Indiana Court Decisions — Jan. 31-Feb. 13, 2019

7th Circuit Court of Appeals

Feb. 1

Civil Plenary — Habeas Petition/Brady Violation, Witness Hypnosis

Mack Sims v. William Hyatte


An Indiana man who was “confidently” identified as the perpetrator of an Elkhart shooting after the victim was hypnotized will be allowed to go free after a majority of the 7th Circuit granted his habeas petition. The appeals court found the state court erred in not overturning the man’s conviction because the state withheld evidence of the hypnosis during trial.

In November 1993, security guard Shane Carey was shot in the face while sitting in his car, and Mack Sims was found roughly 20 feet from where the shooting occurred. Although he had no weapons on his person, Carey identified Sims at trial as the shooter.

During his trial, the state relied almost exclusively on the only witness, Carey, who could possibly identify the shooter to establish their case against Sims. But defense counsel pointed to Carey’s discrepancies in the description of the shooter, noting it didn’t match up with Sims’ appearance at the time of his arrest. Sims was ultimately convicted of attempted murder and sentenced to 35 years’ imprisonment.

Then in a 2012 evidentiary hearing regarding a post-conviction relief petition filed by Sims, new information was revealed by then-deputy prosecuting attorney Graham Polando, who said he had consulted with Judge Charles Wick, the trial deputy at Sims’ attempted murder trial, and was asked by Wick to not disclose that Carey only identified Sims as the shooter after being hypnotized to “enhance his recollection of the shooting.”

Carey later testified that when viewing a lineup the day after the shooting, he merely stated Sims “looked like” the assailant because “at the time [he] was not extremely sure.” He also testified that Wicks suggested hypnosis, then set up the hypnosis appointment paid for by the state.

On the stand, Wicks defended not disclosing the hypnotism, asserting it was not exculpatory in nature because Carey never wavered in his identification of Sims as the shooter. The Elkhart Superior Court ultimately denied Sims’ petition for post-conviction relief, finding Carey had been able to identify Sims well before the hypnosis was administered.

When he was denied habeas relief in the remaining Indiana courts — which pointed to evidence of Carey’s in-court identification of Sims and his identification of the shooter before hypnosis — Sims filed a petition for writ of habeas corpus in federal court. The district court held that the Indiana court did not unreasonably apply established federal law, but the majority of 7th Circuit disagreed in a 25-page decision.

Sims’ appeal was premised on the argument that the state’s withholding of the hypnosis information was a Brady violation. The majority agreed, with Judge William J. Bauer saying the Indiana Court of Appeals saying caselaw allows admission of hypnosis-related evidence and testimony only “if the prosecution can show by clear and convincing evidence that the in-court identification has a sufficient independent factual basis.”

The issue with the COA’s analysis, Bauer said, is that when the state court determined the hypnotic evidence was admissible, it also determined that “it is not reasonably probable that the outcome of Sims’s trial would have been different had Carey’s hypnosis been disclosed.” That ruling was clear error, the majority joined by Judge David Hamilton said, finding the concealment of the hypnosis was material.  

“It is not difficult to imagine what Sims’s lawyer could have done at trial with the knowledge that Carey had been hypnotized,” Bauer wrote. “The known effects of hypnosis could explain Carey’s confidence, his claim that his memory of the shooting had improved over time, and the otherwise benign changes in his descriptions of the shooter. Reasonable judges cannot be confident that, if the jury had known that Carey had been hypnotized before he identified Sims at trial, they would have found his identification beyond reasonable doubt.”

“Finally, these problems with hypnosis undercut the Indiana court’s final reason for refusing post-conviction relief: Carey’s testimony indicated he was able to identify the assailant, but hypnosis was able to make him ‘extremely sure,’” Bauer continued. “No one knows what effect the hypnosis had on Carey and it also belies the record for reasons discussed above.”

The majority thus reversed and remanded the case to the district court with instructions to grant Sims’ habeas petition. But in a 15-page dissent, Circuit Judge Amy Coney Barrett argued that although the undisclosed evidence of Carey’s hypnosis constituted a Brady violation, “it was neither contrary to, nor an unreasonable application of, clearly established federal law for the Indiana Court of Appeals to conclude otherwise.”

“Here, Carey’s hypnotically-refreshed testimony was not ‘the only evidence linking [Sims] to the crime,’” Barrett wrote. “… With a solid on-scene description, multiple untainted photo-array identifications, and an in-court identification by the victim — not to mention Sims’s suspicious behavior and proximity to the scene of the crime — a fair-minded jurist could be confident in the jury’s verdict, even if we are not.”

The majority, however, said Barrett’s argument did not “explain why Wicks felt it necessary to take the risk of setting up a hypnosis session for Carey without disclosing it.”

“Nor does it appear to take into account the instances in which Carey equivocated,” Bauer said. “Furthermore, the only indication as to when the hypnosis session took place is Carey’s testimony at the post-conviction evidentiary hearing that it was months before when he and Wicks ‘first started talking about who the perpetrator was.’”

The case is Mack A. Sims v. William Hyatte, 18-1573.

Indiana Court of Appeals

Jan. 31

Criminal — Possession of Marijuana/Pursuit of Happiness

John L. Solomon v. State of Indiana


A man arrested for smoking a blunt in Indianapolis failed to convince the Indiana Court of Appeals that his misdemeanor conviction violated his constitutional rights to liberty and the pursuit of happiness. The appeal also raised the issue of the Hoosier State now being among a minority of states that have yet to legalize marijuana in some form.

John L. Solomon was arrested after a traffic stop in Indianapolis, one of five people in a silver Buick bearing the license plate for a green Ford Explorer. Police found numerous syringes and foil, along with a marijuana blunt discovered where Solomon had been sitting. Police said Solomon claimed nothing in the car was his except the blunt, but at a bench trial more than a year later, Solomon testified he didn’t know about the blunt and that he had told an officer it didn’t belong to him.

Solomon was found guilty of Class B misdemeanor possession of marijuana and sentenced to 20 days in jail, with 14 days suspended. On appeal, he raised an Indiana Constitution argument challenging Indiana’s criminal law against marijuana.

“Solomon claims that criminalizing the mere possession of a single marijuana blunt by an adult who is not driving or otherwise impacting others violates Article 1, Section 1, of the Indiana Constitution and that his conviction should be vacated,” Judge Elaine Brown wrote for the panel in John L. Solomon v. State of Indiana, 18A-CR-2041. “He argues that Ind. Code § 35-48-4-11 may be constitutional in many circumstances and that the challenge here is not a facial one but as applied to the facts of this case.

“… Solomon asserts that the possession … falls well within the protections afforded by Section 1 and that marijuana brings happiness to some people, whether helping to alleviate a medical condition or for recreational purposes,” Brown wrote. “He argues that thirty-two states have legalized the use of marijuana for medicinal and/or recreational use and that his possession of a small amount of marijuana as a passenger of a vehicle does not adversely affect anyone else.

“He argues that marijuana use was legal in 1851 when the Indiana Constitution was drafted and ratified, that George Washington reportedly cultivated marijuana, and that in the mid-1800s marijuana was legal in the United States and used for medicinal purposes on a small scale,” Brown continued. “He also states that ‘[w]hen immigrants from Mexico and the West Indies began the practice of smoking marijuana around 1900, states began to criminalize the possession or sale of marijuana in statutes that ‘stemmed largely from racism and concern that use would spread.’”

Solomon also noted the Indiana Supreme Court in 1855 found the liquor act unconstitutional under Section 1 in Herman v. State, 8 Ind. 545 (1855).

But the state argued Solomon’s claim was waived because it was not raised in the trial court and that Article 1, Section 1 of the Indiana Constitution contains no judicially enforceable rights, among other arguments.

The COA panel agreed that Solomon’s argument had been waived, but Brown concluded, “Even if Solomon did not waive his claim and his claim is justiciable, we conclude that reversal is not warranted.

“Some states may have elected to permit the use of, and de-criminalize the possession of, marijuana under certain circumstances. Other states have not elected to do so,” she wrote. “The Indiana legislature has not repealed Ind. Code § 35-48-4-11. The extent to which Solomon’s possession of marijuana under these circumstances constituted a criminal offense is a legislative determination and not a judicial one. Solomon has not established that he had a constitutional right to possess marijuana or that Ind. Code § 35-48-4-11 violates Article 1, Section 1, of the Indiana Constitution as applied to him.”

Indiana University Robert H. McKinney School of Law professor Joel Schumm represented Solomon in this case. “This is an issue of first impression in Indiana, and I plan to seek transfer to the Indiana Supreme Court,” Schumm said in an email to Indiana Lawyer. 

The Court of Appeals decision comes as some lawmakers in both parties in the Indiana General Assembly have introduced bills to legalize medicinal or recreational marijuana, despite the opposition of Republican Gov. Eric Holcomb. So far, no bills have been scheduled for committee hearings at the Statehouse.

Domestic Relation — Spousal Maintenance/Disability

Dorothy Campbell v. Mark Reed Campbell


A woman who receives Social Security Disability was not entitled to spousal maintenance, a divided panel of the Indiana Court of Appeals ruled, turning back a request on appeal to find that eligibility for SSD should constitute prima facie evidence of incapacity.

The appellate panel made the holding in affirming a Boone Circuit Court order in Dorothy Campbell v. Mark Reed Campbell, 18A-DR-361. Dorothy, whose onset of disability was in 1997, filed for divorce in 2016. The trial court issued its dissolution decree the next year, denying her petition for spousal maintenance.

“To reverse in this case would imply that if one of the divorcing parties is elderly and receiving SSD, maintenance is always required. We decline to reach such a result,” Judge John G. Baker wrote for the majority joined by Judge Melissa May. “Cases like this are extremely fact-sensitive and filled with nuance that our trial courts are best able to sift through. We believe it wise of our legislature to vest our trial courts with discretion in such matters and will not step into the trial court’s exercise of discretion here.”

In footnotes, the panel remarked that whether SSD eligibility should be evidence of incapacity is “irrelevant. The simple fact is that nothing in the statute or caselaw indicates that it is, in fact, prima facie evidence of incapacity.” The panel also noted it found Dorothy’s constitutional equal protection argument waived because she failed to raise it below and cited no supporting authority.

But partially dissenting Judge Margret Robb wrote that while an SSD award does not equate to incapacity in every situation, it did here, and the trial court got it wrong.

“… I am unable to agree with the majority that on these facts, the trial court did not abuse its discretion,” Robb wrote. “The trial court stated it was unsure if Dorothy’s benefits were for disability or retirement, mentioned Dorothy’s age as the reason for her not working, and implied that Dorothy was required to present evidence other than her own testimony that she was unable to work due to her disability. These findings suggest to me that the trial court did not apply the appropriate standard in determining whether Dorothy should be awarded spousal maintenance.”

The majority also agreed in a footnote that the trial court erred in a finding stating, “The (trial) Court is unsure if those are disability benefits or retirement benefits,” when Dorothy’s sole income in the record was disability benefits.

Robb also noted it was Dorothy’s disability, rather than her age, that caused her to stop working in 1996, after which her ex-husband also benefitted from SSD payments and provided for any shortfall. “She has no safety net now,” Robb wrote. “… I would remand for the trial court to reconsider Dorothy’s request for spousal maintenance in light of the correct standard.”

The COA also unanimously affirmed the trial court’s valuation of a vehicle belonging to the couple.

Feb. 1

Juvenile Termination of Parental Rights — Reversal/Procedural irregulatiies

In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.H., K.H., and E.H. (Minor Children) and L.H. (Mother) v. The Indiana Department of Child Services


A mother won her appeal to reverse an erroneous order terminating her parental rights when the Indiana Court of Appeals found the Department of Child Services committed “significant procedural irregularities” in her case.

Mother L.H. remained in and out of a repeatedly physically abusive relationship with the father of her children, D.H., K.H., and E.H., for nearly 15 years. Domestic violence was often committed against L.H. by Father, and often in the presence ofthe children.

In 2016, the parents admitted D.H., K.H. and E.H. were children in need of services, thus leading to their removal from the home. Both L.H. and Father were ordered to engage in services and over the next several years, the two separated, participated in services and found stable housing and employment.

When DCS ordered an unsupervised trial home visit with the children and L.H. at Father’s home in August 2017, he resumed physically abusing L.H. Also, in September 2017, K.H. informed L.H. that Father had sexually abused K.H. a few days prior. 

In October 2017, DCS family case manager Shonna Leas took over the CHINS case but admitted to only reviewing “most” of the file, failing to consult any of the five previous family case managers on the case and being unaware of what services L.H. had completed and what services she was still required to complete. Despite L.H.’s questions about what to she still needed to do to regain custody of her children, Leas did not refer L.H. to any services nor encourage her to seek them out.

Then, after L.H. reported a domestic violence incident to Leas, as well as K.H.’s sexual abuse allegations against Father, DCS filed its petition for involuntary termination of the parent-children relationships. In June 2018, the termination petition was granted when a trial court concluded there was a reasonable probability the mother-children relationship posed a threat to the children’s well-being and that termination of that relationship was in their best interest.

On appeal, L.H. argued the termination order should be reversed because DCS mishandled her case to the point of denying her due process of law. Similarly, the appellate court noted that despite language in the DCS policy manual that states it will “provide family services to all children and families with an open case,” Leas failed to do so upon taking over the CHINS case in 2017.

“Essentially, FCM Leas knew little-to-nothing about Mother’s service needs and compliance or non-compliance with services; yet DCS moved for termination of Mother’s rights anyway,” Judge L. Mark Bailey wrote for the panel.  “And it did so without noting, as required by law, that there were grounds to move to dismiss the termination petition because of DCS’s failure to identify and/or provide necessary family services while the CHINS case was open.”

The appellate panel found that failure on DCS’s part created the risk of a “premature, erroneous termination of Mother’s rights on the grounds that she was not complying with services.”

Additionally, the appellate court found DCS further violated its own policy when it did not provide a visitation plan pursuant to its written visitation procedures to prevent L.H. from being forced to interact with the children’s father.

“Therefore, Mother visited Children at Father’s home without third party supervision and, predictably, during one such visitation Father physically abused Mother in Children’s presence,” Bailey continued. “… This procedural error was then compounded by DCS’s subsequent petition to terminate Mother’s parental rights on the grounds that she had not protected Children from witnessing domestic violence, without also noting that DCS had failed to provide services that were ‘substantial and material’ in relation to the reunification goal of protecting Children from witnessing domestic violence.”

Thus, the appellate court reversed the termination order in In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.H., K.H., and E.H. (Minor Children) and L.H. (Mother) v. The Indiana Department of Child Services,18A-JT-1861, finding DCS’ significant procedural irregularities created a risk of the erroneous filing of a petition to terminate L.H.’s parental rights to her children, in violation of her due process rights.

The case was further remanded to the trial court for reinstatement of the CHINS cases, a re-examination of the requirements for L.H.’s reunification with D.H., K.H. and E.H. and a revised dispositional order outlining the services she must complete in order to reunify with them.

Feb. 8

Civil Tort — Negligence/Taco Truck Explosion Foreseeability

German A. Linares v. El Tacarajo and U-Pull-And-Pay, LLC d/b/a Pic A Part


A man injured while waiting for his taco lunch lost his appeal that he was owed a duty of care from a salvage yard, with a majority of an Indiana Court of Appeals panel finding a food truck explosion at the salvage yard was not reasonably foreseeable.

While waiting in line at a taco food truck, German Linares was in the line of fire when the food truck suddenly exploded. Linares sustained injuries and was taken by ambulance to the hospital, then later filed a negligence suit against both El Tacarajo, the food truck operator, and U-Pull-And-Pay, the salvage business on which the food truck was parked.

Linares argued in his complaint that El Tacarajo was negligent, that UPAP failed to take reasonable steps to investigate the food truck’s operations and that the salvage yard was vicariously liable for El Tacajaro’s negligent acts because it was in a joint venture with the food truck on its commercial property. But UPAP filed a motion for summary judgement arguing it owed no duty to protect Linares from the unforeseeable actions of El Tacarajo and that it was not vicariously liable for the food truck’s negligent acts. The Marion Superior Court granted the motion in favor of UPAP.

On appeal, Linares argued that given the nature of UPAP’s business, a gas explosion of any sort on UPAP’s property was foreseeable. He argued the claim should be evaluated under the Restatement (Second) of Torts’ section 343 analysis for injuries resulting from a condition of the land. Linares further asserted he was “injured due to a dangerous appliance and the hazardous use of explosive materials[,]” and if UPAP had taken precautions to inspect the food truck, the explosion could have been prevented.  

But a majority of the appellate court disagreed with Linares’ arguments in German A. Linares v. El Tacarajo and U-Pull-And-Pay, LLC d/b/a Pic A Part, 18A-CT-276 finding that although the stove in the food truck on UPAP’s property ignited and caused the explosion, Linares’ injuries resulted from the activities of El Tacarajo’s employees in relation to the stove. Thus, the appellate court concluded the foreseeability analysis must be applied to determine if a duty exists, and that analysis determined the explosion was not foreseeable.

The majority said Linares’ formulation of the foreseeability analysis was too broad and found that UPAP and El Tacajaro were not engaged in a joint venture – thus defeating the vicarious liability argument – because the parties’ agreement did not provide for profit-sharing and no decisions were made jointly in regard to the food operation.

“Should food trucks be inspected? Probably. Should UPAP have taken more interest in a mobile business it allowed to operate on its premises and sell to its customers? Possibly,” Judge Margret Robb wrote for a divided COA panel. “But should a company in a completely unrelated private business which periodically provides a parking space be required to conduct that inspection and ensure the food truck is safely maintained and its employees properly trained? Even if UPAP had asked the questions Linares and the dissent argue it should have, it still would not have been reasonably foreseeable to UPAP that the food truck would suddenly explode because of an employee’s negligence.”

Thus, the ruling in favor of UPAP was affirmed by a majority joined by Chief Judge Nancy Vaidik. But Judge James Kirsch dissented, arguing in a separate opinion that nothing in the record indicated UPAP made any inquiries regarding the operations of the food truck, even though it was well aware of the risk of explosions from handling flammable materials at the salvage yard.

“Summary judgment is rarely appropriate in negligence cases and, from my perspective, is not appropriate here,” Kirsch wrote. “These cases are fact sensitive and are governed by a standard of the objective reasonable person. The determination of liability should be made by a jury after hearing all the evidence.”

Kirsch said he would reverse the trial court and remand for further proceedings.

Feb. 13

Juvenile — Denial of Waiver to Adult Court/State Appeal

State of Indiana v. D.R.


The state failed to convince the Indiana Court of Appeals that a juvenile court erred in denying a motion to waive to adult court a Vigo County teen accused of causing a fatal car crash.

The appellate panel affirmed the denial of waiver of the 17-year-old to adult court while also finding the state was within its rights to pursue an interlocutory appeal of the juvenile court ruling under the circumstances of this case.

D.R. was arrested after he was found at the side of the road where the driver of another vehicle, Regina Hair, was found unconscious and trapped in her vehicle after a crash. Hair died later that day. D.R. told police he struck her vehicle head-on after crossing the center line, while a witness said D.R. had passed him on a double-yellow and suspected D.R. had been racing another vehicle that also passed him.

D.R. also admitted to smoking marijuana earlier that day, and a low presence of THC was found in drug tests. The state thus filed a juvenile delinquency petition alleging D.R. committed what would be Level 5 felony reckless homicide if committed by an adult. Prosecutors later moved to waive him to adult court, which the juvenile court denied, prompting this interlocutory appeal.

Writing for the appellate panel, Senior Judge John Sharpnack concluded D.R. had presented sufficient evidence to overcome the presumption of waiver of a 17-year-old in such a case under Indiana Code section 31-30-3-5(c). D.R.’s acceptance of responsibility, lack of a prior juvenile record and childhood trauma including documented neglect, molestation and exposure to domestic violence, among other factors, show the juvenile court’s determination was not against the facts and circumstances of the case.

“The juvenile court heard testimony about the nature of the alternatives D.R. could face and their possible impacts. Public Defender Michael Brewer, a witness for D.R., explained that if the juvenile court waived jurisdiction over D.R., he would face felony criminal charges but would not serve a long sentence,” Sharpnack wrote. “D.R. could receive mental health services, but he might have to pay for a portion of his care, and the supervision would not be as intensive as in juvenile court. Brewer further explained that several of his clients had been waived to adult court and, after being convicted of felonies, had difficulty getting jobs and becoming productive members of society. By contrast, if D.R. remained in the juvenile system and was placed on probation, he could be sent to a residential treatment center at no cost to him and, further, could be kept on probation until age 21 to monitor him.”

“…The juvenile court can effectively address the deeply serious allegations against D.R.,” the panel concluded.

Meanwhile, the panel rejected D.R.’s motion to dismiss the state’s interlocutory appeal.

“Indiana Code section 35-38-4-2(6) does not place any limits on the types of trial court orders that may be appealed. We should not read restrictions into the statute where none are explicitly stated,” Sharpnack wrote.D.R. also sought to dismiss the appeal, citing I.C. section 31-37-11-7, which requires a 10-day deadline for a factfinding hearing after a denial of waiver, after which a juvenile must be released from custody. Likewise, the panel found this law does not require dismissal of the petition under the circumstances of the case.

“(T)he State may seek interlocutory review of a juvenile court’s denial of a motion to waive jurisdiction, but the juvenile shall be released from custody pursuant to Indiana Code section 31-37-11-7 during the appeal if the ten-day limit is exceeded,” Sharpnack wrote.

Criminal — Cocaine Possession/Suppressed Evidence

State of Indiana v. Dusten T. Vance


Police failure to search a party in a controlled drug buy in Muncie and a misleading affidavit to obtain a warrant were sufficient grounds to suppress evidence of cocaine subsequently found in a search of the home the buyer visited, the majority of an Indiana Court of Appeals panel found.

Judges L. Mark Bailey and Elaine Brown affirmed the Delaware Circuit Court’s suppression of evidence in State of Indiana v. Dusten T. Vance,18A-CR-1746. Vance was charged with possession of cocaine and maintaining a common nuisance after police executed a search warrant and found drugs in his home. Police said they had probable cause for the warrant because a person law enforcement identified as “Target” had visited Vance’s home, then provided cocaine to a confidential informant who passed the drugs to police.

But Vance argued the warrant erroneously described him as “Target,” and he argued “Target” had not been searched, so the state conducted what was “really an uncontrolled buy.” The trial court agreed, suppressing the evidence and leading the state to dismiss the charges and bring this appeal. The COA majority then affirmed, finding the evidence obtained at Vance’s residence was seized in violation of his Fourth Amendment rights and properly suppressed.

The majority also rejected the state’s argument to extend a good faith exception to the exclusionary rule under United States v. Leon, 468 U.S. 897, 920, 104 S.Ct. 3405 (1984) and Jaggers v. State, 687 N.E.2d 180, 184 (Ind. 1997). The majority found the warrant affidavit was too misleading.

“The good faith exception will not reward the creation of a misleading impression to avoid revealing the clear absence of probable cause,” Bailey wrote. “As the Court observed in Jaggers: ‘Leon’s rationale is not advanced by effectively allowing the State to claim good faith reliance on a warrant after a less than faithful effort to establish probable cause to obtain it.’ … The good faith exception ‘cannot save the illegally seized evidence’ in these circumstances.”

But Judge Cale Bradford would have reversed the suppression order based on the totality of circumstances, including that Vance’s residence was a known drug house previously involved in a Muncie SWAT search.

“This evidence leads to the common-sense and logical inference that the Residence was used as a place to store controlled substances. Therefore, the trial court had a substantial basis for concluding that probable cause existed before issuing the search warrant,” Bradford wrote.•

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