VOL. XXXIV, No. 31 |
November 26, 2007 |
CASE CLIPS
Selected decisions of the Indiana appellate courts abstracted for judges by the Indiana Judicial Center
The full text of Indiana opinions may be retrieved from the Indiana Judicial System website at www.IN.gov/judiciary/opinions.
IN THIS ISSUE
CRIMINAL ISSUES
State v. Azania (Ind., Sullivan, J.) – Life without parole is not available in a death penalty resentencing for a murder committed prior to the LWOP effective date, July 1, 1993, but the current death penalty procedures requiring the court to follow the jury recommendation will apply
Haywood v. State (Ind. Ct. App., Baker, C.J.) – Statute prohibiting successive prosecutions of “single scheme or plan” offenses applied to crimes arising out of an OWI arrest.
State v. Davis (Ind. Ct. App., Bailey, J.) – Charges could not be dismissed on basis defendant’s involuntary commitment to become competent to stand trial exceeded maximum sentence.
Speybroeck v. State (Ind. Ct. App., Najam, J.) – Business records affidavit was insufficiently specific to qualify as self-authentication under Ev. Rule 902(9), and admission of another business’s documents was improper under Ev. Rule 803(6) as no one in the affiant firm had personal knowledge of the matters in the other business’s papers.
State v. O’Grady (Ind. Ct. App., Najam, J.) - Defendant’s request for a directed verdict did not prohibit the State’s amendment to change the charge to an inherently included offense.
CRIMINAL ISSUES
STATE v. AZANIA, No. 02S03-0508-PD-364, __ N.E.2d __ (Ind., Nov. 7, 2007).
SULLIVAN, J.
When Azania murdered Lt. Yaros in 1981, two options existed for sentencing a defendant convicted of murder in a capital case: a defendant could either receive a sentence of death or a term of years. Ind. Code §§ 35-50-2-3, 9 (1982). Under the death penalty statute then in effect, the trial judge had the final say in sentencing after hearing the recommendation of the jury. Id. § 9(e).
In 1993, the Legislature added an intermediate sentencing option. The jury in the sentencing phase of a capital case was to be instructed that, in addition to the death penalty or a term of years, it had the option to recommend LWOP. See id. § 9(d) (1993). The Legislature added a savings clause that made LWOP available only where the murder had been committed after June 30, 1993. Pub. L. No. 250-1993, § 3. This savings clause has never been repealed or modified. In 1994, we confronted the question of how to handle a defendant who had committed a murder before, but was sentenced after, the LWOP option took effect. We held that the language of the statute made LWOP available only with respect to murders committed after the savings clause date of June 30, 1993. State v. Alcorn, 638 N.E.2d 1242 (Ind. 1994). . . . .
. . . .
In 2002, the Legislature amended the death penalty statute again. Now, when the trial court judge receives a sentencing recommendation from the jury, the judge is to sentence the defendant “accordingly” – whether the jury recommends LWOP, the death penalty, or a term of years. . . . The 2002 amendment applies to sentencing phases that occur after June 30, 2002. . . . .
. . . .
We now correct and clarify our earlier statements in Azania v. State, 865 N.E.2d 994: Azania’s new sentencing proceeding is to be conducted pursuant to the current, post-2002, death penalty statute, I.C. § 35-50-2-9 (Supp. 2006). However, in accordance with Pub. L. No. 250-1993, § 3, and Alcorn, LWOP is not available to him as a sentence, even though it is available under the current statute.
SHEPARD, C.J., and DICKSON, J., concur.
BOEHM, J., concurs in part and dissents in part with separate opinion:
For the reasons set forth in my dissenting opinion in the original disposition of this appeal, Azania v. State, 865 N.E.2d 994, 1010-1013 (Ind. 2007), I would grant Azania’s petition for rehearing.
Because a majority has determined that a new penalty phase should be conducted, I express my views on the procedural issues addressed by the majority. I agree that the 2002 amendments to the death penalty statute apply to the penalty phase, and that life without parole is not an available punishment for a crime committed before 1993. . . . .
RUCKER, J., concurs in part and dissents in part with separate opinion:
I would grant Azania’s petition for rehearing for the reasons expressed in my dissent to this Court’s original majority opinion. See State v. Azania, 865 N.E.2d 994, 1013-16 (Ind. 2007) (Rucker, J., dissenting). As for the State’s petition for rehearing, I agree with the majority that the 2002 version of the death penalty statute is applicable in this case. However, I disagree with the majority’s conclusion that life without parole is not a sentencing option.
. . . The majority says that this 1993 savings clause applies to the 2002 amended statute. But how can that be? The Legislature could have included a similar savings clause to the 2002 amendment. It did not. . . . It appears to me the Legislature expressed its intent in 2002 with clear and unambiguous language and simply repealed a prior amendment. . . . Because Azania is to be sentenced according to the 2002 statute, its entire provisions should apply, including the possibility of life without parole. On this point I respectfully dissent.
HAYWOOD v. STATE, No. 48A02-0612-CR-1131, __ N.E.2d __ (Ind. Ct. App., Nov. 7, 2002).
BAKER, C.J.
. . . Deputy Ellingwood approached Haywood, who was sitting inside a vehicle with a small child, who was later identified as his son. While speaking with Haywood, Deputy Ellingwood noticed a strong odor of alcohol on Haywood’s breath. Haywood was unsteady on his feet and had difficulty performing a number of field sobriety tests. Haywood also had slurred speech and appeared to have urinated in his pants.
Officer Josh Senseney arrived at the scene and directed Haywood to sit in the police cruiser. Haywood refused, stating that he wanted to kiss his son, who was asleep in the vehicle. Haywood then struggled with Officer Senseney and kicked him in the leg. . . . .
. . . On May 18, 2005, Haywood was charged with neglect of a dependent as a class D felony, operating a vehicle while intoxicated, a class A misdemeanor, operating a vehicle with a BAC of .08 or more, a class C misdemeanor, and operating a vehicle while intoxicated as a class D felony, in the Madison County Court under cause number 48E02-0505-FD-238 (FD-238).
On May 17, 2005, Officer Senseney completed a second probable cause affidavit. As a result, on May 24, 2005, Haywood was charged in the City Court under cause number 48H02-0505-CM-2717 (CM-2717) with battery against a police officer, resisting law enforcement, and a violation of probation.
Thereafter, on January 10, 2006, Haywood appeared pro se on the CM-2717 charges and pleaded guilty pursuant to a plea agreement. . . . .
. . . Haywood filed a motion to dismiss the charges under cause number FD-238, claiming that further prosecution on those charges was barred by the previous prosecution of the CM-2717 charges. . . . .
. . . .
In essence, we must determine whether Haywood’s offenses were part of a “single scheme or plan” such that they should have been joined in the initial prosecution. Williams v. State, 762 N.E.2d 1216, 1219 (Ind. 2002). The Successive Prosecution Statute sets forth the circumstances under which a prosecution is barred by reason of a previous prosecution for a different offense:
(a) A prosecution is barred if all of the following exist:
(1) There was a former prosecution of the defendant for a different offense or for the same offense based on different facts.
(2) The former prosecution resulted in an acquittal or a conviction of the defendant or in an improper termination under section 3 of this chapter.
(3) The instant prosecution is for an offense with which the defendant should have been charged in the former prosecution.
(b) A prosecution is not barred under this section if the offense on which it is based was not consummated when the trial under the former prosecution began.
I.C. § 35-41-4-4.
In construing this statute, we note that the language “should have been charged,” set forth in subsection (a)(3), must be read in conjunction with the statutes governing joinder of offenses and dismissal of offenses joinable for trial. Williams, 762 N.E.2d 1216, 1219 (Ind. 2002). The joinder statute provides in relevant part:
A defendant who has been tried for one (1) offense may thereafter move to dismiss an indictment or information for an offense which could have been joined for trial with the prior offenses under section 9 of this chapter.[[2]] The motion to dismiss shall be made prior to the second trial, and shall be granted if the prosecution is barred by reason of the former prosecution.
In this case, the State concedes that “all the charges in both cases relate temporally to the same incident,” but it argues that “Haywood’s motive for each conviction or allegation and the acts were sufficiently distinct to warrant two separate cases and did not constitute parts of a single scheme or plan.” . . . .
In Williams, the defendant sold cocaine to an undercover police officer in the parking lot of an apartment complex. When police cars approached to apprehend him, the defendant fled and hid in an empty apartment. After Williams was arrested, police officers discovered cocaine in his possession. The State charged Williams with residential entry and possession of cocaine for those crimes committed after fleeing from the police, and he pleaded guilty to the possession offense. 762 N.E.2d at 1218. The State charged Williams separately with dealing in cocaine and possession of cocaine for the offenses that he committed before leaving the scene of the narcotics deal. Williams moved to dismiss the later charges, arguing that they were barred under the Successive Prosecution Statute. Although the trial court denied the motion to dismiss, our Supreme Court reversed, finding that the charges were “based on a series of acts so connected that they constituted parts of a single scheme or plan.” Id. at 1220.
. . . .
Like the circumstances in Williams, the scenario here involved a situation where a defendant committed a crime and then committed another in an attempt to avoid apprehension for the initial offenses. As in Williams, the crimes that Haywood committed occurred within a short period of time and in a limited locale. Moreover, the Williams court rejected the argument that the defendant’s flight from the arresting officers broke the continuity of the defendant’s acts such that a separate trial was warranted. Id. at 1220. Instead, it was determined that the entire transaction fell within a single scheme or plan. As in Williams, it is apparent that Haywood’s offenses were part of a single scheme or plan, and the Successive Prosecution Statute bars further prosecution on the FD-238 charges. Therefore, we are compelled to reverse the denial of Haywood’s motion to dismiss.
BAILEY, J., and VAIDIK, J., concur.
STATE v. DAVIS, No. 49A02-0706-CR-545, __ N.E.2d __ (Ind. Ct. App., Nov. 8, 2007).
BAILEY, J.
As of August 23, 2004, Davis had not attained competency to stand trial according to the report submitted to the trial court by the Superintendent of the Evansville State Hospital. The Superintendent opined that Davis would not regain competency in the foreseeable future. Due to Davis’s continued need for treatment, the Superintendent filed a petition with the Vanderburgh County Superior Court for Davis’s civil involuntary commitment. Under a civil cause number, proceedings for a regular civil commitment pursuant to Indiana Code Chapter 12-26-7 were instituted, and Davis was committed on September 3, 2004.
. . . .
On March 1, 2007, Dr. Beth Pfau, Chief Medical Officer at Larue Carter Memorial Hospital, wrote to inform the Marion County trial court that it was her opinion that Davis could not be restored to competency. Subsequently, Davis’s counsel filed a motion to dismiss the charge on the basis that Davis had been involuntarily committed for longer than the maximum sentence for the charged crime. On April 26, 2007, the trial court granted the motion to dismiss, agreeing with the argument of Davis’s counsel. The State appeals pursuant to Indiana Code Section 35-38-4-2(1).
. . . .
Within ninety days after a defendant has been committed due to the lack of competency to stand trial, the superintendent of the state institution where the defendant is placed is required to certify to the trial court whether there is a substantial probability that the defendant will attain competency within the foreseeable future. I.C. 35-36-3-3(a). If it is certified to the trial court that such a substantial probability does not exist, the superintendent shall initiate regular commitment proceedings under Indiana Code Article 12-26. The statutes for commitment during a criminal proceeding do not speak to any procedure regarding the pending criminal charges once a defendant is committed under the civil statutory scheme.
The State argues that the absence of statutory instruction does not provide the trial court with the authority to dismiss the charges over the State’s objection. . . . .
Jackson v. Indiana involved a prior version of the pretrial commitment statutes that did not require civil commitment proceedings if the defendant did not obtain competency within ninety days. Jackson v. Indiana, 406 U.S. 715, 717 (1972). Instead, the statutes permitted commitment of the defendant until he or she regained competency to stand trial. . . . This standard to keep the defendant committed under the pretrial commitment statutes differed from that of the civil commitment statutes where an individual’s release from commitment was in the discretion of the superintendent of the particular mental health institution. . . . Due to the pretrial commitment statutes’ more lenient commitment standard and more stringent standard of release compared to the civil commitment procedures, the U.S. Supreme Court held that Indiana had deprived Jackson of equal protection of the laws and due process under the Fourteenth Amendment. . . . Jackson also argued that fundamental fairness required the charges against him be dismissed because his incompetence to stand trial satisfied the insanity defense. . . . The Supreme Court noted that criminal responsibility at the time of the charged offenses and the lack of competency to stand trial were separate and distinct issues. . . . As to the issues of whether pending criminal charges against a defendant who will most likely never regain competency denies the defendant due process or the right to a speedy trial, the Court declined to address these issues . . .
Davis’s counsel argues that the U.S. Supreme Court’s analysis on due process and the right to a speedy trial suggests that permitting charges to remain pending against a defendant who has been declared incurably incompetent is a violation of due process. We cannot agree, because the Court specifically refused to address the question. Furthermore, the basis for requesting dismissal in this case was not that of violations of the constitutional rights to due process and a speedy trial. Rather, the foundation was that Davis had been committed, in total under the pretrial and civil commitment statutes, for longer than the maximum sentence for the charged crime.
Davis’s counsel argues but we find no authority for equating time in civil involuntary commitment to credit for time served for pending criminal charges. Involuntary civil commitment is not punishment. Rather, its dual purpose is to protect the public and ensure the rights of the person whose liberty is at stake. . . . Therefore, the trial court erred in dismissing the charge against Davis on the basis of the length of time she has been subject to a civil commitment to a mental health institution.
BAKER, C.J., and VAIDIK, J., concur.
SPEYBROECK v. STATE, No. 20A05-0701-CR-40, __ N.E.2d __ (Ind. Ct. App., Nov. 9, 2007).
NAJAM, J.
. . . The State presented no evidence of authenticity other than the Affidavit. The Affidavit provided as follows:
I hereby certify, after being duly sworn upon my oath under penalty for perjury, that I am a custodian of the attached records consisting of ___ page(s), and that I have personal knowledge that these records are records of regularly conducted business activity made at or near the time of the occurrence of the matters set forth therein, or by or from information transmitted by a person with knowledge of the matter set forth therein; and, that these documents are kept in the normal course of the regularly conducted activity of HSBC; and, that these documents are made in the regular course of business activity as a regular practice of HSBC.
Furthermore, these records are authentic duplicate copies of official business records kept in the normal and regular course of HSBC’s business, and are kept within the United States of America.
. . . .
William argued that the Affidavit was insufficient because it neither specified the number of pages nor identified the documents that the affiant was authenticating. Regarding the thirteen pages of computer printouts, William also argued those documents were not authenticated by the Affidavit because the Affidavit was dated October 23, 2006, whereas the computer printouts were attached to a letter dated October 24, 2006 . . . . William also questioned the reliability of the printouts, asserting that the Affidavit failed to indicate what each record was, how it was compiled, and from where that information was obtained. And in regard to the fifty-three pages of Kawasaki documents, William argued that those documents were not the business records of HSBC because HSBC did not create them. . . . William further argued that the Affidavit could not authenticate how other businesses, namely, Maple City and Kawasaki, either conducted their businesses or kept their records. Finally, regarding the letters from Robert and William to HSBC, William argued that those documents should not be admitted because HSBC did not create them in the ordinary course of its business.
. . . .
To admit business records pursuant to Rule 803(6), the proponent of the exhibit must authenticate it. See Evid. R. 803(6), 901. Rule 803(6) permits authentication by affidavit unless “the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.” Evid. R. 803(6). Similarly, Evidence Rule 902(9) permits self-authentication:
Unless the source of information or the circumstances of preparation indicate a lack of trustworthiness, [extrinsic evidence of authenticity is not required when] the original or a duplicate of a domestic record of regularly conducted activity [is] within the scope of Rule 803(6), which the custodian thereof or another qualified person certifies under oath (i) was made at or near the time of the occurrence of the matters set forth, by or from information transmitted by[] a person with knowledge of those matters; (ii) is kept in the course of the regularly conducted activity[;] and (iii) was made by the regularly conducted activity as a regular practice.
. . . [S]elf-authentication does not guarantee admissibility; rather, it “merely relieves the proponent from providing foundational testimony.” . . . .
Once the proponent has satisfied the requirements of Rule 902(9), the burden shifts to the opposing party to prove the unreliability of the records. See Ground, 702 N.E.2d at 732. Thus, even if an affidavit authenticates business documents pursuant to Rule 902(9), the evidence may still be excluded. Specifically, evidence will be excluded if the source of information contained in the record or the circumstances of the record’s preparation indicate a lack of trustworthiness. . . . .
. . . .
. . . The Affidavit neither specifies the number of pages nor identifies the documents it purports to authenticate. Rather, when the text of the Affidavit is compared with its attachments, it is apparent that the Affidavit is merely a boilerplate recitation unconnected to the underlying documents. As such, the Affidavit lacks trustworthiness and therefore does not comply with Rule 902(9). Hence, the nonauthenticated documents attached to Exhibit 11 must be excluded. . . . .
The State’s purported authentication of the computer printouts demonstrates the Affidavit’s lack of trustworthiness. The Affidavit was signed and dated October 23, 2006, but the computer printouts were not created until October 24, 2006. And when HSBC first submitted the Exhibit 11 documents to the State, HSBC did not include the computer printouts. Thus, because the Affidavit is pre-dated, does not specify the number of pages included, and does not identify the documents it purports to authenticate, the State’s contention that there is “a strong implication” that the affiant reviewed the computer printouts is without merit. See Appellee’s Brief at 11.7 Accordingly, we hold that the Affidavit is insufficient to authenticate the Exhibit 11 documents under Rule 902(9).
. . . .
We also hold, under Rule 803(6), that the Affidavit cannot cure the unreliability inherent in HSBC’s submission of the Kawasaki documents and the letters. [Footnote omitted.] In order for business records to be found reliable under Rule 803(6), the person recording the information must do so in the regular course of business and must have personal knowledge of the information recorded. . . . .
[N]either the Kawasaki documents nor the letters satisfy Rule 803(6)’s requirements of reliability. Specifically, notwithstanding the Affidavit’s recitation that “these documents are made in the regular course of business activity as a regular practice of HSBC,” none of those documents were created by an HSBC employee with personal knowledge of the matters set forth in the documents. . . . Nor were Maple City, Kawasaki, Robert, or William acting in the course of HSBC’s regularly conducted business activity when they created those documents. . . . [T]he State responds that it was only required to show that the documents at issue were “kept in the routine course of business and placed in the record by one authorized to do so, not one who had personal knowledge of the transaction represented at the time of the entry.” . . . .
In support of its position, the State cites Darnell v. State, 435 N.E.2d 250, 253 (Ind. 1982), in which our Supreme Court held:
The business records’ exception to the hearsay rule does not require that a sponsor of an exhibit must have personally made it, filed it, or have had firsthand knowledge of the transaction represented by it. The record keeper must only show that it is part of the records kept in the routine course of business and placed in the record by one authorized to do so, who had personal knowledge of the transaction represented at the time of the entry.
But the State misapplies Darnell to William’s argument. William does not allege that the affiant to Exhibit 11 was required to have personal knowledge. Rather, he argues, correctly, that someone at HSBC was required to have personal knowledge of the information contained in the Kawasaki documents and the letters. . . . William has met his burden in showing that no one at HSBC had the personal knowledge required for the business records exception to apply.
MATHIAS, J., and BRADFORD, J., concur.
STATE v. O’GRADY, No. 02A04-0707-CR-380, __ N.E.2d __ (Ind. Ct. App., Nov. 16, 2007).
NAJAM, J.
[T]he State charged Jason O’Grady with Battery, as a Class A misdemeanor. That charge alleged, in pertinent part, that “[o]n or about the 12th day of January, 2007, . . . O’Grady[] did knowingly or intentionally touch Stephanie Storm in a rude, insolent, or angry manner, resulting in bodily injury, to wit: physical pain and/or visible injury.” . . . At the ensuing trial, Storm testified that she and O’Grady had engaged in an argument at her home. Storm stated that O’Grady had been drinking and, at one point, he “punched a hole in the wall.” . . . Storm then testified that, shortly thereafter, O’Grady grabbed her by the back of her hair “to stop [her from leaving].” . . . However, Storm stated that no physical pain resulted from that contact.
At the conclusion of the State’s case-in-chief, O’Grady moved for a directed verdict based solely on the State’s lack of evidence of physical pain. In response, the State moved “to conform the charge to the evidence” by amending the information to the lesser-included offense of Class B misdemeanor battery. . . . The court simultaneously denied the State’s motion to amend and granted O’Grady’s request for a directed verdict. In doing so, the court noted that the State’s argument “that that amendment is one of form[,] not substance, cannot stand as a sound argument because the only reason [the State was] making [its] motion was in response to” O’Grady’s motion.
. . . .
The State’s original charge against O’Grady tracked the statutory language for battery, as a Class A misdemeanor. The Indiana Code, in relevant part, states that: “A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is[] a Class A misdemeanor if[] it results in bodily injury to any other person[.]” I.C. § 35-42-2-1(a). . . . “Because battery as a [C]lass B misdemeanor may be established by proof of less than all the material elements defining the crime [as a Class A misdemeanor], it is an inherently included offense of battery as a [C]lass A misdemeanor.” . . . .
The State’s proposed amendment to the information is not a matter of substance. The amendment simply deletes the reference to bodily injury resulting from the alleged battery, which requires the State to change the class of the alleged offense from a Class A misdemeanor to the lesser-included Class B misdemeanor. . . . As such, the original information already encompasses charges of both Class A and Class B misdemeanor battery. . . . The proposed amendment therefore is not essential to making a valid Class B misdemeanor battery charge, as required for an amendment to a matter of substance. See Fajardo, 859 N.E.2d at 1207.
Nor is the amendment prejudicial to O’Grady’s substantial rights. . . . .
. . . There is no dispute that O’Grady has been given sufficient notice of the inherently-included lesser charge and that he has had an opportunity to be heard regarding that charge. And the amendment from a greater charge to an inherently-included lesser charge does not result in a change in the identity of the offense charged. Further, insofar as O’Grady’s defense strategy is negated by the amendment, that result arises only because O’Grady chose not to challenge any of the elements of Class B misdemeanor battery, not because he was denied notice or an opportunity to raise those defenses.
Finally, we disagree with the trial court’s and O’Grady’s assertions that the amendment affects O’Grady’s substantial rights merely because the State “ma[de] [its] motion . . . in response to” the request for directed verdict. . . . It is irrelevant why the State requested the amendment proposed here. Indeed, had the trial court denied O’Grady’s motion for a directed verdict, the State still could have sought to amend the information to the lesser-included offense. . . . Alternatively, had O’Grady not been granted the directed verdict, it would have been O’Grady’s right to request a jury instruction on the inherently-included lesser charge. . . . .
The trial court erred in determining that the State’s proposed amendment to the information was an amendment to a matter of substance. The amendment neither satisfies the prerequisite definition of a matter of substance nor is it prejudicial to O’Grady’s substantial rights.
MATHIAS, J., and BRADFORD, J., concur.
