Shanabarger v. State

is still "partially serving his employer's to students for school purposes, there is no interests," lability will attach. Id. (quot- indication that LSC authorized him to send ing Henson, Konkle v. 672 N.E.2d 457 emails to personal students for reasons. (Ind.Ct.App.1996)). However, simply be- Thus, Cole, we conclude that on his own cause an act could not have occurred with- initiative and unrelated to any school func- out employer's access facilities does tion, instigated an intimate relationship not bring it within scope of employ- with addition, Doe. In we conclude that his City ment. Fort Wayne, 706 N.E.2d at actions were not incident any service 607. provided LSC, by but rather were fueled entirely by self-interest a romantic rela-

Additionally, while our courts tionship with Doe. See id. Consequently, have established that an employer can we agree with the trial court's conclusion even vicariously be liable for the criminal that LSC is not vicariously liable for the acts of an employee, such as the sexual acts of employee, Cole, its under this set of acts by committed Cole in the present facts. case, the determination depends upon

whether the employee's actions were at CONCLUSION least for a time authorized employ Based on er. See id. foregoing, If it we is determined that conclude none the trial court employee's inappropriately acts were authorized, granted summary judgment there respondeat is no superior favor of lability. LSC as to negligence claim; Doe's however, Furthermore, we con- acts for which the em ployer clude is responsible the trial court properly are those conclud- done "on ed employee's that LSC was initiative, own not liable with under [] no intention doctrine of perform respondeat superior it part of or Cole's incident misconduct. to the service for which he is employed." Id. (quoting Stropes v. Heri in part, Reversed affirmed in part, and tage Center, House Childrens 547 N.E.2d remanded. (Ind.1989), denied). reh'g If some of VAIDIK, J., the employee's actions DARDEN, J., were au concur. thorized, question of whether the unau

thorized acts were within the scope of

employment is one for jury. City

Fort Wayne, 706 N.E.2d at 607. Here, the record shows that al Ronald SHANABARGER, though Cole did not use his LSC-provided Appellant-Petitioner, email account to send Doe, emails to he did send emails to Doe through his private STATE Indiana, Appellee email account during school hours. Addi Respondent. tionally, he sent emails to Doe from home No. via 41A05-0508-PC-452. his LSC-provided laptop. However, simply because Cole used LSC's equip Court of Appeals of Indiana. ment and facilities to initiate a relationship 3,May 2006. Doe, with his acts did not necessarily fall within Transfer Denied scope May of employment. See id.

Moreover, while the record also reveals

that LSC authorized Cole to send emails post-convie- judgment affirm

we court. tion

FACTS facts, reported follows: are as appeal, direct Police the Franklin On June Amy to a call at responded Department af- residence Ronald seven- their Amy discovered ter in his son, had died Tyler, month-old trans- eventually body was Tyler's crib. University Medical Indiana to the ferred performed autopsy an where Center Dr. day. pathologist, following Clark, that initially determined Michael with Sud- consistent death was Tyler's (SIDS). Syndrome Infant Death den funeral, however, Tyler's Shortly after Defender Public Carpenter, K. Susan he Amy that to Shanabarger admitted Karozos, Deputy Public Indiana, Amy E. his by wrapping child had killed Defender, Appellant. for Indianapolis, suffocating wrap and in plastic head to the then went Shanabarger Carter, Attorney General him. Steve and told Kobe, County Sheriff's Office Deputy Attor- Indiana, A. Johnson Andrew Ty- he had killed that Appellee. detectives General, for several Indianapolis, ney that he Shanabarger explained ler. revenge an act of the child killed OPINION from refusing to return Amy for against Judge. BAKER, funeral. father's attend his a to vacation 1999, Shanabarger was for- June On L. Shana- Ronald Appellant-petitioner Shana- the murder. charged with mally peti- his denial of from the appeals barger taped statements gave two then barger relief, challenging tion killed he had admitting that police Spe- trial counsel. of his the effectiveness Tyler. that his Shanabarger contends cifically, Reverend met with Shanabarger also because were ineffective attorneys trial chaplain. police Maynard, Mark (1) respond to adequately failed to they: conversations, Reverend (2) their misconduct; im- Prior to juror instance of Shanabarger that Maynard informed sister properly permitted him would made to any statements (8) jail; in him to visit and brother-in-law that further stated and be confidential of a modification object to the failed conversation their recount he would trial court that instruction tendered a Notwithstanding such confessions; the detectives. regarding gave to Re- admitted Shanabarger warning, (4) a confession object to failed to and Tyler killed had that he Maynard verend chaplain. Conelud- police made to the he wrap plastic or cellophane wrapping to estab- has failed ing him. suffocating and head counsel, around his of his lish the ineffectiveness Shanabarger v. While trial, was awaiting 798 N.E.2d counsel, court-appointed 213-14 (Ind.Ct.App.2003), Richard trans. denied. Tandy, arranged a visit between Shana- On direct appeal, Shanabarger raised barger, his sister Benita and his broth- (1) the following issues: his confessions er-in-law, (the Larry Savage Savages). should have been suppressed because the Tandy told Shanabarger that anything State had failed to establish the corpus he told the Savages would not be consid- (2) offense; delicti of the the trial court ered privileged communication. None- erred permitting his originally-appoint- theless, Shanabarger revealed to them ed testify counsel to regarding conversa- Tyler. that he killed He also acknowl- tions that occurred between Shanabarger edged Amy was not involved and (8) Savages; the trial court erred further stated that he Tyler waited until in allowing the testimony of Randy May- was old enough to roll over so it would nard in violation of the clergyman privi- appear (4) as a SIDS death. lege; the trial court erred refusing grant his motion for a mistrial because Shanabarger wrote a number of let- exculpatory evidence had not been dis- Amy ters to prison from admitting that (5) closed to him in timely manner; he killed Tyler, again and he told his the trial court erred in interviewing juror a relatives that he had committed the presence outside the of defense counsel. crime as well as how he did it. In light We affirmed Shanabarger's conviction in of these statements, confessions and the all respects. Id. at 219-20. police seized pieces three of cellophane 26, 2004, On February Shanabarger filed wrap that were in found Shanabarger's proa petition se post-conviction for relief, yard. Those samples compared were and the State Public Defender filed an with various creases and anomalies that petition amended on March In were noted on photographs Tyler. of addition to the claims of error set forth State, however, did not disclose above, Shanabarger alleged in pro the se those test results to Shanabarger in ac- petition that he was entitled to relief be- cordance with the trial court's discovery (1) cause trial counsel: did not adequately order. To contrary, the the existence of (2) prepare trial; for object failed to the comparison was provided not introduction of Shanabarger's letters that Shanabarger until after the State had he had written to his wife in violation of presented its case-in-chief. After DNA corpus (8) the rule; delicti and failed to tests had performed been on the materi- preserve insanity and mental retardation als, a pathologist concluded that the defenses. cause Tyler's death was non-specific asphyxia and that the manner of death post-conviction At the hearing that com- trial, undetermined. At the Tandy menced on May 2005, an ju- alternate testified as to some of the statements ror-John Dalton-testified that he was that Shanabarger had made to his sister involved in an exchange with the trial and visit, brother-in-law during jail judge regarding alleged by claim Shan- including the possibility that he would abarger that he had plead tried to guilty. plead guilty to the murder so the State Dalton testified that he had heard another forgo would seeking the death penalty. juror-Ron Bible-state, on the day first At the conclusion of a nine-day jury trial, trial that Shanabarger had attempted May 8, 2002, on Shanabarger was plead found to guilty. Dalton responded, guilty charged. as "That's not true." p. PCR Tr. 20. Dalton

707 pre- aby relief tablishing grounds ju- the other any if remember did Ind. Post- evidence. of the ponderance Addi- the comments. actually heard rors State, 1(5); McCarty v. Rule Conviction Auger, and Jennifer Hoffman Jay tionally, (Ind.Ct.App.2004), 962 N.E.2d testi- attorneys, both trial from the appealing denied. When trams. during present were they fied relief, peti- post-conviction denial Dal- judge the trial exchange between ap- of one position in the tioner stands judge remembered Auger ton. Id. judgment. negative a from pealing being Dalton for admonishing strongly judg- review, not reverse will we On judge that the recalled late, and Hoffman un- a whole the evidence unless ment jurors. male one had admonished to a unmistakably leads erringly re- nor Hoffman However, Auger neither that reached opposite conclusion juror a anything about hearing membered Post-conviction court. post-conviction tried to had indicating with petitioners do not afford procedures guilty. plead Richardson "super appeal." a hearing, post-convie- Following the (Ind.Ct.App.2008), request denied tion court Rather, they create denied. trans. relief, the denying order In the for relief. collateral subsequent remedy for narrow determined court post-conviction that must be to convictions challenges judica- on res barred were following issues in the enumerated upon grounds based been already had they because grounds ta Id.; P- also see rules. appeal: Shanabarger's direct decided 1(1). C.R. the attor- (1) protect failed counsel light of the conver- privilege ney-client freestanding claims general, In had with post-convic sations in a not available error are of (2) of was ineffective of the doctrines counsel proceeding because Savages; tion of admission object to the failing to v. Timberlake judicata. and res waiver had written (Ind.2001). that he letters If 591, State, 597 753 N.E.2d (8) but not unreason- wife; available trial counsel known and an issue from Shanabar- by a confession ably invited it is waived appeal, on direct raised parties. State, third of presence in the 778 ger v. Bunch default. procedural (Ind.2002). Similarly, if 1285, 1289 N.E.2d on to court went post-conviction The but decided appeal, raised on issue was an mer- on their remaining issues address Timberlake, judicata. adversely, it is res failed to its, concluding that of ineffec a claim And N.E.2d at 597. 753 "was and that he proof of his burden meet pre properly is of counsel tive assistance by com- adequately represented than more if it proceeding post-conviction in a sented inordinately spent who counsel petent Id. appeal. direct raised on was not of this defense time large amount p. 81. Shanabar- App. Appellant's case." Counsel Assistance B. Ineffective appeals. now ger claims evaluating

When counsel, AND DECISION ap we DISCUSSON assistance of ineffective in Strick articulated test two-part ply Review I. Standards of 668, 104 466 U.S. Washington, land v. Proceedings A. Post-Conviction (1984). Pin 2052, 674 L.Ed.2d 80 S.Ct. (Ind. 1079, State, 1098 N.E.2d post-convic in a 799 kins v. petitioner must First, the defendant Ct.App.2003). of es- the burden bears proceeding tion 708

show that performance counsel's was defi- tion would have been sustained. Smith Strickland, State, cient. 687, 466 U.S. at 104 (Ind.2002). 765 N.E.2d S.Ct. 2052. requires This a showing that representation counsel's fell below an ob- IIL. Shanabarger's Claims jective reasonableness, standard of id. at Before proceeding to the merits of 688, 104 S.Ct. 2052 and that the errors Shanabarger's claims, again we note that they were so serious resulted in a post-conviction court determined that a denial right to counsel guaranteed to number of Shanabarger's alleged claims of the defendant the Sixth and Fourteenth error were barred on grounds of res Amendments. See id. at 104 S.Ct. judicata. However, our review of the ree- Second, the defendant must show ord reveals that the precise issues raised performance the deficient resulted in here were presented on appeal. direct prejudice. Id. To establish prejudice, a Moreover, inasmuch as Shanabarger has defendant must show that there is a rea- arguments framed his in terms of ineffec that, probability sonable but for counsel's tive assistance of counsel claims and has unprofessional errors, the result of the not presented them as freestanding claims

proceeding would have been different. error, we proceed dispose of those at 104 S.Ct. 2052. A prob- reasonable issues on the Timberlake, merits. See ability probability is a sufficient to under- N.E.2d at 597 (holding that a claim of mine confidence in the outcome. Id. The ineffective assistance of counsel properly is two prongs announced in Strickland are presented in proceeding independent inquiries, and a may claim be if it was not presented on appeal). direct disposed of on prong. either Williams v. (Ind.1999). 706 N.E.2d A. Trial Counsel's Failure to Respond We also note that counsel is afforded to Juror Misconduct wide discretion determining strategy tactics, and therefore courts will ac- Shanabarger contends that he re cord these decisions deference. Timber- ceived the ineffective assistance of trial lake, 753 at 608. A strong pre- counsel because no motion for mistrial was sumption arises that counsel rendered Dalton, made after juror, the alternate adequate assistance and made all signifi- made statements to the effect that Shana- cant in decisions the exercise of reason- barger had plead desired to guilty at an professional able judgment. Id. Isolated stage earlier of the proceedings. In es errors, omissions or poor strategy, or sence, Shanabarger argues that the evi bad tactics do not necessarily render rep- presented dence at post-conviction the resentation State, ineffective. Stevens v. hearing proved that trial counsel's failure (Ind.2002). 789, 770 N.BE.2d 747 We will request to a mistrial or ask that Dalton be lightly not speculate as to what may or removed jury from the panel preju was so may not have been advantageous trial dicial that it placed him in position a strategy as counsel should given be def- grave peril. erence choosing that, a trial strategy

at the time and under cireumstances, the general While the rule is that a seems best. State, Whitener v. jury's may 696 verdict not impeached be by (Ind.1998). the testimony N.E.2d jurors of the 42 who returned When a claim of ineffective it, assistance of counsel an exception is to this rule cccurs when based on the object, failure to the defen- there is evidence demonstrating that the dant also must show that a proper objec- jury exposed was to improper, extrinsic

709 visits with brother-in-law's and sister exists possibility a substantial and material jail. specifically, More at the Shanabarger by that prejudiced was defendant that the trial original that 606(b)(2); Shanabarger claims Rule Evidence Ind. material. Tandy, was ineffective (Ind. counsel, Richard 1158, 1164 State, N.E.2d v. Allen the erroneous acting under was he because token, counsel's trial 2001). the same By Shanabarger any statements that belief at performance to his respect conduct with not be admissi- would his relatives made to that are facts on assessed based trial is protected they were because at trial hind- ble through not time and at the known Thus, Shan- privilege. attorney-client the Brown sight. to entitled that he is abarger contends (Ind.1998). the confes- because relief post-conviction case, of Shanabar- both In this regard- Savages made to the that he sion while that attorneys testified trial ger's at trial. admitted was Tyler's death ing admonishing court the trial they heard con to Contrary any heard of them Dalton, one neither the Sav p.Tr. tentions, shows that PCR record plea. the guilty regarding thing Tandy had con that testified ages that both Auger testified Specifically, 104. beginning the Shanabarger at to veyed only con exchange the that believed she told Shanabarger anything that their visit at the trial. Dalton's tardiness cerned communi privileged not Savages the testi Dalton's during only 104. It was at any "repeat they could cation, that that hearing mony at the 1347, 1406. More say." p.Tr. thing you aware attorneys became that be assumed colloquy. over, if it could of the even of the substance nature the Shanabarger to permitting act of Tandy's only "mistake"-if Hence, counsel's trial them talk with Savages and the meet with closely more to listen failure any-was Tyler's death cireumstances about Dalton and exchange between to performance, to deficient amounted view, inaction such In our judge. ad Shanabarger also indicates record to deficient amount does this instance other occasions Savages on mitted to trial counsel. part of on the performance had killed jail that he visits at than the he re Moreover, testified Dalton above, noted As p.Tr. Tyler. about comment juror's to another sponded killed that he also admitted Shanabarger by stat guilty trying plead made to that he in the statements Tyler a state such did not believe that he ing in the clergyman, jail result, police, As a true. ment was former wife. to his had written he letters any of the whether to show has failed Therefore, any error 752, 886-39. Id. at had tried that he actually believed jurors in ar committed have Tandy might stage an earlier at guilty plead Shanabarger meeting between ranging has Therefore, Shanabarger proceedings. prejudice Shana- did not Savages prejudiced he was that prove to failed admissions the other in view of barger comments, inef and his jurors' any of the of inef claim Hence, Shanabarger's guilt. claim trial counsel assistance fective respect with of counsel assistance fective to this issue. regard fails with fails. to this issue Shamnabarger's B. Visits Jail from Instruction Object to to Failure C. Brother-in-Law Sister argues that also Shanabarger trial that his argues Shanabarger also failing to ineffective was counsel to his regard with ineffective counsel was 710

properly object to a jury modified instruc- free to believe or disbelieve a confession. tion regarding the effect of a defendant's Appellant's App. p. Here, 79-80. it is Specifically, confession. Shanabarger apparent jury found Shanabar- claims that his trial objection counsel's ger's credible, confessions to be inasmuch that the modified instruction given as as it ultimately found Shanabarger guilty instruction," a "mandatory was incorrect. view, murder. In our the trial court's Appellant's Thus, p.Br. decision to change wording of this claims that his trial counsel should have instruction did not affect this determina- objected for the reason that the modified tion. Put way, another Shanabarger has prevented instruction him from presenting failed to show that he would prevailed have a defense. had his trial objected counsel to the modi- fied In instruction considering grounds on Shanabarger's arguments other than as to those that whether his trial were actually counsel should have raised. And he lodged objection has not other than the demonstrated that one that this instruction precluded him trial, from presenting a defense was made at it has been held that instructing jury at trial. result, lies within As a sole claim of ineffective court, assistance of counsel on this discretion of the trial and consider- ing the instructions as a issue whole and in fails. other, reference to each we will not re- D. Shanabarger's

verse for an abuse of discretion unless the Confession to Jail Chaplain instructions as a whole jury mislead the as law the case. Carter v. 766 Finally, Shanabarger contends that his (Ind.2002). trial counsel was ineffective for failing to Following presentation object jail of evidence, chaplain Randy Maynard's tendered the testimony. in- following Specifically, Shanabarger struction: maintains that his attorney should have objected because the

Confessions, confession Shan- even those found to be vol- abarger untary, conveyed are not guilt. And, conclusive of Maynard Reverend as any with amounted to a part other violation of State's the rule an case, a confession may be shown to be nounced in Arizona, Miranda 384 U.S. insufficiently 86 S.Ct. (1966). corroborated or otherwise L.Ed.2d 694 unworthy of belief. Miranda, In the United Supreme States Appellant's added). App. p. (emphasis Court held that a defendant's statements This instruction was then modified and stemming from custodial interrogation given to jury as follows: may not be against used him at trial unless Confessions, even those found to be vol- the State that, prior demonstrates any untary, may be guilt. And, conclusive of questioning, the defendant was warned as any with part other of the State's "that right he has a silent, to remain case, a may confession be shown to be any statement he does may make be used insufficiently corroborated or otherwise against him, evidence and that he has a unworthy of belief. right to presence of an attorney, either Appellant's App. p. added). 107 (emphasis retained or appointed." 384 U.S. at In addition to the modified instruction as 86 S.Ct. 1602. Our Supreme Court has given, the trial court also instructed the determined that a waiver of the rights jury that it was the judge sole of the afforded under Miranda occurs when the credibility of the witnesses defendant, and that it was being after advised of those cireumstances, and under these that he Given acknowledging and rights acting as was Maynard assuming that a state even make them, to proceeds stands the of instigation at the agent of those a state advantage taking without ment Maynard 1209, necessary for it was not State, police,1 736 N.E.2d Ringo v. rights. warnings. See the Miranda repeat to a re-ad (Ind.2000). Additionally, 1211-12 apparent It is only 1149. is at warnings 698 N.E.2d Ogle, Miranda of the visement to Shana- spoke deprived Maynard interruption Reverend that the necessary when had re Shanabarger make just to after opportunity barger of an suspect warnings. of his Miranda separate assessment intelligent two and ceived informed and occasions on both rights his He waived Ogle interests. admitting that (Ind.1998). confessions two rendered result, Shana- Tyler. As killed he had case, demon the record In this any inter that to show has failed barger with spoke Maynard that Reverend strates with Reverend speaking ruption before been he had shortly after Shanabarger opportunity him of deprived Maynard by police rights Miranda of the informed meeting that before interests assess his to days after three Specifically, officers. Hence, has failed Shanabarger place. took to went and his wife murder, Shanabarger trial coun by his objection that an to show and Office County Sheriff's the Johnson the rule announced that grounds sel on the desk at the front the individual informed have been would was violated in Miranda 752. p. Tr. son." [his] killed "he has Therefore, Shanabarger sustained. after this statement Shanabarger repeated per trial counsel's that his show failed to p. Tr. summoned. had been a detective basis. on this deficient was formance was Another detective 838-89. to dem failed Moreover, Shanabarger has stated in, Shanabarger and brought by the prejudiced that he was onstrate face on his son's wrap plastic placed he con taped light of object failure to avenge his to him to death smothered and his police, given to had that he fessions funeral. father's attend his to failure wife's he had Tyler that killing admissions two signed Shanabarger then at 840. his he had sent letters in various made two provided forms rights waiver made had that he wife, the admissions admitting police statements taped into admitted that were Savages wrap plastic Tyler with killed he had claim Therefore, Shanabarger's evidence. boy died though the appear it to make trial counsel assistance ineffective 11-14. Ex. of SIDS. State's fails. murder, and Tyler's arrested Reverend thereafter, with he met shortly judgment At the 915. p. Tr. Maynard. affirmed. court is May Reverend meeting, beginning J., MAY, concurs. their conversa Shanabarger that nard told confidential, he and that tion was SULLIVAN, J., opinion. concurs with said. Maynard what police tell would concurring. SULLIVAN, Judge, May then told p. Tr. 916. B. I also LA. and Parts wrapping as to Tyler by I concur killed he nard that A., B., D. and With II. Parts as to concur 917-18. p. Tr. head. around plastic police detectives. instigation of whether the record from not clear It is at the Shanabarger's request or atmet two C., respect to Part II. I also concur but do Byron CARTER,

so with a Appellant-Defendant caveat. I agree that the instruction given as was mandatory not a instruction. It did not PROPERTY OWNERS INSURANCE jury direct the to conclude that the confes- COMPANY, Appellee-Plaintiff. sion or confessions were conclusive of No. 27A02-0511-CV-01035.

guilt. Rather the instruction left that as- up sessment jury. Court Appeals of Indiana. Furthermore, given the instruction as 3,May did prevent Shanabarger from inter- posing corpus delicti defense. He did

in fact assert argued that defense and it in

his direct appeal. Neither did the instruc-

tion preclude Shanabarger's defense that

the child died of SIDS. That claim was

made Shanabarger.

Be that may, my as it it is belief that the

form in which the instruction was tendered

by Shanabarger representative of his

theory of the presented case jury. to the

It correctly applicable stated the law in

that it advised jury that whether vol-

untary not, or such confessions "are not

conclusive" guilt. The thrust of the

instruction, tendered, as was more favor-

able to the theory defendant's of the

weight given to be confessions than was

the instruction given. given, As

instruction leaned a more per- bit to the

missible conclusion that the confessions

were guilt conclusive of rather than

contrary conclusion as contained in the

tendered instruction. I

Although am of the view that the trial

court would have been better advised to

give Shanabarger's instruction as ten-

dered, light argu- against

ments made giv- instruction as

en, I do not see cause for reversal.

Case Details

Case Name: Shanabarger v. State

Court Name: Indiana Court of Appeals

Date Published: May 3, 2006

Citation: 846 N.E.2d 702

Docket Number: 41A05-0508-PC-452

Court Abbreviation: Ind. Ct. App.