun without a license is misusing a firearm, and thus a conviction for that offense is a conviction for the misuse of firearms,” Crone wrote in a separate opinion.

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Nov. 16

Domestic Relation — Marital Estate/Pension, Maintenance

Kimberly L. Eads v. Robert J. Eads, Jr.

18A-DR-249

A seven-year-old divorce case is returning to the trial court after the Indiana Court of Appeals found the division of the husband’s pension and the monthly rehabilitative maintenance needed to be recalculated.

After almost 14 years of marriage, Kimberly Eads filed for divorce from her then-husband, Robert Eads. The dissolution of marriage included a division of the husband’s 1977 Fund pension from his work as a firefighter and monthly spousal maintenance for Kimberly, who was disabled after a car accident.

The Johnson Superior Court relied on an analysis by a Franklin College business and accounting professor of the husband’s pension to determine how to divide the retirement fund. According to that analysis, the value of the pension was $1,278,133.26, but only 77.2 percent of that, or $986,718.83, was earned during the marriage. The trial court then awarded 38.6 percent of the value, or $493,359.42, equally to the husband and wife.

Before the Court of Appeals, the husband challenged the trial court’s division of his pension. He argued the percentage should be lower than 77.2 percent because the pension rights he eared after his wife filed for divorce were improperly included.

The unanimous appellate panel agreed in Kimberly L. Eads v. Robert J. Eads, Jr., 18A-DR-249.

The trial court based its calculations on the time from the husband’s employment as a firefighter, Feb. 7, 1994, to the date of the divorce decree, which was 281 months. However, the Court of Appeals found the creditable time should be calculated from the husband’s hire date to the date the pension was valued, which was Oct. 4, 2016. That is a total of 271 months.

In a footnote, the appellate court stated the October 2016 date was used because that is when the pension was valued. If the fund had been valued on the date the wife had filed for divorce, that date presumably would have been used.

The Court of Appeals remanded the issue to the trial court to recalculate the division of the pension.

Also, the appellate court remanded the issue of the spousal maintenance award with instructions that the trial court determine whether the wife is entitled to incapacity maintenance.

Kimberly Eads argued to the Court of Appeals that the trial court erred in awarding her “rehabilitative” maintenance instead of “incapacity” maintenance. The trial court found the wife was disabled and entitled to rehabilitative maintenance.

However, the trial court’s findings did not address the requirements for rehabilitative maintenance and the wife conceded that there is no evidence of record which would support a finding of rehabilitative maintenance. Further adding to the confusion, the trial court found husband did not have the financial means to meet all the obligations the court had burdened him with and to pay the spousal maintenance award.

As part of the remand, the Court of Appeals instructed the trial court to take into consideration the husband’s ability to pay. And, if the court awards the wife incapacity maintenance, it should last for the period of incapacity, subject to further order of the court.•

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