Indiana Law Review Recent Developments in Indiana Criminal Law AND Procedure JOEL M. SCHUMM* James A. Garrard'* This Article will survey developments in the area of criminal law and procedure that were enacted by the 1999 Indiana General Assembly and addressed by the Indiana appellate courts since the last Survey. I. 1999 Legislative Enactments A. Victim Rights The legislature created a new article in Title 35 that seeks to statutorily implement the victims' rights amendment to article I, section 13 of the Indiana Constitution.^ The new act also repealed and replaced the existing statutes regarding victim assistance programs and victim notification.^ Under the new act, a victim is defined as a person who "has suffered harm as a result ofa crime that was perpetrated directly against the person."^ A victim has the following rights: to be informed when a person is accused or convicted ofthe crime;"* to be notified ofthe convicted person's release or escape from custody;^ to confer with the prosecutor's office; and to be heard at a hearing involving sentence or post- conviction release ofthe convicted person.^ The act does not give the victim the authority to direct the prosecution/ challenge a charging decision or a Law Clerk to the Honorable Theodore R. Boehm ofthe Indiana Supreme Court. J.D., 1998, Indiana University School ofLaw—Indianapolis. Mr. Schumm is primarily responsible for Parts II.C, II.F, II.G, II.H, II.I, II.J, and ILK of this Article. Any views expressed are solely those of the author. * Law Clerk to the Honorable Robert D. Rucker of the Indiana Supreme Court; Deputy Attorney General, Indiana Attorney Generals Office, Appeals Division, 1998-99. J.D., 1997, Indiana University School ofLaw—Indianapolis. Mr. Garrard is primarily responsible for Parts I, II.A, II.B, II.D, lI.E, and ILL of this Article. Any views expressed are solely those of the author. 1. See IND. Code § 35-40-1 (Supp. 1999). The amendment to the Indiana Constitution provides: Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity, and respect throughout the criminal justice process; and, as defined by law, to be informed of and present during public hearings and to confer with the prosecution, to the extent that exercising these rights does not infringe upon the constitutional rights of the accused. iND. Const, art. I, § 13(b). 2. See IND. Code §§ 33-14-10; 35-33-12 (1997), repealed by Pub. L. 139-1999. 3. Id. § 35-40-4-8 (Supp. 1999). 4. See id § 35-40-5-2(a). 5. See id § 35-40-5-2(b). 6. See id. § 35-40-5-5. 7. See id. § 35-40-5-3. 1198 INDIANA LAW REVIEW [Vol. 33:1197 conviction,* obtain a stay of a trial,^ or obtain a new trial. '° The act is also not meant to give rise to a claim for damages against the State ofIndiana, a political subdivision, or any public official.^' B. New Criminal Offenses The Indiana General Assembly created several new offenses that became effective in 1999. 7. Domestic Battery.—The legislature codified domestic battery as an independent battery offense,'^ and deleted references to domestic violence in the battery statute. ^^ A domestic battery occurs when the battery is directed at a person who "is or was a spouse of the other person," "is or was living as if a spouse of the other person," or "has a child in common with the other person" and the incident results in bodily injury.^'* A domestic battery cannot occur unless the touching results in bodily injury.*^ As with any other battery that results in bodily injury, domestic battery is a Class A misdemeanor.'^ However, the offense is elevated to a Class D felony ifthe person has a previous, unrelated domestic battery conviction.'^ A domestic battery conviction may also have ramifications for child visitation. Section 31-14-14-5 of the Indiana Code was amended to create a rebuttable presumption in favor ofsupervised visitation when the court finds that the noncustodial parent has been convicted of domestic battery that was witnessed or heard by the child.'* Following a conviction, supervised visitation will be required for at least one year but not more than two years or until the child is emancipated.'^ 2. Cemetery Mischief.—Cemetery mischief is defined as recklessly, knowingly, or intentionally damaging a cemetery or facility used for memorializing the dead; damaging the grounds owned or rented by a cemetery or facility used for memorializing the dead; or disturbing, defacing, or damaging a cemetery monument, grave marker, grave artifact, grave ornamentation, or cemetery enclosure.^^ The offense is a Class A misdemeanor, which is enhanced 8. See id. §35-40-2-1(1) 9. See id. 10. See id. 11. 5eeiV/. §35-40-2-1. 12. 5ee/V/. §35-42-2-1.3. 13. 5eei£/. §35-42-2-1. 14. /rf. §35-42-2-1.3. 15. See id 16. See id. 17. See id. 18. ^eeiV/. §31-14-14-5. 19. See id. 20. &e/^. §35-43-1-2.1. 2000] CRIMINAL LAW 1 1 99 to a Class D felony if the pecuniary loss is at least $2500.^' 3. Railroad Mischief and Criminal Trespass.—In addition to cemetery mischief, the legislature also created a railroad mischief offense defined as recklessly, knowingly or intentionally damaging or vandalizing various railroad equipment.^^ The offense is a Class D felony enhanced to a Class C felony ifthe mischief results in serious bodily injury, or a Class B felony if it results in death.^^ Another railroad related offense was created when the criminal trespass statute was amended to include traveling by train without lawful authority or the railroad carrier's consent.^* 4. Body Piercing.—^The legislature made it a Class A misdemeanor for a person to perform body piercing upon a person less than eighteen years of age absent the consent of a parent or guardian.^^ Body piercing is defined as "the perforation of any human body part other than an earlobe for the purpose of inserting jewelry or other decoration or for some other nonmedical purpose."^^ The law exempts health care professionals acting in the course of practice.^^ C Enhancements to Previous Statutes Several penalty enhancements became effective in 1999. The general assembly added a habitual sexual offender provision to the Indiana Criminal Code.2» The provision permits the State to seek to have a person sentenced as a repeat sexual offender by alleging, on a separate charging instrument, that the person has accumulated one prior, unrelated felony conviction for a sexual offense.^' The court may sentence a person found to be a repeat sexual offender to an additional fixed term equal to the presumptive sentence for the underlying offense, not to exceed ten years.^^ In response to an outbreak of church break-ins and fires in Indiana, the legislature amended the arson^' and burglary'^ statutes to include religious structures among those buildings and structures listed in the respective statutes. The amendments elevated the arson and burglary ofa religious structure to Class B felonies.^^ 21. See id. 22. 5ee zV/. § 35-42-2-5.5. 23. See id. 24. &g It/. § 35-43-2-2(aX6XA). 25. See id § 35-42-2-7(c), -7(e). 26. A/. § 35-42-2-7(b). 27. See id. § 35-42-2-7(d). 28. See id. § 35-50-2-14. 29. See td. § 3 5-50-2- 14(a). 30. See id § 35-50-2-14(6). 31. 5ee iW. § 35-43-l-l(aX4). 32. See id. § 35-43-2-1 (l)(BXii). 33. See id. §§ 35-43-1 -1(a)(4); 35-43-2-1 (l)(B)(ii). Before the amendment, arson of a church would have been a Class D felony if the pecuniary loss was more than $250 but less than 1200 INDIANA LAW REVIEW [Vol. 33:1197 The legislature increased the penalty for neglect ofa dependent from a Class D felony to a Class C felony if the neglect results in bodily injury or consists of cruel and unusual confinement or abandonment, or a Class B felony ifthe neglect results in serious bodily injury.^^ The general assembly also enhanced the penalty for trafficking with an inmate from a Class A misdemeanor to a Class C felony when the article delivered, carried, or received by the inmate is a controlled substance or a deadly weapon.^^ Finally, Indiana's sentencing statute was amended to include a person's employment at a penal facility as an aggravating circumstance when sentencing the person for drug trafficking.^^ D. Sex Offenders and Violent Offenders The general assembly passed a provision requiring sex and violent offenders to register with local law enforcement authorities and prohibited a sex and violent offender who is on parole or probation from residing within 1000 feet of school property without the approval of the parole board or the court.^' The general assembly also enacted a provision requiring the sex and violent offender registry be placed on the internet, but prohibited it from including the offender's home address.^* II. Case Developments A. Search and Seizure The United States Supreme Court and Indiana's appellate courts decided several significant Fourth Amendment cases during the survey period. This section focuses on decisions relating to the rights ofautomobile passengers and drivers. Two cases during the survey period addressed application of the Fourth Amendment to the search of a passenger's personal items found inside an automobile. In Wyoming v. Houghton^^ a police officer performing a traffic stop noticed that the driver of the car had a syringe in his shirt pocket. The driver admitted to using the syringe to take drugs, giving the officer probable cause to search the car for contraband.^^ The officer ordered the driver and the two $5000 and a Class B felony if the loss was $5000 or more. See Ind. Code § 35-43-1-1 (1998), amended by iND. CODE § 35-43-l-l(a)(4) (Supp. 1999). Burglary of a church would have been a Class C felony. See id. § 35-43-2-1, amended by iND. CODE § 35-43-2- l(l)(B)(ii) (Supp. 1999). 34. See id § 35-46-1-4. 35. See id. § 35-44-3-9. Also, the drug trafficking statute was broadened to encompass juvenile facilities. See id. 36. See id. § 35-38-l-7.1(b)(13). 37. See id. §§ 1 1-1 3-3-4(g)(2); 35-38-2-2.2(2). 38. 5ee/^.§ 5-2-12-1 1(b). 39. 526 U.S. 295 (1999). 40. See Maryland v. Dyson 527 U.S. 465 (1999); United States v. Ross, 456 U.S. 798 2000] CRIMINAL LAW 1201 female passengers, including Houghton, out of the vehicle while he conducted a search. The officer discovered a purse in the back seat ofthe car that Houghton admitted belonged to her. Upon examining the purse, the officer discovered two containers that held syringes and illegal drugs."*' Houghton was convicted of drug possession."*^ The Wyoming Supreme Court reversed the conviction, stating Generally, once probable cause is established to search a vehicle, an officer is entitled to search all containers therein which may contain the object ofthe search. However, ifthe officer knows or should know that a container is the personal effect of a passenger who is not suspected of criminal activity, then the container is outside the scope of the search unless someone had the opportunity to conceal the contraband within the personal effect to avoid detection."*^ The Wyoming court held that the search of respondent's purse violated the Fourth and Fourteenth Amendments because the officer "[k]new or should have known that the purse did not belong to the driver, but to one ofthe passengers," and because "[tjhere was no probable cause to search the passengers' personal effects and no reason to believe that contraband had been placed within the purse. In a 6-3 opinion authored by Justice Scalia, the United States Supreme Court reversed the judgment of the Wyoming Supreme Court, holding that "police officers with probable cause to search a car may inspect passengers' belongings found in the car that are capable of concealing the object of the search.'"*^ The Court reiterated its holding in United States v. Ross that "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part ofthe vehicle and its contents that may conceal the object of the search."*^ The Court emphasized that its later cases describing Ross have characterized its holding as "applying broadly to all containers within a car, without qualification as to ownership.'"*^ Additionally, the Court found no historical evidence to support a distinction for searching packages based on ownership and concluded that the Fourth Amendment's balancing test tipped in favor ofthe government."*^ The Court further noted that a "passenger's property" exception to car searches (1982); Carroll v. United States, 267 U.S. 132 (1925) (holding that police may conduct a warrantless search ofan automobile where they have probable cause to believe the vehicle contains contraband). Similarly, in Florida v. White, 526 U.S. 559 (1999), the Court held that police do not need a warrant or exigent circumstances to publicly seize an automobile when they have probable cause to believe the automobile is forfeitable contraband under a state statute. 41. 5ee //o«^/i/o«, 526 U.S. at 298. 42. See id. 43. Houghton v. State, 956 P. 2d 363, 372 (Wyo. 1998), rev 'd, 526 U.S. 295 (1999). 44. Id 45. Houghton, 526 U.S. at 307. 46. Id. at 301 (quoting United States v. Ross, 456 U. S. 798, 825 (1982)). 47. Id 48. See id. at 302-03. 1 202 INDIANA LAW REVIEW [Vol. 33 : 1 1 97 would likely lead to passenger-confederates claiming everything in the car as their own, resulting in a "bog of litigation.""*^ In State v. Friedel,^^ the Indiana Court ofAppeals addressed the propriety of a similar search. In Friedel, police stopped a van to cite the driver, Ryan Underwood, for operating the vehicle with only one headlight. In addition to Underwood, the vehicle was occupied by Friedel and her child, and one or two male passengers.^' A computer check of the Underwood's criminal record revealed prior charges but no outstanding warrants. Police sought and received Underwood's permission to search the van for illegal drugs and weapons.^^ All ofthe passengers then exited the van, and the police conducted a search. While searching the vehicle, police found a purse on the floor behind the driver's seat where Friedel had been sitting. Police searched the purse and discovered a leather wallet and an eyeglasses case, both of which contained illegal drugs." After searching the purse, police asked Friedel if it belonged to her. Friedel acknowledged that it was her purse, and police arrested her. Friedel was subsequently charged with possession of a controlled substance and possession of marijuana.^* Friedel filed a motion to suppress the drugs found in her purse. The trial court granted her motion, resulting in dismissal ofthe charges, and the State appealed.^^ In addressing the propriety ofthe search, the court ofappeals first concluded that Friedel had standing to challenge the search of her purse, stating "the question is not whether Friedel had standing to challenge the search of Underwood's automobile, but rather whether she has standing to challenge the search of her purse which was in Underwood's automobile. . . . [A]s the owner of the purse . . . [Friedel] has standing to challenge the constitutionality of the search of her purse."^ The court then addressed the State's claim that the search was permissible under Wyoming v. Houghton?^ The court found Houghton inapplicable because, unlike the police in this case, the officers in Houghton had probable cause to conduct the search.^* The search in this case was based solely on Underwood's consent to search the vehicle.^^ Thus, the court reasoned, the ultimate issue in this case was whether Underwood's consent to the search of his vehicle constituted consent to search Friedel' s purse. ^° 49. Id. at 305. 50. 714N.E.2d 1231 (Ind. Ct. App. 1999). 51. See id. at 1234-35. 52. See id at 1235. 53. See id. 54. See id. 55. See id. 56. Id. at 1236-37. 57. See id at 1237-38. 58. See id. at 1238. 59. See id. 60. See id. 2000] CRIMINAL LAW 1203 The court ofappeals concluded that Underwood's consent did not extend to Friedel's purse.^' Citing the absence of evidence in the record showing Underwood jointly owned, possessed, or controlled the purse, the court found Underwood lacked actual authority to consent to a search of Friedel's purse." The court also determined that Underwood did not have apparent authority to consent to a search of Friedel's purse." A search is valid under the apparent authority doctrine where the State can prove that the officers "reasonably believed that the person from whom they obtained consent had the actual authority to grant consent."^ Noting that the purse was a woman's handbag, Friedel was the only woman in the car, and the purse was found where Friedel had been sitting, the court concluded that it was unreasonable for police to believe that Underwood had the authority to consent a search ofthe purse — "an object for which two or more persons [generally do not] share common use or authority."^^ In another case involving the rights of automobile passengers, the Indiana Court of Appeals held in Walls v. State^^ that the action of a passenger exiting and walking away from a vehicle that has been stopped by police for a minor traffic violation does not amount to reasonable suspicion to conduct an investigatory stop of that passenger. In Walls, a police officer stopped a car in a high drug-trafficking area after the driver made a left-hand turn without using his turn signal.^^ As the officer began to communicate his location and run a check ofthe car's license plate via police radio. Walls, a passenger, "jumped out of . . . the vehicle and shut the door and started to walk away."^* The officer ordered Walls to stop and return and Walls complied. When asked ifhe had any weapons. Walls admitted that he had a knife in his pocket.^^ The officer conducted a pat-down search of Walls that produced two knives, one of which had crack-cocaine residue on the blade.^° The State charged Walls with possession of cocaine.^^ The trial court denied Walls' motion to suppress, and Walls was subsequently convicted as charged.^^ In a 2-1 decision, the court of appeals found there was a lack of specific evidence indicating that Walls posed a threat or had been engaging in or was 61. 5eg zV/. at 1243. 62. See id. dX MAO. 63. 5ee/t/. at 1240-41. 64. Id. (quoting United States v. Welch, 4 F.3d 761, 764 (9th Cir. 1993)). 65. Id 66. 714 N.E.2d 1266 (Ind. Ct App. 1999), trans, denied, 726 N.E.2d 316 (Ind. 1999) (mem.). 67. SeeU 68. Id at 1267. 69. See id. 70. See id. 71. See id. 11. See id. 1204 INDIANA LAW REVIEW [Vol. 33: 1 197 about to engage in criminal activity7^ Thus, the officer had no basis to stop and pat-down Walls/"* In the opinion authored by Judge, now Indiana Supreme Court Justice, Rucker, the court held that simply walking away from a stopped car in a high drug-trafficking area was not enough to create the suspicion which warranted detaining Walls.^^ The court also found that the need of law enforcement to control the scene ofa traffic stop did not outweigh "[t]he liberty of a private citizen who has been observed engaging in no illegal activity, and whose only transgression is his untimely presence in a car that has been stopped for a minor traffic violation . . . ."^^ Judge Sullivan dissented from the majority decision, citing officer safety and cases from otherjurisdictions that have found such stops permissible/^ In Knowles v. lowa,^^ the United States Supreme Court held that police may not conduct a search incident to the issuance of a traffic citation even when authorized by state law, and even when the officer could have made an arrest. Iowa law provides that Iowa peace officers having cause to believe that a person has violated any traffic or motor vehicle equipment law may arrest the person and immediately take the person before a magistrate.^^ Iowa law also authorizes the practice of issuing a citation in lieu ofarrest or in lieu ofcontinued custody after an initial arrest.*^ The Court found that the search in this case, as authorized by Iowa law, could not be sustained under the "search incident to arresf exception recognized in United States v. Robinson}^ The Court found that the two historical rationales for the "search incident to arrest" exception announced in Robinson, the need to disarm the suspect in order to take him into custody, and the need to preserve evidence for later use at trial, were not at work in this case.*^ Thus, the Court declined to extend Robinson's bright line rule to the issuance of a citation.^^ 73. See id. at \26S. 74. See id. 75. See id 76. Id Cf Webb v. State, 714 N.E.2d 787 (Ind. Ct. App. 1999); Stalling v. State, 713 N.E.2d 922 (Ind. Ct. App. 1999) (both holding that a person who turns away from police in a high crime area and places an unknown item in his pants does not engage in suspicious activity that supports an investigatory stop). 77. See fFfl//5,714N.E.2dat 1269 (Sullivan, J., dissenting). The continued vitality of Jfa//^ may be in question in light of the United States Supreme Court's recent decision in Illinois v. Wardlow, 120 S. Ct. 673 (2000), which held that running away from police in an area of heavy narcotics trafficking gives rise to reasonable suspicion for police to investigate further. 78. 525 U.S. 113(1998). 79. See lOWA CODE § 321.485(lXa) (Supp. 1997). 80. See id §805.1(1). 81. See Knowles, 525 U.S. at 1 1 6- 1 9 (citing United States v. Robinson, 4 1 4 U. S. 2 1 8, 234 (1973)). 82. See id (citing Robinson, 414 U. S. at 234). 83. See id at US-\9. 2000] CRIMINAL LAW 1205 In Jett V. State,^^ the Indiana Court of Appeals also held that absent specific facts indicating an individual is armed or dangerous, police may not search a person stopped for a traffic violation. Police stopped Jett for speeding and improper passing.^^ Immediately after being stopped, Jett exited his vehicle. The police officer ordered Jett back into his car. Jett complied and made no furtive or threatening movements.^^ The officer then approached Jett's car, ordered Jett out, and performed a pat-down search of Jett that produced marijuana. A subsequent search of Jett' s car produced additional marijuana^^ and the State charged Jett with possession of marijuana. The trial court denied Jett's motion to suppress the drugs, and Jett was convicted as charged.^* The court of appeals found the search was illegal and reversed.*^ The court noted that, although exiting a vehicle during a traffic stop may in some cases be a sign that the person is dangerous or a threat, in this case Jett did not behave in a threatening manner when he got out ofhis car.^ The court also stated that any threat that may have existed was alleviated when Jett complied with the officer's order to return to his car.^' The court found that a generalized suspicion of all drivers who exit their vehicles during a traffic stop does not authorize a pat-down search.^^ B. Confessions In State v. Linck,^^ the Indiana Court ofAppeals addressed whether physical evidence obtained as a result ofstatements given during a custodial interrogation, where the State failed to advise the defendant of his Miranda rights,^"* should be suppressed as fruit ofthe poisonous tree. In Linck, two police officers responded to a report of drug use in Linck' s apartment. As the officers entered Linck' s apartment building they smelled what they believed to be burning marijuana.^^ The officers knocked on Linck's door, and after a few seconds, Linck answered and allowed the officers inside. The officers told Linck they smelled marijuana 84. 716 N.E.2d 69 (Ind, Ct App. 1999). 85. See id at 70. 86. See id 87. See id. 88. See id. 89. See id. dt 71. 90. See id. at 70. 91. See id. 92. See id (citing Knowles v. Iowa, 525 U.S. 1 13, 119 (1998)). 93. 708 N.E.2cl 60 (Ind. Ct. App.), trans, granted, 714 N.E.2d 175 (Ind.), and trans, dismissed, 716^N.E.2d 897 (Ind. 1999). 94. See Miranda v. Arizona, 384 U.S. 436, 478-79 ( 1 966) (holding that before a person may be subject to custodial interrogation, he must be warned that "[h]e has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him."). 95. See Linck, 708 N.E.2d at 6 1 . 1206 INDIANA LAW REVIEW [Vol. 33:1197 and believed he had been using illegal drugs. The officers then asked Linck, "what the problem was?"^ A surprisingly candid Linck responded that he had "just smoked a joint."^^ The officers then asked Linck if there was any more marijuana in the apartment. Linck answered that there was and retrieved a bag containing 28.2 grams of marijuana from his refrigerator.^* The officers asked if that was all. Linck responded that there was more marijuana in the bedroom, which the officers retrieved. During his exchange with police, Linck was never advised ofhis Miranda rights.^ Linck was arrested and charged with possession of marijuana.'^ Linck filed a motion to suppress the marijuana and his statements arguing that they were unlawfully obtained because the officers failed to advise him ofhis Miranda rights prior to questioning him in his apartment. '°' The trial court granted Linck' s motion, resulting in the dismissal of the charge, and the State appealed. '^^ "Mra«'WAYNER.LAFAVE&JER0LDH.ISRAEL,CRIMINALPR0CEDURE§ 15.1(C), at 617 (1985). 144. Wurster v. State, 715 N.E.2d 341, 345 (Ind. 1999). 1210 INDIANA LAW REVIEW [Vol. 33 : 1 1 97 Amendment in the operation of those juries."^^^ In Wurster v. State,^^ the supreme court granted transfer to consider the propriety of a somewhat unusual grand jury procedure. In Wurster, after the prosecutor questioned a witness, the witness waited outside thejury room and the grand jurors then presented their questions to the prosecutor who posed the questions after the witness returned to the grand jury room.*^^ No record was made ofthe conversations between the prosecutor and the grand jurors.'*^ This procedure was challenged on appeal on two grounds: (1) grand jurors were not permitted to ask direct questions ofthe witnesses and (2) the absence ofa record ofthe conversations between the prosecutor and grand jury about the questions to be asked. *'*^ The procedure was alleged to violate both the Due Process Clause of the Constitution and Indiana's grand jury statute. '^° The supreme court held that neither claim presented a violation of the Due Process Clause as prosecutorial misconduct.'^* Such a violation requires a showing that there was a "flagrant imposition of the grand jurors' will or independentjudgment."'^^ The supreme court found no flagrant imposition and observed "because there was no record kept, we can only speculate as to the degree, if any, ofimposition ofwill or impairment of independentjudgment that occurred."'" However, the court reached a different conclusion in regard to the alleged statutory violation.'^"* The supreme court observed that no statutory provision directly addresses the ability of grand jurors to question witnesses directly, but concluded that the combination of the grand jury statute, the decisional law interpreting it, and the "usual practice" in Indiana ofrequired direct questioning by grandjurors. '^^ However, the court observed that not every statutory violation is cause for dismissal of an indictment. '^^ Because ofthe fact that there was no record of the exchanges between the prosecutor and the grand jurors, the court held in regard to the indirect questioning procedure, the defendant failed to make the required showing of prejudice required for dismissal of the indictment. '^^ Finally, the supreme court also addressed the application of Indiana Code section 35-34-2-3(d), which provides in part: 145. Rose V. Mitchell, 443 U.S. 545, 557 n.7 (1979) (citation omitted). 146. 715 N.E.2d 341 (Ind. 1999). 147. See id. at 344. 148. See id. 149. See id. 150. 5ee Ind. CODE §35-34-2 (1998). 151. See Wurster, 715 N.E.2d at 345. 152. Id (quoting Wurster v. State, 708 N.E.2d 587, 592 (Ind. Ct. App.), ajrd, 715 N.E.2d 341 (Ind. 1999)). 153. Id 154. 5eeiW. at346. 155. Id 156. See id. 157. See id. 2000] CRIMINAL LAW 1211 The court shall supply a means for recording the evidence presented before the grand jury and all ofthe other proceedings that occur before the grand jury, except for the deliberations and voting ofthe grand jury and other discussions when the members of the grand jury are the only persons present in the grand jury room. The evidence and proceedings shall be recorded in the same manner as evidence and proceedings are recorded in the court that impaneled the grand jury. . . J^^ Unlike the violations of other statutory provisions, the supreme court held that the failure to record the exchanges between the prosecutor and grand jurors did not require a showing of prejudice in order to warrant dismissal of the indictment. *^^ As the court put it, "the error itself renders it impossible for a reviewing court to evaluate what, if any, interference with or domination ofthe grand jurors occurred."'^ However, because the defendant did not allege a violation ofthe statutory provision requiring recording ofthe proceedings in the trial court, the supreme court held that this new argument raised for the first time in the petition for transfer did not warrant reversal of the trial court. ^^^ D. Non-mutual Collateral Estoppel In Jennings v. State, the Indiana Court of Appeals applied the doctrine of non-mutual collateral estoppel in a criminal proceeding. ^^^ Though not hailed as a case offirst impression, it appears to be the first time an Indiana appellate court has held that the doctrine is applicable in the criminal context. Collateral estoppel acts to bar relitigation ofa claim or issue in a subsequent proceeding between the same parties. *^^ In determining whether to apply collateral estoppel, the court must determine what issue or fact was decided by the firstjudgment and how that determination bears on the subsequent action. ^^ In 1992, the Indiana Supreme Court sanctioned the use ofnon-mutual collateral estoppel in Sullivan v. American Casualty Co.,^^^ holding that collateral estoppel no longer required that the party seeking to take advantage of the prior adjudication would have been bound had the prior judgment been decided differently (mutuality of estoppel), or that the party who is to be bound by the prior adjudication be the same as or in privity with the party in the prior action (identity of parties).*^ A stranger to a prior action may seek to invoke the collateral estoppel doctrine; therefore, it is referred to as non-mutual collateral 158. IND. Code § 35-34-2-3(d) (1998). 159. See id. 160. Mat 347. 161. See id. at 347-48. 162. 714 N.E.2ci 730 (Ind. Ct. App.), trans, denied, 726 N.E.2d 306 (Ind. 1999) (mem.). 163. See generally Smith v. State, 670 N.E.2d 360, 362 (Ind. Ct. App. 1996). 164. See id. 165. 605 N.E.2d 134 (Ind. 1992). 166. Seeid.d\.Ul. 1212 INDIANA LAW REVIEW [Vol. 33:1 197 estoppel. Although the court in Sullivan did not expressly limit its holding to civil cases, the use of collateral estoppel in the criminal context has generally been considered a part of the prohibition against double jeopardy and thus, involved an earlier prosecution ofthe same defendant by the same governmental entity. ^^^ In Jennings, the defendant and two passengers, Tina Lehr and Chad Pryor, were stopped by police in Jennings' car.^^* When Jennings got out ofthe car to show the officer his identification, the officer noticed a small knife in the car.^^^ The officer asked Lehr and Pryor to exit the car so he could check for weapons. As Lehr got out of the car, she removed a plastic bag containing illegal drugs from her purse and hid it behind her back. When questioned by the officer, she said the bag belonged to Jennings. *^° The officer then requested and received permission to search Jennings and his car. However, the search of the car was not conducted at the scene. Instead, the car was towed to the police department where subsequent searches produced other illegal drugs. ^^^ The State filed drug charges against Pryor in the Warrick Superior Court I. Pryor filed a motion to suppress the drugs^^^ which was granted after the superior court concluded that the officer had conducted an illegal search of Lehr' s purse and consequently suppressed all evidence found in Jennings' car as the fruit of the poisonous tree.^^^ The State filed charges against Jennings in the Warrick Circuit Court. '^'^ Jennings also filed a motion to suppress the drugs, invoking non-mutual collateral estoppel. Jennings argued that because the Warrick Superior Court in Pryor's case had previously determined that searches ofLehr's purse and the car were improper, the State was then estopped from relying on the searches and seized evidence in Jennings' case.*^^ The trial court denied Jennings' motion, and the court of appeals reversed. '^^ The court's decision to apply non-mutual collateral estoppel in the criminal context appears to be the minority position. Other jurisdictions that have considered this issue have declined to apply non-mutual collateral estoppel against a governmental entity in criminal cases. '^^ Mostjurisdictions that reject application of the doctrine in criminal cases cite the reasoning of the United 167. See, e.g., Davis v. State, 691 N.E.2d 1285, 1288 (Ind. Ct App. 1998). 168. See Jennings v. State, 714 N.E.2d 730, 732 (Ind. Ct. App.), trans, denied, 726 N.E.2d 306 (Ind. 1999) (mem.). 169. See id. 170. See id 171. See id 172. See id. 173. See id. at733. 174. See id 175. See id. ai732. 176. See id. at 733-35. 177. See 50 C.J.S. Judgments § 919(b) (1997); 47 AM. JUR. 2D Judgments § 649 (1995). .1 2000] CRIMINAL LAW 1213 States Supreme Court in Standefer v. United States}^^ In Standefer, the Court held that non-mutual collateral estoppel was not applicable in criminal cases to preclude the prosecution ofan accomplice where ajury had already acquitted the principal. '^^ The Court reasoned that several aspects ofcriminal law prevent the government from having a full and fair opportunity to litigate an issue, such as: the prosecution's limited discovery rights; the prohibition against a directed verdict for the prosecution no matter how clear the evidence in favor ofguilt; and the prosecution's prohibition against seeking a new trial or appealing an acquittal. '^° The Court also found that application of non-mutual collateral estoppel is complicated by the rules ofevidence and exclusion unique to criminal law, noting that the exclusionary rule may prohibit the government from introducing evidence against one defendant, but the same evidence may be admissible against another defendant whose Fourth Amendment rights were not implicated. ^*^ Four months after Jennings was decided, another panel of the court of appeals, citing the reasoning in Standefer, held in Reid v. State, ^^^ that non-mutual collateral estoppel should not apply in criminal cases. ^^^ The Reid decision was authored by then Judge Rucker. It is worthy of note that the Jennings court declined to address the State's assertion that Jennings did not have standing to challenge the search of Lehr's purse. '^"^ In a footnote, the court stated that it was limiting its decision to application of the principles of collateral estoppel. *^^ However, it seems that determining whetherthe Superior and Circuit courts were truly deciding the same issue would necessarily involve a determination of the defendants' standing to challenge the search. Fourth Amendment rights are personal in nature, and as the Standefer court observed, the same search may violate one person's rights yet not impinge upon another' s.^*^ E. BelatedAddition ofHabitual Offender Charge Two panels of the Indiana Court of Appeals reached different conclusions when asked to determine whether a defendant must seek a continuance to preserve for appeal an alleged improper addition of an habitual offender charge 178. 447 U.S. 10(1980). 179. Seeid.2X2A. 180. See id. at 22-23. The State in Jennings conceded at trial that it had a full and fair opportunity to litigate the issue in Pryor's case. See Jennings, 714 N.E.2d at 734. 181. See Standejer, 477 U.S. at 23-24. 182. 719 N.E.2d 451 (Ind. Ct. App. 1999). 183. See id 2X^56. 184. The court's decision also did not indicate how the Superior Court determined that the search ofLehr's purse infringed upon Pryor's right to be free from unreasonable search and seizure. 185. See Jennings, 714 N.E.2d at 734 n.3. 186. See, e.g., Rakas v. Illinois, 439 U.S. 128 (1978) (stating that a person must have a legitimate expectation of privacy in the place searched before their Fourth Amendment rights attach). 1214 INDIANA LAW REVIEW [Vol. 33:1197 under section 35-34-l-5(e) of the Indiana Code. In Attebury v. State^^^ and Mitchell V. State,^^^ the defendants alleged on appeal that the trial court erred when it allowed the State to add an habitual offender charge more than ten days after the omnibus date.^^^ The State argued in both cases that the defendants waived the issue for appeal by failing to seek a continuance after the trial court permitted the amendment.*^ The Mitchell court held that the defendant had waived the issue; *^' the Attebury court held otherwise. '^^ The disagreement centers around the interpretation of language from the Indiana Supreme Court's decision in Haymaker v. State.^^^ In Haymaker, the State sought to amend a habitual offender charge, substituting a confinement conviction for a possession ofmarijuana conviction. '^'^ On appeal, the defendant claimed that the amendment was outside the time period permitted by section 35-41-l-5(e) of the Indiana Code which provides: An amendment of an indictment or information to include a habitual offender charge under IC 35-50-2-8 must be made not later than ten ( 1 0) days after the omnibus date. However, upon a showing of good cause, the court may permit the filing ofa habitual offender charge at any time before the commencement of the trial. '^^ The Indiana Supreme Court held that section 35-34-1 -5(e) of the Indiana Code did not apply when the State merely amended an already existing habitual offender count. '^ Rather, the court found that section 3 5-34-1 -5(c) controls in situations where the State seeks to amend, and not add, a habitual offender count. *^^ Subsection (c) permits the State to amend an information at any time as long as the amendment does not prejudice the defendant ' s substantial rights. *^* After finding that the defendant failed to show prejudice, the court in Haymaker stated, "[E]ven if § 3 5-34-1 -5(e) were to apply, defendant has waived the issue for appeal. Once defendant's objection [to the amendment] had been overruled, he should have requested a continuance . . . ."'^ Judge Robb, writing for the majority in Attebury, found the above quoted language from Haymaker to mean "if section 3 5-34-1 -5(e) were to apply to amending habitual offender counts, a continuance must be requested to preserve 187. 703 N.E.2d 175 (Ind. Ct. App. 1998). 188. 712 N.E.2d 1050 (Ind. Ct. App. 1999). 189. See Mitchell, 712 N.E.2d at 1052; Attebury, 703 N.E.2d at 176. 190. See Mitchell, 712 N.E.2d at 1053; Attebury, 703 N.E.2d at 179. 191. See Mitchell, 712 N.E.2d at 1052-53. 192. See Attebury, 703 N.E.2d at 179-80. 193. 667 N.E.2d 1113 (Ind. 1996). 194. SeeidatWn. 195. Ind. Code § 35-41-5(e) (1998). 196. See Haymaker, 667 N.E.2d at 1 1 14. 197. See id 198. See iND. CODE § 35-41-5(c). 199. Haymaker, 667 N.E.2d at 1114. 2000] CRIMINAL LAW 1215 the error, as the defendant must show that his rights have been prejudiced by the amendment. In this situation [where the amendment addedthe habitual offender charge], we do not believe it necessary."^°® Judge Robb reasoned that a continuance is an inadequate remedy when the State seeks to add an entirely new habitual offender count at the last minute because such an addition could significantly alter the defense's strategy, not only as to the habitual count, but also as to the substantive counts.^°* Judge Robb found that the same considerations do not apply to an amendment of an already existing habitual offender charge.^°^ Judge Staton concurred in Judge Robb's opinion.^^^ Judge Kirsch dissented, concluding that the defendant had waived the issue.^°* Judge Kirsch believed that in Haymaker the supreme court rejected any distinction between an amendment under section 35-34-1 -5(c) of the Indiana Code and an addition ofa new habitual count under subsection (e) for purposes of requesting a continuance to preserve the error.^^^ In Mitchell,^^ Judge Najam, writing for a unanimous panel that included Judge Kirsch and Judge Garrard, found that Attebury "misinterpreted" the Indiana Supreme Court's ruling in Haymaker and held that "once the trial court allows either an amendment to the habitual offender charge under subsection (c), or the addition ofan habitual offender charge under subsection (e), the defendant must seek a continuance to preserve the alleged error for appeal."^^^ F. Speedy Trial The supreme court and court of appeals decided several cases during the survey period addressing a defendant's right to a speedy trial. This right is guaranteed by both the Sixth Amendment to the United States Constitution and article I, section 12 ofthe Indiana Constitution.^^* Few defendants raise a claim that these constitutional provisions have been violated;^^ rather, they contend that their right to a speedy trial under Rule 4 of the Indiana Rules of Criminal 200. Attebury v. State, 703 N.E.2d 175, 180 (Ind. Ct. App. 1998) (emphasis added). 201. See id. 202. See id. 203. Seeid.?X\15. 204. See id. at 181 (Kirsh, J., dissenting). 205. See id. 206. Mitchell v. State, 712 N.E.2d 1050 (Ind. Ct. App. 1999). 207. Id at 1053. 208. See Wooley v. State, 716 N.E.2d 919, 923 & n.2 (Ind. 1999). 209. See^id. But see Sauerheber v. State, 698 N.E.2d 796, 805 (Ind. 1998) (raising solely a Sixth Amendment claim). As explained in Sauerheber, an alleged violation of the Sixth Amendment requires a defendant to meet the somewhat demanding four factor test set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972). That test requires a court to balance "the length of the delay, the reason of the delay, the defendant's assertion of his right, and the prejudice to the defendant." Sauerheber, 698 N.E.2d at 805 (citing Barker, 407 U.S. at 530). 1216 INDIANA LAW REVIEW [Vol. 33:1197 Procedure was violated. Criminal Rule 4 sets forth time limitations that must be met to protect the state constitutional right to a speedy trial.^^° Criminal Rule 4(A) provides that a defendant may not be detained in jail awaiting trial for more than six months unless the delay was caused by the defendant's motion or act or court congestion.^" Any defendant so detained is entitled to be released on his own recognizance.^^^ Rule 4(B) provides that a defendant held in jail awaiting trial is entitled to discharge if not brought to trial within seventy calendar days of his motion for a speedy trial.^'^ Any delay caused by the defendant's act or court congestion is excluded from the seventy-day time period.^^"* Finally, Criminal Rule 4(C), which applies to those defendants who have not requested a speedy trial pursuant to Rule 4(B), provides that they shall be entitled to discharge if not brought to trial within one year of their arrest or the filing of charges against them, whichever is later.^*^ Again, delay caused by a defendant's act or court congestion is excluded from the one-year time period.^'^ Although Criminal Rule 4 does not require a defendant to "push the matter to trial," a defendant whose trial is set outside the specified periods must object to the setting "at the earliest opportunity or be deemed to have waived his right to discharge under the rule."^^^ In Diederich v. State^^^ the supreme court granted transfer to address the requirement that a defendant move for discharge "at the earliest opportunity" in 210. 5ee J^oofey, 716N.E.2dat923. 211. See IND. R. Crim. P. 4(A). 212. See id. 213. See iND. R. CRIM. P. 4(B)(1). As the court of appeals reiterated in State v. Kent, 700 N.E.2d 1 187 (Ind. Ct. App. 1998), "Only a defendant who is imprisoned on a pending cheirge may make a Crim. R. 4(B) motion. The fact that Kent may have been in jail for an unrelated conviction has no bearing on the present case because there is no evidence that he was in jail at the time he filed his Crim. R. 4(B) motion." Id. at 1 188 (citation omitted). 214. See iND. R. CRIM. P. 4(B)( 1 ). 215. See iND. R. CRIM. P. 4(C). Ifa summons is issued in lieu ofan arrest warrant, the speedy trial clock of Criminal Rule 4(C) starts on the day the summons orders the defendant to appear in court. See Johnson v. State, 708 N.E.2d 912, 915 (Ind. Ct. App.), trans, denied, 714 N.E.2d 177 (Ind. 1999). 2 1 6. See iND. R. CRIM. P. 4(C). 2 1 7. Diederich v. State, 702 N.E.2d 1 074, 1 075 (Ind. 1 998) (citation omitted); see also Ford v. State, 706 N.E.2d 265, 267 (Ind. Ct. App.) ("The [trial] court's entry indicates that, far from objecting to the resetting of trial to [a date beyond the one-year period under Rule 4(C)], Ford agreed iH^dX trial should be reset for that date. The record reflects that Ford never filed a motion for discharge on Crim. R. 4(C) grounds. Therefore, the issue is waived.'*) (emphasis added), trans, denied, 714 N.E.2d 173 (Ind. 1999). But cf. Schwartz v. State, 708 N.E.2d 34, 36 (Ind. Ct. App. 1 999) ("However, 'a defendant has no duty to object to the setting ofa belated trial when the setting ofthe date occurs after the time expires such that the court cannot reset the trial date within the time allotted by Crim. R. 4(C). All the defendant needs to do then is move for discharge.'" (quoting Pearson v. State, 619 N.E.2d 590, 592 (Ind. Ct. App. 1993))). 218. 702N.E.2d 1074 (Ind. 1998). 2000] CRIMINAL LAW 1217 order to avoid waiver of his speedy trial right under Criminal Rule 4(C). In Diederich, charges had been pending against the defendant for almost a year when the trial court set the trial for six months later.^*^ The trial court sent notice by mail to defense counsel, who filed a written objection, sent by first-class mail a few days later. Diederich later moved for discharge, and the trial court denied the motion on the basis that because the one-year period was close at hand, his objection sent by first-class mail did not constitute an objection "at the earliest opportunity, such as by fax machine, telephone, or hand delivery."^^^ A divided panel of the court appeals affirmed in an unpublished opinion, reasoning that "Diederich could have informed the court of his objection to the trial date in a more timely manner by use of fax or telephone."^^' The supreme court disagreed and ordered the defendant discharged.^^^ Although there was little time left to conduct a trial at the time of Diederich's objection, "[T]he real reason for the shortness of time was not the defendant's use ofthe U.S. Mail but the prosecutor's decision much earlier in the game to let the matter pend in another court for 215 days before dismissing without prejudice."^^^ In Howard V. State,^^^ the court ofappeals considered whether a last-minute waiver ofjury trial constituted delay attributable to the defendant under Criminal Rule 4(C). Havvard was charged with three offenses in July 1996, and in September the trial court set his case for jury trial in May 1997. At a pretrial conference on the day before thejury trial was scheduled, Havvard filed a waiver ofthejury trial but did not request a continuance.^^^ The trial court accepted the waiver and set the case for a bench trial in December 1997. In June, Havvard moved for discharge, and the motion was denied. Havvard again moved for discharge immediately before the December bench trial .^^^ The trial court denied the motion for discharge on the basis that "if you ask for a jury and the day comes for ajury and you waive ajury all ofthose days are attributable to you."^^^ The trial court charged Havvard with 225 days of delay, from his September 1996 request for a jury trial until his May 1997 waiver.^^^ The court of appeals disagreed, and ordered Havvard discharged.^^^ It reasoned that Haward's "last minute waiver of ajury trial did not mean that the trial court could not try him as scheduled. It would merely have been a bench 219. Seeid2LX\075. 220. Id (quotation omitted). 221. Id (quoting Diederich v. State, 699 N.E.2d 799 (Ind. Ct. App. 1998), vacated, 702 N.E.2d 1074 (Ind. 1999)). 222. See id. 223. Id V 224. 703 N.E.2d 1118 (Ind. Ct App. 1 999). 225. Seeid2Lt\U9. 226. See id. 227. Id. at 1 120 (citation omitted). 228. See id. 229. Seeidatini. 1218 INDIANA LAW REVIEW [Vol. 33:1 197 trial rather than a jury trial."^^° Because the trial court gave no reason for not holding a bench trial on the day of the scheduled jury trial, the court of appeals concluded that the silent record prevented attributing the reason for delay to Haward.^^^ Judge Staton dissented, pointing out in part: [Tjrial courts often schedule alternate jury trials for the same date, anticipating that some may be pled out or waived. Alternate trial scheduling decreases the chance that a jury panel will be called for naught. Proceeding with a bench trial when a jury panel has already been told to appear would waste judicial resources.^^^ Finally, in McKay v. State,^^^ the court ofappeals addressed the difficulty of reconciling a congested court calendar with a defendant's right to a speedy trial under Criminal Rule 4(B). McKay and two othermen were charged with robbery and related charges on April 28, 1998.^* McKay moved for a speedy trial pursuant to Criminal Rule 4(B) on June 5, and ajury trial was scheduled for all three defendants on July 27. At a pretrial conference on July 22, the trial court explained that an "older" case was set for trial on July 27 and there was a "[p]ossibility that [McKay's] case is going to get moved because only one case can be tried."^^^ McKay's case was continued on July 27 because ofa congested calendar. The trial court's order listed the reason for congestion as ^'State v. Smith & Braeziel,'' which was the "first choice case" on that day.^^^ McKay's trial was continued for two months. On July 28, McKay filed an objection to the continuance, stating that the court did not hear another trial on July 27; the September trial date was beyond the seventy-day period ofCriminal Rule 4(B); and counsel was unavailable on the September trial date due to a previously scheduled trial.^^ The trial court advanced McKay's trial date to August 24; however, the seventy-day period expired on August 14.^^* The August 24 trial was continued due to a court congestion order dated August 21, which cited the jury trial ofState v. Jackson, the "first choice case" for August 24, as the reason for the continuance.^^' The court reset McKay's trial for October 5. On September 4, McKay moved for discharge, asserting that the delays in his case were not due to court congestion because no other trials were held on either July 27 or August 24.^"*^ He also objected to the October 5 setting. The motion for 230. Id. 231. See id 232. Id. at 1 122 (Staton, J., dissenting). 233. 714 N.E.2d 1 1 82 (Ind. Ct. App. 1 999). 234. See id. 2Lt\ 1^4. 235. Id. (citation omitted). 236. Id 237. See id at \IS4-S5. 238. See id aims. 239. Id 240. See id 2000] CRIMINAL LAW 1219 discharge was denied.^'** In response to a motion to reconsider, the trial court held a hearing on October 2}^^ At that hearing, one of the court's bailiffs testified that no case had gone to trial on either July 27 or August 24 and none ofthe defendants in the cases for which McKay's trial was continued had moved for a speedy trial.^^^ In denying McKay's motion, the trial court observed that "the record adequately establishes that we had other matters that were older matters that were before this court We have done everything we can to make sure these cases get tried as quickly as we possibly can considering the court's calendar."^"^ Later that day, McKay's trial was again continued due to a congested calendar. The court reset the trial for November 16. McKay filed a petition for a writ ofhabeas corpus on November 4, which the trial court denied on November 10, and the court of appeals accepted jurisdiction ofthat ruling as an interlocutory appeal on November IS.^'*^ The court of appeals affirmed the trial court's denial of McKay's petition. First, it noted that appellate review ofa trial court's finding of court congestion is well-established and requires a defendant to show that at the time the trial court made its decision to postpone trial, the finding ofcongestion was factually or legally inaccurate. Such proofwould be prima facie adequate for discharge, absent further trial court findings explaining the congestion and justifying the continuance. In the appellate review of such a case, the trial court's explanations will be accorded reasonable deference, and a defendant must establish his entitlement to relief by showing that the trial court was clearly erroneous.^^^ The court ofappeals held that the trial court's findings ofcongestion on July 27, August 24, and October 5 were not clearly erroneous.^"*^ Other cases were set for trial on those days, and there was no suggestion that the trial court knew at the time of the finding of congestion that these "first choice" cases would not be McKay also asserted that the cases for which his was continued were not priority cases under Criminal Rule 4. As the supreme court observed in Clark v. State^^^ a defendant's request for a speedy trial must be assigned a meaningful trial date within the time prescribed by the rule, if necessary superseding trial dates previously designated for 241. See id, 242. See id. 243. See id. 244. 7