VOL. XXXV, No. 25 |
September 4, 2008 |
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.
CRIMINAL ISSUES
Breaston v. State (Ind. Ct. App., Bradford, J.) - The version of the charge-amending statute in effect prior to defendant's trial was intended to apply to his case, not the version in effect at the time he committed the crime.
Lee v. State (Ind., Boehm, J.) - "Multiple convictions do not violate Indiana’s Double Jeopardy Clause if they logically could have been based on the same facts, but in light of the evidence, the instructions, the charges, and the argument of counsel, there is no reasonable possibility that the jury actually used exactly the same set of facts to establish both convictions."
CIVIL ISSUES
Christopher R. Brown, D.D.S., Inc. v. Decatur County Memorial Hosp. (Ind., Rucker, J.) – In the absence of express statutory authority, the Worker’s Compensation Board may not award interest on worker’s compensation benefits including past due medical bills.
Kempf Contracting and Design, Inc. v. Holland-Tucker (Ind. Ct. App., Kirsch, J.) – Trial court erred where, after an initial verdict was reached, the trial court reconvened the jury, gave them new instructions and verdict forms, allowed the jury to deliberate a second time, and entered judgment on a second verdict reached by the jury.
CRIMINAL ISSUES
BREASTON v. STATE, No. 20A04-0712-CR-727, __ N.E.2d __ (Ind. Ct. App., Aug. 27, 2008).
BRADFORD, J.
Additionally, Breaston claims that the trial court abused its discretion by allowing the State to amend the habitual offender information on August 9, 2007, approximately twelve days before trial. Specifically, Breaston claims that the Indiana Supreme Court‟s decision in Fajardo v. State, 859 N.E.2d 1201, 1207 (Ind. 2007), establishes that amendments to matters of substance are prohibited unless made at least thirty days before the omnibus date for felonies, pursuant to Indiana Code section 35-34-1-5(b).
While it is true that the version of Indiana Code section 35-34-1-5(b) interpreted by Fajardo was in effect at the time of Breaston's crime, during the pendency of Breaston's case and before the commencement of his trial, the General Assembly amended this statute. Less than four months after the Supreme Court issued its holding in Fajardo, the Indiana General Assembly revised Indiana Code section 35-34-1-5. Ramon v. State, 888 N.E.2d 244, 250 (Ind. Ct. App. 2008). The revised version of Indiana Code section 35-34-1-5 became effective on May 8, 2007, and Subsection (b) of that statute now reads as follows:
(b) The indictment or information may be amended in matters of substance and the names of material witnesses may be added, by the prosecuting attorney, upon giving written notice to the defendant at any time: (1) up to: (A) thirty (30) days if the defendant is charged with a felony; or (B) fifteen (15) days if the defendant is charged only with one (1) or more misdemeanors before the omnibus date; or (2) before commencement of trial if the amendment does not prejudice the substantial rights of the defendant.
Ind. Code § 35-34-1-5. Contrary to the statutory interpretation under Fajardo, under the revised subsection (b), the State can make an amendment to a matter of substance at any time before the commencement of trial so long as the amendment does not prejudice the defendant‟s substantial rights. Ramon, 888 N.E.2d at 250. We are convinced that this revised version applies to the instant case.
Generally, the prohibitions against ex post facto clauses prohibit Indiana from enacting a law that imposes a punishment for an act which was not punishable at the time it was committed or imposes additional punishment to that then prescribed. Id. at 251. These prohibitions, however, do not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed. Id. The clause is not designed to limit legislative control of remedies and modes of procedure which do not affect matters of substance. Id. Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto. Id. An amendment is procedural in nature for purposes of the ex post facto doctrine, and may be applied to crimes committed before the effective date, if it neither changes the elements of the crime nor enlarges its punishment. Id. at 252. In Ramon, we concluded that the revised version of Indiana Code section 35-34-1-5 merely defined the procedures the State was required to follow to amend a charging information. Accordingly, because the revised statute created no new crimes, did not change the elements of any crime, and did not alter the sentencing statutes, it does not violate the ex post facto provisions of either the Indiana or United States Constitutions. Id.
Additionally, in the recent case of Hurst v. State, 890 N.E.2d 88, (Ind. Ct. App. 11
2008), [footnote omitted] this court found that strong and compelling reasons exist favoring retroactive application of the revised version of Indiana Code section 35-34-1-5(b). In Hurst, we observed the following:
For over twenty years prior to Fajardo, case law regularly permitted amendments related to matters of substance as long as the substantial rights of the defendant were not prejudiced, regardless of whether the amendments were untimely under I.C. § 35-34-1-5(b). On January 16, 2007, our Supreme Court changed course and held that the statute clearly required amendments of substance to be made not less than thirty days before the omnibus date, even if a defendant‟s substantial rights are not prejudiced by the amendment. The legislature immediately responded to Fajardo by amending the statute, effective May 8, 2007, to reflect the pre-Fajardo law (i.e., amendments of substance permitted anytime before trial so long as the defendant‟s substantial rights are not prejudiced). Thus, Fajardo was superseded by statute in less than four months. This prompt return to pre-Fajardo law indicates urgency in the legislature's desire to negate the effects of Fajardo. Though the legislature did not expressly provide for retroactive application of the amended statute, we are confident that this was the clear intent of such legislation.
890 N.E.2d at 95 (citations omitted).
Here, the State amended the habitual offender information on August 9, 2007, approximately twelve days before Breaston's trial commenced on August 21, 2007. Following the reasoning in Ramon that the retroactive application of the revised version of Indiana code section 35-34-1-5 does not violate ex post facto principles, we conclude that the revised version of Indiana Code section 35-34-1-5(b), which became effective prior to the commencement of Breaston's trial, applies to the instant case. See Ramon, 888 N.E.2d at 252; see also Hurst, 890 N.E.2d at 95.
BARNES, J., and CRONE, J., concur.
LEE v. STATE, No. 27S04-0805-PC-226, __ N.E.2d __ (Ind., Sept. 3, 2008).
BOEHM, J.
Roderick Lee was convicted of burglary and attempted armed robbery and sentenced to consecutive twenty-year terms on each count. On direct appeal, the Court of Appeals affirmed Lee’s convictions and sentences. Lee v. State, No. 27A05-0110-CR-452 (Ind. Ct. App. June 4, 2002), trans. denied. Lee sought post-conviction relief, claiming that he received ineffective assistance of counsel at trial and on appeal because his attorney, who represented him at both stages, did not argue that Lee’s convictions violated Indiana’s Double Jeopardy Clause under the “actual evidence” test articulated in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). The post-conviction court denied relief, finding that Lee’s convictions did not violate the actual evidence test, and because there was no violation, the attorney’s failure to raise the issue was not ineffective assistance. A majority of the Court of Appeals affirmed, but on different grounds. Lee v. State, 880 N.E.2d 1278 (Ind. Ct. App. 2008). The Court of Appeals concluded that Lee’s convictions violated a “relaxed” but not a “literal” application of the actual evidence test. Id. at 1283–84 & n.3. However, the Court of Appeals further concluded that his attorney’s failure to raise the double jeopardy issue was not deficient performance because case law before sentencing inconsistently applied the relaxed and literal applications, and case law before direct appeal, particularly Spivey v. State, 761 N.E.2d 831 (Ind. 2002), favored the literal application. Lee, 880 N.E.2d at 1284–86. Judge Kirsch dissented, reasoning that Lee’s convictions did not constitute double jeopardy under the actual evidence test.
. . . .
Lee contends that his convictions and sentences violate the “actual evidence test,” an analysis not required by the federal constitution. We first articulated this method of double jeopardy analysis in Richardson.
Under this inquiry, the actual evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts. To show that two challenged offenses constitute the “same offense” in a claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.
717 N.E.2d at 53. Spivey v. State explained further that
The test is not merely whether the evidentiary facts used to establish one of the essential elements of one offense may also have been used to establish one of the essential elements of a second challenged offense. In other words, under the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense.
761 N.E.2d 831, 833 (Ind. 2002).
. . . .
Lee was convicted of burglary and attempted armed robbery as B felonies. For the burglary conviction, the State was required to establish that Lee, (1) knowingly or intentionally, (2) broke and entered a building, (3) with the intent to commit a felony, and (4) either (a) was armed with a deadly weapon, or (b) the building was a dwelling. [Footnote omitted.] For attempted armed robbery, the State needed to establish that Lee, (1) while armed with a deadly weapon, (2) took a substantial step toward the commission of, (3) knowingly or intentionally, (4) taking property from another person or from the presence of another person, (5) either by (a) using or threatening the use of force, or (b) putting a person in fear. [Footnote omitted.]
The evidence presented at trial indicated that on the evening of September 26, 2000, Dell Riley and her ten-year-old daughter, Ashley, were at their home in Marion, Indiana. Ashley was upstairs in her bedroom when Dell heard a knock at the door. When Dell opened the door, Lee and two others barged into the home, repeatedly pointed guns at her, threatened her, and demanded money. After Ashley heard the noise and came downstairs, Lee continued to threaten Dell and demand money. While Lee was looking through Dell’s purse, Dell and Ashley escaped safely through the back door and called the police. This evidence boils down to four facts: Lee barged into the home, had a gun, made threats, and demanded money.
These facts can properly support both convictions. Burglary is supported by the barging into a home (intentional breaking and entering into a dwelling); demanding money (intent to commit a felony); and possession of a gun (armed with a deadly weapon). Attempted armed robbery is established by possession of the gun (armed with a deadly weapon); the threats or demands for money (substantial step to take property); the threats or demands (the mens rea); and the threats (putting another in fear). We have held that Indiana’s Double Jeopardy Clause requires charges to be prosecuted “in a manner that insures that multiple guilty verdicts are not based on the same evidentiary facts.” Richardson, 717 N.E.2d at 53 n.46. Lee points out that the barging into the house could, as a logical matter, satisfy both the breaking and entering of burglary and the substantial step required for attempted armed robbery. Thus, if there is a reasonable possibility that the jury used the fact of Lee’s barging into a residence—instead of the threats and demands for money—to establish the substantial step and mens rea elements of attempted armed robbery, both convictions cannot stand because the facts establishing attempted armed robbery—possession of a gun, barging into a home, and making threats—would also establish burglary.
Since Richardson, this Court has decided several cases where there were separate facts to support two convictions, but the case was presented in a way that left a reasonable possibility that the jury used the same facts to establish both. . . . .
On the other hand, we have not found a double jeopardy violation when the fact supporting a first charge could theoretically have served as the overt act of a conspiracy charge, but the jury was instructed on additional facts supporting an overt act. . . . .
These precedents instruct that a “reasonable possibility” that the jury used the same facts to reach two convictions requires substantially more than a logical possibility. This does not reflect a “literal” or “relaxed” application of the actual evidence test. Rather, “reasonable possibility” turns on a practical assessment of whether the jury may have latched on to exactly the same facts for both convictions. See Griffin, 717 N.E.2d at 89 (“To establish that two offenses are the same offense under the actual evidence test, the possibility must be reasonable, not speculative or remote.”). Here, the jury was presented with detailed and distinct facts supporting attempted armed robbery beyond Lee’s barging through the front door. Dell Riley testified to Lee’s numerous threats and demands for money after he and his companions had barged into her home. The charging information alleged that Lee “did engage in conduct that constituted a substantial step toward the commission of robbery by entering Dell Riley’s residence . . . displaying a silver handgun and making threats to kill Dell [R]iley and her daughter—Ashley Bracey, if Riley did not give him and his companions money.” The jury instructions restated these charges. In closing argument, the prosecutor stated, “I have to prove that they took a substantial step in, in attempting to rob Dell. Obviously, they took a substantial step. They barged into her home. They had a gun. They threatened and they used a gun and put her in fear, her and Ashley.” The jury’s convictions on both counts reflect the practical reality noted by the post-conviction court and by Judge Kirsch’s dissent: the burglary was complete when Lee barged into the home, but the at-tempted armed robbery was just beginning. The barging may have been one substantial step, but the threats and pointing the gun were the subject of much lengthier and essentially indisputable testimony.
[H]ere, . . . there was “extended evidence of a protracted criminal episode,” and the prosecution emphasized the evidence that was distinct to each crime. As a practical matter, there is no reasonable possibility that Lee’s jury used only the barging into the home and ignored the extensive testimony of threats, etc. inside the home as substantial steps toward taking property.
We note that more deliberate prosecution of multiple offenses would avoid these double jeopardy problems. Had the charges, instructions, and closing argument cited the fact of barging into the home as to the burglary alone, and the threats and demands as to the attempted armed robbery, there would be no double jeopardy question, and the trial and appellate courts would not have been required to assess the degree of likelihood of overlapping convictions.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.
CIVIL ISSUES
CHRISTOPHER R. BROWN, D.D.S., INC. v. DECATUR COUNTY MEMORIAL HOSP., No. 93S02-0711-EX-561, ___ N.E.2d ___ (Ind. Aug. 27, 2008).
RUCKER, J.
In this opinion we explore whether the Worker’s Compensation Board may award interest on worker’s compensation benefits including past due medical bills. We conclude that in the absence of express statutory authority it may not do so.
. . . .
Indiana law has long recognized the time value of money and has acknowledged that in order to achieve full compensation for the loss of use of property a claimant has the right to be paid pre-judgment interest on sums owed that are belatedly paid. 17 I.L.E. Interest and Usury § 1, at 5 (citing cases). Indiana law also provides for the collection of interest upon sums due from a patient for unpaid hospital bills. See I.C. § 24-4.6-1-101, 103; I.C. § 32-33-4-1; Stephens, 745 N.E.2d at 266-67 (awarding pre-judgment interest on hospital lien arising from medical services provided for personal injury); accord Washington County Mem’l Hosp. v. Hattabaugh, 717 N.E.2d 929, 933-34 (Ind. Ct. App. 1999).
But these authorities fall outside of Indiana’s Worker’s Compensation Act, which is silent on the question of whether interest may be awarded on past due benefits. Where the matter has been addressed in other jurisdictions having worker’s compensation statutes, the decisions have been varied. . . .
. . . .
Essentially, Indiana’s Worker’s Compensation Act sets forth a comprehensive system for the compensation of injuries arising out of and in the course of employment. As demonstrated by the various approaches taken in other jurisdictions, crafting a rule that allows interest on medical payments or worker’s compensation benefits involves choosing among an array of equally compelling policy considerations. Because the system is uniquely legislative in nature and alters the common law rights and liabilities of both employees and employers, appellate courts should be hesitant to disturb the delicate balance the General Assembly has reached and thus refrain from applying provisions not expressly included in the statutory scheme.
It is of course true that the Act must be liberally construed to effectuate its humane purposes and doubts in the application of terms are to be resolved in favor of the employee. McQuade v. Draw Tite, Inc., 659 N.E.2d 1016, 1018 (Ind. 1995). However, this general rule of statutory construction cannot justify the inclusion of a substantive right not supported by any fair reading of the statutory provision. “The [Act] is a humane enactment designed and intended for the protection of workmen who come within its provisions, which are and ought to be liberally construed and applied, so as to extend that protection to the ultimate good of the greatest possible number of our workers; but the extent and limitation of its applicability also are fixed by those provisions and we cannot, by judicial pronouncement, enlarge these beyond the very obvious intent of the Legislature . . . .” McGill Mfg. Co. v. Dodd, 116 Ind. App. 66, 59 N.E.2d 899, 901 (1945).
In plain terms, there is nothing in the Act that could be read to authorize an award of interest. If a policy consideration suggests that interest on worker’s compensation awards should be allowed, then the legislature and not the courts should implement such a policy. We conclude the Worker’s Compensation Board properly denied Dr. Brown’s request for interest on unpaid medical bills.
Dr. Brown next contends that any interpretation of the Worker’s Compensation Act that results in the denial of his request for interest on overdue medical bills violates Article I, Section 23 of the Indiana Constitution. According to Dr. Brown, “[t]here is no compelling public policy or rational reasoning why a health care provider should be treated more harshly by the Worker’s Compensation Board than what would have been the provider’s automatically-assured relief and remedy obtainable from a civil court.” Pet. to Trans. at 7. In sum, Dr. Brown argues that because the Act requires delinquent payment claims of healthcare providers be submitted to the Board – where no interest is allowed – he is treated differently than healthcare providers who may pursue delinquent payments in court and be awarded interest. . . .
. . . .
The different treatment accorded Dr. Brown is reasonably related to differences between healthcare providers who provide medical services to patients covered by the Act and those not so covered. As a result Dr. Brown has failed to support his claim that his Equal Privileges rights have been violated.
We affirm the judgment of the Board.
SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.
BOEHM, J., concurs with separate opinion.
BOEHM, J., concurring.
I agree with the majority that Indiana’s Worker’s Compensation Act is silent on the question of interest for past due compensation benefits and healthcare bills, and that any authorization for interest should come from the General Assembly. I write separately to suggest that the Act already addresses the issue of late payments, and to set out what I see as the practical consequences of our decision.
The Act creates a healthcare market that differs from the private healthcare market in several respects. Under the Act, healthcare providers are not permitted to collect payments from the employee, his estate, or family members, but instead must claim against the employer and the employer’s insurance carrier before the Worker’s Compensation Board. Ind. Code §§ 22-3-3-5, -5.1 (2004). Healthcare charges are subject to the approval of the Worker’s Compensation Board, id. § 22-3-4-12, and charges over a certain threshold may be reduced. Id. § 22-3-3-5.2. The Act thus establishes a collection system different from that available to healthcare providers outside the worker’s compensation system. This system does not explicitly allow for interest on late payments. It does, however, provide a mechanism to address the problem of carriers “dragging their feet” in settlement and payment of claims. Section 22-3-4-12.1 permits the Board to award a claimant between $500 and $20,000 if the employer, or the employer’s administrator or insurance carrier, acts with a lack of diligence or bad faith in adjusting or settling a claim. The sentence in section 22-3-4-12 subjecting healthcare charges to the Board’s approval expressly refers to this bad faith section, so the remedy is available to providers as well as workers.
As a practical matter, a legal rule that interest on providers’ bills is not to be awarded by the Board merely sets the background against which providers are free to agree or refuse to agree to treat workers. As the majority notes, nothing prevented Dr. Brown from negotiating with the worker’s employer or its insurer to require interest on late payments, assuming the Board would approve such a voluntary undertaking. If competitive pressures in the marketplace will not allow him to achieve that by agreement, the overall costs of workers’ compensation will be a little lower, and if he can demand a contractual right to interest, the employer’s costs will be increased. Having no legal right to an award of interest from the Board leaves that issue to the marketplace. On the other hand, if interest is to be required as a matter of law, then that cost will be built into the insurers’ premiums, or borne by employers who self-insure. Either way, it seems to have little impact on the worker who gets the service. I therefore join in the majority’s opinion, which leaves this issue to the General Assembly if change is required.
KEMPF CONTRACTING AND DESIGN, INC. v. HOLLAND-TUCKER, No. 19A02-0712-CV-1059, ___ N.E.2d ___ (Ind. Ct. App. Aug. 27, 2008).
KIRSCH, Judge.
Kempf Contracting and Design, Inc. (“Kempf”) appeals the judgment, after a jury trial, in favor of Cynthia Holland-Tucker (“Tucker”) in her action against Kempf for negligence. Kempf raises several issues, of which we find the following dispositive: whether the trial court erred when it entered judgment on a second verdict reached by the jury, where, after an initial verdict was reached, the trial court reconvened the jury, gave them new instructions and verdict forms, and allowed the jury to deliberate a second time.
We reverse and remand.
. . . .
Both parties argue that the trial court erred when it entered judgment on the second verdict by the jury after it realized that the jury had been given an erroneous jury instruction and verdict form and then allowed the jury to re-deliberate after they received a revised jury instruction and verdict form. Kempf contends that it is entitled to a new trial because it believed that the jury did not follow the instruction given by the trial court and issued a verdict that was contrary to the instruction and law of the case. Tucker claims that the original jury verdict pronounced in July 20, 2007 was facially sound and accurate, that the trial court erred when it set aside the original judgment, and that the judgment originally entered should be reinstated.
In this case, after the jury’s verdict in favor of Tucker on July 20, 2007, the trial court discharged the jury. As was his normal practice, Judge Weikert then went back to the jury room to speak with the jury members and conduct an exit interview. After his discussion with the jury members, Judge Weikert determined that the original verdict had been based on a faulty jury instruction and verdict form, which directed the jurors to combine the percentages of fault attributed to both Kempf and Greer even if they had found that Greer was not acting within the scope of his employment at the time of the accident. After hearing arguments from both parties, the trial court determined that it would reconvene the jury, give them a newly drafted jury instruction and verdict form, which correctly stated the process for determining their verdict, and allow them to re-deliberate and reach a new verdict. Both parties objected to this. After the jurors were allowed to re-deliberate, they again returned a verdict in favor of Tucker.
“From the moment of its official discharge the jury is released from any further obligations or duties in the case” and “may not at any time thereafter be reassembled even on the orders of the judge for the purpose of correcting errors of substance in the verdict or for further deliberation of its verdict.” West v. State, 228 Ind. 431, 438, 92 N.E.2d 852, 855 (1950). When a jury is officially discharged, it becomes functus officio as a jury in that particular case, and anything it does thereafter, even by order of the trial court, is null and void. Id. Based on this, the trial court incorrectly entered judgment after allowing the jury to re-deliberate when it had previously been discharged by the trial court.
Here, the trial court faced a situation where the jury instructions and verdict form were incorrect and improperly directed the jurors to combine the fault percentages of Kempf and Greer even if the jury had found that Greer was not acting within the scope of his employment when the accident occurred. When the trial court realized the problem, it attempted to correct the error by rewriting the instruction and verdict form and allowing the jury to deliberate a second time. This was not the proper procedure, as the jury was no longer able to deliberate having been previously discharged. Because the jury had ceased to exist as an entity to determine the case when it was discharged, it was not able to render a second verdict.
“Indiana courts have the inherent power to grant new trials sua sponte and are expressly authorized to do so by [Indiana] Trial Rule 59(B).” Dughaish ex rel. Dughaish v. Cobb, 729 N.E.2d 159, 169 (Ind. Ct. App. 2000), trans. denied (2001). When a trial court raises a motion to correct error sua sponte, a new trial may be granted if it is determined that prejudicial or harmful error has been committed. Ind. Trial Rule 59(J). While the trial court in the present case had the authority to sua sponte grant a new trial under T.R.59, it did not do so. Instead, it improperly reconvened the jury and allowed it to re-deliberate. Therefore, the trial court improperly entered judgment on the jury’s second verdict. We vacate the judgment and remand to the trial court with instructions to declare a mistrial and to order a new trial.
. . . .
Reversed and remanded with instructions.
VAIDIK, J., and CRONE, J., concur.
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