Expungement

Trout v. State, Ind.Ct.App. 3/16/15., http://www.in.gov/judiciary/opinions/pdf/03161501nhv.pdf

Johnnie Trout was charged for a shooting at the Clinton County fairgrounds. The jury acquitted on attempted murder and convicted Trout of criminal recklessness with a deadly weapon and pointing a firearm. Defendant served his sentence and filed a petition for expungement. The trial court denied the petition, finding that as a matter of fact, the victim was injured in the incident and the court could therefore deny the petition for expungement under 35-38-9-3(b), which provides, “This section does not apply to the following: … (3) A person convicted of a felony that resulted in bodily injury to another person.”

The Indiana Court of Appeals reversed and remanded, finding that since Trout was not convicted of a crime that had an element of injury the provision did not preclude him from mandatory expungement.

Expungement

J.B. v. State, Ind.Ct.App. 3/10/15, http://www.in.gov/judiciary/opinions/pdf/03101503par.pdf

Defendant was summonsed to court for battery. He pled guilty and was told by the judge he could "earn dismissal" of the conviction, which defendant did and the case was dismissed. He later petitioned for expungement. His petition was denied since J.B. did not fall squarely in the statutes which permit expungement of arrest records and convictions, neither of which existed in this case.

The Court of Appeals disagreed, finding that the legislative intent was “intended to give individuals who have been convicted of certain crimes a second chance by not experiencing many of the stigmas associated with a criminal conviction—especially where an individual has completed the requirements established by the trial court and has since been a law-abiding citizen.”(citations omitted). That intent is furthered by permitting expungement in the case and J.B.’s petition should have been granted to seal the court records relating to the prosecution and earned dismissal, the Court held.

Consensual encounters, Terry stops and reasonableness

Rutlege v. State, Ind.Ct.App. 3/19/15, http://www.in.gov/judiciary/opinions/pdf/03191501ebb.pdf

Late one night, Deputy Hurst became suspicious of Rutlege’s driving behavior (details below). Deputy Hurst followed Rutlege until Rutlege parked in a driveway that wasn’t his and passed out in the front seat. Rutlege approached the stopped vehicle and quickly developed probable cause to arrest Rutlege for OWI. Rutlege was convicted, despite his brother’s captivating testimony that he drove Rutlege to a random house and surreptitiously slipped away, leaving the defendant passed out in the truck. Rutlege appealed, claiming his Fourth Amendment and Article I, Section 11 rights were violated.

The Court of Appeals disagreed, finding that Hurst did not seize Rutlege until after he saw him passed out in the recently-driven car. The encounter was a consensual encounter and did not implicate the constitutions. The Court went on to find that even if the encounter was a Terry stop, Deputy Hurst had reasonable suspicion that criminal activity was afoot.

“The record reveals that: (1) the encounter occurred around midnight or in the early morning hours; (2) it appeared to Deputy Hurst that the driver of the minivan was having a hard time keeping the vehicle on the roadway and that he jerked the wheel back multiple times; (3) after Deputy Hurst began following Rutledge, Rutledge pulled into a residential driveway that did not match the address related to the license plate; (4) Rutledge stayed only a very short time before exiting the driveway; (5) Rutledge continued driving before pulling into a second driveway that was also not the address related to the license plate; (6) Deputy Hurst and Reserve Deputy Brinson did not observe any other vehicles, anything happening around the minivan, or any dome light illuminate; and (7) Deputy Hurst observed Rutledge “lying side wise over the . . . center console of the vehicle with his head resting on the passenger seat.” Under these circumstances, we conclude that the facts known to Deputy Hurst together with the reasonable inferences arising from such facts would cause an ordinarily prudent person to believe that criminal activity may be afoot, thus justifying an investigatory stop.”

The Court turned to an analysis of the case against the Indiana Constitution, Article I, Section 11. The analysis asks whether the officer’s conduct was reasonable in light of the totality of the circumstances. “In making this determination, we balance: (1) the degree of concern, suspicion, or knowledge that a violation has occurred; (2) the degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary activities; and (3) the extent of law enforcement needs.”(citations omitted).

The Court found that the officer had a legitimate concern that a violation of the law had occurred. The intrusion was minimal (indeed, consensual) and that catching drunk drivers was an important law enforcement need.

Fourth Amendment, arrest

D.Y. v. State, Ind.Ct.App. 3/11/15, http://www.in.gov/judiciary/opinions/pdf/03111501rrp.pdf

D.Y. was a suspect in a burglary, but police had not developed probable cause. Police located D.Y. and the investigating officer told the child he would be taking him to the station for questioning. Before putting D.Y. in the police car for transport, the officer patted down D.Y., finding a handgun. D.Y. was adjudicated a delinquent child for dangerous possession of a firearm and carrying a handgun without a license. He appealed the denial of his motion to suppress the gun.

The Court of Appeals discussed the difference between a Terry stop and an arrest. It held that the mandatory language of the officer’s command to go to the station for questioning made this stop distinguishable from cases where a person voluntarily went to the station for questioning. The mandatory nature of the order and the involuntary transport, taken with other factors including the child’s age and the lack of parental consent made the seizure more than a Terry stop. Evidence seized by the police after the unlawful arrest was the fruit of the poisonous tree, and should have been excluded.

Unfortunately, the Court used the word “seizure” synonymously with “arrest,” which may lend to confusion when defense counsel cites this case.

Castle doctrine, off-duty police officers working security

Cupello v. State, Ind.Ct.App. 3/12/15, http://www.in.gov/judiciary/opinions/pdf/03111501ewn.pdf

Cupello was verbally aggressive towards staff at his apartment complex. An off-duty police officer who was working security went to talk to Cupello at his apartment. When Cupello opened the door, the officer surreptitiously placed his foot inside the doorway so that Cupello could not slam the door on him. As expected, Cupello didn’t like the conversation and attempted to close the door. In so doing, because of the officer’s placement, the officer was hit on the foot, body and head by the closing door. When the door didn’t close, Cupello slammed it against the officer two more times before the officer extracted himself. The officer obtained backup and a key and returned to the apartment to arrest Cupello for battery on a police officer.

Cupello was convicted and appealed, claiming 1) that the officer was not engaged in the performance of his official duties, and 2) that Cupello used reasonable force against a public servant who had illegally entered his home. The Indiana Court of Appeals found that the officer was engaged in his “official duties,” but that Cupello had the right to use reasonable force to reject the officer’s illegal entry under the recently amended “Castle doctrine” statute, I.C. 35-41-3-2(i). The Court reversed the conviction.

The Court held that, “where the State seeks to prove that an off-duty law enforcement officer is engaged in the execution of his official duties, it must satisfy a two part test: the State must prove by objective evidence that (1) the nature of the acts performed demonstrate that the officer sought to enforce the law to maintain peace and order for the benefit of the public; and (2) the citizen knew or should have known both that the person was an officer and that the officer was acting in his official, and not his private, capacity.” The Court found that the officer went to Cupello’s apartment to investigate a report of intimidation, which would be a crime. The Court noted that the officer had engaged Cupello in the past and when the officer approached Cupello, Cupello told him he “wanted to press charges” against the apartment staff. The Court found that Cupello knew the officer was a police officer acting in his official capacity.

In addressing the Castle doctrine, the Court of Appeals noted in a footnote that the use of force statute was amended following the Indiana Supreme Court case of Barnes v. State. As a result, case law establishing tests to evaluate whether a person is entitled to use force against an officer predating 2012 are no longer applicable. The Court found that the officer unlawfully entered the defendant’s dwelling by placing his foot within the threshold of the apartment door without lawful justification. Cupello was entitled to use reasonable force to terminate the officer’s unlawful entry.

Cupello’s attempts to close the door was not a disproportionate response in an attempt to end to the unlawful entry, and therefore was reasonable and a valid defense to the charge of battery on a police officer.

Voluntariness of consent; getting out of the car conditioned on pat down

State v. Cunningham, Ind. 3/2/15 http://www.in.gov/judiciary/opinions/pdf/03021501LHR.pdf

Cunningham was pulled over for having a taillight lens cover missing. During the stop, he asked to exit his vehicle to see the taillight. The officer told Cunningham that if he got out of the vehicle, the officer would pat him down for weapons. Cunningham agreed and during the pat down, the officer felt a pill bottle containing marijuana. Cunningham admitted there was marijuana inside and was arrested. At trial, Defendant argued that he did not voluntarily consent to the pat-down because the choice between staying in the car and submitting to a pat down was inherently coercive. The trial court agreed and suppressed the evidence.

The Indiana Supreme Court found that a choice between receiving a pat-down when exiting the vehicle during a traffic stop or staying inside the car unsearched was not coercive. The Court noted that the defendant did not have a right to exit the vehicle during a stop and therefore, the officer could condition his permission to do so.  The Court found that stepping out of the car after the officer told him the condition for doing so constituted consent. Defendant’s right to refuse was implicit in the choice between staying in the car or getting out. 

Obstruction of justice

Gomilla v. State, Ind.Ct.App., 3/19/15, http://www.in.gov/judiciary/opinions/pdf/03191503mpb.pdf

Gomilla was a buddy at lock up with Madriz, who was awaiting trial for domestic battery. Gomilla called Madriz's girlfriend/victim and told her that if she didn't go to court Madriz's case would be dismissed. Gomilla was charged with and convicted of attempted obstruction of justice. He appealed on sufficiency grounds. 

The elements of obstruction are: knowingly or intentionally induces by threat, coercion or false statement, a witness or informant in an official proceeding or investigation to...withhold or unreasonably delay in producing any testimony..... The jury found that the threat/bribe/false statement element was met. Gomilla's statements were false because the State would pursue the case even without the victim’s testimony.

The Court of Appeals applied the mens rea of “knowing or intentional” to each element, including the falsity of the statement, and held that the State had not proved that Gomilla knew his statement was false. The Court reversed Gomilla’s conviction.

In reviewing the statute, it appears that non-threatening, non-bribing factual statement intended to induce a DV victim to ignore a subpoena is NOT obstruction of justice under I.C. 35-44.1-2-2(a)(1). In many situations, Gomilla’s statement may have been factual, and had the victim complied with Gomilla’s/Madriz’s implied request, they would have obstructed justice without committing a crime. The only one who could be held accountable would be the victim, who could be held in contempt. That seems backward to me.

If faced with this situation in the future, a prosecutor might consider an accomplice liability theory under 35-44.1-2-2(a)(2)(C), which does not include the element of threat/bribe/false statement. “Defendant did knowingly or intentionally induce the witness to knowingly or intentionally, in an official criminal proceeding, absent the witness from a proceeding to which the person has been legally summoned.”

Please note, when your defense attorneys induce victims to ignore or avoid subpoenas, they may be subject to discipline. See In re Johnson, 778 N.E.2d 805 (Ind. 2002) and In re Geisler, 614 N.E.2d 939 (Ind. 1993).