In the second published opinion written by Indiana Supreme Court Justice Derek Molter on Wednesday, justices addressed a procedural issue regarding discretionary interlocutory appeals and orders in limine.
Richard A. Means, II v. State of Indiana, 23S-CR-26, began when a day care worker changing E.H.’s diaper discovered severe bruising on the child’s body, prompting the day care to report the injuries to the Department of Child Services.
DCS filed a petition alleging E.H. was child in need of services, but after a factfinding hearing, the juvenile court denied the petition. The court’s written order explained that while the agency proved E.H. was battered, it failed to investigate whether day care staff had caused the injuries, which the court believed was likely based on the evidence.
But the prosecutor on the case reached a different conclusion and the state charged Richard Means — the boyfriend of E.H.’s mother — with Level 5 felony battery resulting in bodily injury to a person under 14.
After defense counsel conveyed at a pretrial hearing that Means would introduce the CHINS order as evidence that someone else likely injured E.H., the state moved to exclude that evidence in limine. The Hendricks Superior Court granted the state’s motion, concluding the CHINS order’s “finding that someone at the daycare likely battered [E.H. was] a legal conclusion that invade[d] the jury’s duty to determine the outcome of this case on the facts presented to them at a trial held in their presence.”
After the trial court certified its order for discretionary interlocutory review, the Court of Appeals motions panel accepted jurisdiction.
However, the subsequent merits panel issued a published opinion dismissing the appeal as insufficiently ripe, finding orders in limine are only tentative rulings subject to reconsideration.
On top of Means’ request for transfer to the Supreme Court, the Indianapolis Bar Association Appellate Practice Section requested transfer to provide guidance on procedural issues presented by the Court of Appeals’ opinion.
In a Wednesday opinion, justices granted transfer and cleared up any confusion by concluding: (1) after the Court of Appeals accepts a discretionary interlocutory appeal, it may later dismiss the appeal on nonjurisdictional grounds, although its general reluctance to do so is appropriate; and (2) orders in limine are eligible for discretionary interlocutory review.
Before reaching Means’ evidentiary argument, the justices addressed the issue of dismiss discretionary interlocutory appeals.
Molter broke down the procedure at length, concluding that “while the Court of Appeals may dismiss a discretionary interlocutory appeal as improvidently accepted, the published opinion seems to suggest mistakenly that the court must do so when the appeal is from an order in limine.”
Second, justices determined that orders in limine are eligible for interlocutory appeal per Appellate Rule 14(B).
Finally, the justices concluded on the merits that the trial court did not abuse its discretion by excluding the CHINS order in Means’ case.
“… (T)he CHINS order presents a great risk that the jury will be too deferential to a judge’s assessment of the facts,” Molter wrote. “… If the juvenile court judge had concluded Means was in fact the perpetrator, Means would rightly argue it would be unfairly prejudicial to his defense for the State to introduce into evidence that conclusion. It is no less unduly prejudicial to the State’s case to allow Means to introduce evidence that another judge exonerated him.
“… Moreover, introducing the CHINS order is misleading in the criminal proceeding,” Molter continued. “The juvenile court judge reached her conclusion in the CHINS order based on DCS’s evidentiary presentation in a civil proceeding following its own investigation, not the prosecutor’s evidence in this criminal proceeding based on additional police investigation. That is especially problematic because the juvenile court reached its conclusion in the CHINS case before the State completed its investigation in the criminal case.
“To be clear,” the justices concluded, “the trial court’s ruling is limited to the admissibility of the CHINS order; it does not extend to the underlying evidence that led the juvenile court to conclude it was likely someone at the daycare who abused E.H. Nothing in the trial court’s order or this opinion precludes Means from introducing that evidence in his defense.”