State of Indiana v. Brian J. Taylor

Jun 10 2015, 9:25 am

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Gregory F. Zoeller Craig V. Braje
Attorney General of Indiana Elizabeth A. Flynn
Michigan City, Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

State of Indiana, June 10, 2015

Appellant-Plaintiff, Court of Appeals Cause No.
46A04-1407-CR-316
v. Appeal from the LaPorte Superior
Court
Cause No. 46D01-1403-MR-110
Brian J. Taylor,
Appellee-Defendant. The Honorable Kathleen B. Lang,
Judge

Barnes, Judge.

Case Summary

[1] In this interlocutory appeal, the State appeals the trial court’s partial grant of a

motion to suppress filed by Brian Taylor. We affirm in part, reverse in part,

and remand.

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 Issue
[2] The State raises one issue, which we restate as whether the trial court properly

excluded all testimony of police officers that asserted their Fifth Amendment

right to remain silent during depositions and testimony at the suppression

hearing.

Facts
[3] On March 14, 2014, at approximately 6:30 a.m., Taylor’s grandfather took him

to the Michigan City Police Department. Taylor had blood on his clothing, and

he refused to speak with the officers. Taylor was placed in an interview room,

which was equipped with audio and video recording devices. The officers soon

learned that Taylor’s girlfriend, Simone Bush, had died of a gunshot wound to

her neck at her grandparents’ residence. At 3:18 p.m., Taylor was told that he

was being arrested for Bush’s murder.

[4] At 4:12 p.m., Attorney David Payne arrived and met with Taylor in the

interview room. Detective Steven Westphal “sarcastically, jokingly” told Payne

to “flip a toggle switch” unless Payne wanted them to listen to the conversation.

Tr. p. 269. Payne flipped the toggle switch and had a thirty to forty minute

conversation with Taylor. According to Taylor, they discussed “all aspects of

both the case and his defense.” Id. Unbeknownst to Payne and Taylor, some

officers and LaPorte County Chief Deputy Prosecutor Robert Neary were able

to hear some parts of the conversation from a nearby room. It is clear that,

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 however long the conversation was eavesdropped on, certain crucial

information regarding Taylor’s guilt was heard by law enforcement personnel.

[5] On March 16, 2014, the State charged Taylor with murder. On March 18,

2014, Neary informed Taylor’s counsel, Craig Braje, of the eavesdropping. The

next day, Neary followed up with a letter to Braje and informed him as follows:

At the time Mr. Payne entered the interview room to speak with Mr.
Taylor the recorder was disabled. However, the video/audio still ran
to monitor the events in the interview room which could be
watched/listened to in another room.
I was present in the other room and overheard portions of Mr. Payne’s
and Mr. Taylor’s conversation up to the point where Mr. Payne asked
Mr. Taylor where the weapon was and Mr. Taylor’s response. At that
point, the audio portion was disabled as well.
I then told you those present were sternly told not to search for this
weapon. However, Monday afternoon I was informed, that despite
my warnings, detectives went to the area and located the weapon. The
weapon was now in the possession of the Michigan City Police
Department.
I explained I did not believe the weapon to be admissible under these
circumstances. You indicated the issue of admissibility would need to
be addressed at a later date.
Finally, I indicated I had self-reported myself to the Indiana
Disciplinary Commission for my conduct. I stated that I understood
you would likely report it to the Commission as well.
App. p. 191.

[6] During discovery depositions of detectives Al Bush, Steven Westphal, Sean

Steele, Justin Frever, and Matthew Barr, the officers invoked their Fifth

Amendment right against self-incrimination and refused to answer questions

concerning the eavesdropping.

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[7] Taylor filed a motion to suppress and requested that the trial court suppress the

gun and “any information or evidence which was obtained by investigating

officers through improper eavesdropping by officials of the State of a

confidential and privileged conversation between the Defendant and his

attorney.” Id. at 99. Attorney Payne filed an affidavit in which he stated that,

during the meeting with his client at the police station, he had “discussed

confidential matters with Brian Taylor regarding the criminal defense of charges

likely to be filed . . . .” Id. at 101.

[8] The State stipulated to the suppression of the gun. According to the State,

“Any and all evidence or information obtained after 4:12 p.m. on March 14,

2014, other than the above referenced firearm, was procured in the standard

course of investigation, has a source independent from the privileged

conversation between the Defendant and his attorney and was procured

without regard to the privileged conversation between the Defendant and his

attorney thus rendering the connection between the allegedly lawless conduct

and the discovery of the challenged evidence so attenuated as to dissipate any

perceived taint.” Id. at 145.

[9] Taylor responded to the State’s stipulation and noted the difficulty with

suppressing evidence learned from the eavesdropping:

[He] does not know whether the information or evidence that was
collected in the State’s investigation, after 4:12 p.m. on March 14,
2014, was or could have been tainted by the misconduct by the police
officials and the member of the prosecuting attorney’s office because
the police officers that have been deposed have invoked their Fifth

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 Amendment right against self-incrimination. Therefore, the
Defendant does not know the identities of officers present in the
conference room where the privileged conversation was overheard, the
specific nature of the information that was heard, the extent to which
officers discussed the privileged information amongst themselves and
other officers and, most importantly the Defendant does not know
how the privileged information that was overheard by police officials
affected the course and scope of the State’s investigation.
Id. at 188-89. Taylor argued that, “[b]ecause of the deliberate misconduct on

the part of the State and police officials, all evidence or information obtained

after 4:12 p.m. on March 14, 2014 should be suppressed under the theories of

violation of the Sixth Amendment, violation of the Attorney-Client privilege,

and the exclusionary rules existing under the Federal Wiretapping Act, the

Indiana Wiretapping Act and the Fourth Amendment.” Id. at 189.

[10] Taylor also filed a memorandum in support of his motion to suppress. In the

memorandum, he sought to suppress “all portions of the State’s investigation,

including physical evidence, documentary evidence and testimony from

witnesses, that occurred after 4:12 p.m. on March 14, 2014.” Id. at 196. Taylor

also requested that “any witness who intends on invoking his or her Fifth

Amendment right against self-incrimination be barred from testifying.” Id.

Taylor based his argument on the right to counsel under the Sixth Amendment

and Article 1, Section 13 of the Indiana Constitution, the attorney-client

privilege, prosecutorial misconduct, due process rights, violations of the federal

and Indiana Wiretapping Acts, the Confrontation Clause of the Sixth

Amendment, and the effects of invoking the Fifth Amendment by a witness. Id.

at 212.

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[11] At the hearing on the motion to suppress, detectives Al Bush, David Cooney,

Gregory Jesse, Matthew Barr, Jason Costigan, and Justin Frever refused to

answer questions concerning the eavesdropping and exercised their Fifth

Amendment right to remain silent. After the hearing, the trial court entered an

order partially granting the motion to suppress. The trial court found that the

suppression of all evidence discovered “after the interview ended at 4:12 p.

March 14, 2014” was not required. Id. at 222-23. However, “There does have

to be a specific finding by the Court . . . that there was an independent source of

information and that the specific evidence was in no way connected to the

conversation between defendant and his attorney in the interview room that

afternoon.” Id. at 223. The trial court ruled that many pieces of evidence

discussed at the hearing “represent evidence that would be part of a standard

police investigation of a homicide” and would not be suppressed. Id. Some

other pieces of evidence, especially exhibits involving the autopsy, were

discussed at the hearing, and the trial court noted that the State had not

established “an independent basis” for those exhibits. Id. The trial court ruled

that the State would be required to “establish an independent basis before these

exhibits can be admitted.” Id.

[12] The trial court then addressed the police officers’ invocation of their Fifth

Amendment right against self-incrimination and found:

Just as the Fifth Amendment protects those witnesses who have
invoked their right to remain silent, in this case so too, the Sixth
Amendment guarantees the defendant a right to counsel and the right
to confront all witnesses against him and to have compulsory process

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 for obtaining witnesses in his favor. The invocation of the Fifth
Amendment by the police officers in this case however, impacts
defendant’s rights under the Sixth Amendment. Defendant is unable
to obtain any information about what was overheard by police, the
individuals who overheard their conversation, who was told of the
contents of the conversation, and what actions were taken as a result of
the information learned from the eavesdropping by law enforcement.
The defendant is totally unable to cross examine any of the witnesses
who have or will invoke their rights under the Fifth Amendment about
an issue that is in all likelihood critical to his defense. The protections
under the Fifth Amendment for the witnesses [sic] have invoked that
privilege cannot subsume the ability of the defendant to properly
confront the witnesses against him.
The police misconduct that occurred in the course of this investigation
resulted in a grave violation of the defendant’s constitutional rights. In
light of all the facts of this case and the egregious actions by the police
and the State, an extraordinary remedy must be fashioned. See State of
New Jersey v. Sugar, 495 A.2d 90, 104 (1985) (testimony of any person
who actually engaged in or had direct knowledge of unlawful
eavesdropping by police officers, or conversation between defense
counsel and the defendant, was barred as tainted as a result of the
dissemination or exploitation of information received). Any witness
who has asserted the Fifth Amendment right to silence in a deposition
or during testimony at the hearing on the Motion to Suppress is barred
from testifying at trial. Neither the prosecution nor the defense can
call any witness knowing that the individual will assert the Fifth
Amendment. If a witness is called to testify and invokes the Fifth
Amendment without previously expressing that intent, the testimony
of that witness will be stricken in its entirety.
Id. at 226-27.

[13] The State requested that the trial court certify its order pursuant to Indiana

Code Section 35-38-4-2(6)1, and the trial court certified the order for

1
Indiana Code Section 35-38-4-2(6) provides:

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 interlocutory appeal. We accepted jurisdiction over this interlocutory appeal

pursuant to Indiana Appellate Rule 14(B).

Analysis
[14] The State is appealing from the partial grant of Taylor’s motion to suppress.

“In the appellate review of a trial court’s motion to suppress, the reviewing

court determines whether the record discloses ‘substantial evidence of probative

value that supports the trial court’s decision.’” State v. Washington, 898 N.E.2d

1200, 1203 (Ind. 2008) (quoting State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006)).

We do not reweigh evidence. Id. The State, appealing from a negative

judgment, must show that the trial court’s ruling on the suppression motion was

contrary to law. Id.

[15] On appeal, the State argues that the trial court improperly barred the officers

who asserted their Fifth Amendment right from testifying at Taylor’s trial. The

State does not appeal the suppression of the handgun and the procedure

Appeals to the supreme court or to the court of appeals, if the court rules so provide, may
be taken by the state in the following cases:
*****
(6) From any interlocutory order if the trial court certifies and the court on
appeal or a judge thereof finds on petition that:
(A) the appellant will suffer substantial expense, damage, or injury
if the order is erroneous and the determination thereof is
withheld until after judgment;
(B) the order involves a substantial question of law, the early
determination of which will promote a more orderly
disposition of the case; or
(C) the remedy by appeal after judgment is otherwise inadequate.

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 established by the trial court to verify an independent source for each piece of

evidence discovered after the eavesdropping. Rather, the State’s argument

concerns only the trial court’s exclusion of the officers’ testimony after they

asserted their Fifth Amendment right at their depositions and at the suppression

hearing.

[16] We begin by noting our disappointment, displeasure, and disgust at the conduct

of all the law enforcement officers. The integrity of the entire judicial system is

called into question by the conduct engaged in here by all who should know

better. See State v. Quattlebaum, 527 S.E.2d 105, 109 (S.C. 2000). The New

Jersey Supreme Court, in discussing intentional eavesdropping by police

officers, appropriately stated:

We are outraged. We are compelled to say exactly that. Any court,
but particularly the highest Court of this State, does more than apply
settled principles of social order. A court affirms those values
emerging from the conflict between the ideals of liberty and
democracy, between individual rights and public responsibilities.
There are others to give strong voice against violence to person and
property, to proclaim social needs and to promote economic welfare.
But there are few to deplore the deprivation of an individual’s liberty,
and none other so clothed in the moral traditions of the rule of law.
We must therefore depart briefly from formal legal analysis to express
and explain our dismay. . . .
When confronted with the awesome power of the criminal process, a
client is never more in need of professional guidance and advocacy. . .
. Any interference with the intimate relationship between attorney and
client may do profound violence to the individual privacy of the client.
Instead of receiving the protection that counsel can provide, the client
unwittingly reveals his innermost thoughts to the unscrupulous. Such
an invasion is unconscionable. The privacy between attorney and
client is but an extension of the client’s personal privacy. . . . The

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 fundamental need for secrecy between attorney and client is clear. The
intentional invasion of that privacy is just as clearly violative of basic
notions of procedural justice. . . . [I]t is important to note the existence
of a number of criminal statutes which can apply to illegal
eavesdropping, for they highlight the egregious character of the
particular conduct that the record before us reveals. . . . The fact that
the individuals responsible for invading defendant’s privacy are law
enforcement officials heightens our concern and sparks our sense of
outrage.
State v. Sugar, 417 A.2d 474, 479-81 (N.J. 1980). We echo those sentiments and

note that this sort of conduct tarnishes all who are in “the system,” and while

that is unfair, it is understandable.

[17] On appeal, the parties make several arguments concerning the admissibility of

the officers’ testimony. Based on the parties’ arguments, we will address

implications related to the Fifth Amendment, the Sixth Amendment’s

Confrontation Clause, the Sixth Amendment’s right to counsel, the Fourth

Amendment, and principles of prosecutorial misconduct.2

I. Fifth Amendment

[18] The Fifth Amendment’s Self-incrimination Clause provides that no person

“shall be compelled in any criminal case to be a witness against himself.” U.S.

Const. amend. V. This protection extends to state cases by virtue of the

Fourteenth Amendment. Bleeke v. Lemmon, 6 N.E.3d 907, 925 (Ind. 2014)

(citing Withrow v. Williams, 507 U.S. 680, 688-89, 113 S. Ct. 1745, 1751 (1993)).

2
The parties make no separate analysis of the Indiana Constitution in their arguments.

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 “[T]his prohibition not only permits a person to refuse to testify against himself

at a criminal trial . . . but also ‘privileges him not to answer official questions

put to him in any other proceeding, civil or criminal, formal or informal, where

the answers might incriminate him in future criminal proceedings.’” Id.

(quoting Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141 (1984)).

The Fifth Amendment prohibits only compelled testimony that is

incriminating. Id. (citing Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177,

190, 124 S. Ct. 2451, 2460 (2004)). “If those two elements are present, a

witness protected by the privilege may rightfully refuse to answer unless and

until he is protected at least against the use of his compelled answers and

evidence derived therefrom in any subsequent criminal case in which he is a

defendant.” Id.

[19] The parties do not dispute that the officers are protected by the Fifth

Amendment from testifying regarding the eavesdropping. However, the State

contends that the trial court’s complete exclusion of the officers’ testimony is an

extreme sanction. The State argues that the officers should be allowed to give

limited testimony to establish foundational requirements for evidence that they

collected.

[20] Indiana courts have not addressed this exact issue. However, Indiana cases

have held “it is improper for the prosecutor to call as a witness a codefendant

when the prosecutor knows in advance that the witness will invoke the Fifth

Amendment and refuse to testify.” Borders v. State, 688 N.E.2d 874, 879 (Ind.

1997) (citing Brown v. State, 671 N.E.2d 401, 404-405 (Ind. 1996); Tucker v.

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 State, 534 N.E.2d 1110, 1111 (Ind. 1989); Aubrey v. State, 261 Ind. 692, 695-696,

310 N.E.2d 556, 559 (1974)); see also State v. Eubanks, 729 N.E.2d 201, 206-08

(Ind. Ct. App. 2000) (finding no fundamental error where the State called two

co-conspirators knowing that they would invoke their Fifth Amendment right),

trans. denied. The purpose of this rule was explained in Brown:

The natural, even inevitable, inference which is raised in the jury’s
mind when an alleged accomplice refuses to testify is that the withheld
testimony would be damaging, not only to the witness, but also to the
defendant. Thus, the mere refusal to speak indelibly implants adverse
inferences in the minds of the jurors and reaches them in a form not
subject to cross examination. [The accomplice’s] refusal to testify
“may well have been the equivalent in the jury’s mind of testimony.”
Douglas v. Alabama (1965), 380 U.S. 415, 419, 85 S. Ct. 1074, 1077, 13
L.Ed.2d 934, 937.
Brown, 671 N.E.2d at 404 (citing Tucker, 534 N.E.2d at 1110).

[21] Each of the cases referenced above involves the testimony of an accomplice.

The testimony at issue here does not involve an accomplice and, thus, does not

implicate the same adverse inferences toward the defendant. In fact, if the

officers asserted their Fifth Amendment right on the stand, the inferences would

seem, to us, to harm the State’s case and the officers’ credibility, not the

defendant’s case.

[22] Further, we note that, in Eubanks, we discussed and relied on Namet v. U.S., 373

U.S. 179, 83 S. Ct. 1151 (1963). In Namet, two co-conspirators called to testify

by the Government asserted their Fifth Amendment right as to some questions,

and the defendant did not object. The United States Supreme Court found that

the co-conspirators possessed “nonprivileged information that could be used to

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corroborate the Government’s case” and “[t]he Government has a right to put

this evidence before the jury.” Namet, 373 U.S. at 188, 83 S. Ct. at 1155. The

Court considered whether the Government made “a conscious and flagrant

attempt to build its case out of inferences arising from use of the testimonial

privilege” and whether “inferences from a witness’ refusal to answer added

critical weight to the prosecution’s case in a form not subject to cross-

examination, and thus unfairly prejudiced the defendant.” Namet, 373 U.S. at

186-87, 83 S. Ct. at 1154-55. 3

3
We also acknowledge the American Bar Association Criminal Justice Standards for the Prosecution
Function, which provide:

The prosecutor should not call a witness to testify in the presence of the jury, or require the
defense to do so, when the prosecutor knows the witness will claim a valid privilege not to
testify. If the prosecutor is unsure whether a particular witness will claim a privilege to not
testify, the prosecutor should alert the court and defense counsel in advance and outside the
presence of the jury.
ABA Criminal Justice Standards for the Prosecution Function, Standard 3-6.7(c) (4th ed.), available at
http://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition.html.
Similarly, the ABA Standards for Defense Function provide:

Defense counsel should not call a witness in the presence of the jury when counsel knows
the witness will claim a valid privilege not to testify. If defense counsel is unsure whether
a particular witness will claim a privilege to not testify, counsel should alert the court and
the prosecutor in advance and outside the presence of the jury.
ABA Criminal Justice Standards for the Defense Function, Standard 4-7.7(c) (4th ed.), available at
http://www.americanbar.org/groups/criminal_justice/standards/DefenseFunctionFourthEdition.html.

Commentary is not currently available for these standards. However, the language of the prior edition of
these standards is similar, and the commentary for the prior edition is instructive. Like the cases discussed
above, the concern behind the standards is “the impossibility of effective cross-examination and the
possibility that the jury may give inferences from the claim of privilege more weight than they deserve.”
ABA Criminal Justice Prosecution and Defense Function Standards, Commentary to Standard 3-5.7(c) (3rd
ed.), available at
http://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/prosecution_defe
nse_function.authcheckdam.pdf.

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[23] Here too, the police officers presumably have relevant information on the

investigation not subject to their assertion of their Fifth Amendment right. The

police officers’ refusal to testify does not add weight to the State’s case or

produce inferences that damage Taylor’s defense. We cannot say that, based

on these cases, the State should have been automatically prevented from calling

the officers to testify at Taylor’s trial due to the invocation of their Fifth

Amendment right regarding the eavesdropping. Rather, further analysis of the

officers’ testimony is necessary to determine the admissibility of their

testimony.

II. Confrontation Clause

[24] Taylor argues that his Sixth Amendment Confrontation Clause rights would be

violated if the officers were permitted to testify at his trial. The Confrontation

Clause of the Sixth Amendment states that “in all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against

him.” The Confrontation Clause “serves a primary interest of protecting the

right of cross-examination and face-to-face confrontation at trial.” U.S. v.

Zapata, 871 F.2d 616, 623 (7th Cir. 1989) (citing Douglas, 380 U.S. at 418, 85 S.

Ct. at 1076), abrogated on other grounds by U.S. v. Gomez, 736 F.3d 845 (7th Cir.

2014). “The confrontation clause, however, generally only ‘guarantees an

opportunity for effective cross-examination, not cross-examination that is

effective in whatever way, and to whatever extent, the defense may wish.’” Id.

(quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 295 (1985)).

Sometimes, a defendant’s confrontation right may be restricted by a witness’

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 invocation of his right against self-incrimination guaranteed by the Fifth

Amendment. Id. “When such circumstances arise, the courts must watch

vigilantly to ensure that the invocation did not ‘effectively . . . emasculate the

right of cross-examination itself.’” Id. (quoting Fensterer, 474 U.S. at 19, 106 S.

Ct. at 294).

[25] The Seventh Circuit has noted that, to prevent an “emasculation of the

confrontation right,” a district court may consider it “necessary to strike the

direct testimony” of a nonresponding witness. Id. (citing Dunbar v. Harris, 612

F.2d 690, 692 (2nd Cir. 1979)). “‘When a witness’ refusal to answer prevents

defendant from directly assailing the truth of the witness’ testimony, the court

should strike at least the relevant portion of the testimony.’” Id. (quoting United

States v. Humphrey, 696 F.2d 72, 75 (8th Cir. 1982), cert. denied). However,

“[w]hen a witness refuses to answer questions based on fifth amendment

privilege, striking the witness’s entire testimony is an extreme sanction.” Id. at

624 (quoting United States v. Lord, 711 F.2d 887, 892 (9th Cir. 1983)). “As a

corollary to the above principle, should the witness’ refusal to answer ‘relate

only to collateral matters, such as credibility, the danger to the defendant is

considerably less and the witness’ testimony may not need to be stricken.’” Id.

(quoting Humphrey, 696 F.2d at 75). “Therefore, a court’s resolution of this

issue should focus on whether the unanswered questions involved matters

directly related to the scope of the direct examination or to collateral matters.”

Id. Matters of credibility are generally considered collateral. Id.

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[26] Similarly, the Fourth Circuit Court of Appeals has noted that “‘[w]hen a

prosecution witness cuts off cross-examination by invoking the fifth amendment

privilege against self-incrimination, the criminal defendant’s constitutional right

of confrontation is directly implicated.’” U.S. v. Curry, 993 F.2d 43, 45 (4th Cir.

1993) (quoting Lawson v. Murray, 837 F.2d 653, 655 (4th Cir. 1988), cert. denied).

“Nevertheless, striking the entire testimony is a drastic remedy and is not to be

lightly done.” Id. “In fact no action at all might be appropriate, or the court

might strike only a portion of the testimony, if the fifth amendment privilege

was invoked ‘to avoid cross-examination on purely collateral matters.’” Id.

(quoting Lawson, 837 F.2d at 656). “Striking all of the testimony might be the

only appropriate remedy, however, if the refusal to answer frustrates the

defendant’s ability ‘to test the credibility of the witness and the truthfulness of

his earlier testimony.’” Id. (quoting Lawson, 837 F.2d at 656).

[27] The Confrontation Clause is violated only when assertion of the privilege

undermines the defendant’s opportunity to test the truth of the witness’ direct

testimony. Bagby v. Kuhlman, 932 F.2d 131, 135 (2nd Cir. 1991), cert. denied. To

reconcile a defendant’s rights under the Confrontation Clause with a witness’s

assertion of his or her Fifth Amendment privilege, a court must initially

consider: (1) whether the matter about which the witness refuses to testify is

collateral to his or her direct testimony, and (2) whether the assertion of the

privilege precludes inquiry into the details of his or her direct testimony. Id. “If

the court determines that the privilege has been invoked with respect to a

collateral matter, or that the invocation does not preclude inquiry into the

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 witness’ direct testimony, then the defendant’s right to cross-examine has not

been impinged and no corrective action is necessary.” Id. Conversely, the

Sixth Amendment is violated when a witness asserts the privilege with respect

to a non-collateral matter and the defendant is deprived of a meaningful

opportunity to test the truth of the witness’s direct testimony. Id. “The

distinction between matters which are ‘collateral’ and those which are ‘direct’ is

not precise or easy. United States v. Seifert, 648 F.2d 557, 561 (9th Cir. 1980). “It

can be drawn only by reference to the particular facts of the particular case . . .

.” Id. at 561-62.

[28] Our supreme court engaged in a similar analysis in Clark v. State, 480 N.E.2d

555, 559 (Ind. 1985). In Clark, a State’s witness refused to answer some

questions, and the defendant moved to strike his testimony. The trial court

denied his motions, and on appeal, the defendant argued that he was denied his

right to confront and cross-examine the witness. Our supreme court noted that

“[t]he right to confront witnesses includes the right of full, adequate and

effective cross-examination; it is fundamental and essential to a fair trial.”

Clark, 480 N.E.2d at 559. The court concluded that the defendant was able to

conduct a “rigorous, thorough and lengthy cross-examination,” that the

unanswered questions focused on the witness’s credibility and were

“peripheral,” and that the witness’s credibility was further diminished when the

trial court held him in contempt. Id. The court found that the defendant was

not denied his right to full, adequate, and effective cross-examination. Id.

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[29] The trial court here made no analysis of whether the officers’ unanswered

questions would relate to a “collateral matter.” Taylor acknowledges these

cases, which require consideration of whether the unanswered questions relate

to a collateral matter, but Taylor argues there is no way to know whether the

unanswered questions concern a collateral matter because he does not know

what the officers overheard. The State argues that it is premature to determine

whether the officers’ unanswered questions relate to collateral matters. We

agree.

[30] Although the trial court found that the eavesdropping was “in all likelihood

critical to [Taylor’s] defense,” we think it is premature and speculative to make

that determination at this juncture of the proceedings. App. p. 227. The State

asserts that the officers could be called to testify for limited, foundational

purposes related to evidence that they collected, and that the trial court could

“potentially order such limited testimony from the relevant witnesses—and thus

avoid the extreme sanction.” Appellant’s Reply Br. p. 5. At this point in the

prosecution, we do not know which officers will be needed to testify, the subject

of each officer’s direct testimony, and whether the eavesdropping will relate in

any manner to their direct testimony or would be collateral. It is necessary that

the trial court perform such an analysis of each officer’s testimony. See, e.g.,

Zapata, 871 F.2d at 624-25 (holding that the witness’s unanswered questions,

which “were directed at [his] prior involvement in drug trafficking,” did not “go

to the exculpation of” the defendant and were collateral”); United States v.

Wilmore, 381 F.3d 868, 873 (9th Cir. 2004) (holding that the witness’s

Court of Appeals of Indiana | Opinion 46A04-1407-CR-316 |June 10, 2015 Page 18 of 33
 unanswered questions were not collateral and the witness’s testimony should

have been stricken). We leave the exact manner in which the trial court

conducts this analysis to the trial court’s discretion. The trial court may, in its

discretion, hold a separate hearing to perform this analysis.4

[31] Before addressing the other issues raised by the parties, we address Taylor’s

reliance on State v. Sugar, 417 A.2d 474 (1980), and State v. Sugar, 495 A.2d 90

(1985). In Sugar, the defendant was being investigated for the disappearance of

his wife. Officers engaged in a questionable search of the defendant’s property

that led to the discovery of the victim’s body and surreptitiously listened to two

conversations between the defendant and his attorney, during which they

learned information that led to the discovery of other incriminating evidence.

In the first appeal, the New Jersey Supreme Court found that the “only

appropriate remedy is exclusion of tainted witnesses and evidence . . . .” Sugar,

417 A.2d at 486. The trial court then conducted a trial but allowed one of the

detectives at issue to testify. In the second appeal, the New Jersey Supreme

Court clarified its earlier opinion and held: “as a matter of law, a person who

actually participated in, attended, or was contemporaneously informed of the

unlawful intercept must be deemed to have been tainted by his direct

4
We note Indiana Code Section 35-37-3-1(b), which provides:

If the prosecuting attorney has reason to believe that a witness will refuse to answer a
question or produce an item during any criminal trial, the prosecuting attorney may
submit the question or request to the trial court. The court shall hold a hearing to
determine if the witness may refuse to answer the question or produce the item.

Court of Appeals of Indiana | Opinion 46A04-1407-CR-316 |June 10, 2015 Page 19 of 33
 knowledge of the intercept; he is therefore disqualified to testify as a witness in

defendant’s prosecution.” Sugar, 495 A.2d at 97. Thus, the New Jersey

Supreme Court found that the trial court erred by allowing one of the detectives

at issue to testify. Further, the court noted that the defendant was unable to

effectively cross-examine the detective at issue. The detective’s credibility was

“sharply in issue,” and he had “an obvious motive to lie,” but cross-examining

the detective regarding the overheard statement “would be unthinkable.” Id. at

99.

[32] This is the appeal of a blanket exclusion order preventing all officers who

participated in the eavesdropping from testifying about any matter in the case.

While the conduct of these officers surely merits and warrants the sternest of

disapproval from us, we recognize such an extreme remedy has not been

generally approved. The United States Supreme Court has held that “Sixth

Amendment remedies should be ‘tailored to the injury suffered from the

constitutional violation and should not unnecessarily infringe on competing

interests.’” Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012) (quoting United States v.

Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 668 (1981)). “Thus, a remedy must

neutralize the taint of a constitutional violation while at the same time not grant

a windfall to the defendant or needlessly squander the considerable resources

the State properly invested in the criminal prosecution.” Id. at 1388-89 (internal

citations and quotations omitted). We believe that the common sense and

legally tenable approach is to continue with the process we have outlined. The

State must demonstrate an independent basis for each piece of evidence. Thus,

Court of Appeals of Indiana | Opinion 46A04-1407-CR-316 |June 10, 2015 Page 20 of 33
 the admissibility questions are in the purview of the trial court where they most

appropriately belong. The trial court is also tasked with analyzing whether the

officers’ unanswered questions relate to collateral matters.

III. Right to Counsel

[33] Taylor also argues that the trial court’s exclusion of the officers’ testimony is

supported by his Sixth Amendment right to counsel. The Sixth Amendment

guarantees all criminal defendants the right “to have the assistance of counsel

for his defense.” U.S. Const. amend. VI. In order to encourage clients to share

information openly with their attorneys and thereby facilitate more effective

assistance of counsel, common law courts created the attorney-client privilege.

Bassett v. State, 895 N.E.2d 1201, 1206 (Ind. 2008), cert. denied. Although the

Sixth Amendment right to counsel is distinguishable from the attorney-client

privilege, the two concepts overlap. Id. “‘The fundamental justification for the

sixth amendment right to counsel is the presumed inability of a defendant to

make informed choices about the preparation and conduct of his defense. Free

two-way communication between client and attorney is essential if the

professional assistance guaranteed by the sixth amendment is to be

meaningful.’” Id. (quoting United States v. Levy, 577 F.2d 200, 209 (3rd Cir.

1978)).

[34] Our supreme court has held that “[t]here is no per se rule that every intrusion

by the prosecution into the relationship between a criminal defendant and his

attorney constitutes a Sixth Amendment violation.” Malinski v. State, 794

N.E.2d 1071, 1081 (Ind. 2003) (citing Weatherford v. Bursey, 429 U.S. 545, 550-
Court of Appeals of Indiana | Opinion 46A04-1407-CR-316 |June 10, 2015 Page 21 of 33
 51, 97 S. Ct. 837, 841 (1977)). “Rather, some showing of prejudice is a

necessary element of a Sixth Amendment claim based on an invasion of the

attorney-client relationship.” Id. (citing United States v. Chavez, 902 F.2d 259,

267 (4th Cir. 1990)). “In cases of Sixth Amendment violations, ‘absent

demonstrable prejudice, or substantial threat thereof, dismissal of the

indictment is plainly inappropriate, even though the violation may have been

deliberate.’” Id. (quoting Morrison, 449 U.S. at 365, 101 S. Ct. at 668).

[35] “Prejudice can manifest itself in several ways.” United States v. Irwin, 612 F.2d

1182, 1186-87 (9th Cir. 1980). “It results when evidence gained through the

interference is used against the defendant at trial.” Id. “It also can result from

the prosecution’s use of confidential information pertaining to the defense plans

and strategy, from government influence which destroys the defendant’s

confidence in his attorney, and from other actions designed to give the

prosecution an unfair advantage at trial.” Id. (footnote omitted).

[36] Taylor concedes that he must show prejudice. He argues that “the improperly

overheard communications between Taylor and Payne included substantive

facts and defense strategy.” Appellee’s Br. p. 22. According to Taylor, he “was

disadvantaged and prejudiced by those officers who were privy to his privileged

conversations because of their ability to formulate answers to anticipated

questions and potential [sic] shade their investigation and testimony to meet

expected defenses.” Id.

Court of Appeals of Indiana | Opinion 46A04-1407-CR-316 |June 10, 2015 Page 22 of 33
[37] Taylor relies on our supreme court’s decision in Malinski. There, detectives

photocopied the defendant’s documents while he was in jail. The trial court

found that the documents contained some details of the defendant’s defense but

that they did not contain “any major revelations of defense strategy from which

the State would gain significant advantage. . . .” Malinski, 794 N.E.2d at 1081.

The trial court prohibited the State from using the copied documents during the

trial, including cross-examination of the defendant. On appeal, our supreme

court held:

Malinski contends that he was prejudiced by the detectives’ actions in
photocopying his legal documents because the information contained
in the documents led to the discovery of a hidden room (also called the
“porn room”) in the attic of his house and several Polaroid photos of
Lori in bondage. He notes the prosecution used this evidence at trial
and thus, gave them an advantage. We conclude that the trial court’s
sanction for discovery violation was adequate to shield Malinski from
any prejudice.
There is dispute about how the documents were packaged, one that
may reflect on whether they could be considered “legal” or not.
Nevertheless, in reviewing the documents in question, we agree with
the trial court’s assessment that they would not have revealed anything
major that would have given the prosecution a significant advantage in
the investigation. We also agree with the State’s contention that based
on the evidence, the hidden room and the photographs could have
been discovered by means other than the copied documents.
Id. at 1081. The court concluded that the State did not “gain any significant

advantage” from copying the defendant’s documents. Id. at 1082. “The trial

court made sure that the documents themselves were not used at trial for any

purpose and Malinski appears not to have suffered any other demonstrable

prejudice.” Id. “The trial court’s remedy seems to have innoculated Malinski

Court of Appeals of Indiana | Opinion 46A04-1407-CR-316 |June 10, 2015 Page 23 of 33
 from any governmental misconduct.” Id. The court concluded that “[a]bsent a

demonstrable or substantial threat of prejudice on the criminal proceedings,

there is no basis for imposing a new trial as a remedy.” Id.

[38] Our supreme court in Malinski did not require the exclusion of all testimony by

the police officers that copied the defendant’s documents. Rather, the court

approved the trial court’s remedy of excluding the documents for any purpose.

Similarly, the trial court here has already suppressed the gun, which was

admittedly gained through the eavesdropping. The trial court also required the

State to provide an independent basis for each piece of evidence discovered

after the eavesdropping. As for Taylor’s assertion that the officers heard his

defense strategy, we recognize that Taylor is placed in an unusual position. The

officers who eavesdropped on the conversation with his attorney have asserted

their Fifth Amendment right and will not discuss the eavesdropping. Taylor’s

attorney clearly knows the substance of their conversation, but he is bound by

attorney-client privilege. Taylor’s attorney testified at the suppression hearing

that they discussed “all aspects of both the case and his defense.” Tr. p. 269.

However, Taylor has not, at this point, demonstrated prejudice, and we cannot

presume prejudice from the eavesdropping.5 We find no legal support, at this

5
In the dissent, Judge May advocates applying a presumption of prejudice. Courts are divided regarding
whether such a presumption of prejudice should be applied. Our supreme court did not apply a presumption
of prejudice in Malinski. Moreover, in Ingram v. State, 760 N.E.2d 615, 619 (Ind. Ct. App. 2001), we
acknowledged that courts were split on the issue and held: “[I]n this case, we need not decide whether the
trial court applied the appropriate burden of persuasion. Even assuming arguendo that requiring the State to
rebut the presumption of prejudice was the appropriate burden of persuasion, the trial court did not abuse its
discretion in denying Ingram's motion to dismiss.” Consequently, Ingram is not determinative of the issue.

Court of Appeals of Indiana | Opinion 46A04-1407-CR-316 |June 10, 2015 Page 24 of 33
 time, for Taylor’s argument that the officers’ testimony should also be excluded

based on Taylor’s Sixth Amendment right to counsel.

IV. Fourth Amendment

[39] Next, Taylor argues that the trial court’s exclusion of the officers’ testimony is

sustainable based on the Fourth Amendment. The Fourth Amendment protects

“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures.” U.S. Const., amend. IV.

To encourage compliance with the Fourth Amendment, the evidence seized in

violation of the Constitution must be excluded at trial unless an exception to

this “exclusionary rule” applies. Shotts v. State, 925 N.E.2d 719, 723 (Ind.

2010). Under the fruit of the poisonous tree doctrine, which is an extension of

the exclusionary rule, evidence directly obtained by the illegal search or seizure

as well as evidence derivatively gained as a result of information learned or

leads obtained during that same search or seizure is barred. Clark v. State, 994

N.E.2d 252, 266 (Ind. 2013).

[40] We note that the trial court has already excluded the gun, which the State

conceded should be suppressed. Moreover, the trial court is requiring the State

to demonstrate an independent basis for each piece of evidence discovered after

the eavesdropping. The officers’ testimony was not excluded based on an

illegal search or the exclusionary rule. Rather, the trial court excluded the

Court of Appeals of Indiana | Opinion 46A04-1407-CR-316 |June 10, 2015 Page 25 of 33
 officers’ testimony based on their assertion of their Fifth Amendment right to

avoid self-incrimination and Taylor’s Sixth Amendment rights. The officers

here clearly have information that is not subject to the exclusionary rule, i.e.,

evidence discovered prior to the eavesdropping and evidence for which an

independent basis has been established. Taylor cites no relevant authority that

the officers’ testimony should be excluded based solely on the Fourth

Amendment. This argument fails.

IV. Prosecutorial Misconduct

[41] Next, Taylor argues that the trial court’s exclusion of the officers’ testimony is

sustainable based on the principles of prosecutorial misconduct. In general, we

evaluate a properly preserved claim of prosecutorial misconduct using a two-

step analysis. Castillo v. State, 974 N.E.2d 458, 468 (Ind. 2012). “We first

determine whether misconduct occurred, then, if there was misconduct, we

assess ‘whether the misconduct, under all of the circumstances, placed the

defendant in a position of grave peril to which he or she would not have been

subjected’ otherwise.” Id. (quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind.

2006)). “The gravity of peril is measured by the probable persuasive effect of

the misconduct on the jury’s decision rather than the degree of impropriety of

the conduct.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). To preserve a claim

of prosecutorial misconduct, the defendant must ask the trial court, at the time

the misconduct occurs, to admonish the jury or move for a mistrial if

admonishment is inadequate. Castillo, 974 N.E.2d at 468. Failure to request an

Court of Appeals of Indiana | Opinion 46A04-1407-CR-316 |June 10, 2015 Page 26 of 33
 admonishment or a mistrial waives the claim, unless the defendant can

demonstrate that the misconduct rises to the level of fundamental error. Id.

[42] Although we are extremely troubled by the facts of this situation, it is clear that

Neary did advise Taylor’s lawyer that the incident occurred, attempted to curb

the police conduct, and self-reported his actions to the Disciplinary

Commission. According to Taylor, Neary’s actions in eavesdropping on

Taylor’s conversation with his attorney warrant the exclusion of the officers’

testimony. However, Taylor cites no relevant authority to support this

argument, and we do not find the argument persuasive. 6 Neary’s alleged

misconduct and the officers’ assertion of their Fifth Amendment rights are

different circumstances, subject to different standards. Further, under the

prosecutorial misconduct standard used in Indiana, Taylor must demonstrate

that the alleged misconduct subjected him to grave peril, which is measured by

the probable persuasive effect of the misconduct on the jury’s decision. See

Ryan, 9 N.E.3d at 667. Taylor must also object, request an admonishment, and

request a mistrial. A prosecutorial misconduct claim is premature at this time.

6
Taylor cites State v. Quattlebaum, 527 S.E.2d 105 (S.C. 2000), where the South Carolina Supreme Court
reversed a conviction and ordered a new trial where a deputy prosecutor had participated in videotaping the
defendant’s conversation with his attorney. The Court disqualified the Eleventh Circuit Solicitor’s Office
from prosecuting the defendant at his new trial. Quattlebaum did not involve the exclusion of officers’
testimony due to prosecutorial misconduct.

Court of Appeals of Indiana | Opinion 46A04-1407-CR-316 |June 10, 2015 Page 27 of 33
 Conclusion
[43] We affirm the portions of the trial court’s suppression order not challenged by

the State. We disagree with the trial court’s automatic exclusion of the officers

that asserted their Fifth Amendment right during depositions and at the

suppression hearing. Rather, based on Taylor’s Sixth Amendment right to

confrontation, the trial court must determine whether each officer’s unanswered

questions are collateral to matters that he testifies to on direct examination.

The trial court’s exclusion of the officers’ testimony is also not sustainable at

this time based on Taylor’s Sixth Amendment right to counsel, the Fourth

Amendment, or the principles of prosecutorial misconduct. We remand for the

trial court to conduct an analysis of each officer’s testimony as discussed in this

opinion. We affirm in part, reverse in part, and remand.

[44] Affirmed in part, reversed in part, and remanded.

[45] Pyle, J., concurs.

[46] May, J., dissents with separate opinion.

Court of Appeals of Indiana | Opinion 46A04-1407-CR-316 |June 10, 2015 Page 28 of 33
 IN THE
COURT OF APPEALS OF INDIANA
Court of Appeals Cause No.
46A04-1407-CR-316

May, Judge, dissenting.

[47] I believe the trial court correctly excluded all testimony by the police officers

because the Sixth Amendment violation arising from the prosecution’s

interference with the relationship between Taylor and his counsel requires it. I

must therefore respectfully dissent.

[48] The majority notes, in addressing Taylor’s Sixth Amendment argument,

“Taylor has not, at this point, demonstrated prejudice,” (slip op. at 24), and

then states, without citation to authority, “we cannot presume prejudice from

the eavesdropping.” (Id.) I would decline to so hold, because I believe we can

presume prejudice, without Taylor having an obligation to demonstrate it.

[49] The State offers no authority to directly support the premise prejudice may not

be presumed from egregious police behavior like that in the case before us, and

I am aware of no such holding in any Indiana decision.

[50] In fact, at least one decision from this court suggests prejudice is presumed. See

Ingram v. State, 760 N.E.2d 615, 618 (Ind. Ct. App. 2001) (“The sole issue is

whether the trial court abused its discretion by finding that the State rebutted the
Court of Appeals of Indiana | Opinion 46A04-1407-CR-316 |June 10, 2015 Page 29 of 33
 presumption of prejudice to Ingram resulting from the police videotaping and

audiotaping private conversations between Ingram and his attorney.”)

(emphasis added), trans. denied. In Ingram, we said:

Neither Ingram nor the State differentiates between prejudice resulting
from the recording of the attorney-client conferences and prejudice
resulting from the taping of the interview with the detectives. Much of
the prejudice alleged by Ingram does not specifically result from the
taping of the attorney-client conferences. Regardless, the State
demonstrated sufficient evidence to rebut the presumption of prejudice.
Id. at 620 (emphasis added).

[51] Other jurisdictions have agreed prejudice may be presumed. 7 I believe we may,

and should, presume prejudice from the egregious behavior in the case before

us, which presumption the State has not rebutted.

[52] The Washington Supreme Court addressed a similar situation in State v. Fuentes,

318 P.3d 257 (Wash. 2014). It noted a defendant’s constitutional right to the

assistance of counsel “unquestionably includes the right to confer privately with

7
Some courts have determined that in a situation like the one before us, no prejudice need be shown. See, e.g.,
Graddick v. State, 408 So. 2d 533, 546 (Ala. Crim. App. 1981) writ quashed, 408 So. 2d 548 (Ala. 1982), cert
denied sub nom. Alabama v. Graddick, 458 U.S. 1106 (1982):
In the case at bar it is impossible to ascertain the exact amount of tactical advantage the State
gained from the Williams intrusion into the Beck-appellant conversation. Defense strategy was
definitely discussed and damaging information to appellant’s case came out during the meeting.
To what extent appellant was actually prejudiced by the intrusion can never be known with
certainty. However, that question need not be decided in determining a violation of Sixth
Amendment rights. In accordance with [United States v. Levy, 577 F.2d 200, 209 (3rd Cir.
1978)], our inquiry into prejudice must stop at the point where attorney-client confidences are
actually disclosed to the government enforcement agencies responsible for investigating and
prosecuting the case.
(Emphasis added.) And see generally Robin Cheryl Miller, Annotation, Propriety of Governmental Eavesdropping
on Communications between Accused and His Attorney, 44 A.L.R.4th 841 (1986).

Court of Appeals of Indiana | Opinion 46A04-1407-CR-316 |June 10, 2015 Page 30 of 33
 his or her attorney,” id. at 262, and that in a prior decision prejudice had been

presumed from a sheriff’s eavesdropping on conversations between a defendant

and his attorney during trial. Id. (citing State v. Cory, 382 P.2d 1019 (Wash.

1963)).8

[53] The Fuentes Court went on to determine the presumption of prejudice was,

however, rebuttable: “[w]hile eavesdropping on attorney-client conversations is

an egregious violation of a defendant’s constitutional rights and cannot be

permitted, there are rare circumstances where there is no possibility of prejudice

to the defendant.” Id.

[54] When there is such police eavesdropping, the Fuentes Court determined, the

State has the burden to show beyond a reasonable doubt that the defendant was

not prejudiced:

The constitutional right to privately communicate with an attorney is a
foundational right. We must hold the State to the highest burden of
proof to ensure that it is protected . . . . The State is the party that
improperly intruded on attorney-client conversations and it must prove
that its wrongful actions did not result in prejudice to the defendant.
Further, the defendant is hardly in a position to show prejudice when
only the State knows what was done with the information gleaned
from the eavesdropping. The proper standard the trial court must
apply is proof beyond a reasonable doubt with the burden on the State.
Id.

8
The Cory Court determined “the shocking and unpardonable conduct of the sheriff’s officers, in eavesdropping
upon the private consultations between the defendant and his attorney, and thus depriving him of its [sic] right to
effective counsel, vitiates the whole proceeding. The judgment and sentence must be set aside and the charges
dismissed.” 382 P.2d at 1023.

Court of Appeals of Indiana | Opinion 46A04-1407-CR-316 |June 10, 2015 Page 31 of 33
[55] The record does not reflect the State rebutted the presumption Taylor was

prejudiced. As in Fuentes, Taylor “is hardly in a position to show prejudice

when only the State knows what was done with the information gleaned from

the eavesdropping.” Id. “The right to have the assistance of counsel is too

fundamental and absolute to allow courts to indulge in nice calculations as to

the amount of prejudice arising from its denial.” Glasser v. United States, 315

U.S. 60, 76 (1942), reh’g denied.9

[56] The State represented before the trial court that it asked the officers whether the

evidence collected after the eavesdropping “was obtained due to a conversation

between [Taylor] and his attorney or as a result of information that may have

been obtained through a conversation between [Taylor] and his attorney,” (Tr.

at 299), and that there was an independent source for every piece of such

evidence. But the trial court correctly noted that in light of the officers’

invocation of the Fifth Amendment, Taylor could not obtain any information

about what the police overheard, who was listening, who was told about the

conversation, and what the police and prosecutor did with the information they

obtained from the eavesdropping.

[57] I believe the State was obliged to show beyond a reasonable doubt that Taylor

was not prejudiced, and it did not do so. The trial court properly barred the

9
Glasser was superseded by rule on other grounds: “[t]o the extent that Glasser meant that courts could not look
to the hearsay statements themselves for any purpose, it has clearly been superseded by Rule 104(a).” Bourjaily v.
United States, 483 U.S. 171, 181 (1987).

Court of Appeals of Indiana | Opinion 46A04-1407-CR-316 |June 10, 2015 Page 32 of 33
officers who asserted their Fifth Amendment rights from testifying at trial, and I

would therefore affirm.

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