Indiana Court Decisions — Feb. 28-March 12, 2019

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7th Circuit Court of Appeals

Feb. 28

Civil Plenary — Writ of Habeas Corpus/Ineffective Assistance of Counsel

David Jones v. Dushan Zatecky


The 7th Circuit Court of Appeals granted a man’s habeas corpus petition — and offered harsh comments for Indiana defense attorneys — after finding ineffective assistance of counsel for a man whose attorney blatantly disregarded an opportunity to object to amended charges filed late.

While David Jones was waiting for trial, the state twice made significant amendments to his charges of domestic battery despite far surpassing the expired omnibus date set for his case. Jones’ initial attorney knowingly let this slide, disregarding that any amendments were to be made 30 days prior to the set date pursuant to Ind. Code § 35-34-1-5 (1982).

A third amendment requested by the state was also granted during trial, despite Jones’ new attorney’s objection. Jones was ultimately sentenced to 20 years for his conviction of criminal confinement, enhanced by 25 years for being a habitual offender; concurrent terms of eight years for battery resulting in serious bodily injury, and; three years for intimidation. His sentence and one domestic battery conviction were eventually reduced due to double jeopardy concerns.

Jones was later denied his pro se petition for habeas corpus alleging ineffective assistance of counsel and failure of the state courts to grant him relief on that ground. He was further denied a certificate of appealability. Finally, before the 7th Circuit Court of Appeals, Jones argued that his attorney’s failure to object to the first amended charge violated his Sixth Amendment right to effective assistance of counsel. The 7th Circuit agreed.

Noting that it has seen such cases before, the 7th Circuit Court showed its displeasure with the routine disregard for the rule as shown in Jones’ case. It emphasized that by pointing to an Indiana Supreme Court decision in Haak v. State, 695 N.E.2d 944, 951 (Ind. 1998) which affirmed the strict nature of the omnibus deadline.

“According to the state, there is nothing unique about Jones’s case. It tells us that defense attorneys around Indiana routinely ignored both the clear text of the statute and the Haak decision and allowed prosecutors to make untimely amendments. If that is an accurate account, it is hardly reassuring,” Chief Judge Diane Wood for the majoirty joined by Judge Ilana Rovner. “For a lawyer to fail to take advantage of a clear avenue of relief for her client is no less concerning because many others made the same error — if anything, it is more so.”

Further citing an almost identical case, Shaw v. Wilson, 721 F.3d 908, 911 (7th Cir. 2013), the 7th Circuit panel added that “following the crowd is no excuse for depriving a criminal defendant of his constitutional right to the effective assistance of counsel.”

“Jones, like Shaw, had a strong argument for dismissing one of the charges against him, yet his trial attorney did not pursue it. The state suggests that Haak was widely ignored by defense counsel, but we have no hard data to back up that impression,” Wood continued. “We are loath to say that an attorney’s failure to heed the specific direction of the Indiana Supreme Court and the plain text of Indiana law is excusable. To the contrary, that action falls ‘outside the wide range of professionally competent assistance’ required by the Sixth Amendment.”

The 7th Circuit Court further found a reasonable probability that his counsel’s errors prejudiced Jones, and that Indiana’s efforts to distinguish Shaw “fall flat.” It thus ruled Jones was entitled to the issuance of a writ of habeas corpus based on his attorney’s failure to object to an untimely amendment to his charges in David Jones v. Dushan Zatecky, 17-2606. It thus vacated the district court’s denial and remanded with instructions to issue the writ within 120 days solely on Jones’ criminal confinement conviction.

However, Senior Judge Daniel Manion dissented from the panel majority in a separate opinion, arguing that he would not extend Shaw’s reasoning to Jones’ case.

“Because of Indiana’s ‘file something’ rule, it did not matter how successful appellate counsel thought the claim might be; he was legally bound to make the best argument he could, even if that argument was (ultimately) a loser,” Manion wrote in dissent. “In this case, Jones’s trial counsel was not operating under that same constraint, so the situations are not the same.”

Indiana Supreme Court

March 8

Criminal — Robbery/Cell Site Location Information

Marcus Zanders v. State of Indiana


Even though law enforcement conducted a warrantless Fourth Amendment search when they accessed a man’s cellphone location data, the admission of the data does not warrant a new trial because any error was harmless beyond a reasonable doubt, the Indiana Supreme Court ruled, upholding a man’s four convictions in a case heard on remand from the U.S. Supreme Court.

In a unanimous opinion authored by Chief Justice Loretta Rush, the state’s high court upheld Marcus Zanders’ convictions of two counts of robbery with a deadly weapon and two counts of unlawful possession of a firearm by a serious violent felon in Marcus Zanders v. State of Indiana, 15S01-1611-CR-571.

The justices had previously upheld Zanders’ liquor-store-robbery-related convictions in May 2017, when they ruled police could obtain cellphone location data without a warrant. But after the U.S. Supreme Court decision in Carpenter v. United States, 585 U.S. —-, 138 S. Ct. 2206 (2018), the case was remanded to the Indiana high court for reconsideration. Carpenter held that the third-party doctrine did not apply to seven days or more of historical cell-site location information, or CSLI, so law enforcement must get a search warrant to obtain those records.

The Indiana Court of Appeals reached a similar holding in overturning Zanders’ convictions in May 2016. Zanders’ CSLI had been admitted over his objection at his trial, but a divided COA determined law enforcement should have obtained a warrant before obtaining the location data.

When the state justices initially considered the issue in December 2016, they ultimately determined the third-party doctrine applied to CSLI. But the U.S. Supreme Court granted Zanders’ cert petition, vacated the Indiana Supreme Court’s holding and remanded for reconsideration in light of Carpenter.

After reconsideration, the state justices determined the state’s access of the CSLI data was a Fourth Amendment search under Carpenter because law enforcement accessed 30 days of Zanders’ location data. But the court declined to address the state’s argument that exigent circumstances justified the warrantless search, finding instead that the admission of the location data was harmless beyond a reasonable doubt.

In reaching that decision, Rush noted that if the CSLI was illegally obtained, only records and testimony related to the location data would have been excluded. She rejected Zanders’ argument that evidence obtained via subsequent search warrants — which Zander said relied on the CSLI — should be considered fruit of the poisonous tree.

“Here, the good-faith exception applied: the officers had reasonable grounds for believing that the warrants were properly issued,” Rush wrote. “When the officers applied for and obtained the warrants to search the residence, they did not have the benefit of Carpenter or other precedent establishing that the Fourth Amendment generally requires a warrant before police may access CSLI.”

“… This is true even if the warrants — without the CSLI information in the affidavits — were unsupported by probable cause,” the chief justice continued. “In that case, each warrant was still not so facially deficient that executing officers could not reasonably presume it to be valid.”

The court then recounted other “weightier” evidence that pointed toward Zanders’ guilt, including the fact that the robberies occurred near Zanders’ home; that a gun found at Zanders’ home was “indistinguishable” from the gun seen on surveillance footage during the robberies, and; that photos and video of the stolen goods were posted to Zanders’ Facebook page the day after each robbery. That evidence, among other evidence and corroborating eyewitness testimony, showed that the CSLI evidence was only cumulative, the court held.

“Again, the most the CSLI evidence could do was place Zanders near the liquor stores around the times they were robbed,” Rush wrote. “…To be sure, the sea of strong non-CSLI evidence that Zanders went inside and robbed Whitey’s and J&J necessarily submerged the significantly weaker CSLI evidence that Zanders was near the crimes.”

The court also concluded “the importance of the CSLI evidence was diminished by the non-CSLI evidence’s strength.” The justices further noted the location data underwent cross-examination, yet Zanders was still convicted.

“In sum, this cross-examination called attention to the CSLI evidence’s weaknesses — which, even at its strongest, was swamped by other, stronger evidence that Zanders was the man behind the mask in each robbery,” Rush concluded. “For this reason and others elaborated above, the admission of CSLI evidence, if it was error, was harmless beyond a reasonable doubt.”

In a footnote, Rush said the justices declined to revisit its original holding under Article 1, Section 11 of the Indiana Constitution.

Indiana Court of Appeals

Feb. 28

Civil Tort — Negligence/Forseeability of Fatal Shooting

Anthony Rose v. Martin’s Super Markets L.L.C., Martin’s Super Markets of Elkhart East L.L.C., Martin’s Super Markets of Elkhart L.L.C., and Martin’s Super Markets Inc.


The estate of a woman slain by a gunman in an Elkhart grocery store failed on appeal to reverse a ruling that the grocery store owed no duty to the woman because the shooting was not reasonably foreseeable.

The Indiana Court of Appeals affirmed summary judgment for Martin’s Super Markets defendants in the case, Anthony Rose v. Martin’s Super Markets L.L.C., Martin’s Super Markets of Elkhart East L.L.C., Martin’s Super Markets of Elkhart L.L.C., and Martin’s Super Markets Inc., 18A-CT-1654.

The estate of Rachelle Godfread brought a negligence action against the grocery store and its corporate owners after she was shot to death Jan. 15, 2014, by Shawn Blair. Godfread was one of two people Blair shot and killed in 64 seconds as he walked the aisles of the store, according to the record. He also shot and killed store employee Krystal Dikes.

A store employee working security and loss prevention ushered everyone outside the store during the shooting and called 911. Police arrived less than three minutes after Blair fired his first shot, COA Judge Margret Robb wrote, and officers shot him dead within five minutes of his first shot.

Two years later, the estate filed a negligence claim, which asserted that an active shooter was foreseeable, and that Martin’s had a duty to protect Godfread. Martin’s, meanwhile, said the harm that befell Godfread was not foreseeable under the line of cases starting with Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 392 (Ind. 2016).

The COA affirmed the grant of summary judgment to the Martin’s defendants by St. Joseph Superior Judge Steven Hostetler. “Concluding the Store, as a matter of law, did not have a duty to Godfread either before or after the shooting began, we affirm,” Robb wrote.

“Ultimately, it was not reasonably foreseeable for a grocery store to expect death by gunfire to befall a customer and therefore, the Store had no duty to Godfread prior to the shooting. And, because the Store did not have knowledge of Godfread’s injury in time to offer her assistance, the Store had no duty to protect her from exacerbation of her injuries. The trial court appropriately granted summary judgment to the Store,” the panel concluded.

March 4

Civil Plenary — Unlawful Entry Statute/Declaratory Judgment

State of Indiana v. Douglas Kirby


A registered sex offender previously able to attend his son’s school activities per a trial court-granted request was denied that exception when the Indiana Court of Appeals determined an amended statute barred him from entering school property.

Upon pleading guilty to child solicitation in 2010, Douglas Kirby received a 10-year sex-offender registration requirement and an 18-month sentence, suspended to probation. Although his probation conditions forbade Kirby from entering schools, he received an exception to attend his son’s school activities.

Three years after completing probation, however, Indiana Code section 35-42-4-14 made it a Level 6 felony for a “serious sex offender” to knowingly or intentionally enter school property. At that time, Kirby was still attending his son’s school events but ultimately had to stop, as child solicitation was a qualifying offense under the statute. A post-conviction court denied Kirby’s request for relief when he argued that he did not “knowingly” plead guilty because he didn’t know at that time that he would be eventually barred from entering school property. He further asserted that the new statute was an unconstitutional ex post facto law because it added punishment to an already-punished crime.

When Kirby filed a declaratory judgment action, the Howard Superior Court found the statute unconstitutional as applied to his circumstances after noting that he had been previously able to attend his son’s school functions and sporting events before the statute’s amendment.

But an Indiana Court of Appeals reversed that judgment when it found the statue was not unconstitutional under the “intent-effects” test in State of Indiana v. Douglas Kirby, 18A-PL-2334.

In analyzing the firsts step of the test as to whether the Indiana General Assembly intended to impose punishment, the appellate court found the purpose of the statute to be a civil, regulatory, nonpunitive scheme based on McVey v. State, 56 N.E.3d 674, 679 (Ind. Ct. App. 2016). It thus found all factors of the test as punitive to Kirby, specifically noting that the seventh factor of the test weighed most heavily regarding excessiveness in relation to the state’s articulated purpose.

“The purpose of this Statute is to prevent those who commit qualifying sex offenses and, therefore, are required to register as sex offenders, from entering school grounds where children are present,” Judge Elizabeth Tavitas wrote for the majority joined by Judge Melissa May. “The purpose of the Statute is to safeguard children from potential sexual predators, which outweighs Kirby’s interests in attending school functions.”

“For completeness, we emphasize that the exception to Kirby’s probation conditions entered by the trial court, which allowed Kirby to attend certain school activities in which his son and grandchildren participated, should not be a basis for finding that the Statute is unconstitutional as applied to Kirby,” Tavitas continued.

However, Judge John Baker dissented with a separate opinion, arguing the statute is unconstitutional regarding Kirby, amounting to retroactive punishment in violation of the ex post facto clause of the Indiana Constitution.

“I see the logic in the majority’s reasoning that a school can limit its visitors, yet a school presumably does not limit parental attendance at a child’s activities for which parents are welcomed or encouraged to attend,” Baker opined. “In other words, the effect of this Statute to Kirby is not minor.”

Baker further noted that at the time of Kirby’s sentencing, he was explicitly granted permission to enter school property to observe activities involving his son, and that he had done so in the five years before the statute’s amendment. 

“While I understand the majority’s position regarding this factor, I find that to suddenly deny Kirby the opportunity to attend his son’s activities — which he could do while completing his punishment through probation — only because of his prior conviction is excessive,” Baker wrote.

March 12

Miscellaneous — Zoning/Dismissal

Carmel Board of Zoning Appeals, and Al-Salam Foundation, Inc. v. David Bidgood, Sheila M. Graves, Salvatore Papalardo, David J. Reeves, and Angelo R. Stanco


The Carmel zoning board’s approval of the construction of an Islamic community center was affirmed as an appeals court determined opponents of the planned mosque failed to timely file the board’s record.

More than a month after the Carmel Board of Zoning Appeals granted a special use zoning permit to the Al-Salam Foundation, Inc., to build an Islamic community and worship center, several opponents filed a “petition for writ of certiorari, judicial review and declaratory judgment” against the board.

Remonstrators David Bidgood, Sheila M. Graves, Salvatore Papalardo, David J. Reeves and Angelo R. Stanco sought court review of the board’s 3-2 vote permitting the special use, but they failed to file the board’s record within 30 days as required under Indiana Code § 36-7-4-1613(a). Subsequently, the remonstrators twice filed for an extension of time in order to file the record, both of which were granted by the trial court.

Now-retired Hamilton Superior Judge Steve Nation later denied the board’s motion to dismiss the remonstrators’ petition despite the board’s argument that its record was untimely filed and that no extensions of time to file were requested by the remonstrators pursuant to the statutory timeframe.

On appeal, the board argued the record needed to be filed or an extension sought by April 27, and that the remonstrators did not file their motion for extension of time until May 25. On the other hand, the remonstrators contended the trial court’s order set the date as May 25, and because they were granted their motion to extend the time, they had not missed the deadline.

The Indiana Court of Appeals ultimately found that under I.C. 36-7-4-1600 (the “1600 Series”), the exclusive means for seeking judicial review, the remonstrators failed to file the board record within by April 27 and thus precluded judicial review of the case.

“As to the trial court managing its own docket, the Remonstrators’ argument continues to hinge on the availability of the certiorari process as an ‘alternate’ process to the 1600 Series. In the certiorari process, the court could set deadlines. But the certiorari process has been repealed for nearly a decade, and the Remonstrators are required to abide by the provisions of the 1600 Series,” Judge Margret Robb wrote for the panel.

“We would be remiss if we did not also note that the trial court is required to abide by those provisions as well. The trial court signed an order that is meaningless, as it is directed to the requirements of a now-repealed statutory process, and in doing so, unnecessarily furthered the procedural confusion at the heart of this case.”

Therefore, the appellate court determined the board’s motion to dismiss should have been granted and reversed the trials’ court’s judgment in Carmel Board of Zoning Appeals, and Al-Salam Foundation, Inc. v. David Bidgood, Sheila M. Graves, Salvatore Papalardo, David J. Reeves, and Angelo R. Stanco,18A-MI-2098.•

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