7th Circuit Court of Appeals
Nathan S. Berkman v. Frank Vanihel
7th Circuit denies convicted murderer’s habeas petition after admission of absent witness’s prior testimony
A man convicted of murdering his drug dealer more than a decade ago has again been denied habeas relief after the 7th Circuit Court of Appeals affirmed that the admission of prior testimony from an absent, but key, witness wasn’t done in error.
In 2008, Nathan Berkman owed $2,000 to his cocaine dealer, Olen Hawkins. Berkman arranged to meet Hawkins in a supermarket parking lot, purportedly to pay off his debt, and took his girlfriend Arlene Timmerman’s car.
Once at the parking lot, Berkman got into Hawkins’ car. He then slit his dealer’s throat and took the drugs and money that he had on him.
Berkman told Timmerman what had transpired when he returned home that night, and Timmerman saw Hawkins’ body. Berkman, Timmerman and Tanya Sullivan, who was visiting, then smoked crack cocaine in the basement, according to court records.
The next morning, Berkman informed Timmerman that he had devised a plan to dispose of the body. He drove Hawkins’ car to a field, doused it with gasoline and set it on fire. The car and remains were discovered two months later.
The state charged Berkman with murder and felony murder, and the case proceeded to trial, at which Timmerman testified in person. The jury acquitted Berkman of murder but failed to reach a verdict on the felony murder count.
A second felony murder trial began in August 2011. At the beginning of the fourth day of trial, Timmerman was in the hospital, so the trial court excused the jury and postponed the trial for several days.
Timmerman appeared to testify the following Tuesday. She had testified for several minutes when the prosecuting attorney realized she appeared unwell. When the prosecutor inquired, “Are you okay?” Timmerman responded “No, I’m not.”
Timmerman was then escorted to a back room, where she disclosed that she had been in the hospital for a possible seizure or stroke. She said she felt very nauseous and was “burning up.”
Thejudge did not believe that it was going to be possible for Timmerman to continue, and both counsel and the court agreed the court could declare a witness unavailable if she was either unable to be present or unable to testify. Timmerman fell into the second category.
Further, the court found that the defense counsel had a full opportunity to cross-examine Timmerman in the first trial. Because the opportunity to cross-examine was the crux of the Crawford v. Washington, 541 U.S. 36 (2004), decision, it determined the trial would proceed and a mistrial wouldn’t be granted despite a request by the defense.
Instead, Timmerman’s testimony from the prior trial was read aloud to the jury.
The jury subsequently found Berkman guilty as charged.
Berkman appealed to the Court of Appeals of Indiana, where he argued that the trial court had erred in failing to grant a mistrial and in admitting Timmerman’s prior testimony. The COA wasn’t convinced and affirmed his conviction and sentence to 60 years executed.
Berkman then filed for post-conviction relief, which was denied after an evidentiary hearing. The Court of Appeals affirmed, and the Indiana Supreme Court denied transfer.
He next filed a federal habeas petition in which he raised, among other challenges, a claim that his Sixth Amendment right to confront witnesses was violated by the admission of Timmerman’s prior testimony.
In rejecting that argument, the district court said the state trial court could “have waited additional time before declaring Ms. Timmerman unavailable.” But that “likely would have resulted in ‘serious disruption to the court calendar and the schedules of jurors, witnesses, and lawyers. By the same token, the judge might have been reluctant to further delay the trial indefinitely, or declare another mistrial, in hopes that Ms. Timmerman would recover enough to testify.’”
Moreover, the district court noted Berkman’s counsel had an opportunity to cross-examine Timmerman in the first trial. And even if there had been a confrontation clause violation, the error did not result in prejudice.
Appealing to the 7th Circuit, Berkman contended the Court of Appeals of Indiana’s decision was contrary to, or unreasonably applied, Crawford in three ways.
The 7th Circuit found none of the contentions persuasive.
First, according to Berkman, Crawford imposes a continuing duty on the trial court to evaluate a witness’s availability. But 7th Circuit Senior Judge Kenneth Ripple wrote that Berkman failed to come forward with any clearly established Supreme Court precedent that has imposed such a duty on the trial court.
Berkman also maintained the state appellate court ran afoul of Crawford because it “did not address the state’s burden in proving that Timmerman was unavailable.”
Ripple again denied Berkman’s argument, stating all parties agreed Timmerman couldn’t testify.
“… (D)efense counsel even acknowledged on the record that ‘we’ve got a witness who’s physically unable to testify today.’ Thus, given this consensus as to Timmerman’s status, there was no reason for either the state trial court or the state appellate court to address the prosecution’s burden of proof,” Ripple wrote.
Finally, Berkman argued the state appellate court’s application of Crawford was unreasonable because it only evaluated whether the trial court had “abuse[d] its discretion in finding that Timmerman was unavailable” instead of applying a de novo standard of review.
“In response to the parties’ arguments, the Court of Appeals of Indiana addressed the issue of unavailability according to Indiana Rule of Evidence 804(a)(4) and employed the standard attendant to a determination of admissibility under the Indiana Rules of Evidence,” Ripple wrote. “However, regarding the ultimate question of whether Mr. Berkman’s right to confront witnesses under the federal constitution was violated, the state appellate court both drew upon the Crawford standard and conducted its own review.
“… Because the Supreme Court has articulated neither a substantive standard governing unavailability arising from a witness’s illness, nor a standard of review governing a trial court’s determination of unavailability, we cannot conclude that the state appellate court’s decision was unreasonable,” the opinion concluded.
The case is Nathan S. Berkman v. Frank Vanihel, 21-1567.
Ashley W., et al. v. Eric Holcomb, Governor of Indiana, et al.
7th Circuit dismisses CHINS lawsuit challenging Indiana’s foster care system
The 7th Circuit Court of Appeals has dismissed a lawsuit pushing for better treatment of children in Indiana’s foster care system, finding it difficult to determine what options for relief are open to a federal court but closed to a CHINS court.
A panel of appellate judges heard oral arguments in Ashley W., et al. v. Eric Holcomb, et al., 21-3028, on March 30, when the panel of judges expressed skepticism about what the federal court could actually do to help the juvenile plaintiffs.
The case, filed in 2019 in the U.S. District Court for the Southern District of Indiana, alleged that 10 juvenile plaintiffs who were all in the custody of the Indiana Department of Child Services were taken from abusive homes, then subjected to additional trauma by being cycled through multiple placements and not being given adequate care.
After the district court denied the state’s motion to dismiss in 2021, Indiana appealed to the 7th Circuit.
Only two of the original 10 plaintiffs, represented by Kirkland & Ellis, along with Indiana Disability Rights and A Better Childhood, were left in the suit. The children’s advocates expressed their desire for the federal court to issue a detailed regulatory injunction specifying better procedures for both the Indiana Department of Child Services’ operations and child in need of services proceedings.
But the 7th Circuit appeared to be pulling teeth from the plaintiffs’ attorney during oral arguments in asking counsel to pinpoint the specific relief it was seeking for the children.
The 7th Circuit ultimately concluded in a May 16 decision that the district court’s reasoning did not suffice as to why neither of the plaintiffs’ claims were subject to Younger v. Harris, 401 U.S. 37 (1971).
“Take the first. That plaintiffs have sought some relief (potentially) unavailable in a CHINS case may establish standing, but it does not demonstrate that a federal court may adjudicate all of plaintiffs’ claims,” Judge Frank Easterbrook wrote for the panel, joined by Judges David Hamilton and Diane Wood. “Disputes that can be resolved in a CHINS case must be resolved there. It is essential to determine which is which.
“We were reluctant in (Nicole K. v. Stigdon, 990 F.3d 534 (7th Cir. 2021)), to resolve Younger arguments about CHINS proceedings as an all-or-none matter; the scope and complexity of CHINS proceedings makes a one-size-fits-all solution inapt,” Easterbrook continued. “For the same reason, however, the existence of some issues outside the ambit of a CHINS proceeding does not mean that Younger drops out of the picture.”
The 7th Circuit also found that following from Nicole K., the absence of automatic counsel at public expense for every child in a CHINS proceeding does not permit a federal court to deem all CHINS proceedings defective and bypass the state judiciary.
Turning to how the federal court could be of assistance in a way the CHINS courts could not, the 7th Circuit reiterated that the plaintiffs’ counsel “did not have an answer.”
“We could imagine, as a potential response, a contention that the state must increase the payments offered to people willing to be foster parents, or that the Department needs money to hire more social workers so that the caseload of each may be reduced, but counsel for the plaintiffs disclaimed any argument that a federal court could or should increase the agency’s budget,” Easterbrook wrote. “Yet, short of ordering the state to come up with more money, it is hard to see what options are open to a federal court but closed to a CHINS court.”
As such, the 7th Circuit concluded that the live contentions in the litigation may all be resolved by judges in CHINS proceedings. Additionally, it held that Younger and Moore v. Sims, 442 U.S. 415 (1979), require federal judges to abstain.
The appellate court also found that it would be improper for a federal court to issue an injunction requiring a state official to comply with state law.
“The sort of questions that lie outside the scope of CHINS proceedings, such as how the Department handles investigations before filing a CHINS petition, do not affect the status of the two remaining plaintiffs,” Easterbrook concluded. “Any contentions that rest on state law also are outside the province of the federal court. It follows that this suit must be dismissed.”
In a statement, DCS said it was “pleased” by the 7th Circuit’s ruling.
“These important issues involving Hoosier children are best decided by our own state courts, and DCS has full confidence in Indiana judges to act in the best interest of Indiana children to meet the individualized needs of each case,” the department said. “DCS remains committed to the protection of Indiana’s most vulnerable and will continue to provide the right care to the right child at the right time.”
Indiana Supreme Court
Zachary Fix v State of Indiana
Burglar who armed himself after entering residence committed Level 2 felony
The Indiana Supreme Court has concluded that a man who stole a handgun from a partially-paralyzed victim during a burglary and threatened him with it should have his felony conviction enhanced even though he didn’t possess the firearm when he entered the victim’s home.
Determining a burglary is “an ongoing crime that encompasses a defendant’s conduct inside the premises,” the justices affirmed Zachary Fix’s conviction of Level 2 burglary while armed with a deadly weapon in Zachary Fix v. State of Indiana, 22S-CR-7.
However, justices did find Fix’s commission of Level 5 felony robbery and Level 6 felony theft amounted to a single episode of criminal conduct, so the length of his aggregate sentence exceeded the maximum aggregate sentence permitted by the Sentencing Cap Statute. Thus, the high court ordered remand for resentencing.
In July 2017, Fix and his friend Bobby Yeagy drove through Anderson in search of a place to rob, intending to use the loot to eventually trade for drugs.
The men — high on meth and heroin — ultimately went to the home of Robert Mudd, a paraplegic man to whom Yeagy had delivered pizza on several occasions in Alexandria. Mudd’s medical condition confined him to a bed in his living room.
After the two men entered the residence through the back door, they approached Mudd and demanded that he direct them to anything of value or they would kill him.
At some point, Mudd reached for a handgun he kept under his pillow and a struggle ensued. Fix eventually wrested control of the firearm and pistol-whipped Mudd.
About an hour later, Fix and Yeagy left Mudd’s home to unload the stolen goods. They returned about 45 minutes later for a second round of looting after using more drugs.
In the end, Fix and Yeagy made off with an estimated $11,000 worth of Mudd’s property.
The state charged Fix with several offenses: one count of Level 2 felony burglary while armed with a deadly weapon; two counts of Level 3 felony robbery, one based on bodily injury and one based on the use of a deadly weapon; and one count of Level 6 felony theft. A jury found him guilty as charged.
During sentencing, Fix received 30 years for Level 2 felony burglary; six years for level 5 felony robbery as a lesser-included offense of Level 3 felony robbery resulting in bodily injury; and 2½ years for Level 6 felony theft. The trial court ordered Fix to serve those sentences consecutively, culminating in an aggregate term of 38½ years.
In September 2021, the Court of Appeals of Indiana affirmed in part and reversed in part, holding that insufficient evidence supported Fix’s conviction for Level 2 felony burglary while armed with a deadly weapon.
Because the “criminal transgression of burglary is committed” when the defendant crosses the threshold of the premises in which he intends to commit a felony, and because Fix acquired the handgun only after crossing that threshold, the panel reasoned the elevated offense had no leg to stand on.
On transfer, the Supreme Court analyzed two issues: whether the state presented sufficient evidence to convict Fix of Level 2 felony burglary, and whether the aggregate sentence for Fix’s felony convictions exceeded the sentencing cap imposed by Indiana Code § 35-50-1-2.
On the first issue, the Supreme Court, citing Bissot v. State, 53 Ind. 408, 410–11 (1876), and Seeley v. State, 544 N.E.2d 153, 157 (Ind. 1989), determined the Level 2 felony conviction was appropriate.
“This well-established precedent leads us to conclude that burglary — even if ‘complete’ for purposes of establishing culpability — is an ongoing crime that encompasses a defendant’s conduct after the breaking and entering, not just at the threshold of the premises,” Justice Christopher Goff wrote.
The justices also cited several cases regarding common-law burglary.
“The policy of public safety embodied in the burglary statute persuades us that the legislature intended for the armed enhancement to apply, even if the enhancing event followed the act of breaking and entering,” Goff wrote. “Indeed, whether the offender arrives with a deadly weapon or whether he arms himself once inside the premises, the danger posed is the same.
“… And to terminate culpability at the threshold would circumvent the enhancement for any burglar wise enough to retrieve a deadly weapon (e.g., a standard kitchen knife) once inside the premises, effectively defeating the statutory goal of ensuring public safety,” Goff continued. “Our construction of our burglary statute, we believe, ‘is safe to the State and the citizen, and the only one by which the intention of the legislature can be practically carried into effect.’”
On the second issue, the justices found the sentencing cap was violated.
“Since the two non-violent crimes of level-5 felony robbery and level-6 felony theft amount to a single episode of criminal conduct, ‘the total of the consecutive terms of imprisonment may not exceed seven (7) years,’” Goff wrote, citing I.C. § 35-50-1-2(d)(2). “Because the trial court sentenced Fix to an aggregate sentence of eight and a half years for these two offenses, we reverse and remand accordingly for resentencing.”
Chief Justice Loretta Rush and Justices Mark Massa and Steven David concurred. Justice Geoffrey Slaughter concurred in the holding that Fix committed the elevated burglary offense and in the judgment without a separate opinion.
Court of Appeals of Indiana
Marquis David Young v. State of Indiana
Split appellate panel reverses murder conviction in Gary shooting for insufficient evidence
In a “seldom” reversal of a murder conviction based on insufficient evidence, the Court of Appeals of Indiana split in a May 11 decision, with the majority concluding the evidence used to support the defendant’s guilt came “nowhere close to proof beyond a reasonable doubt.”
In Marquis David Young v. State of Indiana, 21A-CR-2341, Marquis Young was sentenced to 115 years in prison for a murder he claimed he didn’t commit.
The shooting took place in May 2020, not long after Young left a Gary gas station, got into his car and exited the parking lot.
As Young pulled out of the gas station, Dion Clayton, Virgil King and Ajee Spence pulled up to a pump. Shortly thereafter, several gunshots rang out.
Clayton, who was hit, fled the scene and was found dead about two blocks away. King was also struck in the back, but he and Spence drove away with no further injuries.
No eyewitnesses saw a shooter, and police couldn’t identify the shooter from any of three nearby surveillance videos. However, police noticed that a person was in a nearby alley before the shooting and appeared to discard a lit cigarette.
Two days later, police retrieved what they said was the only cigarette in that general area.
When an anonymous tip came through naming Young as a potential suspect, a detective sent the cigarette in for DNA testing. The results were a match to Young’s DNA.
On the night of the shooting, Young allegedly wore a black hooded coat with a white shirt underneath, dark pants, a black stocking cap and white shoes. He had also smoked a cigarette that night.
Footage from the gas station showed the lower half of the shooter’s body, wearing dark pants and white shoes. Footage captured by an infrared camera at another location showed a person in the alley wearing white or light-colored shoes and a white or light-colored hat or do-rag.
No gun was found at the scene, but a detective noted that the 23 casings came from a .40 caliber weapon. However, the detective acknowledged “there are other manufacturers that have that type of firing pin.”
Evidence from Young’s phone showed his Google location data was turned off the day of the shooting and the day after. It also revealed that Young had searched YouTube videos for how to clean and disassemble a Glock .40 caliber “in the week or two following the shooting on May 3rd.”
Young was ultimately charged and convicted by a jury of murder and two counts of attempted murder.
But in a reversal, the appellate majority concluded the state’s evidence fell short of the “substantial evidence of probative value” — circumstantial or not — required to support the verdict.
The majority said the case was distinguishable from Meehan v. State, 3 N.E.3d 255 (Ind. 2014), in that the cigarette in the instant case was found two days after the shooting in a high-traffic, public alley.
“While we seldom reverse for insufficient evidence, we have an affirmative duty to ensure the proof at trial is sufficient to support the verdict beyond a reasonable doubt,” Judge Nancy Vaidik wrote. “Although the sufficiency-of-the-evidence standard of review is deferential, it is not impossible to overcome, nor should it be.
“As our Supreme Court has observed, the Indiana Constitution guarantees ‘in all cases an absolute right to one appeal,’” Vaidik continued. “An impossible standard of review under which appellate courts merely ‘rubber stamp’ the fact-finder’s determinations, no matter how unreasonable, would raise serious constitutional concerns because it would make the right to an appeal illusory.
“The evidence in this case comes nowhere close to proof beyond a reasonable doubt,” Vaidik concluded. “We therefore reverse Young’s convictions.”
Judge Robert Altice concurred in the reversal.
But Judge Terry Crone dissented in a separate opinion, arguing that the majority disregarded the well-settled standard of review and “essentially accepted at face value the hypotheses of innocence that Young presented to the jurors … .”
Crone wrote that, among other things, Young having turned off his phone’s location data on May 3 and May 4 was “strong evidence of consciousness of guilt,” and his YouTube video search history involved a .40 caliber Glock, “the same as or very similar to the weapon used in the shootings.”
“In this case, the State presented far more probative evidence connecting Young to the senseless shootings at the gas station, and therefore I must dissent from the majority’s decision to overturn the jury’s guilty verdicts,” Crone wrote in dissent.
State of Indiana v. Bryan Lyons
COA has ‘little doubt’ state violated discovery rule in child molesting case
Bungled communications by law enforcement officials over whether a polygraph was admissible in court has resulted in the Court of Appeals of Indiana affirming the exclusion of the evidence against a defendant in a child molestation case and sanctions against the state.
Bryan Lyons was interviewed by the Bedford Police Department after his 5-year-old daughter accused him of sexual abuse. The parties stipulated that his polygraph results would be admissible at trial.
However, after Lyons told the police he had mental health issues and had been seeing “spiritual shadows” on the wall that spoke to him, law enforcement officials determined the defendant was not a suitable candidate for an evidentiary polygraph. They changed to a non-stipulatory, investigatory polygraph, which is inadmissible in court.
When the sergeant conducting the polygraph returned to the interview room, he forgot to change the stipulated notation to non-stipulated in his handwritten notes. The sergeant also conducted a post-polygraph interview during which Lyons made incriminating statements.
Despite being told not to, the stipulation was delivered to the Lawrence County prosecutor.
Subsequently, Lyons was charged with Level 1 felony child molesting.
The defendant filed a motion to suppress the polygraph on the basis that he had not been advised of his right to counsel before signing the stipulation. At the hearing on the motion, law enforcement officials testified but, because they were not asked the question directly, did not reveal the polygraph had been change to non-stipulated.
After the Lawrence Superior Court denied the motion, the court eventually scheduled a five-day trial. On the day of jury selection, the defendant filed a motion for continuance because it had just learned of the non-stipulation designation.
Ultimately, the trial court concluded the state of Indiana had violated Lyons’ rights by failing to disclose “materially exculpatory evidence,” and had “materially breached” Indiana Trial Rule 37(B)(2) by not disclosing in a timely manner that the polygraph had been changed to non-stipulated. The court then excluded all evidence acquired by the sergeant, including the post-polygraph interview.
The state filed an interlocutory appeal, arguing it was a case of “misfeasance not malfeasance” because the prosecutor immediately informed Lyons upon learning the polygraph was non-stipulated. Further, the state contended, the exclusion of the defendant’s post-polygraph statements was an unjust sanction.
In State of Indiana v. Bryan Lyons, 21A-CR-2187, the Court of Appeals affirmed.
The appellate panel noted it had “little doubt” that a discovery violation took place because there were opportunities pretrial for the disclosure that the polygraph was non-stipulated.
“We are unconvinced by the State’s argument that the discovery violation resulted in no significant prejudice to Lyons’s defense because the argument fails to acknowledge the broader implications that pretrial discovery violations may have on a case,” Chief Judge Cale Bradford wrote. “The state’s argument focuses solely on the fact that the disclosure, however, late, revealed that damaging polygraph results were no longer admissible.
“… It is easy to imagine a scenario in which Lyons entered into a plea agreement with the State before ever finding out that the polygraph results would not have been admissible in a trial,” Bradford concluded.
The case was remanded for further proceedings.
Tracey William Crowley v. State of Indiana
Out-of-state sex offender registration requirement does not violate Indiana Constitution
The Court of Appeals of Indiana has upheld a finding that the retroactive application of the state’s sex offender registration requirements does not violate the Indiana Constitution’s ex post facto clause.
Tracey Williams Crowley petitioned the St. Joseph Circuit Court in 2021 to have his name removed from the Indiana Sex and Violent Offender Registry. He had been convicted in Michigan of third-degree criminal sexual conduct, a felony, in 1988.
In 2004, Crowley moved to Indiana. As he was required to do in Michigan, he registered as a sex offender in Indiana.
However, Crowley asserted Indiana’s sex offender registration law, Indiana Code Chapter 11-8-8, was crafted after he was convicted, and the amendment mandating sex offenders from other states register in Indiana was not enacted until 2006, two years after he had settled in the Hoosier State. Consequently, Crowley argued the registration requirement constituted an ex post facto punishment.
But the trial court denied Crowley’s petition for removal from the registry, finding the lifetime registration “serves a regulatory purpose and is non-punitive.”
In Tracey William Crowley v. State of Indiana, 21A-MI-2064, the Court of Appeals agreed and cited precedent from the 7th Circuit Court of Appeals.
Crowley, before the appellate panel, reiterated his argument that applying the 2006-2007 amendments to Indiana’s sex offender registration law to him was unconstitutional. The amendments that required newly arrived out-of-state residents to register upon arrival in Indiana were not in place when he moved to the Hoosier State, so he had “no warning that … he would be required to register,” and his lifetime registration requirement constituted a “quintessential ex post facto punishment.”
The Court of Appeals found that while the Indiana Supreme Court has not addressed the precise scenario presented by Crowley, the 7th Circuit did in Hope v. Comm’r of Ind. Dep’t of Correction, 984 F.3d 532 (7th Cir. 2021), reh’g en banc granted, opinion vacated (Hope I), and Hope v. Comm’r of Ind. Dep’t of Correction, 9 F.4th 513 (7th Cir. 2021) (Hope II).
In Hope, six sex offenders had relocated to Indiana, then filed for declaratory and injunctive relief from having to register on the state’s sex offender registry. They argued the Sex Offender Registry Act violated their rights to travel under the privileges and immunities clause, their rights to equal protection under the 14th Amendment and the prohibition on ex post facto laws in the Constitution.
A divided 7th Circuit panel agreed with the right-to-travel violation, but on rehearing, the en banc 7th Circuit reversed the panel. The majority ruled that because the offenders were required to register in their home states, having to register in Indiana and meet requirements that were enacted after they arrived did not invoke additional punishment.
Against the backdrop of Hope, the state-court appellate panel examined Crowley’s ex post facto claim under the “intent-effects” test. The test found the Legislature’s intent was to create a civil, nonpunitive regulatory scheme, then considered seven factors to ascertain whether the registration requirement was so punitive as to transform it into a criminal penalty.
“Weighing the seven factors as they apply to Crowley and his circumstances, we find that, on balance, application of the 2006-07 other jurisdiction registration requirement to Crowley does not constitute ex post facto punishment,” Judge Robert Altice wrote for the court. He said the panel was sympathetic to Crowley’s plight, but its task was determining whether SORA, as applied, violated the Indiana Constitution.
“Based on the intent-effects test, as well as considering the recent guidance of our federal counterparts in Hope II — who discussed and applied our Supreme Court’s directive in (Tyson v. State, 51 N.E.3d 88 (Ind. 2016), and State v. Zerbe, 50 N.E. 3d 368 (Ind. 2016)) to at least one offender who, like Crowley moved to Indiana before the 2006-07 amendments — we conclude it does not,” Altice wrote.
Paul Carmouche v. State of Indiana
Marion County inmate discharged after reversal of misdemeanor conviction for jailhouse incident
A Marion County inmate has been discharged after an appellate panel concluded he was wrongly convicted of Class A misdemeanor battery against the facility’s mail clerk.
While incarcerated in a Marion County jail on an unrelated charge, Paul Carmouche became embroiled in a dispute with Medinah Brown, the jail’s mail clerk. Per the private mail company’s policy, Brown returned legal mail intended for Carmouche on several occasions because it failed to include his gallery number.
Carmouche objected to Brown’s administration of the policy and filed a formal grievance against her. In September 2020, Brown visited Carmouche’s dormitory to tell him that she had once again been required to return his mail.
Carmouche allegedly became “irate” and kicked the door, which Brown said hit her right knee and later caused some pain and swelling.
Carmouche was charged with Class A misdemeanor battery resulting in bodily injury. Although there was frequent mention of his upcoming “jury trial,” Carmouche only received a bench trial.
He was ultimately found guilty after the Marion Superior Court reviewed surveillance footage of the jailhouse incident.
In a reversal, the Court of Appeals agreed with Carmouche that he was never advised of his rights, invalidating his jury trial waiver.
“The record contains no evidence that Carmouche was ever informed that his jury trial right was not automatic, let alone how to assert it. And the recurring references to a jury trial were likely misleading in this regard,” Judge Leanna Weissmann wrote. “Accordingly, we reverse Carmouche’s conviction.”
As for the sufficiency of the evidence, the COA agreed with Carmouche that the surveillance video footage “clearly shows that the door did not touch Brown’s knee, indisputably contradicting the State’s case.”
“The video footage reveals that the door never contacted Brown’s right knee, though it did hit her left foot,” Weissmann wrote. “… Though the door hits her foot, there is always daylight between the door and Brown’s knee.”
The COA also found that the video indisputably contradicted the trial court’s findings in that, while the video was grainy, it was also well-lit, the angle afforded a good view of the altercation and the entire incident was recorded.
“The State did not offer evidence to explain how the contact with Brown’s left foot would cause her right knee to ache,” Weissmann wrote. “The evidence is therefore insufficient to show that Carmouche’s kick to the door caused Brown bodily injury.”
Finding that Carmouche cannot be retried for Class A misdemeanor battery, the COA ordered that Carmouche be discharged.
The case is Paul Carmouche v. State of Indiana, 21A-CR-1666.•