Daugherty v. State
466 N.E.2d 46
Ind. Ct. App.
1984
Check Treatment

*1 to us addresses argument cases. damages such

proper measure left for deci- is better question

While that present- squarely it is where

sion in a case damage some

ed, clearly there would be ineffectively performed

resulting from an

sterilization.

Affirmed. P.J.,

STATON, concurs. except. para-

HOFFMAN, J. concurs upon which relief IV, stating claim

graph granted.

can be DAUGHERTY, Appellant

Ray

(Defendant Below), Indiana, Appellee

STATE Below). (Plaintiff 1-883A255.

No. Indiana, Appeals of

Court of

First District.

July

Rehearing Sept. Denied *2 admitting court erred the trial inmates, testimony of two prejudicial un- in the incident also involved

who were offense, charged on the basis derlying the 8) trial gestae"; "res him. improperly disenfranchised *3 First, argues denied Daugherty he was a prosecutor had process the Ex Relying on State of interest. conflict Han Superior Court Rel Goldsmith Ind. County, cock (1980) Ind. Hardy, N.E.2d 942 argues 406 N.E.2d App., Ruckelshaus, Roland & Roland, Paul G. inconsistent assumed Prosecutor Coleman appellant. O'Connor, Indianapolis, grand jury by participating in the positions Gen., Amy Pearson, Atty. Linley E. acknowledged a after he had proceedings Gen., Atty. Indi- Good, Deputy Schaeffer potential The conflict interest. conflict of appellee. anapolis, for the fact two from of interest arose represented the sheriff deputy prosecutors ROBERTSON,Judge. deputies these and one of in civil matters conviction appeals his Ray Daugherty pertain legal advice gave the sheriff also misdemeanor, misconduct, class A official case at in the charge involved ing to the re- 85-44-1-2(1). Daugherty bar. days sixty with year sentence a one ceived June, in facts reveal The executed; fined $1000.00 he was to be battery on allegedly committed holding public from he was disenfranchised at- custody while prisoners his three was misconduct years. The for ten office made an had to discover who tempting in his upon prisoner battery jail table. drawing his on a wife obscene Hendricks Coun- he custody while inmates, Webb, Subsequently, one of ty sheriff. that he had appearance alleged at a court for our issues Daugherty raises several The circuit Daugherty. beaten been by re- err 1) the trial court did review: Boles, dep- Judge told judge, J.V. the indictment because fusing to dismiss Terry present, who was uty prosecutor 2) interests; did conflict of prosecutorial allega- investigate Webb's Kessinger, change of by denying a err trial court tions. upon judge based from the venue informing Kessinger recalled original in favor of partiality judge's spoke with He also allegations. about indict- 3) should prosecutor; special inmate's about Prosecutor Coleman cir- dismissed because ment have been investigating the He did not recall claims. untimely appointment made an cuit court give Kessinger did not charges length. at 4) see- commissioners; jury and he did legal advice the sheriff appoint- improperly special prosecutor ond proceedings jury grand in the participate 5) 833-14-1-6; to IND.CODE pursuant ed years two ultimately occurred some been have the indictment should whether later. an act battery is not dismissed because aware became After Prosecutor Coleman specifically forbidden are public servants claims, the FBI he wrote to inmate's therefore, Daugherty did commit it to inves- Indianapolis requesting 6) office misconduct; commit official July letter dated In his tigate the matter. charge is misconduct guilty verdiet explained that he was re- 27, 1979. Coleman failure to jury's with the irreconcilable grand jury or otherwise 7) "call a reluctant charge; a verdict on the turn prosecute the case" because political In Hardy, the trial court dismissed an considerations and because a deputy prose- indictment because of a defect in grand cutor, Hardin, Paul represented the sher- proceedings, presence of an unau- department iff's in civil matters. person. The re- thorized The person unauthorized sulting FBI investigation and grand federal was the County Scott prosecutor who had jury proceedings ended with no charges successfully sought appointment of a special prosecutor because he being filed. foresaw potential conflict of interest due to the During period when the inmates' alle- possibility that he would be a witness. De- gations initially surfaced and when the FBI spite the appointment special of a prosecu- was beginning its investigation, Deputy tor, prosecutor nevertheless actively Prosecutor Hardin met with the sheriff and participated jury proceedings. deputies his investigation. discuss the Relying on Goldsmith, this court affirmed gave Hardin legal advice to the sheriff and the dismissal on that once a deputies. prosecutor himself, recuses the recusation *4 26, 1981, On June the County Hendricks applies to all aspects of the case. How- grand jury indicted Daugherty on six ever, the issue was process, not due but counts; three counts of official misconduct whether requirements the and three counts of battery with one count jury statute had been followed. IND. from groups both applying to each of the CODE 85-3.1-1-4(a)(8), pertaining to dis- three inmates. participated Coleman in the missal of an indictment for a defect grand jury proceedings and evi- grand jury proceedings, and IND.CODE dence related to the batteries. According 85-1-15-28, concerning prosecutor's a au- Coleman, he did not specifically call a thority to present be during grand jury grand jury to investigate alleged beat- proceedings. For law, see, current ings but they instead resurfaced during an 35-34-1-4(a) 3 and 7 and IND. overall investigation of the depart- sheriff's CODE 35-834-2-4. ment. turn, In Goldsmith was not resolved on After the indictments returned, a process basis, instead the issue Prosecutor Coleman requested appoint- was the application of the Code of Profes- ment of special prosecutor a on grounds sional Responsibility and Disciplinary Rules might that he not be able to exercise inde- prosecutor's to a staff. deputy A prosecu- pendent professional judgment, Depu- tor petition filed a to withdraw from the ty Prosecutor Kessinger represented underlying case sought and also the ap- department sheriff's in civil matters and pointment special counsel because of the that Canon 9 of the Code of Professional likelihood that he would be called as a Responsibility lawyers admonishes to avoid witness. The trial disqualified even appearance impropriety. prosecutor's entire staff appointed and a Judge granted Boles petition ap- and special prosecutor. Additionally, the trial pointed Steven special Oliver prosecutor. court determined newly elected incom- Daugherty filed his motion to dismiss ing prosecutor disqualified. and at the hearing motion, on this Hardin Our supreme court held that the Discipli- gave conceded he legal advice, sheriff nary Rules do require recusation of an but he refused to specific answer questions prosecutorial entire staff in situations of attorney-client privilege. where deputy prosecutor on that staff is As the state correctly points out, Daugh- potential witness. The court examined erty's reliance on Goldsmith and Hardy DR5-102(A) DR2-102(A) and and concluded misplaced. Although both cases involved that they primarily are private directed at potential situations of prosecutorial conflict law firms with financial interests at stake interest, neither case was decided on the in contrast to the relationship between a process basis of due considerations. prosecutor and his circuit.

50 representation of both be- resulting from a distinction also drew The court dis prosecution the defendant prosecu- deputy where situations tween Ind. in Trinkle v. cussed and where replacement seeking a tor is alleged Trinkle N.E.2d 165. App. replacement. petitioning prosecutor depu a fair trial because he was denied case, court concluded latter In the charges theft prosecutor prosecuting ty recused must be staff prosecutorial entire him on similar represented previously had justice. criminal integrity of to maintain Trinkle's conviction charges. We affirmed argument apparent It determining there was a sub whether after concludes He point. this last springs from rep prior relationship between stantial special for a petitioned that once Coleman proceeding, criminal and the resentation to be dis- had staff entire prosecutor, his attorney prosecuting Hardy, su- relying on then qualified and information confidential gained could prosecutor pra, concludes through prior association. their proceed- any aspect participate has shown that one ings. Hardin, mat discussed prosecutor, deputy distinction be emphasize Again, we ultimately resulted him which ters with in rela considerations process tween due us. How before charge and conviction considera ethical tion to defendants that Prose ever, Daugherty has not shown Judge Hoff lawyers. pertaining tions in any confidential received cutor Coleman in Branan this distinction out pointed man infor Hardin or that such from formation 443, 316 Ind.App. (1974) 161 prosecu provided assistance mation opinion): (dissenting N.E.2d more although may it have been tion. So *5 of propriety However, regardless to Prosecutor Coleman ethically correct for the Code of under attorney's conduct this prior to recused himself have to the germane Ethics, only question has jury proceedings, the events describ- is whether case at bar re to do so failure that Coleman's shown prejudice to resulted ed hereinabove process. Trinkle of due in a denial sulted process of right to due the defendant's remains State, conclusion supra. Our law. Hardin re if assume unchanged even we Daugh information from privileged ceived simply no was the record. there clear from erty, at bar is not In the case by defendant prejudice evidence of confidential Daugherty has not shown presented to as relayed acts to Coleman Whitman's was reason of Mr. information petition. necessary In- Branan's hearing prosecution. on It is at the sist the at or to deed, staff prosecutor's entire disqualify the evidence supports deputy the de- overwhelmingly hearing an indictment because dismiss Mr. herein. Mat court of interest. of the trial has a conflict prosecutor termination divulged he never testified that State, (1977) Tenn.App. Whitman thews v. any 678, 679; information Attor Rev. any prosecutor Am.Jur.2d fellow S.W.2d attorney-client § by reason of (1980). obtained neys at Law Moreover, Mr. relationship with Branan. Milligan as K. Judge Thomas After actively participated never Whitman case,1 original in this jurisdiction sumed Branan. prosecution Oliver, a motion to filed special prosecutor, at 409. 316 N.E.2d he would his fear that withdraw because based for his services compensated not be a de- determining whether for The test County Coun Hendricks upon the partially process be- has been denied fendant appropriation. budget pass a failure to interest cil's attorney's conflict of cause of an ligan presided at the retrial. this charges the basis for which form 1. The Judge appeal. Mil- an appeal retried after were

5jJ Judge Milligan subsequently attended a technical defects in process. selection meeting requested council appro it to Has selbring Ind. priate pay Oliver, funds to App., which it refused 441 N.E.2d 514. Even if we assume to do. Judge Milligan Then appointments mandated the defective, the defect appropriate council to funds. clearly technical and not substantive. Daugherty has not shown how he po change filed a motion for tentially prejudiced. The trial court did not judge Judge Milligan's erv. seeking actions compensation spe- for the prosecutor cial demonstrated he was not Daugherty argues special prosecutor impartial. The motion was denied and improperly appointed ap- because the argues the trial court erred. pointment was made in accordance with judge's He contends the trial role as the IND.CODE 33-14-1-6 which became effec- special prosecutor's clearly "benefactor" tive February original The spe- raised the impartiality. issue of his prosecutor, Oliver, cial petition filed a withdraw; granted it was and the trial Procedure, Ind. Rules of Criminal appointed LaViolette, Diana a deputy Rule 12 and IND.CODE provide 85-86-5-2 prosecutor from Putnam County. Daugh- change judge for if judge a trial erty challenged appointment by an oral prejudiced against biased or a defendant motion for a continuance or in the alterna- and the defendant get cannot a fair trial. tive, dismissal of the indictments. The mo- A trial court's decision aon motion for tion was made after preliminary instruc- change judge only will be reversed for tions were tendered and after voir dire had an abuse of discretion. White v. begun. The motion separately was made (1982) Ind., 431 N.E.2d 488. We do not from Daugherty's prior other motions to find an abuse of Judge discretion. Milli- dismiss. The trial motion, court denied the gan's actions problem were directed at a apparently summarily because the record which has since been resolved the Gen does not reflect hearing on it. Assembly, eral adequacy and availabili The correctly points out that the ty compensation special prosecutors. motion to comply dismiss did not They 33-14-1-6. with IND. go did not 35-34-1-8, CODE concerning the form of a the merits of the case or in way hinder *6 motion to procedure the dismiss and the defense. There is no for Daugh indication it, filing erty writing; received an because it was not in unfair trial that as a result of the motion judge's allege grounds did not procure efforts to for dis- compensation specified 85-34-1-4; missal in special prosecutor. for the IND.CODE and that the motion for a continuance was Daugherty argues indictments upon not made statutory grounds specified should have been dismissed because of the in IND.CODE 85-86-7-1. untimely appointment jury commis- sioners in violation of IND.CODE 838-4-5- 85-84-1-8(e) I.C. authorizes the trial 2. The statute requires jury summarily to deny a motion to dis commissioners to appointed annually be in miss which upon is not based statutory November and Daugherty argues they grounds enumerated in LC. 35-34-1-4 and appointed on December 1980. He Daugherty's motion falls within this cate therefore contends grand jury selection gory so the trial court by deny did not err was not done in substantial compliance Also, ing 85-84-1-4(b)(1) it. provides 1.0. with the statute. motion to dismiss should be filed no later their oath until December November ally appointed The record shows the court 830,1980, but commissioners on they 1980. A con was made more than twenty days prior to did not take actu hearing than failed to twenty in comply felony [20] although days cases and prior to the omnibus appointment hearing. viction will not be disturbed because of 52 language is war statutory statutory interpretation lists 85-86-7-1 ILC. or meaning is unclear only when of a ranted denial and a continuance grounds City v. Livingston Consol. statutory upon based ambiguous. that is

motion N.E.2d (1979) Ind.App., 398 Indianapolis, for an abuse only reversed be will unam clear de contains showing that a statute 1302. When upon a and discretion con only rule of Spivey language, v. biguous prejudiced. fendant 61; apply is Maier necessary to (1982) N.E.2d is 436 which it struction N.E.2d Ind., shall be (1982) phrases 437 words and rule that motion ordinary and and usual prejudice plain their or to show has failed taken (1976) Ind.App. Bress, 168 sense. denied. properly court's function 229. This N.E.2d the indictments argues Next, Daugherty is to examining a statute goal when and dismissed have been should As the General implement and ascertain charge supporting offense underlying supro; Livingston, sembly's intent. misconduct, not fall battery, does of official the wis question do not Bress, supra. We pro- conduct parameters within or substitute enactments legislative dom 85-44-1-2, the stat- by IND.CODE scribed viewpoint. legislature's This stat- opinion for misconduct. our defining official ute Ind., (1981) Corp., Piper Dague v. part: relevant ute reads Aircraft legisla 207. To determine N.E.2d servant public -A misconduct. Official act as intent, we examine ture's per- intentionally Knowingly or (1) who: have been changes which and whole by law is forbidden that he act forms an supra. Livingston, it. made to perform. to only re- language this Daugherty contends language in section find no We specifi- public servant that a fers to acts offenses the forbidden 2(1) restricts and to commit cally forbidden are only public officials acts which those are forbidden persons all a crime Reading entire to commit. forbidden public an act which commit, is not ar Administration Against Public Offenses commit, forbidden expressly are officials seq., section: et ticle, 85-44-1-1 prohibi- as the such to conduct in contrast specific more supplement 2(1) appears inter- having an public officials against tion bribery in section as such prohibitions contracts. public est Al in section of interest conflict by a issue raised this recently been has statute though the indict argued to dismiss motion see not alter amended, legislature did 85-44-1-2, In his allege an offense. Com 2(1), see, IND.CODE ment did not tion errors, on this he relied Ann.Ind.Code, to correct Small, motion West's B.J. mentary, issues: potential additional two argument and raised are aware We p. 75. unconstitutionally vague Eighth Amend that the statute in relation problems to double subjected Daugherty is theft are such as offenses ment when *7 charge misconduct jeopardy by the official felonies, misconduct while charged as constitu charge. These battery and the p. 77. at Id. a misdemeanor. charge is because waived challenges have been tional might possi public official Additionally, a in a motion they not unrelated charged with violation bly be v. arraignment. Salrin prior to dismiss statutory lan to the broad position 1351; (1981) 419 N.E.2d State, Ind.App., Nevertheless, arewe at Id. guage. (N.D.Ind.1983) 560 Tyson, Marchand v. in the case situations similar faced with F.Supp. on speculate is no need to there and at bar statute. on restrictions possible Turning to origi clearly acting in his official Daugherty was prisoner battery upon a argument that nal battery was when as sheriff capacity miscon the official under not an offense is Therefore, in we conclude committed. familiar statute, in mind some bear duct we an offense. state did dictment Judicial statutory construction. rules jury's questioned We also do not find the fail their cells and about the ob- battery ure a verdict picture to return on the scene that he had drawn. He ex- plained first, Sandlin was taken charge guilty that he inconsistent with its verdict slapping heard charge. Daugherty sounds and that Sandlin had on the misdemeanor on shaped handprints argues that welts his face like if there was no conviction for battery, then there could be no conviction when he was returned. Then Webb was upon for official misconduct based commis questioned minutes, for about ten returned battery. superfi- sion This is to his cell questioned while Sexton was argument partially cally persuasive upon and is based questioned then again. Webb was that jury's the trial court's remark fail Evidence of other criminal ac equivalent is ure to return a verdict to a inadmissible, tivity generally if it is guilty disagree. We verdict. closely charged connected to the offense in One element official misconduct place terms of time factually and is charge proof battery that was commit interrelated, it can be Beasley admissible. ted; proving battery encompassed the (1983) Ind., 452 N.E.2d 982. In However, battery. elements of usual give complete order for explana Webb charge also misconduct included additional event, necessary tion of it was for him to elements, proof Daugherty pub was a mention the other two inmates. The trial illegal. lic servant and that the act was As court did not abuse its discretion because battery charged, was a lesser offense against the batteries Sandlin and Sexton charge, than the official misconduct a class charged were interwoven with the offense. B misdemeanor and a A class misdemeanor Last, Daugherty argues improp- he was respectively, punishable by and was lesser erly sentenced the trial court because did Thus, charge battery sentences. authority not have the him to have serve analogous to a lesser included offense. County jail his sentence the Hendricks Ind.App., State, (1979) Roddy v. 94 N.E.2d 3 improperly and because the trial court "dis- 1098, IND.CODE 35-41-1-16. The official holding public enfranchised" him from of- misconduct verdict is not or inconsistent years. fice for ten impossible in relation to the lack of a ver battery charge. finding By dict trial The State concedes the court could misconduct, guilty of official not order the sentence served in Hendricks he determined had committed bat County. tery. regard against In to the hold bar Next, the trial court asserts office, ing public spe makes a inmate, Webb, by allowing erred an to tes- argument. He claims IND. cious tify alleged about the oth- batteries on two repealed effective CODE 85-50-5-1 was inmates, Sexton, er Sandlin and in addition prior to his September, one month him committed on the subse conviction, and formed the being basis for the conviction statute, 85-50-5-1.1 can quent appealed. Daugherty argues the evidence effect, there given retroactive not be prejudicial was irrelevant and because the in effect. IC. 85-50-5-1 did no statute charges related to Sandlin and Sexton had prohibition against provide year for the ten already been separate resolved trial. holding public office and because it was testimony The trial court allowed the on occurred, clearly it when the crime effect gestae "totality the basis of res applicable sentencing Parsley statute. circumstances". 273 Ind. 401 N.E.2d *8 862, 1360, (cert. den., 449 101 sequence testified in U.S. S.Ct. Webb about 79).2 L.Ed.2d 66 which the three inmates from were taken See, (1979) exception 270 Ind. 384 to this v. An rule can occur when Watford legislature specifically We note that LC. 35-50-5-1.1 is in states it intends to reduce N.E.2d 1030. existing parts punishment its relevant a recodification of an that was too severe for the offense. 54 App.2d (1967) Cal. Genser, v. People trial court's of the exception theWith (conduct consti which 351, Cal.Rptr. 380 in served be sentence

order or justice af- against public is judgment County jail, the an offense tutes Hendricks both includes of law administration per- judgment of the portion The firmed. officer by an will and nonfeasance the sentence malfeasance where place taining of his reversed. the administration is with served in connection be duties). public part. in reversed part and in Affirmed no alleged bears misconduct Where P.J., NEAL, concurs. duties, offi there is no to official relation example, a conviction For misconduct. opin- cial separate J., with RATLIFF, concurs upon eriminal rest cannot misconduct for ion. perform unrelated is which behavior concurring. RATLIFF, Judge, v. duties. official ance of Kauffman opin- majority on the concur Although I 273, 437 N.J.Super. Glassboro, (1981) 181 comment additional ion, some I believe unre police officer by a (burglary A.2d issue of whether regarding appropriate hand duties). the other On to official lated in upon prisoners battery committed or re checks on endorsements forgeries of comes county sheriff by the county jail fines of traffic payment in ceived un- misconduct of official the ambit within receiving the by clerk done forgeries were 35-44-1-2(1). section Code Indiana der sufficiently related held to be checks in closeness is the issue of this The heart misconduct. constitute duties to official of the office of the duties relation 590,367 Schultz, 71 N.J. State misconduct. official to be claimed actions police Likewise, by the sale A.2d language of stated has been It ato information police confidential chief enough in 35-44-1-2(1) § is broad held crime was organized Ind.Code key figure any misconduct official render scope to misconduct. of official proof sufficient happens person who by a crime committed 14, 301 S.E.2d Hess, (1983) 279 S.C. official, legisla- that the public a to be miscon- official make intent was ture's county case, this In com- could be crimes which only those duct keeping duty of charged with sheriff? West's official. public only by mitted The evidence county jail. in the prisoners by § BJ. Commentary 85-44-1-2 ALC. in the prisoners mistreatment showed are, my opinion, analyses Both Small. pris to such beatings administered form of any premise, first Under incorrect. wrong prisoners Mistreatment oners. official public by committed offense clearly here beatings itself,1 matter how no misconduct official would be That battery. crime constituted The duties. any official from removed far in the course committed crime was such crimes such exclude would premise second be cannot duties official Daugherty's perjury, theft, bribery, forgery, as doubted. mis- official purview example, from the separate acquittal of are crimes acts conduct, such to a him not entitle although the charge does anyone, when committed miscon- of official conviction reversal ac- such consider clearly would public bribery held that where has been It duet. mis- to be official public official by a tions charges were based misconduct Rather, on focus must be conduct. of brib- acquittal allegations, factual same offi- by public was done the act validity impugn the necessarily ery did duties. See of his official course cial in the 11-11-5-4(1) prohib- section Code Therefore, Indiana 1. See not a case situation is penalty. im- Department of iting Indiana a sen- legislature has re-evaluated Correction where the disciplinary punishment as corporal posing penalty. post it an ex tence. Neither facto > action. *9 of the misconduct v. Pe conviction. State

terson, N.J.Super. 437 A.2d 446 A.2d 144. cert. denied N.J.

Here, the commission of the acts of mis

which formed the basis for the official charge clearly proven.

conduct Under circumstances, jury,

those reason, acquitted Daugherty

whatever battery, does not separate charges misconduct.

vitiate the conviction of official COMPANY,

ORKIN EXTERMINATING

INC., Defendant-Appellant, WALTERS, Plaintiff-Appellee.

Edna

No. 3-583A160. Indiana, Appeals

Court of

Third District.

July24,1984.