Joseph D. HARDIMAN and Jaketa L. Patterson, as Co-Administrators of the Estate of Britney R. Meux, Deceased, Appellants/Cross-Appellees (Plaintiffs below), v. Jason R. COZMANOFF, Appellee/Cross-Appellant (Defendant below).
No. 45S03-1309-CT-619.
Supreme Court of Indiana.
March 12, 2014.
Conclusion
We conclude that the State may appeal a juvenile court order that suppresses evidence, if doing so terminates the proceeding. We also construe the Juvenile Mental Health Statute‘s limited immunity as prohibiting both use and derivative use of a juvenile‘s statements to prove delinquency—a safe harbor that honors the Legislature‘s intent, while avoiding any question of the Statute‘s constitutionality that would otherwise be implicated. We therefore affirm the trial court.
DICKSON, C.J., and RUCKER, DAVID, and MASSA, JJ., concur.
Edward W. Hearn, Crown Point, IN, Attorney for Appellee.
MASSA, Justice.
“Inevitably, in civil cases where related criminal charges are involved, tension will arise between plaintiffs’ rights to a just and timely adjudication and defendants’ rights to refuse to answer under the Fifth Amendment upon a reasonable fear of prosecution.” Nat‘l Acceptance Co. of Am. v. Bathalter, 705 F.2d 924, 932 (7th Cir. 1983)
Facts and Procedural History
On March 6, 2012, correctional officer Britney Meux was jogging with three coworkers when she was hit by a car. The driver fled the scene, and Meux later died from her injuries. Three days later, the State charged the alleged driver, Jason R. Cozmanoff, with thirteen crimes, including one count of reckless homicide as a Class C felony and three counts of criminal recklessness resulting in serious injury, all as Class D felonies.
A few weeks later, Meux‘s Estate sued Cozmanoff for wrongful death, alleging he was “negligent, reckless, and guilty of gross negligence and/or willful and wanton misconduct.” Appellant‘s App. at 12. The Estate began the discovery process on April 27 by serving Cozmanoff with interrogatories and requests for production and by noticing his deposition.
This put Cozmanoff in a difficult position; if he were to invoke the Fifth Amendment and refuse to comply with the Estate‘s discovery requests, the civil jury could infer he is liable for causing Meux‘s death. Gash v. Kohm, 476 N.E.2d 910, 913 (Ind.Ct.App.1985) (“Although the refusal to testify in a civil case cannot be used against the one asserting the privilege in a subsequent criminal proceeding, the privilege against self-incrimination does not prohibit the trier of fact in a civil case from drawing adverse inferences from a witness‘[s] refusal to testify.” (internal citations omitted)). On the other hand, if Cozmanoff were to provide discovery responses and permit his deposition to be taken, the State could use his testimony and responses against him in his criminal trial.
Cozmanoff, seeking a middle ground between the rock and the hard place, moved to stay the entire civil case pending the resolution of his criminal prosecution, citing his Fifth Amendment privilege. The Estate opposed his motion, arguing (1) Cozmanoff‘s criminal case might not be finally resolved for years, (2) discovery was necessary to identify other potential tortfeasors who must be joined before the running of the two-year statute of limitation, and (3) the stay would offend
Both parties moved to certify the trial court‘s ruling for interlocutory appeal, and the trial court so certified it. In a published opinion, the Court of Appeals reversed the stay but affirmed the requirement that Cozmanoff file an answer. Hardiman v. Cozmanoff, 989 N.E.2d 799, 805 (Ind.Ct.App.2013).
We granted transfer, thereby vacating the opinion below. Hardiman v. Cozmanoff, 994 N.E.2d 732 (Ind.2013) (table); Ind. Appellate Rule 58(A).
Standard of Review
We trust the trial court to exercise sound discretion in myriad matters, including whether to grant or deny a party‘s motion for stay, and we review its ruling on that motion for abuse of that discretion. Fry v. Schroder, 986 N.E.2d 821, 822-23 (Ind.Ct.App.2013). We will affirm so long as we can find some evidence or reasoning to support the decision, and we will reverse only if we find the decision “is clearly erroneous, against the
The Trial Court Did Not Abuse Its Discretion by Ordering the Limited Stay.
Cozmanoff argues the entire civil case must be stayed to protect his right against self-incrimination, while the Estate contends its own interest in an expeditious end to its lawsuit is paramount. It is a bedrock principle of our criminal justice system that “no person ... shall be compelled in any criminal case to be a witness against himself.”
But “even where privileges as important as the Fifth Amendment privilege against self-incrimination are implicated, courts in civil proceedings have taken steps to ensure that the litigation proceeds in a manner consistent with the interests of justice.” State v. Int‘l Bus. Mach. Corp., 964 N.E.2d 206, 211-12 (Ind.2012). One such step is the exercise of the court‘s inherent power to stay its proceedings. Jones v. City of Indianapolis, 216 F.R.D. 440, 450 (S.D.Ind.2003). Although it is under no constitutional obligation to do so, the court has discretion to impose a stay when the “interests of justice” so require. Id. at 450-51. When making that determination, the court may consider:
(1) the interest of the plaintiff in proceeding expeditiously with the litigation or any particular aspect of it, and the potential prejudice to the plaintiff of a delay; (2) the burden which any particular aspect of the proceedings may impose on the defendant; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in pending civil and criminal litigation.2
Id. at 451; Fry, 986 N.E.2d at 823. The trial court is not limited to a consideration of only those factors, however, and courts in other jurisdictions have noted the degree of similarity between the issues in both cases is frequently the most important factor. See, e.g., Ex parte Weems, 711 So. 2d 1011 (Ala.1998) (affirming the trial court‘s denial of a stay because the civil and criminal cases turned on different issues, where ex-husband was charged with murdering his ex-wife‘s private investigator and sued his ex-wife for negligent hiring/supervision). Finally, courts frequently consider the status of the parallel criminal proceeding in determining whether a stay is warranted. See, e.g., Aspen Fin. Servs., Inc. v. Dist. Ct., 289 P.3d 201, 207 (Nev.2012) (noting pre-indictment stays are generally denied because the risk of self-incrimination is less while the potential for lengthy delay is great); Ex parte Ebbers, 871 So. 2d 776, 790 (Ala.2003) (listing, as one of eight3 factors for consideration, the “status of the criminal case, including whether the party moving for the stay has been indicted.“).
Here, the trial court heard argument and carefully considered the burden on each of the respective parties. As to the plaintiff‘s interest, at the hearing in July 2012, the Estate argued it needed to depose Cozmanoff to determine whether he intended to assert a nonparty defense and learn the identity of any potentially liable nonparties before the statute of limitation expired. But Cozmanoff‘s counsel pointed out his criminal trial was set for February 2013—more than one year prior to the March 2014 expiration of the statute of limitation—giving the Estate more than a year to conduct discovery and add any additional defendants. And Cozmanoff‘s counsel also stated the motion for stay was “concerned with protecting the Defendant himself” and did not “address the other investigation that the Plaintiff might want to do.” Appellee‘s App. at 31. Indeed, the trial court noted that the limited stay left the Estate free to pursue discovery against anyone except Cozmanoff. Finally, Indiana law requires Cozmanoff to plead any nonparty defense at least forty-five days before the expiration of the statute of limitation,
As to the burden on the defendant, Cozmanoff‘s counsel stated Cozmanoff would assert his Fifth Amendment privilege if deposed, and both parties acknowledged it could be used against him at trial. That adverse inference—and the resulting increased risk of losing the civil suit—is constitutionally permissible, but it is not, as the Estate argues, a minor matter.4
What is more, although the “normal rule in a criminal case is that no negative inference from the defendant‘s failure to testify is permitted,” Mitchell v. United States, 526 U.S. 314, 328 (1999), Cozmanoff correctly points out his assertion of his Fifth Amendment privilege in civil discovery could harm his defense in the criminal proceeding. For instance, if Cozmanoff were deposed and asserted his privilege in response to certain questions but not others, a savvy prosecutor could guess Cozmanoff‘s defense strategy. Accord Jones, 216 F.R.D. at 451 (noting a limited stay was necessary to prevent Plaintiff from “utilizing the liberal rules of civil discovery [to] obtain information that may substantially harm Defendants’ interests if criminal indictments are handed down.“); Sec. & Exch. Comm‘n v. Dresser Indus., Inc., 628 F.2d 1368, 1376 (D.C.Cir.1980) (noting that “where a party under indictment for a serious offense is required to defend a civil or administrative action involving the same matter,” failure to stay the noncriminal proceeding “might undermine the party‘s Fifth Amendment privilege against self-incrimination, expand rights of criminal discovery beyond the limits of Federal Rule of Criminal Procedure 16(b), expose the basis of the defense to the prosecution in advance of criminal trial, or otherwise prejudice the case.“).
Regarding the efficient use of judicial capital, we believe the civil court was appropriately protective of its own calendar. During the hearing, the trial judge addressed the possibility that a continuance in Cozmanoff‘s criminal case would keep the stay in place longer than anticipated: “we can‘t drag this on down here because of delays upstairs in the criminal division.” Appellee‘s App. at 32. Indeed, the court made clear that it had the authority to revisit the propriety of the stay at any time and, if necessary, to lift it. We note also that if Cozmanoff were found guilty, his conviction may have some preclusive effect on the issue of his civil liability, thus conserving judicial resources in that litigation. See Kimberlin v. DeLong, 637 N.E.2d 121, 125 (Ind.1994) (holding, in a civil action for wrongful death, the trial court was correct to grant summary judgment on the issue of the defendant‘s liability based on the application of offensive collateral estoppel, where the defendant had a full and fair opportunity to litigate the charges against him in his criminal trial and subsequent appeals).
Non-parties do have an interest in being promptly discovered and joined in the action, but that interest can still be served under this limited stay. Although the Estate may not be able to learn the identity of those nonparties by deposing Cozmanoff, it is still free to do so by conducting other discovery, or by investigating outside the context of formal discovery. Thus, the
Public interest is, we find, a neutral factor; this is not the sort of case in which the public has any special interest. See Walsh Sec., Inc. v. Cristo Prop. Mgmt., Ltd., 7 F. Supp. 2d 523, 529 (D.N.J.1998) (“Courts have denied stays where the civil case, brought by a government agency, was intended to protect the public by halting the distribution of mislabeled drugs ... or the dissemination of misleading information to the investing public” (citing United States v. Kordel, 397 U.S. 1, 11 (1970); Dresser Indus., 628 F.2d at 1377)). Here, as in Walsh, “there is no tangible harm to the public from these alleged [acts] that could not be remedied by the criminal investigation.” Id. at 529.
The fact that both cases concern identical issues weighs strongly in favor of a stay. The State charged Cozmanoff with thirteen crimes, including reckless homicide in relation to Meux‘s death. “A person who recklessly kills another human being commits reckless homicide.”
Finally, the Estate claims the stay offends our Indiana Constitution, which provides “All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.”
The Trial Court Did Not Abuse Its Discretion By Requiring Cozmanoff to Answer the Complaint.
Cozmanoff, on cross-appeal, argues the trial court erred by ordering him to answer the Estate‘s complaint. He
But the trial court‘s decision in this case—to stay discovery against Cozmanoff but still require him to file an answer—is not unprecedented. See Bridgeport Harbour Place I, LLC v. Ganim, 269 F. Supp. 2d 6, 11 (D.Conn.2002) (finding, where defendant argued he would “be put at risk not only by being subject to discovery ... but also by having to answer the complaint,” that a stay of discovery was adequate to protect his interest and a stay of the entire civil matter was unnecessary). “While sometimes it is appropriate to stay an entire civil proceeding, rather than just as to the party moving for the stay, there are also situations where the right against self-incrimination can be adequately protected while the civil case proceeds in some limited way.” Ebbers, 871 So. 2d at 788. The trial court concluded this case fell into the latter category, and we are not convinced that conclusion was an abuse of discretion.
Even if the answer requirement does not offend the federal constitution, Cozmanoff argues, we may nevertheless find it incompatible with our own state constitutional protection against self-incrimination. But we have stated before that
[e]ven if no national consensus has emerged on this point, interpretation of a provision of our state constitution consistent with precedent under its federal counterpart is appropriate where the tools for constitutional interpretation point in that direction. This is true of the core value of the right not to incriminate oneself.
Ajabu v. State, 693 N.E.2d 921, 932 (Ind.1998) (internal citations and footnote omitted).6 Thus, we decline Cozmanoff‘s invitation to revisit this conclusion, and we affirm the trial court‘s order that Cozmanoff answer the complaint.
After making its decision, the trial court acknowledged the stay was not a perfect solution: “I‘m not at all satisfied with this ruling. But I think it‘s the best I can do right now.” Appellee‘s App. at 34. In light of all the circumstances we have discussed above, we cannot disagree. Our ruling today does not mean the trial court was constitutionally required to impose the stay;7 simply that it did not abuse its discretion by so doing. Indeed, were we to hold otherwise, it would be hard to imagine a set of circumstances in which it would be an appropriate exercise of a trial court‘s discretion to order a stay for a defendant in Cozmanoff‘s position.
We therefore affirm the trial court and remand this case for further proceedings consistent with our opinion today.
DICKSON, C.J., RUCKER, DAVID, and RUSH, JJ., concur.
Notes
Thus, Gash stands only for the well-established rule that an increased risk of civil liability does not rise to the level of an impermissible burden on a constitutional right—unlike the loss of a job, for example. See Garrity v. State of N.J., 385 U.S. 493, 500 (1967) (“We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic“). We decline the Estate‘s invitation to adopt a broader reading of Gash that would prohibit our trial courts from considering the adverse inference prejudicial to the defendant when considering a motion to stay civil discovery.