November 2008 Posts

Erroneous disclosure of CHINS records to media

Matter of K.B. and B.L. v. , 82A03-0806-JV-266

3rd Dist., 10-10-08, Ind.App. 894 N.E.2d 1013

Attorney: Erin L. Berger

Holding: In child in need of services (CHINS) proceeding, trial court abused its discretion by allowing the media access to the children’s CHINS records. Pursuant to I.C. 31-33-18-1(a), investigatory report and any other information obtained during investigation of report of child abuse or neglect is confidential. I.C. 31-33-18-2, which lists persons to whom an investigatory report may be made available, does not include media representatives. Even if I.C. 31-39-2-10, which describes how “interested persons” may access juvenile court records, applies to CHINS proceedings, trial court abused its discretion in disclosing records in this case because there was no specific ongoing threat to the safety or welfare of the community. In its order, trial court stated that it was granting access to educate the public, to address the community’s interest in the welfare of the children, and to give the public new insight into the workings of the trial court and Department of Child Services. Court held that this laudable goal does not warrant disclosure of CHINS records because public awareness can be achieved by a variety of less intrusive measures. Children in this case are entitled to the same privacy and confidentiality that are offered to other children in less notorious CHINS proceedings. Held, judgment reversed.

Thursday, November 20th, 2008 | Posted in Indiana Court of Appeals | No Comments »

Trial court has no jurisdiction to rule on motion for credit time while appeal pending

Jernigan v. State, 18A02-0805-PC-451

2nd Dist.; 10-15-08, Ind.App. 894 N.E.2d 1044

Attorney: Pro se

Holding: Trial court did not have jurisdiction to rule on Defendant’s Motion for Earned, Good Time Credit while Defendant’s appeal from his sentence was pending. The Court of Appeals acquires jurisdiction on the date the trial court clerk issues its Notice of Completion of Clerk’s Record. Generally, a judgment made when the court lacks subject matter jurisdiction is void. However, trial court may retain jurisdiction notwithstanding an appeal when the issue at the trial level is independent of and does not interfere with the subject matter of the appeal. See, e.g., Bradley v. State, 649 N.E.2d 100, 106 (Ind. 1995); Clark v. State, 727 N.E.2d 18, 21 (Ind.Ct.App. 2000).

Here, Defendant is appealing from trial court’s denial of his Motion for Earned, Good Time Credit which he filed while his appeal from his guilty plea and sentencing was pending. But, the matter of Defendant’s credit time was not independent of the issues presented in Defendant’s direct appeal, i.e., the appropriateness of his sentence. Thus, after trial court clerk issued its Notice of Completion of Clerk’s Record, trial court was without jurisdiction to rule on the motion. Because Defendant is appealing from an order that is void, the order is set aside and the appeal is dismissed. Held, appeal dismissed.

Thursday, November 20th, 2008 | Posted in Indiana Court of Appeals | No Comments »

Confidentiality of juvenile records

In re T.B. v. , 49A02-0712-JV-1007

2nd Dist.; 10-21-08, Ind.App. 895 N.E.2d 321

Attorney: Ruth Johnson

Holding: Juvenile court properly released CHINS and DCS documents to the newspaper, but erred in releasing a transcript of a CHINS review hearing and records relating to Bailey’s prior juvenile delinquency adjudications. The confidentiality provisions of I.C. 31-39-1 et seq. apply to all records of the juvenile court except the following: (1) records involving an adult charged with a crime or criminal contempt of court . . . I.C. 31-39-1-1(a). Juvenile court may grant any person having a legitimate interest in the work of the court or in a particular case access to the court’s legal records. In exercising its discretion, court shall consider that the best interests of the safety and welfare of the community are generally served by the public’s ability to obtain information about: (1) the alleged commission of an act that would be murder or a felony if committed by an adult; or (2) the alleged commission of an act that would be part of pattern of less serious offenses. I.C. 31-39-2-10. Court of Appeals held that I.C. 31-39-2-10 is not limited to pending cases, but also involves closed cases. It also contemplates the release of court records regarding an adult respondent in a CHINS case. Further, reports concerning child abuse and neglect made to DCS may be released where a child’s death may have been the result of abuse, abandonment or neglect. I.C. 31-33-18-1.5.

Here, T.B., Bailey’s daughter, died during the pendency of her CHINS proceeding. Bailey and her boyfriend were charged with T.B.’s murder. A newspaper requested the records relating to the pending CHINS, a closed CHINS, a transcript of a review hearing, Baily’s prior juvenile adjudication and DCS records. Although I.C. 31-39-1-1(a)(1) exempts from confidentiality “records involving an adult charged with a crime,” this exemption applies only to those juvenile court records that relate specifically to both the adult and the charged crime. Regardless, T.B’s death during the pending CHINS proceeding and her prior involvement in the child welfare system are “legitimate interests” for purposes of I.C. 31-39-2-10. Thus, juvenile court properly released the pending and closed CHINS records. Also, because T.B.’s death may have been the result of murder or abuse, the DCS records were properly released.

But, there is no statutory provision that allows juvenile court to release a transcript of a proceeding from which the public was excluded. Moreover, I.C. 31-39-2-8 only allows the release of juvenile delinquency records when the record relates to the acts that serve as the basis for the delinquency allegation. Although Bailey’s alleged neglect and murder of T.B. were crimes that prompted the newspaper’s request for access to her delinquency records, those acts were not the basis for the delinquency allegations. Thus, juvenile court erred in releasing Bailey’s prior juvenile delinquency records and the transcript of proceedings. Held, judgment affirmed in part and reversed in part.

Thursday, November 20th, 2008 | Posted in Indiana Court of Appeals | No Comments »

Attorney-client relationship – recorded telephone conversations

Bassett v. State, 15S00-0611-CR-474

10-28-08, Ind.

Attorney: Joseph Cleary

Holding: A prosecutor’s review of telephone conversations between incarcerated Defendant and his attorney did not violate the Sixth Amendment and did not constitute prosecutorial misconduct. “The essential prerequisites to invocation of the [attorney-client privilege] are to establish by a preponderance of the evidence: (i) the existence of an attorney-client relationship and (ii) that a confidential communication was involved.” Mayberry v. State, 670 N.E.2d 1262, 1266 (Ind. 1996). The responsibility to safeguard the confidentiality of attorney-client communications is placed squarely on the shoulders of the defendant. Here, Defendant had an attorney-client relationship with his attorney. Defendant called his attorney on multiple occasions to talk about his pending trial. At no time did either Defendant or his attorney complain to jail staff that they were not provided sufficient opportunity for private and confidential meetings at the jail. The automated messages warned both Defendant and his attorney before each call that the call may be recorded. At no time did either Defendant or his attorney request that they be provided with a confidential line of telephone communication or that the phone conversations not be recorded. Thus, the telephone conversations were not confidential.

Court implies that a prosecutor’s review of conversations between a defense attorney and the client may constitute a violation of Professional Rule of Conduct 3.8 and 8.4(d). Defendant must prove he was placed in a situation of grave peril in order to constitute prosecutorial misconduct. Because the prosecutor’s use of information learned through his review of the phone conversations was limited, Defendant was not placed in a position of grave peril even if the prosecutor’s review violated the rules of ethics. Held, judgment affirmed.

Thursday, November 20th, 2008 | Posted in Indiana Supreme Court | No Comments »

Prior consistent statements – when admissible for rehabilitation vs. substantive evidence

Bassett v. State, 15S00-0611-CR-474

10-28-08, Ind.

Attorney: Joseph Cleary

Holding: Trial court did not abuse its discretion by allowing prior consistent statements into evidence. In situations where there is no evidence tending to implicate the declarant in the crime, the question of when the motive to fabricate arose is a sufficiently fact-sensitive inquiry that Court will defer to trial court’s decision whether or not to admit the statement (in contrast to situations in which declarant is implicated in the crime when a motive to fabricate likely arises immediately upon the commission of the crime) Stephenson v. State, 742 N.E.2d 463, 475 (Ind. 2001). Here, the jail informant testified that Defendant asked him to kill the prosecutor and was cross-examined on the allegation. The jail informant’s wife testified that her husband told her about Defendant’s request. This testimony rebutted the express charge that the informant was lying. Even though the motive to fabricate may have occurred before the informant’s statement to his wife, there is no evidence implicating the jail informant in the crimes. Thus, his statements to his wife were admissible under Rule 801 as substantive evidence.

If an adversary has made an express or implied charge against the witness of recent fabrication or improper influence or motive, the prior consistent statement is admissible as substantive evidence of the truth of the matter asserted. If the prior consistent statement was made after the motive to fabricate arose, however, it is only admissible to rehabilitate the witness. Moreland v. State, 701 N.E.2d 288, 292 (Ind.Ct.App. 1998). Here, a State’s witness testified that she believed Defendant and one of the victims were engaged in an intimate relationship. Defendant vigorously cross and re-crossed the witness. The State was permitted to ask the witness whether in 2001, she indicated under oath that she believed Defendant and the victim were having an intimate relationship. The victim’s affirmative answer was admissible to rehabilitate her credibility rather than as substantive evidence under Rule 801. Held, judgment affirmed.

Thursday, November 20th, 2008 | Posted in Indiana Supreme Court | No Comments »

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