7th Circuit Court of Appeals
Criminal — Drug Trafficking/Evidence
United States of America v. Gilberto Vizcarra-Millan, et al.
19-3476, 19-3481, 19-3484, 19-3537, 20-1113 and 20-1266
The 7th Circuit Court of Appeals has upheld convictions for Indianapolis drug kingpin Richard Grundy and members of his crew following their 2019 convictions in a wide-ranging trafficking conspiracy. But the court did reverse two convictions for one member of Grundy’s team, finding evidence “left a reasonable doubt” that he committed the crimes.
Richard Grundy III, the leader of a violent Indianapolis-based drug trafficking ring, was convicted in August 2019 on federal drug charges along with four co-defendants following a three-week trial. Grundy, who led the so-called “Grundy Crew” in the drug-trafficking network, sold more than 3,700 pounds of marijuana and 280 pounds of methamphetamine on Indianapolis’ streets between April 2016 and November 2017.
Grundy and co-defendants Gilberto Vizcarra-Millan, Derek Atwater, James Beasley, Ezell Neville and Undrae Moseby first stood trial in Indianapolis in July 2019. But their trial was moved to Evansville after the judge declared a mistrial, finding that a court order concerning jurors’ personal information was violated.
In two separate cases, more than two dozen members of Grundy’s crew were charged with federal offenses, including conspiracy to distribute drugs and money laundering. Grundy was handed a life sentence for convictions of conspiracy to distribute methamphetamine, distribution of methamphetamine and other charges.
Atwater and Beasley were sentenced to 18 years, while Moseby was sentenced to to 20 years and Neville to 30 years. Vizcarra-Millan had pleaded guilty before the first trial, and the district court judge later denied his motion to withdraw his guilty plea, sentencing him to 25 years.
The six men challenged their convictions in a consolidated appeal before the 7th Circuit in United States of America v. Gilberto Vizcarra-Millan, et al., 19-3476, 19-3481, 19-3484, 19-3537, 20-1113 and 20-1266. The federal appeals court affirmed in full the convictions of Grundy, Vizcarra-Millan, Moseby, Atwater and Neville.
The court rejected Grundy and Vizcarra-Millan’s arguments that their Sixth Amendment rights to counsel were violated, disagreeing first with Grundy’s assertion that the court was too persuasive during a hearing under Faretta v. California, 422 U.S. 806, 819 (1975). He argued the district court should not have endorsed the government’s suggestion that his access to confidential documents should be limited.
“The district court’s repeated questioning on Grundy’s understanding of standby counsel did not run afoul of Faretta,” Circuit Judge David Hamilton wrote. “… We see no error in the district court’s explanation of the limits of standby counsel, especially in the face of Grundy’s repeated ambiguous answers as to what he wanted from his attorney.”
Likewise, the appellate court also concluded that discussion of possible restrictions on access to confidential documents due to security concerns did not violate the Constitution.
As for Vizcarra-Millan’s concerns, the 7th Circuit concluded that Senior Judge Sarah Evans Barker of the Indiana Southern District Court did not abuse her discretion by deferring to his informed choice to stick with his “conflicted attorney,” John Tennyson. Also, Judge Jane Magnus-Stinson’s decision to accept a second waiver of his right to conflict-free counsel was within the discretion that district court judges have when facing such a dilemma.
“Whether Tennyson committed further ethical misconduct, whether his performance fell below the constitutional minimum, and whether Vizcarra-Millan might have been prejudiced by any such failure are questions that are not properly before us,” the panel held.
The appeals court next affirmed the denial of motions to suppress filed by Atwater, Beasley and Moseby, also finding sufficient evidence existed for Atwater and Neville.
However, it reversed Beasley’s convictions for conspiring with the Grundy gang to distribute drugs and for constructive possession of the methamphetamine, concluding the evidence left a reasonable doubt as to whether Beasley committed those crimes.As such, it remanded his case for resentencing.
Indiana Supreme Court
Post-Conviction — Murder Conviction/Ineffective Assistance
Tyre Bradbury v. State of Indiana
In a 3-2 split, the Indiana Supreme Court has reinstated a murder conviction against a northern Indiana teen convicted in relation to the shooting death of a South Bend toddler. The dissent, however, would have granted post-conviction relief based on deficient counsel performance.
The case centers on Tyre Bradbury, who was 15 years old when his 19-year-old friend Robert Griffin shot and killed a toddler while firing at a rival in a 2014 gang dispute. Bradbury, who had provided the gun to Griffin, was later charged as an adult with murder as Griffin’s accomplice.
During his trial, Bradbury’s counsel stipulated to the fact that Griffin had been convicted of murder. Bradbury was one of multiple people convicted in the shooting linked to a gang fight, and the jury found Bradbury had gang ties, enhancing his sentence. He ultimately was sentenced to 60 years in prison.
The teen then filed a petition for post-conviction relief claiming his trial counsels’ performance was deficient and that he was prejudiced as a result. But the St. Joseph County post-conviction court denied his petition.
In December 2020, a split Indiana Court of Appeals reversed for the teen, finding two issues dispositive: whether trial counsel was ineffective in stipulating as to Griffin’s murder conviction, or in failing to request a jury instruction on the lesser-included offense of reckless homicide.
Judge Nancy Vaidik dissented from the COA majority.
The Supreme Court likewise split in the case of Tyre Bradbury v. State of Indiana, 21S-PC-441, affirming the denial of Bradbury’s PCR petition and effectively reinstating his murder conviction. Justices Steven David, Mark Massa and Geoffrey Slaughter affirmed the post-conviction court’s ruling that Bradbury’s counsel was not deficient.
“Bradbury asserts he tried to stop the shooting, and lead counsel testified emphatically and repeatedly that this was what he wanted to get across to the jury any way he could. The stipulation in no way forecloses or contradicts that theory of the case,” David wrote for the majority. “Thus, we find the Court of Appeals majority’s conclusion that the stipulation ‘wholly undercut’ the defense is inaccurate in light of Bradbury wanting not just to get a lesser conviction/sentence, but not wanting to be convicted at all.”
The majority noted that counsel articulated his thought process for agreeing to stipulate, and doing so was not illogical or absurd. Acknowledging Vaidik’s dissent, the majority further pointed out that even if Bradbury’s counsel had not agreed to the stipulation, Griffin’s intent likely would have been proven, thus making no difference in the outcome.
As to the lesser-included instruction, the majority found no prejudice and noted that Bradbury’s counsel made a reasonable decision to not seek a lesser-included instruction given the circumstances.
Justice Massa, writing separately in a concurrence and joined by Slaughter, noted that Bradbury’s counsel was “extraordinarily effective” in persuading the trial court to heighten the prosecution’s burden, allowing him to pursue a reasonable and permissible all-or-nothing trial strategy.
“That this clever and resourceful lawyering proved unsuccessful does not mean a violation of (Strickland v. Washington, 466 U.S. 668 (1984)) occurred,” Massa wrote.
But Justice Christopher Goff, joined by Indiana Chief Justice Loretta Rush, dissented from the majority’s conclusion on counsel’s failure to request a lesser-included instruction.
“Given the ‘particular’ duties imposed by Strickland, codified in our Rules of Professional Conduct, and urged by the American Bar Association, I would hold that counsel’s failure to consult with Bradbury on whether to request a lesser-included instruction amounted to deficient performance,” Goff wrote. “And because conflicting evidence would likely have created a serious enough dispute over Bradbury’s culpability as an accomplice for the court to have given the instruction, I would also hold that counsel’s deficient performance resulted in prejudice.”
Lastly, the court addressed other claims of ineffective counsel not addressed by the COA: whether counsel was ineffective for not using a defense witness’ prior consistent statement to rehabilitate the witness during trial, or for not raising a constitutional challenge. The justices rejected both arguments.
Indiana Court of Appeals
Criminal — Child Molesting/Juvenile Court Jurisdiction
State of Indiana v. Cameron Dibble
The Indiana Court of Appeals was able to forgo having to choose sides in a knotty policy argument by citing state statute, giving the juvenile court jurisdiction in a case of alleged child molestation that didn’t come to light until the accused offender was over 18.
Eight years after he allegedly molested a 7-year-old, Cameron Dibble was the subject of a delinquency petition for committing what would be Class B felony child molesting if committed by an adult. Dibble had been 15 at the time of the incident but was 23 when charged.
The juvenile court waived jurisdiction and the state filed the charge in criminal court in June 2020. However, in September 2020, the Indiana Supreme Court handed down D.P. v. State, 151 N.E. 3d 1210 (Ind. 2020), which held juvenile courts lack jurisdiction to waive juvenile offenders to adult court after those offenders reach age 21.
Dibble subsequently filed a motion to dismiss, which was granted by juvenile court. Meanwhile the state successfully moved to dismiss the corresponding criminal charge that arose from the juvenile court’s waiver of jurisdiction to adult court.
The state then filed the criminal case directly in the Cass Circuit Court. But the trial court granted Dibble’s motion to dismiss, ruling the state had not established the legal means by which the case may proceed and the state “relies on an incomplete reading of D.P.”
On appeal, the state was unable to get the trial court’s ruling overturned.
The state had argued that denying jurisdiction in cases such as Dibble’s would shorten Indiana’s statute of limitations for child molesting. This, the state argued, would be contrary to the intent of the Legislature, expressed when it lengthened the limitation period for child molesting charges.
The unanimous Court of Appeals cited D.P., which illuminated the competing policy argument that the state’s position would lead to adults being punished many years after their youthful offenses without any opportunity for juvenile rehabilitation.
Yet, the appellate panel noted it did not need to decide the policy argument. Instead, the Legislature provided the answer in Indiana Code § 31-30-1-11(a) by requiring juveniles charged with crime to be transferred to juvenile court.
“Here …, the criminal court does not need to transfer Dibble’s case to juvenile court because the juvenile court has previously dismissed the same allegations against Dibble with prejudice,” Judge Melissa May wrote for the appellate panel in State of Indiana v. Cameron Dibble, 21A-CR-72. “Therefore as transfer to juvenile court would be moot, we affirm the criminal court’s dismissal.”
In a footnote, the appellate court noted the General Assembly attempted to amend I.C. 31-30-1-4 during the 2021 session. The change would have removed several serious crimes such as child molesting, child seduction and incest from the juvenile court’s jurisdiction if the offender was at least 16 but less than 18 at the time of the alleged violation. The amendment did not pass.
Criminal — Speedy Trial/COVID-19
Justin M. Blake v. State of Indiana
A man accused of murder, who argued his right to a speedy trial was violated when the Morgan Superior Court delayed his hearing because of the COVID-19 pandemic, wasn’t able to secure a discharge from jail after the Indiana Court of Appeals found the public health emergency was sufficient to uphold the postponement.
Justin Blake was charged with murder, felony murder and Level 2 felony robbery in the death of Alexander Jackson. Four days after he was arrested, he filed a request for a “fast and speedy jury trial.”
Blake was appointed counsel and the Morgan Superior Court scheduled the jury trial for Dec. 8, 2020.
However, in November, when positivity rates were climbing, the Indiana Supreme Court ordered trial courts to comply and enforce local and statewide public health directives.
The Morgan Superior Court determined the situation locally constituted an emergency under Indiana Criminal Rule 4(B)(1) and, over Blake’s objection, continued the jury trial until March. Also, the court ordered all discovery, including depositions, to be completed no later than seven days prior to the trial.
On Dec. 14, 2020, the Supreme Court suspended all in-person jury trials until March 1. That same day, Blake filed a motion for discharge, arguing the emergency continuance provisions of Criminal Rule 4 “cannot be reasonably applied to a ten-month-old and ongoing public health crisis when adequate precautions can be made that both accommodate the constitutional rights of pretrial detainees and address public health concerns.”
After the trial court, Blake filed a continued motion for discharge along with a motion to suppress evidence. He argued, in part, that because of the delay in his trial, he had been prejudiced because the state was able to continue investigating and identifying additional witnesses against him. An alternative to discharge, he asserted, was to suppress the evidence that had been accumulated after his original trial date got pushed back.
In denying his motion, the trial court pointed out that its November order set the deadline for discovery to seven days before the March 2021 trial. Consequently, the evidence Blake wanted to suppress “has been produced by the State prior to the discovery cut-off ordered by the Court.”
Blake then filed an interlocutory appeal. He asked the Court of Appeals whether the denial of his constitutional right to a speedy trial requires the suppression of any evidence garnered by the state after the expiration of the 70 days when the delay is not caused by the defendant.
The Court of Appeals affirmed the trial court in Justin M. Blake v. State of Indiana, 21A-CR-405.
Under Criminal Rule 4(B)(1), a defendant held in jail who moves for an early trial shall be discharged if not brought to trial within 70 calendar days from the date of the motion. But the appellate panel pointed out the rule allows for exceptions.
Blake argued the coronavirus public health crisis was not an emergency sufficient enough to violate his speedy trial rights.
The Court of Appeals disagreed.
“… (T)he trial court continued Blake’s jury trial noting the current conditions within Morgan County with regard to COVID-19 infections and positivity rate coupled with the complexity of the case against Blake,” Judge Robert Altice wrote for the panel.
Altice concluded, “The trial court’s finding that an emergency existed was reasonable in light of the circumstances relating to the Covid-19 pandemic that existed at the time.”
Criminal — Computer Trespassing/Social Media
Kelsie L. West v. State of Indiana
A Bloomington woman who took her ex-boyfriend’s Snapchat password from his computer without permission and posted nude images sent to him by another woman committed computer trespassing, the Indiana Court of Appeals affirmed.
For two years, B.G. had been in an “on-again/off-again relationship” with her ex-boyfriend, Gage East. In July 2019, B.G. communicated with East via Snapchat because she believed he was no longer in a relationship with his other ex, Kelsie West. B.G. sent several intimate photographs of herself to East via Snapchat.
Soon after the messages were sent, B.G. saw the photos of herself on West’s Facebook page with a caption that read, “This is what Gage has been up to since November while also sleeping with me and talking to other girls.”
In interviews, West told police she had a child with East and she was angry with him because he was engaged in sexual relationships with B.G. and other women. West confirmed she obtained the photographs from East’s phone and then posted them to social media.
Two months later, the state charged West with one count of distribution of an intimate image, a Class A misdemeanor. West filed her first motion to dismiss about a year later, alleging the facts supporting the charge did not constitute a crime.
In October 2020, the state filed a motion to amend the charging information to add Count II, computer trespass, a Class A misdemeanor. The Monroe Circuit Court granted the state’s motion to amend before the state filed a motion to dismiss Count I, which was granted.
West filed a second motion to dismiss in November 2020, again alleging the facts relied upon in support of Count II didn’t constitute a crime. In her motion, West indicated that during a deposition, East stated that West had retrieved the password for his phone from his personal laptop computer.
The trial court ultimately denied West’s second motion to dismiss.
On appeal, West argued the trial court abused its discretion by denying her motion to dismiss the computer trespass charge because a single computer cannot constitute a “computer system” to satisfy the elements of the computer trespass offense
But the appellate court disagreed, concluding the Legislature intended a single computer to fall within the definition of “computer system.”
The COA also dismissed based on Siebe v. Heilman Mach. Works, 38 Ind. App. 37, 77 N.E. 300, 302 (1906); Timm v. State, 644 N.E.2d 1235, 1238 (Ind. 1994); and Glover v. State, 441 N.E.2d 1360, 1362 (Ind. 1982).
The case is Kelsie L. West v. State of Indiana, 21A-CR-404.
Criminal — Guilty Plea/Direct Appeal
Daniel Paul Grady Snyder v. State of Indiana
The Indiana Court of Appeals sidestepped precedent and allowed a Cass County man to directly appeal his conviction based on his guilty plea rather than file a post-conviction petition, finding justice was best served by the direct appeal.
Daniel Paul Grady Snyder pleaded guilty and was sentenced to nearly 29 years in prison. At the recommendation of the state, the Cass Circuit Court did not sentence him for Count 2, possessional of methamphetamine, to avoid double jeopardy, with Count I, dealing in methamphetamine, a Level 3 felony.
However, the Court of Appeals noted the trial court made a “clerical error” by not vacating Snyder’s conviction of possession. The trial court merged the two counts, which left the possession of methamphetamine conviction intact.
While acknowledging that Tumulty v. State, 666 N.E.2d 394, 395 (Ind. 1996), requires challenges to convictions based on guilty pleas to come through post-conviction petitions, the appellate panel allowed Snyder to make a direct appeal because the error in his conviction was “unmistakable on the face of the record.”
Post-conviction proceedings enable the incarcerated individual to make factual assertions about the guilty plea. But this case, the appeals court held, does not require a factual determination. All the parties conceded a double jeopardy violation in Snyder’s convictions for possession and dealing.
In a nine-page opinion written by Judge Leanna Weissmann, the appellate court noted that such a strict reading of Tumulty would prohibit the judges from correcting “glaringly erroneous post-guilty plea convictions.” Such errors would threaten indigent criminal defendant who rely on public defenders.
Weissmann wrote that under Indiana Code § 33-40-1-2, state public defenders can only represent indigent defendants who are incarcerated. Defendants released are ineligible for representation and therefore could not pursue post-conviction relief.
Although Snyder did not face that particular situation, the court found “others undoubtedly will.”
“When an indisputable error with a post-guilty plea conviction is obvious on the face of the record, justice is best served by correcting the mistake on direct appeal rather than allowing the error to fester through the uncertainty of the postconviction process,” Weissmann wrote.
The case is Daniel Paul Grady Snyder v. State of Indiana, 21A-CR-854. Judge Elizabeth Tavitas concurred in result.
Juvenile Termination of Parental Rights — Virtual Hearing/Due Process
In re the Termination of the Parent-Child Relationship of I.L., O.L., V.N., and M.P.N. (Minor Children) and S.T. (Mother), S.T. (Mother) v. Indiana Department of Child Services
A mother whose parental rights were terminated following a hearing held virtually due to the COVID-19 pandemic has lost her appeal of the termination, with the Indiana Court of Appeals finding the technological issues that arose during the virtual hearing were not tantamount to a due process violation.
Mother S.T. appealed the termination of her parental rights to O.L., I.L., M.P.N. and V.N. The children had previously been found to be children in need of services due to S.T.’s substance abuse.
The Department of Child Services created a case plan, but S.T. only partially complied. The children were removed in April 2019 and were placed in foster care, where they have remained ever since.
While she did make some progress in the case plan, S.T. continued to fail or miss drug screens and failed to complete various counseling programs. She also pleaded guilty to misdemeanor operating while intoxicated in an incident involving her teenage son.
DCS moved to terminate S.T.’s parental rights in November 2019, and the final hearing in January 2021 was held remotely due to the ongoing pandemic. But S.T. objected to the remote hearing, arguing she could not fully exercise her constitutional rights over Zoom and that other logistical issues could occur in a remote setting.
The trial court overruled her objection, finding that the courtroom would not allow for proper social distancing.
But logistical issues did arise during the proceeding. First, one of S.T.’s counselors answered three questions before the court realized that he was appearing from a car with another person in it. Other witnesses admitted they looked at personal notes during their testimony.
Technological issues also arose, with the state struggling to timely make an objection because the lawyer was muted. Also, the video froze at one point, cutting out part of S.T.’s testimony.
The trial court addressed each issue as it arose, then terminated S.T.’s rights, as well as the rights of the children’s fathers, who are not parties to the appeal.
On appeal, S.T. argued the remote hearing violated her due process rights.
“We disagree and affirm, concluding that the minor errors, which were all quickly addressed by the trial court, do not amount to a due-process violation … ,” Judge Nancy Vaidik wrote in In re the Termination of the Parent-Child Relationship of I.L., O.L., V.N., and M.P.N. (Minor Children) and S.T. (Mother), S.T. (Mother) v. Indiana Department of Child Services, 21A-JT-418.
Specifically, the court rejected S.T.’s argument that portions of her testimony were not heard, noting that there was only one instance where she could not be heard. When this happened, Vaidik wrote, the trial court noted the issue and asked S.T. to resume her testimony from the moment when she had been cut off.
Similarly, the trial court admonished witnesses not to use notes during their testimony and instructed other witnesses not to testify until they were alone.
And finally, while the state’s counsel struggled to raise an objection, the trial court saw the issue and enabled the lawyer to speak. There was no argument that S.T.’s counsel had the same issue.
“We do not doubt that conducting a termination hearing by remote technology could — in some situations — violate a parent’s due-process rights,” Vaidik wrote. “… Here, however, Mother was afforded substantially similar procedures as would have been available to her at an in-person hearing.”
S.T. also challenged the sufficiency of the evidence to support the termination, arguing the state did not prove that she would not remedy the conditions that led to the children’s removal, or that termination was in their best interests.
The appellate court initially noted that S.T. waived her argument as to the conditions that led to removal but opted to resolve the case on the merits. It then rejected her argument on that issue.
“While Mother showed ‘periods of growth’ on some issues throughout the case, these were followed by ‘periods of regression,’” Vaidik wrote.
The court likewise rejected S.T.’s argument as to the children’s best interests, noting they had been in foster care for two years and needed “stability and permanency.”•