Indiana Supreme Court
Civil Plenary — Rental Unit Fee Exemption/Constitutionality
City of Hammond v. Herman & Kittle Properties, Inc. and State of Indiana
Rental property owners in Bloomington and West Lafayette may be getting a reduction in their registration fees after the Indiana Supreme Court struck down the exemption that allowed the college towns to charge more to landlords than the $5 mandated in state statute.
The city of Hammond challenged the “fee exemption” provision in Indiana Code section 36-1-20-5 as unconstitutional special legislation. Under the exemption, the cities of Bloomington and Lafayette were exempt from the $5 cap per rental unit.
The 2014 Legislature instituted the restriction in House Enrolled Act 1403, which exempted the hometowns of Indiana and Purdue universities from limiting the rental fee. But the bill included language stating the fee restriction would “not apply to a political subdivision with a rental registration or inspection program created before July 1, 1984.”
Subsequently in May 2014, the city of Hammond charged Herman & Kittle Properties $86,000 in rental-registration fees and penalties on two apartment complexes. The landlord pointed to the new legislation and contended its fees would “significantly reduce” after the fee restriction took effect June 30.
Hammond countered its rental-fee program was not subject to the fee caps because its rental inspection program — which the fees funded — was started in 1961, well before the legislation’s July 1, 2014 limit.
While Hammond’s lawsuit was pending, the Indiana General Assembly tinkered with the language in the statute. Specifically, the Legislature amended the statute to exclude the northwest Indiana city from the fee exemption.
In response, Hammond amended its complaint, arguing the fee exemption violated both Article 4, Section 22’s prohibition of special laws relating to fees and Article 4, Section 23’s prohibition of special legislation where a general law can be made. The city also argued the fee exemption was not severable from the remainder of I.C. 36-1-20-5.
The Indiana Court of Appeals agreed the fee exemption does violate the Indiana Constitution. Also, the appellate court found the statue was nonseverable and struck down all of Section 36-1-20-5.
In a unanimous opinion, with Justice Geoffrey Slaughter not participating, the Indiana Supreme Court held the fee exemption was unconstitutional special legislation in City of Hammond v. Herman & Kittle Properties, Inc. and State of Indiana, 19S-PL-148.
However, the justices also ruled the exemption was severable from the remainder of I.C. 36-1-20-5. Thus the fee restriction operates statewide and all municipalities are restricted from charging a rental-registration fee that exceeds $5.
As proponents of the fee exemption, Herman & Kittle Properties failed to convince that Supreme Court that the special law is justified because Bloomington and West Lafayette have a more renters who tend to be young and unsophisticated, and the two cities have a history of regulating landlords through inspection and registration programs.
“The justifications set forth by Herman & Kittle demonstrate nothing more than a ‘generalized uniqueness’ in Bloomington and West Lafayette,” Chief Justice Loretta Rush wrote, citing Buncich, 51 N.E.3d at 142 n.7. “In other words, while there are characteristics of Bloomington and West Lafayette that may be uncommon or rare across the state, that is not enough; rather, ‘there must be unique characteristics that justify the particular of legislation.’”
On the severability issue, Herman & Kittle asserted because the statute did not contain a nonseverability provision as created by Indiana Code 1-1-1-8, the presumption would be the fee exemption is severable from the remainder of I.C. 36-1-20-5.
Hammond pointed out the Legislature failed three times at imposing fee restrictions and was not successful until it crafted a bill that excluded Bloomington and West Lafayette. According to the city, the Statehouse would not want a provision limiting rental-registration fees unless Bloomington and West Lafayette were spared.
The Supreme Court found that Hammond did not defeat I.C. section 1-1-1-8(b)’s presumption that operates in favor of severability.
“Hammond has not demonstrated that the legislature intended to revert back to a time when political subdivisions could charge any rental-registration-fee amount of their choosing,” Rush wrote. “Rather, the legislature, over many years, strove to limit the burden that increasing fees were placing on rental community. Thus, to invalidate the Fee Restriction would go against legislative intent — not support it.”
Criminal — Resisting Law Enforcement/Fleeing, Jury Instruction
Christapher Batchelor v. State of Indiana
Despite disproving of a jury instruction used to convict a man of felony resisting law enforcement, the Indiana Supreme Court reinstated his resisting conviction after finding the instruction error was harmless.
The justices unanimously upheld Christapher Batchelor’s Level 6 felony conviction of resisting law enforcement by fleeing in a vehicle in Christapher Batchelor v. State of Indiana, 18S-CR-436.
Batchelor was convicted after a Clay County traffic stop. A deputy sheriff had activated his emergency lights after observing Batchelor driving without a seatbelt, but Batchelor did not stop immediately. Instead, he continued driving at about 35 mph for roughly 90 seconds.
After the stop, Batchelor went to the ground on the deputy’s order but began to resist as officers tried to handcuff him. Ultimately, the deputy injured his ankle while one back-up officer jammed his finger and another received a black eye.
Batchelor was convicted of three counts, with the Level 6 felony resisting conviction at issue in his appeals. A jury convicted him of that charge after being given an instruction that defined “fleeing” as when a person “attempts to escape from law enforcement or attempts to unnecessarily prolong the time before the person must stop.” That instruction, known as Instruction 22, also required the state to prove that a “reasonable driver in (Batchelor’s) position” would have stopped sooner than he did.
Neither party objected to that instruction, but Batchelor argued on appeal that Instruction 22 improperly expanded the definition of “fleeing.” In a unanimous decision in March 2018, the Indiana Court of Appeals reversed the felony resisting conviction after likewise determining the “reasonable driver” standard allowed the state to convict Batchelor on a civil negligence standard.
After the Supreme Court granted transfer, the state initially argued Batchelor had invited any instructional error by failing to object to Instruction 22 at trial. But the court determined there was no evidence of “strategic maneuvering” in trial counsel’s failure to object and, thus, considered the case on the merits.
“In reaffirming this precedent, we emphasize today that, to establish invited error, there must be some evidence that the error resulted from the appellant’s affirmative actions as part of a deliberate, ‘well-informed’ trial strategy,” Justice Mark Massa wrote for the court. “A ‘passive lack of objection,’ standing alone, is simply not enough.”
Then, in reinstating the felony resisting conviction, the justices determined Instruction 22 misstated the applicable mens rea and potentially misled the jury as an incorrect statement. The question, Massa said, should have been whether Batchelor knew he was committing an offense, not what a reasonable person would have done in his shoes.
“Because nothing in the resisting statute defines fleeing as unnecessarily delaying a stop without a reasonable safety concern, Instruction 22 threatened to invade the jury’s province to decide the law and facts,” Massa wrote. “… Whether there are sound policy reasons for including these factors in a ‘fleeing’ definition is a question best suited for the legislature.”
Even so, the high court upheld Batchelor’s felony resisting conviction considering the entirety of the jury charge. Massa noted the trial court twice read the proper mens rea — whether Batchelor “knowingly and intentionally” fled — and gave a “comprehensive instruction of the felony-resisting offense” that enumerated the elements of the crime of resisting.
“Instruction 22, by contrast, is merely a ‘supplemental, definitional instruction’ which attempts — albeit inaccurately — to explain the term ‘fleeing’ as it applies to this case,” he wrote. “To the extent that language in Instruction 22 contradicts language in the ‘elements’ instruction, the latter (read twice to the jury) outweighs the former (read only once to the jury).”
Thus, the justices concluded the defect in Instruction 22 was harmless in light of the “uncontroverted evidence showing that Batchelor knowingly fled.” But the court also expressly disapproved of the rule laid out in Cowans v. State, 53 N.E.3d 540 (Ind. Ct. App. 2016) trans. not sought, which was the framework for the defective fleeing instruction.
Cowans held that defendants charged with resisting are entitled to a jury instruction that defined the word “flee” and explained “that if a reasonable driver in the defendant’s position would have felt unsafe to come to an immediate halt, and if the defendant took reasonable steps to increase the safety of the stop without unnecessarily prolonging the process, then the defendant was not fleeing.”
“As dicta, the Cowans opinion had no binding effect on the trial court here,” Massa wrote. “… And even if it were central to the court’s holding in Cowans, we have long held ‘that certain language or expression’ used by an appellate court ‘to reach its final conclusion’ is ‘not [necessarily] proper language for instruction to a jury.
“… Going forward, trial courts should use Indiana Pattern Criminal Jury Instruction 5.3040 for the resisting-by-fleeing offense,” Massa concluded. “And while counsel may argue that a defendant’s actions are reasonable or unreasonable, it’s ultimately for the jury to decide whether there’s evidence of knowing or intentional fleeing under the statute.”
Indiana Court of Appeals
Small Claims — Dismissal/Failure to Prosecute
Melba Polk-King v. Discover Bank
A small claims court’s confirmation of an arbitration award to a bank after its ‘dilatory conduct’ was reversed by the Indiana Court of Appeals, which found an abuse of discretion occurred in granting the bank relief several years after the case should have been dismissed with prejudice.
When Melba Polk-King was drawn into a small claims action initiated in 2014 by Discover Bank alleging she failed to pay a credit card balance of nearly $4,000, she moved to compel arbitration. Discover failed to pay an $800 case management fee for the arbitration, which was subsequently closed.
Another year of inaction on the suit passed from Discover’s end, until it filed to bring the suit back to the court’s active docket. Soon after the case was dismissed without prejudice, Discover filed a motion to vacate the dismissal and stay the action until the completion of arbitration, which was later granted “for good cause shown.”
Despite Polk-King’s contentions against returning to arbitration due Discover’s failure to prosecute the case in a timely manner the first time, the final arbitration award presented during the second arbitration hearing ruled in favor of Discover for more $3,900 plus court costs. The small claims court then confirmed the arbitrator’s award and denied Polk-King’s request to vacate the award and dismiss with prejudice.
Polk-King thus appealed that the court no longer had jurisdiction over the case as soon as it dismissed the action for failure to prosecute, and that it could not later set aside the dismissal because the statute of limitations had expired.
Noting the case became “procedurally complex” when it “veered far off the path of the typical informal small claims action” by being filed under Ind. Trial Rule 41(E), the Indiana Court of Appeals primarily focused on whether the trial court abused its discretion in setting aside the dismissal altogether.
In answering that question, the appellate court found that Discover made no attempts to explain the lengthy delays it had caused prior to the motion to vacate the dismissal. The panel also noted that in support of its motion, Discover falsely asserted both parties had agreed to arbitrate, when the record indicated Polk-King consistently sought dismissal of the entire matter and argued that reinitiating arbitration was improper after the first arbitration had been closed due to Discover’s default.
Further, the appellate court found that because Discover had been in clear default of the arbitration agreement, it was not entitled to a stay of the court proceedings or to demand re-initiation of arbitration two years after the first arbitration was filed. Therefore, the appellate panel held the small claims court abused its discretion by granting Discover’s motion and by reinstating the action against Polk-King.
“Discover’s dilatory conduct resulted in an unnecessarily lengthy cloud over Polk-King’s credit history. In its motion to set aside the dismissal, Discover offered no explanation for its inaction and no good cause for reinstatement. ‘Ultimately, reinstatement is a matter of equity’, and the equities were not with Discover here,” Judge Robert Altice wrote for the unanimous panel. “Accordingly, the action should not have been reinstated by the court and the dismissal should have been the end to the case.”
The case was thus reversed and remanded Melba Polk-King v. Discover Bank, 18A-SC-1772 to the small claims court to vacate its confirmation of the arbitration ward and to dismiss the case with prejudice.
Criminal — Credit Time/Home Detention
Jeffery Thompson v. State of Indiana
A man previously denied earned credit time against his sentence received good news when an appellate court reversed, finding he was wrongly denied his request.
After pleading guilty to Level 6 felony operating while intoxicated endangering another person, all of Jeffrey Thompson’s other pending charges were dismissed. That included a charge on which Thompson had been ordered to serve 240 consecutive days of pretrial home detention.
Once he completed the full order with no problems, the state agreed to apply his earned credit time to his 730-day sentence pursuant to his plea agreement. However, a trial court only awarded Thompson 60 days of good credit time instead of the full 240 days he had accumulated and denied his request to have it added.
Acknowledging the murkiness of issuing credit time for home detainees and the extensive legislative changes made since Purcell v. State, 721 N.E.2d 220 (Ind. 1999), the Indiana Court of Appeals found error with the trial court’s denial and thus reversed the lower court’s decision in Jeffery Thompson v. State of Indiana, 18A-CR-1947.
Thompson, who was assigned to Class P as a person “placed on home detention awaiting trial,” argued that other credit time classifications earn accrued time in addition to good time credit, except for his class.
He also argued it was unnecessary for the Legislature to state that persons in Class P receive accrued time because “like those in the other credit time classes, it is implied.” Also, he argued that the Legislature would have specified if it had intended to treat pretrial home detainees differently for purposes of accrued time than those incarcerated and awaiting trial.
“Thompson further observes that he ‘was unable to find any situation in the
Indiana Code where a defendant can earn ‘good time credit’ without also
earning accrued time.’ We were also unable to find any such situation, which leads us to conclude that the legislature could not have intended such an absurd result,” Judge Terry Crone wrote, with Chief Judge Nancy Vaidik and Judge Paul Mathias concurring.
The appellate panel also pointed out that no indications existed as to whether the legislature intended to treat pretrial and post-conviction home detainees differently under the current statutory scheme.
“Based on the numerous substantive legislative changes regarding credit time that have been enacted since Purcell, we conclude that Purcell is no longer good law with respect to accrued time for pretrial home detention,” the panel continued.
“We hold that a person placed on pretrial home detention earns accrued time (calculated at a day for a day) pursuant to the unmistakable implications of Section 35-50-6-3.1 and that the trial court has no discretion to deny it.”
Criminal — Murder/Juror Remarks, Mistrial
Joe Paul Hambel v. State of Indiana
A man who murdered two people in a victim’s home after telling police he wanted to help “clean up the drug problem” in a southern Indiana county got no relief from his convictions or 121-year prison sentence on appeal.
The Indiana Court of Appeals affirmed the jury’s conviction and the sentence imposed in Joe Paul Hambel v. State of Indiana, 18A-CR-686. Hambel was convicted of illegally entering the Salem home of Valerie Dicus and fatally shooting her and her boyfriend, Joe Hobson, in the early-morning hours of Aug. 20, 2016. The night before, he had spoken with law enforcement officers about wanting to help clean up the drug problem in Washington County.
A jury convicted Hambel as charged. On appeal, he claimed the Washington Circuit Court abused its discretion in sentencing him and in rejecting his motion for a mistrial. The latter argument arose after a juror shared with other jurors his wife’s views of Hambel. The juror’s wife and Hambel had been schoolmates and friends, the juror said.
Ultimately, Juror 2 was removed based on the extrajudicial communications, but Washington Circuit Judge Larry Medlock denied the mistrial motion. Medlock found that anything jurors might have heard from Juror 2 was harmless, and may even have helped Hambel’s case, since the juror’s wife said the crimes Hambel was accused of weren’t reflective of the person she knew.
The COA affirmed the trial court, finding no abuses of discretion. The panel also rejected Hambel’s appellate claim that jurors began deliberating before the close of evidence, which the trial court found had not happened.
Judge Edward Najam wrote for the panel that also rejected Hambel’s plea for a lighter sentence on the bases that he had no prior criminal history, was the father of two children, and had been diagnosed with anxiety and post-traumatic stress disorder.
“Hambel characterizes his character as ‘excellent. ... However, as the State points out, the nature of the offenses supports the 121-year sentence in that Hambel: planned the murders; shot Dicus in the head from close range; shot Hobson six times; and threatened to kill (a friend) if he told anyone about the murders,” Najam wrote.
“As for his character, Hambel may have been motivated to commit these murders by his concern about the drug problem in Washington County and his interest in helping law enforcement,” Najam continued. “But when he became a vigilante and took the law into his own hands, he displayed a blatant disrespect for the law, which reflects poorly on his character. We cannot say that Hambel’s sentence is inappropriate in light of the nature of the offenses and his character.”
Criminal — Aiding Armed Robbery/UnauthenticatedCell Records
Jaqueline B. Walters v. State of Indiana
The state must now decide whether to retry a woman previously convicted of aiding a robbery after the Indiana Court of Appeals reversed her conviction, finding the state failed to properly authenticate cellphone records it said tied the woman to the crime.
In Jaqueline B. Walters v. State of Indiana, 18A-CR-1021, Jaqueline Walters was charged with Level 3 felony aiding, inducing or causing an armed robbery after the phone number she shared with her boyfriend, known as 6065 Phone, was tied to a 2015 robbery of the Morgantown IGA where Walters worked. Records from Verizon listed messages between 6065 Phone and John Nocito, a friend of Walters’ boyfriend, discussing a plan to rob the IGA. Walters was present during the robbery.
After Walters’ initial trial resulted in a hung jury, the state scheduled a retrial and requested an evidentiary hearing to have the text messages “deemed statements of coconspirators so the statements would not be hearsay.” The state wanted the Morgan Superior Court to take judicial notice of the cellphone records, which had been presented during the trial against Nocito and Walters’ boyfriend.
The trial court agreed to take judicial notice over Walters’ objection, and the state supported its conspiracy theory by presenting messages saying Nocito intended to work with “Jackie” to carry out the robbery and that Walters could provide information about the best time of day to rob the store. The state also presented an affidavit of certification from Verizon that was dated Feb. 27, 2017.
Walters objected to the admission of the phone records, arguing they were not self-authenticating and noting the certification did not list what phone number it applied to or what warrant it was responding to. But the trial court determined there was a certification from a business records custodian and, thus, admitted the cell records.
A jury then found Walters guilty, but the Indiana Court of Appeals overturned her conviction. Judge Melissa May, writing for a unanimous appellate panel, noted the certification was issued roughly 18 months after the records were obtained and did not list the applicable phone number or dates of the records.
Without that information, the appellate panel said the certificate of authenticity “lacks indicia of reliability.”
“We cannot say the State provided proper authentication of these records to breach the threshold question of admissibility,” May wrote, citing to Speybroeck v. State, 875 N.E.2d 813 (Ind. Ct. App. 2007), reh’g denied. “Without authentication, we do not reach the question of whether the statements made therein were admissible as coconspirator statements. The trial court abused its discretion when it admitted the evidence of the phone records for 6065 Phone without proper authentication.”
Further, without the phone records, the appellate panel determined there was not enough evidence to sustain the state’s case against Walters. Thus, her conviction was reversed, but with leeway for the trial court to retry her.
“While ‘double jeopardy forbids a retrial … if the reviewing court concludes that the evidence is legally insufficient to support the conviction[,]’ if the State were able to authenticate the phone records for 6065 Phone, the jury could have found Walters had conspired with Nocito,” May wrote. “Therefore, the Double Jeopardy Clause does not preclude a retrial.”
Criminal — Possession of Marijuana, Methamphetamine/Window Peek Search
Zachary J. Taylor v. State of Indiana
A man with drug convictions failed to sway an appellate court that his rights against illegal search and seizure were violated when an officer peeked through his window before arresting him. The Indiana Court of Appeals concluded the officer acted no differently than a Girl Scout in approaching the man’s door.
After Rockport Police Officer Shon Shourds received two anonymous tips of drug activity at Zachary Taylor’s home, Shourds approached Taylor’s front door to conduct a “knock and talk.” But before knocking, Shourds peered through a small gap left by the window’s closed blinds and saw two individuals with a smoking device commonly associated with drug use inside.
A search warrant was granted despite not having conducted the “knock and talk.” Meth, marijuana and a digital scale were found inside the apartment. Taylor was subsequently arrested on numerous drug dealing and possession charges.
Taylor unsuccessfully filed a motion to suppress the evidence found in his apartment at trial on the basis that the search violated the Fourth Amendment and Article 1, Section 11 rights against illegal search and seizure. After a trial, the jury returned guilty verdicts on Level 6 felony possession of methamphetamine, Level 6 felony maintaining a common nuisance, and Class B misdemeanor possession of marijuana. Taylor subsequently pleaded guilty to having prior convictions that enhanced two of those convictions to Level 5 felony possession of methamphetamine and Level 6 felony possession of marijuana. The trial court vacated the maintaining a common nuisance conviction due to double jeopardy concerns.
Taylor was sentenced to an aggregate 14 years in prison with one year suspended.
To defend his assertion that Shourds committed an illegal search under the Fourth Amendment while in the curtilage of the apartment, Taylor cited Florida v. Jardines, 569 U.S. 1 (2013). In that case, the Jardines court found the use of a drug-sniffing dog in the curtilage of a private residence constituted a search under the Fourth Amendment. But the Indiana Court of Appeals found Jardines was distinguishable from the scenario in Zachary J. Taylor v. State of Indiana, 18A-CR-1757.
Despite the cases similarities, the appellate court noted that Shourds’ action of simply approaching the door to be received did not rise to the level intrusion found to violate the Fourth Amendment in Jardines.
“While the area of the curtilage is a protected area under the Fourth Amendment, Officer Shourds did no more than an ordinary citizen is implicitly licensed to do under Jardines,” Judge Melissa May wrote for the panel. “The fact that Officer Shourds had to reposition his body to view this activity is of no consequence — if Taylor had intended for all of the activity within the apartment to be private, he would have ensured no one could see inside when arriving at his front door.”
The panel further found that because the items in the apartment were in “open view” and that Taylor had not fully covered his window indicating the activities inside were private, Shourds’ action did not constitute an illegal search under the Fourth Amendment.
A similar conclusion was met on Taylor’s second assertion when the panel found the act was minimally invasive and did not equal an impermissible search under Article I, Section 11 for two reasons: Shourds had received tips concerning drug use beforehand and approached the door in the same manner as a public citizen, like a Girl Scout or trick-or-treater.
“Thus, the trial court did not abuse its discretion when it admitted the items found as part of the search warrant prompted, in part, by Officer Shourds’ observations through the gap in the window,” May concluded for the panel.•