INTIMIDATION—THREATS WITHOUT PROOF OF INTENT INSUFFICIENT

In McCaskill v. State, 3 N.E.3d 1047 (Ind.Ct.App. 2014), an intimidation prosecution, the State failed to prove that Rakiea McCaskill communicated a threat with the intent that the complaining witness, Tamika Matlock, engage in conduct against her will:  i.e., to leave her husband and/or cause her husband to leave her.  See Ind. Code § 35-45-2-1(a)(1). 

McCaskill had a one-year-old child with Matlock's husband when McCaskill called Matlock four times and threatened to beat her up.  She also said she was outside of Matlock’s home.  The Court of Appeals noted there was insufficient evidence of McCaskill’s intent because she never specified the reason for her threats toward Matlock. 

At trial, Matlock admitted she did not know why McCaskill wanted to beat her up.  The State argued that because McCaskill and Matlock do not have a relationship other than through the husband, McCaskill’s aim must have been for Matlock to leave her husband, and thus there was enough circumstantial evidence to show intent.  But McCaskill had been in a relationship with the husband for several years before threatening Matlock and “it is not clear why McCaskill would suddenly start threatening Matlock with that aim.” 

Although intent may be proven by circumstantial evidence, the conclusion that McCaskill intended to make Matlock leave her husband was pure speculation and not a logical inference.  Because the State argued at trial for the lesser-included offense of Class B misdemeanor harassment, which was supported by the evidence, the court entered judgment of conviction on that charge.  

PUBLIC INTOXICATION—VAGUENESS PROBLEMS WITH CRIMINALIZING ANNOYING BEHAVIOR

In an issue of first impression, the Court of Appeals in Morgan v. State, 4 N.E.3d 751 (Ind.Ct.App. 2014), held that the subsection of Indiana’s public intoxication statute that criminalizes "annoying" another person is unconstitutionally vague.  

Rodregus Morgan was intoxicated as he slept in a plexiglass bus shelter.  When a police officer awakened Morgan, he smelled alcohol, Morgan was unsteady on his feet and his eyes were bloodshot and glassy.  Because Morgan was intoxicated and his behavior was "annoying," the officer arrested him.  The Court of Appeals concluded that Ind. Code §7.1-5-1-3(a)(4) is unconstitutionally vague because it fails to provide notice to enable ordinary people to understand the prohibited conduct.  It is also unconstitutional "because it neither requires that a defendant . . . specifically intended to annoy another person, nor does it employ an objective standard to assess whether a defendant's conduct would be annoying to a reasonable person."  

Because the statute does not require the defendant to be warned his behavior is annoying, it allows arbitrary and discriminatory enforcement, as the illegality of conduct is based on "the subjective feelings of a particular person at any given time."  Striking down the term "annoying" as unconstitutionally vague does not inhibit the execution of the public intoxication statute, so the remainder of Ind. Code § 7.1-5-1-3(a) stands. 

THE FOURTH AMENDMENT AND POLICE OFFICERS’ USE OF LIES OR ULTIMATUMS

In two recent cases, the court of appeals found Fourth Amendment violations based on police officers’ use of lies or ultimatums.  In Harper v. State, 3 N.E.3d 1080 (Ind.Ct.App. 2014), the court reversed Robin Harper’s resisting law enforcement conviction where, without any exigent circumstances and after being denied consensual entry, a police officer lied to gain entry into her home and was thus not "lawfully engaged in the execution of the officer's duties" under Ind. Code § 35-44.1-3-1.  When the officers went to Harper’s residence to arrest her for domestic battery, she refused to open her screen door and allow them inside.  She also refused to step outside, so the officers lied to Harper, telling her she needed to sign a protective order.  When Harper opened the screen door, the officers stepped inside to arrest her, and she was charged with misdemeanor resisting arrest when she pulled away from one of the officers as he tried to remove her wedding ring after she was handcuffed.  Although the officer's purpose for entering Harper's home was to arrest her, the court noted he was still required to obtain an arrest warrant before entering.  Instead, he chose to use fraud to gain entry into the home.  This was not a situation of hot pursuit or a crime committed in the presence of the officer.    Given the officers' unlawful entry into Harper’s residence, they were not engaged in the lawful execution of their duties at the time they arrested her.  Thus, the evidence was insufficient to support her conviction. 

Similarly, a police officer’s use of an ultimatum during a traffic stop resulted in an illegal pat-down search and suppression of evidence in State v. Cunningham, 4 N.E.3d 800 (Ind.Ct.App. 2014).  After the officer properly stopped Michael Cunningham's vehicle for having only one red tail lamp, he told Cunningham he would pat him down if he left his vehicle to inspect the broken tail lamp. Absent consent by Cunningham, the officer could not have legally conducted a pat-down search because he had no reasonable suspicion to believe that Cunningham was armed and dangerous.  The court concluded that the officer clearly did not ask Cunningham for permission to conduct a pat-down search.  Instead, he gave an ultimatum to Cunningham, who had no choice but to submit to the pat-down when he exited the vehicle.  Thus, the State failed to establish that Cunningham's purported consent to the pat-down was constitutionally valid, and the officer’s subsequent discovery of marijuana and drug paraphernalia was fruit of the poisonous tree.  Judge Brown issued a dissenting opinion, expressing her belief that in opting to exit the vehicle, Cunningham consented to the pat-down search. 

INVOLUNTARY CONFESSION PERSUADING DEFENDANT HE CANNOT HAVE A FAIR TRIAL BASED UPON HIS RACE

In State v. Bond, decided May 13, 2014, a murder suspect’s confession was involuntary because a detective told him he might not receive a fair trial and impartial jury in Lake County due to his race.  The detective intensely interrogated Bond in 2011 for a 2007 cold case murder.  About two hours into the custodial interrogation, the detective told Bond, who is African-American, that he wouldn't get a fair trial because of his race.  Bond later admitted committing the murder.

In an unpublished opinion, a divided Court of Appeals disapproved of the detective's inappropriate statement but upheld the denial of Bond's motion to suppress.  In his dissenting opinion, Judge Kirsch argued, “each time courts allow such conduct, they implicitly sanction it and encourage the next police officer in the next interrogation to go a bit further, to be more offensive, more racist and more deceptive.” 

On transfer, the Indiana Supreme Court agreed, noting: "this is not a police tactic that we simply do not condone because it is deceptive.  Instead, this was an intentional misrepresentation of rights ...to a fair trial and impartial jury, and the right not to be judged by or for the color of your skin—carried out as leverage to convince a suspect in a criminal case that his only recourse was to forego his claim of innocence and confess.  And like Judge Kirsch, we condemn it."  Although police officers are given wide latitude in interrogation tactics, detective in this case went too far.  The court reversed the judge’s denial of Bond’s motion to suppress his confession and remanded for further proceedings.

OTHER 2014 LEGISLATIVE CHANGES--SENTENCE MODIFICATION AND PRETRIAL DIVISION

The General Assembly also made it easier to modify a person’s sentence.  Effective  July 1, 2014, the judge may reduce or suspend a person’s sentence and impose any sentence the court was authorized to impose at the time of sentencing.  The prosecutor’s consent is no longer required.  A hearing on the sentence modification petition is likewise no longer required, but if the judge sets a hearing on the petition, he or she must give notice to the prosecutor and the prosecutor must give notice to the victim.  The terms of the convicted person’s plea agreement control any subsequent sentence modification.  In other words, whatever the judge had the discretion to do at sentencing limits the judge’s later modification authority.  Even if the plea agreement has a sentencing cap or range, the judge still has discretion in determining what sentence to impose and can modify it later.  Only “closed” plea agreements calling for a specific term of executed years (with no discretion as to placement) will be ineligible for subsequent sentence modification.  The 2014 amendment limits the filing of petitions to modify a sentence to one per year and no more than two during the person’s sentence.  Finally, a person may not waive the right to seek sentence modification in his or her plea agreement.  The amended statute says that any purported waiver “is invalid and unenforceable as against public policy.”

The Legislature also expanded Indiana’s pretrial diversion statute to allow prosecutors to withhold prosecution against an accused person charged with a misdemeanor, or a Level 5 or 6 felony. The other statutory exclusions and requirements remain unchanged, and prosecutors have discretion regarding which offenses they will offer diversion. There is no protected liberty interest in remaining in a pretrial diversion program.  A person is not entitled to a due process hearing prior to termination from the program. However, if the person “admits” to the charged offense and enters into a plea agreement calling for a withheld judgment or deferred sentence, he is entitled to the same due process rights afforded to defendants in other contexts-- for example probation revocation proceedings where there is a right to hearing, confrontation and cross-examination of witnesses.

INDIANA'S EXPUNGMENT LAW EXPANDED

In this past session, the Indiana General Assembly made significant changes to portions of Indiana’s expungement statute to make it easier for petitioners to have their criminal records expunged.  Effective March 26, 2014, the Legislature changed Ind. Code § 35-38-9-2 in the following ways:

·         An expungement petition must now be filed in a circuit or superior court in the county of conviction instead of the sentencing court

·         For discretionary expungements, the trial judge is no longer required to consider the victim’s statement before making its determination

·         A petitioner is no longer required to complete his or her sentence, but instead must only pay all fines, fees, court costs, and restitution obligations

·         Indigent petitioners are no longer required to pay filing fees before expunging conviction records

·         The burden of proof is decreased from “clear and convincing evidence” to “preponderance of evidence”

·         An existing or pending driver’s license suspension no longer precludes expungement

·         Prosecutors can now agree to a shorter period without a conviction before a sentence may be expunged

Contact Zaki Ali today for assistance in removing the stigma of your criminal conviction.

PROSECUTOR'S USE OF PRE-CHARGE SUBPOENA POWER

Where no charges have been filed, a prosecutor may subpoena witnesses, including the target of investigations, pursuant to Ind. Code § 33-39-1-4.  However, if those witnesses invoke their constitutional right against self-incrimination, the prosecutor cannot petition for use immunity and compel them to testify without first filing charges or convening a grand jury.  See In re S.H., 984 N.E.2d 630 (Ind. 2013)(decided March 27, 2013.

In this case, soon after S.C. gave birth at home, the father (S.H.) took S.C. and the infant to the hospital because S.C. was bleeding and the infant had multiple puncture wounds.  The prosecutor petitioned for subpoenas to compel the parents to testify about the circumstances of the infant's birth, but the trial court granted the parents' motion to quash the subpoenas on Fifth Amendment grounds. The trial court then erroneously granted the State's request to grant use immunity to the parents and ordered them to testify. The Indiana Supreme Court reversed the trial court’s ruling and remanded for further proceedings.