Fuquay v. State

154 attorneys due effect on economic appeal-demonstrating bad faith of representation community reaction to harassment and pattern of abuse

peated difficulty of the litigants, the purpose-that rights legitimate civil serves no 15(G) issues, reputation merited. and abili experience, App.R. under sanctions involved, and the attorneys disagree. ty of the We spent in relation of time amount an extreme sanctions are Appellate court, held reversed the trial result. We imposed to not be "should measure multiplier, applied the improperly the court appellant's an merit unless lack of punish Thus, $25,000.00. reduced the fees to utterly de argument contentions had re although we Hospital, in Indiana Mfg. v. Turco Orr plausibility." of all void reasonable for a determination of manded 151, Ind., 153.6 (1987), Inc. Co. fees, cer attorney's parties appellate argument rejected the Although we appellate review of tainly had a to an fees should attorney's of the amount court's award. The same situation the trial per cent of limited to ten have been regard, appeal here. exists partic in this award/judgment fee previous appeal where the suffi like other pro much appellant's brief Harkrider's ular supporting attor argu evidence rational, cogent ciency of the concise vides App.R. therefore de questioned. of seeking ney's a clarification fees is ment Furthermore, has an ab 15(G). Harkrider attorney's appellate further cline to award reasonable a review of the solute fees. sup sufficiency of the evidence ness Affirmed. appellate attor trial court's porting the pro particular in this ney's award BUCHANAN, JJ., fee CONOVER appeals. any other irrespective of ceeding concurring. See, VII, e.g., Ind. Const. v. Hospital Licensing Council Indiana Bend, Inc. Pavilion South Women's of 1070, (on re (1985), Ind.App., 486 N.E.2d Licensing Hospital from Indiana mand Pavilion South v. Women's Council of FUQUAY, Appellant- Daniel R. (1981), Ind.App., 420 N.E.2d Bend, Inc. Defendant, 461). In rehearing remanded for Hospital, this court v. attorney's appellate fees a determination Indiana, Appellee-Plaintiff. STATE rights in a civil prevailing party for the 82A01-9107-CR-207. No. remand, court deter the trial action. On Indiana, ap reasonable fees would be Appeals of mined that Court $25,000 on the hours based proximately First District. attorneys and the reason expended 18, 1991. Dec. however, rates; hourly able doubling the multiplier, award used a $50,000, taking into consid approximately such as adverse other factors

eration gross Ind., Posey Harkrider's (1987), proved because of Mfg. Inc. 512 Turco Co. 6. Orr v. appellate review. three cases which abuse of the is one of N.E.2d Appeals had to review to Court of Posey court decided that the court noted attorney awarding appellate propriety disregard in Harkrider's bad faith found 15(G). App.R. also Lesher pursuant See appellate fees requirements of our and content form Ind., 512 Club Football v. Baltimore rules, dis of facts and misstatement omission Posey Lafayette Bank & Trust v. N.E.2d including the failure record closed in the Ind., aff'g N.E.2d Co. appeal, "written previous and a brief disclose a Ind.App., cert. den. Harkrider N.E.2d require maximum calculated to in a manner (1988), 485 U.S. Lafayette & Trust Co. Bank by [appellee] and expenditure of time Appellate fees L.Ed.2d 502. S.Ct. present here. 512 situation this Court"-a the cir under to be unwarranted were found Orr, ap but were in Lesker and cumstances Lamont, Evansville, appel- David W. for lant-defendant. Pearson,

Linley Atty. Gen., E. Julie Frazee, Gen., Deputy Atty. Zandstra India- napolis, appellee-plaintiff.

RATLIFF, Judge. Chief THE STATEMENT OF CASE Fuquay appeals Daniel R. his conviction dealing in cocaine within one thousand (1000) school, felony.1 feet of a a class A affirm.

ISSUES

1. Did the trial court err in concerning tendered instruction to determine the law? overruling 2. Did the trial err in Fuquay's motion to correct errors based upon alleged juror giving misconduct in examina- untruthful answers voir dire tion? prohibiting

8. Did the trial court err arresting officer cross-examination regarding prior drug transactions with the informant? confidential IND.CODE 35-48-4-1. inde- you. You have FACTS different pendently the law be Trooper Wilkerson July On This instrue- the Court." a confidential Police and Indiana State telling tantamount tion is car to a in Wilkerson's informant went in determin- it wanted to do whatever could sitting parked in a Fuquay was place where is not an instruction ing: the law. Such instructed the Jeep. Wilkerson proper. any cocaine. if he had Fuquay to ask his leave the informant officer observed (1924), 194 Ind. In v. State Hoffa Fuquay where car, to the vehicle proceed 653, 653, court our 142 N.E. Fuquay. something was, and obtain following instruction: upheld the car to Wilkerson's returned The informant judges and sole "You are the exclusive Pur bags of cocaine. (5) plastic five you proven facts of what have been infor suant to Wilkerson's your- for may also determine the law Fu cocaine to bags of returned the mant mean That statement does not selves. trooper's quay who was then right to set aside the you have negotiation, where, following some car your You deter- and make own law. law Trooper (5) bags to of cocaine sold the five as it is enacted mine the law Wilkerson. state and considered legislature of this in our discussion are stated Further facts higher courts of interpreted the issues. record, way you in have the Issue One your- the law for selves, your laws." not to make own but court contends instruction in his tendered erred in rejected An instruction tendered three which stated: number 549, 554, (1957), 236 Ind. v. Beavers provides "The Constitution 118, 120, stated: 141 N.E.2d shall criminal cases all judges of the the exclusive "You are as the law as well judge and credibility of the proven and the facts duty of the Court facts. It is the ac- being a criminal witnesses you should on the law and you instruct judges of you are also the exclusive give the Court's law, it is the but court However, the instructions attention. the case. to the law of you instruct binding necessarily on the Court are instructions, however, giv- are not These independent- You have you. controlling your purpose of en for the different from law to be ly determine the intended to aid but are judgment The in- Court. instruction from the understanding the law. You have you your guidance given are for structions altogether if disregard them give you should information and what the law and to determine you desire consideration and yourselves." case is of this you they are deem as to which spect entitled." held the Supreme Court of Indiana properly Beavers tendered Record at 469. it is errone- The court stated refused. our state consti- Although Art. 19 of say that ous, factually, to legally and juries in criminal cases upon confers of the law exclusive is the right is juries opinion "In determining In limitation. not without by their conscience bound should be jury to determine duty of the it is the oaths, told and not be substance their is, in fact and it correctly, as it capriciously a whim they may act arbitrarily reject the instructions Id., at 122. 141 N.E.2d prejudice." court. (1990), Ind.App., 552 State Willis denied, 512, 514, trans. N.E.2d fury that "the instructions have advised stating: binding upheld an instruction necessarily of the Court 989; criminal case the Con- McDaniel v. State this is a "Since 228; of Indiana makes of the State stitution judge of both the law and the Barnes v. State you the you Though this means facts. yourself, it does determine the law for question possible juror Where you have the not mean that raised, misconduct the trial court should make, ignore repeal, disregard, or hearing hold a to determine whether such as it exists. The instructions Barnes, misconduct did exist. at 330 source as to the law court are the best 747; N.E.2d at Berkman v. State applicable this case." However, Ind.App., 459 N.E.2d 44. a de heavily upon The decision in relied Willis seeking hearing fendant such a must do Arterburn in Bea opinion of Justice present merely conclusory more than alle vers. gations Rather, of misconduct. such de Thus, exercising it seems clear that specific, fendant first present must some right to determine the their constitutional juror substantial evidence of the claimed law, oaths, juries, to under their bound misconduct. Berkman at 46. correctly, it that an instrue- determine Here, Fuquay supported his motion tion would lend credence to the view to correct errors with an affidavit from his thing" free to "do its own that was attorney stating that another member of and determine the law in accordance with the local had informed him that bar Pat opinion personal its own as to the daughter ton's had been convicted of a given. should not In our erroneous and be drug sup offense. motion also was view, in the the tendered instruction here is ported by copy showing of a court record category rejected the one same Bea- Cynthia that one L. Patton had been con vers, impression and could leave the on the possession illegal drug. of an victed that it could decide law on the hearing court held a on the motion personal prejudice. basis whim Fuquay's to correct errors where counsel agree Fuquay right to We had a reveal, argued juror to Patton's failure jury properly upon instructed have juror questionnaire in his or in re either questioning, daugh his sponse to voir dire proper had he instruction on conviction, juror mis ter's constituted subject, it would have been reversible as to reversible error. conduct it. error to refuse Because the instruction counsel, juror According Fuquay's to had proper, he tendered was was truthfully, counsel Patton answered error to refuse it. challenge exercised a peremptory stated, For reasons issue However, affidavit, neither in his Patton. presents no error. reversible nature, hearsay disregarding its obvious Two Issue hearing on his motion to correct nor at the Next, Fuquay contends errors, Cyn- that the did establish denying to correct er-

erred his motion L. Patton so convicted was in fact thia alleged giv- rors based false answers Thus, daughter. there juror Patton's was during by juror dire en voir James Albert sup- the trial court to no evidence before Patton. Fuquay's juror claim of misconduct. port argument the state never juror It is for a to make misconduct relationship juror denied the between response questions false statements in Cynthia L. Patton misses the mark. It examination, and, generally dire voir obligation prove the rela- was such is held to constitute reversible error prove tionship, the state's to otherwise. challenge impairs because it juror Having establish that Pat- juror, peremptorily either or for cause. failed to (1988), Ind., juror ques- on his 527 N.E.2d ton was untruthful either Lopez v. State dire, 1119; or in his answers on voir McFarland tionnaire its dis- did not abuse The trial court son. error on not shown Fuquay has cross-exam- disallowing Fuquay's cretion issue. ination. Three Issue Fuquay contends Finally, Judgment affirmed. him to permit erred concern Trooper Wilkerson cross-examine STATON, J., concurs. officer purchases the drug

ing previous the confidential made from had J., separate ROBERTSON, dissents Fu- drug offenses. prior record her opinion. prevented thereby he was argues quay bolstering his contention dissenting. ROBERTSON, Judge, (5) had the five the one who formant car, trooper's majority has in the respectfully cocaine dissent. bags of it to or sold the cocaine never had that he concluded disagree. Wilkerson. jury's regarding the rejected appropriately law was never had First, he Fuquay testified bags of cocaine were state- that the erroneous it is an cocaine trial court because entered it. in the car when already disagree. respectfully ment of the testimony, Fuquay upon his own Based approved an expressly supreme court Our con- argued his contention could have well Fuquay's identical instruction almost got into bags cocaine of cerning how the Ind., (1986), N.E.2d 342. 488 Travis v. State Further, identity the of car. Wilkerson's brief, conceded State has In its the revealed informant was the is a correct Fuquay's tendered subpoenaed her and he could have Moreover, my re- the law. of statement Third, informant was the her as a witness. me to has led in this area of the law view to at- witness, proper and it is not instruc- conclude impeach a non-witness. tempt to of the law. statement is a correct Ind., (1989), Harvey v. State The case of Therefore, the trial court's believe 198, In that instructive. is its jury regarding the to instruct failure erroneously argued appellant the the law was investigating the cred- prohibited new trial. requiring a error the court informant when ibility of the line objection to his of state's the sustained 1, pro- 19 Constitution pointed supreme court Our questioning. vides: identity the informant was of out that the whatever, jury cases In all criminal sides, state did and that the by known both the law have the shall testimony of the rely on the facts. not- The court further making its case. ed: 320, 99 178 Ind. In v. State Schuster to deter- judge has discretion "The trial stated: 422, supreme court our N.E. cross-examination, and scope of mine the 1, of the Consti- This section § 19] [Art. of that discretion war- only a clear abuse most in the broadest declares (citation omitted) ... a reversal. rants in all terms that imperative its case on the based Because the State have the jury shall cases the of of positive identification [the victim] the facts. as well as determine the and not on robber appellant as the to instruct It is the al- testimony from the or information of case, and informant, the law find no abuse as to jury we leged sustaining the they court discretion them time at the same inform relevancy grounds." objection on State's judges are the facts. not to cases are N.E.2d at 542 jurors, but to conscience bind Here, Harvey, the state based inas judgment. enlighten their Trooper testimony Wilker- on the case

159 duty in respect oath and is an aid to (emphasis N.E. at 424 Ind. at 99 added). Steinbarger proper performance In v. State of their constitu- duty. tional Nevertheless supreme court final noted: analysis being so after informed provision jury power go cautioned the has the this constitutional Under way, the sole its own determine the law [Art. § 19] and the facts in the case. both the law when it renders a verdict. itself usurp infringe The courts 564, 565, at N.E.2d at 125 right. right may this fundamental added). I (Emphasis believe that by not modified or minimized tendered instruction constitutes correct tions or otherwise. statement of the law under and Bea Hoffa 82 N.E.2d at 519. vers. majority first relies on State concedes that ten Hoffa 142 N.E. 653. dered instruction is a correct statement of approved The instruction nearly the law as well it should as a Hoffa identi court, page cited approved by cal instruction was our su given to was not the preme Travis, court in 488 N.E.2d 342. jury regarding jury's right to deter The Travis court affirmed the trial court's mine the law. The court went on Hoffa rejection of the instruction because its sub hold: following stance was contained in the bar, plain- case at were given jury: ly told other instructions of their You are also finders law that law, and, although case, being guided by applies to this the court's instructions and decisions given by judge. You higher courts were entitled to should, however, find the law and respect, great they binding were not are, they the you facts as not as they jury, the determined the law if like them to be. under otherwise. instruction consid- 488 N.E.2d at only was advise them eration intended present In the the State asserts they how to determine the were properly that refused Fu- in informed other instructions that this quay's not it tendered because and other instructions were adviso- erroneous, but because substance ry. following was contained in the instruction (Emphasis 142 N.E. 194 Ind. at at 653 given jury: to the added). majority next relies on Bea The unsworn statements or comments of 549, 141 vers v. State counsel on either side of the case should concluded: N.E.2d 118. Beavers court as in case. not be considered evidence the Although To summarize: the constitu- your duty facts It is gives jury the the to determine testimony and evidence admit- cases, the in not law criminal it does given pres- your ted court and in the follow, true, nor is it that is an 'exelu- it ence, the from these and determine law right. It is a to be sive' coordinate your and find verdict accord- instructions or court. exercised with that disregard ingly. You should and all true, follow, does it nor is it that Neither you may from information that derive determining totally irresponsible it is any other source. duty no in the exercise and has disagree I the State. I believe the with of that to seek the law from the interpretation in- only reasonable of this available, best and most reliable source charges may jury is that it with namely jury the court. A not cast solely to determine law lightly, aside such advice or instructions instructions and render its the trial court's and should be so instructed view knowledge. general their lack of such accordingly. I do not believe that verdict A jury con- instruction informs the of its responsibility, consciousness of their this Cir.1967), F.2d 742. (4th ley v. Warden deter- fundamental stitutional 549, 141 Beavers, More- case. The court in this criminal law mine the 19 of our of the all criticized carefully reviewed over, I have § noting: jury and Constitution to the instructions court's trial informs today no instruction the sole Maryland have concluded Const., Art. right under jury of its this archaic survivors jury determine provision jury that jury has jury to tled." Id. tamount law." whatever the law. to be prejudice. spect as es the ance and ing can guage is necessarily mine the law ly informs "the instructions That respectfully instructions accurately interpreted jury (p. exercised with Fuguay's act to which accurately information 156.) it wanted the court's Nor I believe binding that it I do capriciously telling right to to be different do it "should disagree given are you deem is the exclusive interpreted as instruct- in this upon it and that to in believe believe consideration independently its coordinate attention" instruction jury upon a whim instruction give you should determining the criminal case. they are enti- that this informs it could inviting the the Court's your language court, to judge of correct- "is tan- deter advis- right, guid- give lan- do provision, tions blight upon in 'the outmoded Maryland; plagues Law.' mine cized the F.2d 'should omitted.) My Indiana Constitution tion of Maryland's est We have 'Indiana provision affords 742. These the law omitted.) present flesh of reveals ^[*] 372 F.2d at that state provision giving an anomalous may claim the dubious the administration 2) a sworn ^[*] as the 'Constitutional jurists day review that this Maryland's atrocious;' and declared permitted to the outmoded jurists cases. in its state's application.' jury the yet ^[*] have complete with today. abhorant Maryland's ^[*] body of Criminal situation' to be similarly criti right to deter at 121. 1) remain as relic its wid- 3) constitution uphold the Wyley, 372 ^[*] (Citations described justice provision 'archaic, distinc- consti thorn (Cita- ^[*] archaic, constitu- outmoded, and atrocious objection is not Regardless of may contain. relies it tional statement is a correct al. Such Const., Art. repugnant § how Beavers, Travis, attenuated, be, uphold must we 653. Similar Hoffa, 142 N.E. juries to Indiana right of modified judicially can ly, that criminal cases. law in jury-af permitting the interpreted as consideration ter that criminal agree thing" do its own instructions-'"to court's entitled, tendering an defendants is also law for itself and determine to have appropriate ulti simply the quite Such is objectional. regarding instructed danger the fundamental by mate effect guaranteed cases law in criminal deter right of I have Because Art. Ind. Const. § in Indiana mine the law concluded a cor- right constitutes regarding Constitution, 19 has Article § has been law which rect statement criti great deal of subject of been supreme by approved expressly substantially has court cism. Our court, also conclude jurys I must attenuated error has committed Const., cases under its constitu- jury of failing inform Wy modification. by judicial judge the fundamental tional Therefore, in this case. trial. for a new and remand

verse Indiana, DEPARTMENT STATE RESOURCES, NATURAL OF Appellant-Defendant, Board, County Drainage Lake Defendant, Non-Appealing Keppel Van KEPPEL Gerrit VAN d/b/a Appellee-Plaintiff. Supply Company, No. 06A01-9106-CV-180. Indiana, Appeals of Court of First District. Dec.

Case Details

Case Name: Fuquay v. State

Court Name: Indiana Court of Appeals

Date Published: Dec 18, 1991

Citation: 583 N.E.2d 154

Docket Number: 82A01-9107-CR-207

Court Abbreviation: Ind. Ct. App.