FILED
Jun 22 2017, 5:25 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Curtis T. Hill, Jr.
Kokomo, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Keith D. Abney, June 22, 2017
Appellant-Defendant, Court of Appeals Case No.
34A02-1608-CR-1746
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C.
Appellee-Plaintiff. Menges, Jr.
Trial Court Cause No.
34D01-1510-F2-914
Brown, Judge.
Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017 Page 1 of 27
[1] Before us is an important question we have not often had the opportunity to
determine: what level of involvement by an attorney in a judge’s judicial
campaign requires the judge to recuse from presiding over a case in which the
attorney is involved? We apply case law, Criminal Rule 12, and the Code of
Judicial Conduct to determine that here, recusal is not required.
Facts and Procedural History
[2] Between October 1, 2015, and October 3rd or 4th, Kokomo Police Sergeant
Mark Miller conducted surveillance on Abney’s residence. Sergeant Miller
spoke with Kurt Beck, Brian Dullworth, and Jonah Sands regarding activity at
the residence. On October 5, 2015, Kokomo Police Officer Adam Martin
conducted surveillance on Abney’s residence. Officer Martin observed vehicles
arrive and leave the residence, and he observed a vehicle arrive at the residence
and a white female exit the vehicle, go to the rear of the residence, enter, and
exit approximately one or two minutes later. He conducted a traffic stop of her
vehicle following an infraction and discovered two females, some syringes, and
a bag of heroin in the vehicle. Officer Martin obtained a search warrant for the
residence.
[3] On October 6, 2015, at approximately 7:43 p.m., Kokomo Police Officer Zach
Rodman, Detective Derek Root, and Officer Charlie Fourkiller assisted Officer
Martin in the execution of the search warrant. Police discovered Abney,
Patrick Acord, and Joyce Linkenhoker in the residence. They also discovered a
gray rock-like substance that field tested positive for heroin in the kitchen, as
well as drug paraphernalia that tested positive for methamphetamines, a pill
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bottle that contained multiple bags of a substance that field tested positive for
heroin, a .380 handgun, a bag of syringes, a plastic bag that contained plant
material that later tested positive for marijuana, digital scales, mail containing
Abney’s name and the address where they were located, a monitor with a live
feed of surveillance cameras surveying the outside of the residence, and $1,625.
[4] Kokomo Police Sergeant Shane Melton read Acord his rights, and Officer
Fourkiller read Abney and Linkenhoker their rights. Linkenhoker said that she
“had some marijuana in a pipe or a dugout.” Transcript at 61. Abney stated
that the gun belonged to a girl named Carrie Russell (“Carrie”), that he had
given her fifty dollars, and that he was holding the gun as collateral. He also
stated that anything Officer Martin finds “is going to be on the kitchen counter
or lower level because he’s wheelchair bound.” Id. at 118. When the police
discovered narcotics in the house, Abney stated that it was going to weigh
about an eight ball, which is about 3.5 grams. Acord told Sergeant Melton that
he was selling only his prescription pills and that he was not a heroin dealer.
[5] In October 2015, the State charged Abney with: Count 1, dealing in a narcotic
drug as a level 2 felony; Count 2, possession of a narcotic drug as a level 4
felony; Count 3, possession of methamphetamine as a level 5 felony; Count 4,
maintaining a common nuisance as a level 6 felony; and Count 5, unlawful
possession of a syringe as a level 6 felony. On June 22, 2016, the State filed
amended counts including: Count 1, dealing in a narcotic drug as a level 3
felony; Count 2, possession of a narcotic drug as a level 5 felony; Count 3,
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possession of cocaine as a level 5 felony; and Count 4, maintaining a common
nuisance as a level 6 felony.
[6] On October 15, 2015, the court held an initial hearing, Abney requested the
appointment of a public defender to represent him, and the court did so and
scheduled a jury trial for January 15, 2016. A deputy public defender filed an
appearance on October 23, 2015, and another deputy public defender filed an
appearance on November 24, 2015. On March 11, 2016, the court held a
competency hearing and found Abney competent to understand the
proceedings and to stand trial. In May 2016, the court scheduled a jury trial for
June 3, 2016. Abney filed a motion for a continuance, and the court granted
the motion and continued the trial to June 10, 2016, and later rescheduled the
trial to June 24, 2016, due to court congestion.
[7] On June 23, 2016, Abney filed a motion to recuse the sitting judge, Judge
William C. Menges, Jr., and argued that the elected Prosecuting Attorney Mark
McCann is or recently was a member of the campaign committee of the judge
and that Judge Menges had an ethical duty to disclose his relationship with Mr.
McCann and/or other members of the Howard County Prosecutor’s office.
Abney requested that the court set the matter for a hearing and upon notice and
hearing recuse from the case.
[8] On June 24, 2016, the court conducted voir dire, released the jury for the
weekend, and held a hearing on Abney’s motion to recuse. Abney’s counsel
stated that he spoke with Abney a couple of weeks earlier, Abney had raised a
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concern about whether there was a “conflict between this prosecutor,” that on
June 23, 2016 he and Abney discussed a newspaper article, and that statements
in the article caused him to file the motion to recuse. Id. at 7. He also stated:
“Based upon Bloomington vs. Kiang, I believe that this needs to be disclosed. It’s
obviously been disclosed publically [sic] now but this relates to a fact that we
need to be disclosed and upon the request of the defendant the recusal is
awarded.” Id. at 9. Over the prosecutor’s objection, the court admitted
Defendant’s Exhibit A, a newspaper article dated June 10, 2016, which stated
in part:
Months ahead of the general election, the race for the judge’s
chair in Howard County Superior Court I grows tumultuous.
Democratic candidate for the position of judge, Erik May,
recently called into question the inclusion of county prosecutors
on incumbent Judge William Menges’ election campaign.
On May 27, May, representing Bradley Morgan, appeared in
Superior Court I where he sought to have Menges recuse himself
from the case.
Over the course of the hearing, May cited a case known as
Bloomington vs. Kiang. He believed the case set a precedent
where Menges would be required to identify, on the record, his
political ties to Chief Prosecutor Mark McCann, who was at the
hearing, and Deputy Prosecutor Mark Hurt, who is prosecuting
the case.
Bloomington vs. Kiang involves a case in which a judge was
forced to recuse herself from the case because the opposing
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council’s [sic] attorney was found to have been the chair of the
judge’s election committee. In an Indiana Court of Appeals
opinion on the case, it was found that “the relationship between
judge and the opposing counsel is of the type of information that
can reasonably be considered relevant to a possible motion for
disqualification” and that information wasn’t shared with the
opposing counsel prior to the case beginning. Because the
political tie had not been disclosed prior to the case beginning,
the judge’s impartiality was called into question.
As such, May believed the precedent required Menges to disclose
McCann and Hurt’s positions on the judge’s committee and
recuse himself from cases involving his supporters.
Over the course of the hearing Menges recused himself from the
case, but for a reason not involving any political affiliations.
*****
The question remains, however, about the ethics of county
prosecutors serving on Menges’ reelection committee. According
to legal experts, the most important part of the equation is an
attorney’s involvement in the committee.
“It seems to me, if I’m a lawyer on the other side and this guy
signed up for the judge’s campaign, I need to know,” said
Charles Geyh, a legal ethics expert at Indiana University’s
Maurer School of Law. “Such things as how much assistance
did this guy render before he left the campaign, to what extent
does that imply a relationship that is close, personally and
professionally, that a reasonable person would look at that and
say they doubt the judge’s impartiality. You would want to look
at those facts, look at what that information is, and make an
assessment.”
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McCann said as of now he has yet to participate in any election
committee activities on behalf of Menges.
“As I stated in the hearing, I was asked to serve on an advisory
committee for Judge Menges,” said McCann. “I agreed and
that’s been some time ago. I’ve not actively participated in his
campaign. I’ve not discussed anything with him in his campaign
and actually I made a courtesy call to Mr. May shortly after I
agreed to that, letting him know that. That was about a day after
he announced his candidacy.”
Hurt’s statement was similar, and he said he was asked to have
his name listed on a letter of endorsement by Menges. Since the
hearing, he decided not to take part in Menges’ committee.
“Judge Menges’ support letter has not been published,” said Hurt
in a statement. I was planning to be on the letter since I believe
Judge Menges is a good judge who serves our local community
well. However, given one probationary license case filed with
Judge Menges’, and objections raised by his opponent . . . I am
not going to be listed on a support letter. Under Indiana law, in
the majority of counties in Indiana, trial judges are elected in
partisan elections. It is common for lawyers to be listed on the
letterhead of the campaign committees of judges who they
support.”
McCann, on the other hand, said he would continue to support
Menges.
“As it stands now, unless someone instructs me otherwise, I will
continue to serve on the advisory committee as that entails,” said
McCann. “I don’t believe in any way that interferes with my
ability to carry out my duties as prosecutor.”
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Menges said he doesn’t believe Bloomington vs. Kiang applies in
the matter regarding him and the prosecutors at this point
because in that particular case the lawyer had served as the chair
of the judge’s election committee. Thus far in Menges’
campaign, he said he only sought a public endorsement from the
prosecutors.
“It’s just a public endorsement,” said Menges. “It doesn’t even
come close. The other thing is if it is a problem, then I would
simply ask Mark to not be on the committee. They haven’t done
anything yet. We haven’t even at this point, established a
committee. Mark was just asked if they would serve. They
indicated they would. We don’t even have the committee yet, let
alone somebody playing an active role in it.”
If the prosecutors simply appear on a letterhead or endorse
Menges publicly, Geyh said he didn’t see such an act as calling
the judge’s impartiality into question.
“If they are neither running his campaign nor fundraising on his
behalf, I’m not all that troubled by a simple statement of
support,” said Geyh. “Lawyers routinely make modest
contributions to the campaigns of judges before whom they
appear, and the judge is not required to disqualify later as a
consequence of that. A simple statement of support doesn’t
strike me as that different.”
Menges said Bob Hingst serves as the chair of his reelection
committee at this point, and Chief public Defender Steven
Raquet also serves on Menges’ reelection committee.
May said attorneys don’t serve on his election committee because
he “wouldn’t put a colleague in that position.”
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Defendant’s Exhibit A.
[9] The court stated:
I would note that within the article the writer, the reporter
contacted, in quotes, Charles Geyh, who they identify as a legal
ethics expert at Indiana University’s Maurer School of Law, who
says later on if the prosecutors simply appear on letterhead or on
endorsement just publically [sic], Geyh said he didn’t see such an
act as calling the judge’s impartiality into question. Secondly,
based on hearsay, I’ve been informed by Mr. McCann that he
consulted Mr. Rumburg who apparently is an advisor of some
sort to the Prosecuting Attorney’s Council. Mr. Rumburg saw
no ethical issue either from my point, my part or from Mr.
McCann’s part. Thirdly, the allegation raised by Mr. May would
have required or at least what he was attempting to do for
(inaudible) of political purposes, was to put the court in a
position where it could hear no criminal cases pending the
outcome of the election that which would obviously or could
obviously be exploited as a political advantage by Mr. May, and
so I consulted the Judicial Qualifications Commission. The Staff
Attorney indicated in no uncertain terms that they do not read
the Bloomington case the same way that imminent [sic] legal
scholar and expert on legal ethics, Dan May, reads it. And saw
no problem with me continuing to preside over criminal cases.
Finally as to the impartiality argument, we have another very
interesting twist as it applies to this particular case because, and I
will, or there’s two things, Mr. Steele, for the purposes of this
hearing. Number one, I will take judicial notice that you are a
Deputy Public Defender, that you serve at the pleasure of Steven
Raquet, the Chief Public Defender, and his Chief Deputy, Andy
Vandenbosch, and I would further take judicial notice of the fact
that those two gentlemen are partners of yours in your private
practice of law. Both of them have agreed to serve in exactly the
same role that Mr. McCann has, as willing to publically [sic]
endorse my candidacy. So what we have from a very practical
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standpoint is a legal precedent being cited that has no bearing on
this case or I shouldn’t say no bearing, no application to this case
and it is very easily distinguished, and, secondly, as to the
argument of impartiality, we have both sides supporting my
candidacy or at least the relationship, the higher parties, if you
will, from both sides are supporting my candidacy, so I don’t
think any impartiality can be impugned from that fact. We’ll
show the Motion to Recuse denied.
Transcript at 12-13.
[10] On June 27 and 28, 2016, the court held a jury trial. The State presented the
testimony of Officer Rodman, Detective Root, Sergeant Melton, Officer
Martin, and others. During direct examination, the prosecutor asked Sergeant
Melton if Acord accepted responsibility for anything, and he answered:
He told me, I talked to him outside in the front of the house after
I read him his rights, you know, ‘cause initially when we show
up everybody’s always, what’s going on, why are the police here,
you know, the same old thing, but he stated that he was only
selling his prescription pills and that he wasn’t a heroin dealer.
He sold, I think they were Oxycodones. They were the blue pills,
and so he wanted to take ownership of selling his own
prescription because he needed the money, but he didn’t say
anything about selling heroin.
Id. at 63. On cross-examination, Sergeant Melton testified that Acord admitted
to using heroin.
[11] During the cross-examination of Officer Martin, Abney’s counsel asked him if
Sergeant Miller told him that Dullworth, Beck, and Sands “had indicated at the
time that they spoke to [Sergeant Miller] that they had ever bought drugs off of,
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or that they had bought drugs at those times off of Mr. Abney?” Id. at 121. The
prosecutor objected to the form of the question and asserted that it called for a
hearsay conclusion, and the court sustained the objection. Abney’s counsel
then stated: “Isn’t it true in your affidavit you indicated that those individuals,
in your search warrant affidavit that resulted in Exhibit 14, the search warrant,
that you indicated that . . . .” Id. The prosecutor objected to defense counsel
reading from documents not in evidence, and the court sustained the objection.
Abney’s counsel asked Officer Martin if Acord told him that he sold drugs, the
prosecutor objected on the basis of hearsay, and the court sustained the
objection. Abney’s counsel asserted: “I believe he already answered that in his
direct examination (inaudible).” Id. The court stated: “Well, at this point I’ll
sustain the objection.” Id.
[12] After the State rested, Abney’s counsel moved for a directed verdict on Count 1
which was denied During the direct examination of Sergeant Miller, Abney’s
counsel asked if Beck, Dullworth, or Sands said they purchased drugs from
Abney, the prosecutor objected on the basis of hearsay, and the court sustained
the objection. Martin D. Russell (“Martin”) testified that he rented a location
in Kokomo from Abney’s father, he fell behind in his rent, and that he provided
a pistol as collateral for his lack of full payment. On cross-examination, Martin
testified that he was unaware that Detective Melton questioned Abney and that
Abney told Detective Melton that Carrie, Martin’s daughter, brought the gun
over to him and he gave her fifty dollars as collateral. When asked if Carrie
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was a drug addict, Martin answered: “Probably. Yes, sir, she is. Or she was
anyway.” Id. at 152.
[13] During closing argument, Abney’s counsel stated:
What story does the State want you to believe? They want you
to believe that Keith Abney is a hardened drug dealer, that he
sold heroin from his home, that he was responsible for everything
in that home. They don’t want you to believe that it was the
admitted drug deal [sic], Patrick Acord, who told Sgt. Melton
that he was dealing drugs out of that house. They don’t want
you to believe that it was Patrick Acord that was responsible for
all of that evidence of drug dealing in the home.
*****
So maybe they did find some heroin. But whose was it? Was it
[Abney’s]? Or the admitted drug dealer, Patrick Acord?
*****
No one testified that they ever purchased drugs off of Keith
Abney. No one testified that they ever witnessed Keith Abney
even using drugs. Was his home used as a place where drugs
were used and sold? Yes. . . . Patrick Acord was present.
Patrick Acord admitted to Sgt. Melton that he sold drugs.
Id. at 165-167. In reply, the prosecutor argued that Acord admitted to Officer
Martin only that he sold his prescription pills and that the officers never testified
that Acord admitted to selling cocaine or heroin.
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[14] The jury found Abney guilty as charged. On July 27, 2016, the court sentenced
Abney to 4,380 days for Count 1, 2,190 days for Count 3, 913 days for Count 4,
and 913 days for Count 5, to be served concurrently, and ordered that “Count 2
is merged with Count 1.” Appellant’s Appendix Volume 3 at 55.
Discussion
I.
[15] The first issue is whether the trial court erred in denying Abney’s motion for
recusal. Abney points out that the newspaper article stated that the elected
prosecutor indicated that he would continue to serve on the advisory committee
unless someone instructed him otherwise, that the advisory committee was the
trial judge’s current re-election committee, the prosecutor was on the letterhead
of the trial judge’s current re-election campaign, and the article was
contemporaneous with his case. He contends the fact that the trial judge’s re-
election letterhead also contained the names of two chief public defenders did
not mitigate the requirement that the trial judge should have recused himself.
[16] The State argues that the Judicial Qualifications Commission found that the
trial judge was permitted to preside over criminal cases despite various
endorsements. It points out that the article stated that the elected prosecutor,
not the prosecutor in Abney’s case, had yet to participate in any election
committee activities on behalf of the trial judge, and that two members of the
chief public defender’s office, who were partners in defense counsel’s law firm,
had also publicly endorsed the judge’s candidacy.
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[17] Neither party cites Ind. Criminal Rule 12, which sets forth the relevant grounds
applicable to requests for changes of judge in criminal cases. See Voss v. State,
856 N.E.2d 1211, 1216 (Ind. 2006). The rule provides:
(B) Change of Judge--Felony and Misdemeanor Cases. In
felony and misdemeanor cases, the state or defendant may
request a change of judge for bias or prejudice. The party shall
timely file an affidavit that the judge has a personal bias or
prejudice against the state or defendant. The affidavit shall state
the facts and the reasons for the belief that such bias or prejudice
exists, and shall be accompanied by a certificate from the
attorney of record that the attorney in good faith believes that the
historical facts recited in the affidavit are true. The request shall
be granted if the historical facts recited in the affidavit support a
rational inference of bias or prejudice.
Ind. Criminal Rule 12(B).
[18] “Adjudicating a request for change of judge based on Rule 12(B) requires an
objective, not subjective, legal determination by the judge, who is ‘to examine
the affidavit, treat the facts recited in the affidavit as true, and determine
whether these facts support a rational inference of bias or prejudice.’” Voss, 856
N.E.2d at 1216 (quoting Sturgeon v. State, 719 N.E.2d 1173, 1181 (Ind. 1999)).
This version of Rule 12 contrasts with the former provisions of Rule 12, which
required a party seeking a change of judge to establish actual personal bias. Id.
Under the present rule:
A party is entitled to a change of judge only “if the historical facts
recited in the affidavit support a rational inference of bias or
prejudice.” Crim. R. 12(B). This is not limited to cases in which
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the judge has expressed an opinion on guilt or innocence or the
merits of the case. It does not depend on a subjective showing
that the trial judge is actually biased or prejudiced. In
considering a motion for change of judge, the challenged judge’s
ruling does not depend upon a self-assessment of actual bias or
prejudice. The judge must instead determine whether the
historical facts presented in support of the motion lead to a
rational inference of bias or prejudice.
Id. (quoting Allen v. State, 737 N.E.2d 741, 743 (Ind. 2000)). “A change of judge
is neither automatic nor discretionary, but rather requires the trial judge to
make a legal determination, not a self-analysis, of actual bias or prejudice.” Id.
(citing Sturgeon, 719 N.E.2d at 1181; Allen, 737 N.E.2d at 743). “[T]he
appropriate standard of review of a trial judge’s decision to grant or deny a
motion for change of judge under Indiana Criminal Rule 12 is whether the
judge’s decision was clearly erroneous.” Sturgeon, 719 N.E.2d at 1182.
“Reversal will require a showing which leaves us with a definite and firm
conviction that a mistake has been made.” Id.
[19] Ind. Criminal Rule 12(D) governs the time period for filing a request for change
of judge and provides:
(D) Time Period for Filing Request for Change of Judge or
Change of Venue. In any criminal action, no change of judge or
change of venue from the county shall be granted except within
the time herein provided.
(1) Thirty Day Rule. An application for a change of judge
or change of venue from the county shall be filed within
thirty (30) days of the initial hearing. Provided, that where
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a cause is remanded for a new trial by the court on appeal,
such application must be filed not later than thirty (30)
days after the defendant first appears in person before the
trial court following remand.
(2) Subsequently Discovered Grounds. If the applicant
first obtains knowledge of the cause for change of venue
from the judge or from the county after the time above
limited, the applicant may file the application, which shall
be verified by the party specifically alleging when the cause
was first discovered, how it was discovered, the facts
showing the cause for a change, and why such cause could
not have been discovered before by the exercise of due
diligence. Any opposing party shall have the right to file
counter-affidavits on such issue within ten (10) days, and
after a hearing on the motion, the ruling of the court may
be reviewed only for abuse of discretion.
[20] The law is settled that a criminal defendant is not entitled to a change of judge
where the mandates of Criminal Rule 12 have not been followed. Flowers v.
State, 738 N.E.2d 1051, 1059-1060 (Ind. 2000) (citing Smith v. State, 477 N.E.2d
857, 864 (Ind. 1985); Welch v. State, 564 N.E.2d 525, 529 (Ind. Ct. App. 1990)),
reh’g denied. We note that Abney did not file an affidavit that the judge had a
personal bias or prejudice and did not file a certificate from the attorney of
record that the attorney in good faith believes that the historical facts recited in
the affidavit are true. Abney also did not file his request within thirty days of
the initial hearing. While he introduced a newspaper article dated June 10,
2016, as an exhibit on June 24, 2016, he did not specifically allege why such
cause could not have been discovered before by the exercise of due diligence.
Thus, we cannot say that Abney followed the mandates of Criminal Rule 12 or
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that the trial court erred in denying Abney’s motion. See Flowers, 738 N.E.2d at
1060 (holding that the trial court properly denied a motion for change of judge
because of the deficiencies in it including the defendant’s failure to file his
verified motion for change of judge within the required period of time and
failure to allege when he first learned of the grounds for a change of judge or
why the grounds could not have been discovered earlier in the exercise of due
diligence).
[21] Abney does not cite Ind. Criminal Rule 12 but rather argues that the trial judge
should have recused under the Code of Judicial Conduct. In Mathews v.
State, 64 N.E.3d 1250, 1254 (Ind. Ct. App. 2016), trans. denied, we recently
rejected the argument that the Code of Judicial Conduct supplies a freestanding
mechanism for relief, independent of a properly brought Criminal Rule 12
motion. We held that the obligations in the Code of Judicial Conduct are
enforced by the individual judge against himself in the first instance, and in the
last instance by disciplinary actions of the Indiana Supreme Court. 64 N.E.3d
at 1255. We also held that allowing an independent action under the Code of
Judicial Conduct would allow litigants, trial courts, and this Court to usurp the
exclusive supervisory authority of the Indiana Supreme Court over judicial
conduct. Id.
[22] Even if we were to undertake independent review of the trial judge’s decision in
light of the requirements of the Code of Judicial Conduct, we cannot say that
Abney would prevail. See id. at 1256 (holding that defendant would not prevail
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even if we conducted an independent review of the trial judge’s decision in light
of the Code of Judicial Conduct).
[23] Canon 2 of the Indiana Code of Judicial Conduct commands: “A Judge Shall
Perform the Duties of Judicial Office Impartially, Competently, and
Diligently.” Ind. Judicial Conduct Rule 2.11 governs the disqualification of
judges and provides in part:
(A) A judge shall disqualify himself or herself in any proceeding
in which the judge’s impartiality* might reasonably be
questioned, including but not limited to the following
circumstances:
(1) The judge has a personal bias or prejudice concerning a
party or a party’s lawyer, or personal knowledge* of facts
that are in dispute in the proceeding
[24] Rule 2.11 contains comments which are provided for “guidance regarding the
purpose, meaning, and proper application of the Rules” and to “identify
aspirational goals for judges,” Ind. Code of Judicial Conduct, Scope at 3-4,
including:
[1] Under this Rule, a judge is disqualified whenever the judge’s
impartiality might reasonably be questioned, regardless of
whether any of the specific provisions of paragraphs (A)(1)
through (6) apply. In many jurisdictions, the term “recusal” is
used interchangeably with the term “disqualification.”
[2] A judge’s obligation not to hear or decide matters in which
disqualification is required applies regardless of whether a
motion to disqualify is filed.
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*****
[5] A judge should disclose on the record information that the
judge believes the parties or their lawyers might reasonably
consider relevant to a possible motion for disqualification, even if
the judge believes there is no basis for disqualification.
Ind. Code of Judicial Conduct Rule 2.11 cmt. 1-2, 5.
[25] Canon 4 of the Indiana Code of Judicial Conduct provides: “A Judge or
Candidate for Judicial Office Shall Not Engage in Political or Campaign
Activity That is Inconsistent with the Independence, Integrity, or Impartiality
of the Judiciary.”
[26] Rule 4.4 is titled “Campaign Committees” and provides in part:
(A) A judicial candidate* subject to partisan or nonpartisan
election*, and a candidate for retention who has met active
opposition, may establish a campaign committee to manage and
conduct a campaign for the candidate, subject to the provisions
of this Code. The candidate is responsible for ensuring that his
or her campaign committee complies with applicable provisions
of this Code and other applicable law.*
(B) A judicial candidate shall direct his or her campaign
committee:
(1) to solicit and accept only such campaign contributions*
as are reasonable;
(2) not to solicit or accept contributions for a candidate’s
current campaign more than one (1) year before the
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applicable primary election, caucus, or general or retention
election, nor more than ninety (90) days after the last
election in which the candidate participated; and
(3) to comply with all applicable statutory requirements for
disclosure and divestiture of campaign contributions.
[27] Comment [3] to Rule 4.4 provides:
At the start of a campaign, the candidate must instruct the
campaign committee to solicit or accept only such contributions
as are reasonable in amount, appropriate under the
circumstances, and in conformity with applicable law. Although
lawyers and others who might appear before a successful
candidate for judicial office are permitted to make campaign
contributions, the candidate should instruct his or her campaign
committee to be especially cautious in connection with such
contributions, so they do not create grounds for disqualification if
the candidate is elected to judicial office. See Rule 2.11.
[28] Both parties discuss Bloomington Magazine, Inc. v. Kiang, 961 N.E.2d 61 (Ind. Ct.
App. 2012). In that case, Bloomington Magazine, Inc. and Mark Kiang d/b/a
Mikado Restaurant, Sunbeam Corp., and Truffles 56 Degrees, Inc. (“Mikado”
and “Truffles,” respectively, and collectively, “Kiang”), executed two
agreements to place advertisements in the magazine for both Mikado and
Truffles. 961 N.E.2d at 62. When a dispute as to payment arose, Bloomington
Magazine filed claims on December 19, 2008, seeking damages. Id. On
February 17, 2009, Attorney Geoffrey Grodner entered an appearance on
behalf of Kiang. Id. On January 4, 2010, the court issued an order finding in
favor of Kiang and against Bloomington Magazine. Id. Bloomington
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Magazine ultimately filed a Motion to Set Aside which asserted that the owner
and publisher of the magazine discovered that counsel for Kiang, Grodner,
served as Chair for Judge Haughton’s campaign committee for the 2008
elections and that the relationship between the judge and opposing counsel was
of the type of information that can reasonably be considered relevant to a
possible motion for disqualification. Id. at 62-63. Bloomington Magazine also
filed a motion to recuse. Id. at 63. The trial court denied Bloomington
Magazine’s motions. Id.
[29] On appeal, we held that the mere appearance of bias and partiality may require
recusal if an objective person, knowledgeable of all the circumstances, would
have a rational basis for doubting the judge’s impartiality. Id. at 64 (citing
Patterson v. State, 926 N.E.2d 90, 94 (Ind. Ct. App. 2010)).1 We found that the
professional relationship between Judge Haughton and Attorney Grodner, in
which Grodner served as the chairman of Judge Haughton’s 2008 election
committee, was not so remote in time so as to dispel the appearance of an
impropriety such that a reasonable person would have a rational basis for
doubting her impartiality. Id. at 66. We found particularly relevant that
Grodner’s appearance in the matter was filed in February 2009, which was
1
The court in Patterson cited Thakkar v. State, 644 N.E.2d 609 (Ind. Ct. App. 1994), which in turn cited Chief
Justice Shepard’s statement in Tyson v. State, 622 N.E.2d 457 (Ind. 1993), in which he denied an application
asking him to vacate his earlier disqualification from the case. Chief Justice Shepard wrote that then Canon
3(C)(1) provided that a judge “should disqualify himself in a proceeding in which his impartiality might
reasonably be questioned.” 622 N.E.2d at 459. He also stated that the “test under Canon 3(C)(1) is whether
an objective person, knowledgeable of all the circumstances, would have a reasonable basis for doubting the
judge’s impartiality.” Id.
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three months following the election at issue. Id. at 66-67. Despite the fact that
the Motion to Recuse was filed in August 2010, that motion requested recusal
from a Trial Rule 60(B) hearing concerning Judge Haughton’s failure to recuse
herself from a hearing taking place months earlier, in November 2009, at which
Attorney Grodner had represented Kiang. Id. at 67. We observed that the
chronological case summary revealed that following the filing of his appearance
and leading up to the bench trial, Grodner filed documents in the matter in
Judge Haughton’s court in March, April, June, and August 2009. Id. We also
noted that the Motion to Recuse itself was filed within two years of the 2008
election. Id. We remanded for a hearing on Bloomington Magazine’s Motion
to Set Aside to be heard by a special judge in accordance with Ind. Trial Rule
79. Id.
[30] Unlike in Bloomington Magazine in which Attorney Grodner served as the
chairman of Judge Haughton’s election committee, the elected prosecutor was
not the chairman and had yet to perform any election committee activities on
behalf of Judge Menges at the time of the article. Moreover, Judge Menges
took judicial notice that Abney’s counsel was a deputy public defender and that
the Chief Public Defender and his Chief Deputy were partners of Abney’s
counsel in his private practice of law and that both of them “agreed to serve in
exactly the same role that [the elected prosecuting attorney] has, as willing to
publically [sic] endorse my candidacy” and that “we have both sides supporting
my candidacy or at least the relationship, the higher parties, if you will, from
both sides are supporting my candidacy . . . .” Transcript at 13. Under the
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circumstances, we cannot say that an objective person, knowledgeable of all the
circumstances, would have a rational basis for doubting the judge’s impartiality
or that the trial court erred.
II.
[31] The next issue is whether the trial court abused its discretion in excluding
certain evidence. The admission and exclusion of evidence falls within the
sound discretion of the trial court, and we review the admission of evidence
only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.
2002). An abuse of discretion occurs “where the decision is clearly against the
logic and effect of the facts and circumstances.” Smith v. State, 754 N.E.2d 502,
504 (Ind. 2001). Even when a trial court errs in excluding evidence, we will not
find reversible error where that error is harmless; that is, where the error did not
affect the substantial rights of a party. See Ind. Trial Rule 61.
[32] Abney argues that the trial court refused to allow him to “explore the fact that
Patrick Acord was an admitted drug dealer even though that evidence was
already testified to and even though Patrick Acord was present at Abney’s
house when the search warrant was executed.” Appellant’s Brief at 13-14
(citation omitted). He asks: “Is it possible the jury may have entertained
reasonable doubt as to Abney being THE drug dealer in residence if Abney had
been permitted by the Trial Court to go down this line of reasoning?” Id. at 14.
He also points out that Officer Martin’s affidavit stated that Sergeant Miller had
talked to Dullworth and Beck on September 30, 2015, and they told him that
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heroin was being sold from the residence by Acord. He contends that “denying
to the jury known, sworn testimony that contradicts the picture being painted
by the State, denies to the jury its right to determine reasonable doubt---and
substitutes for that inherent right possessed by [the] jury, the State’s (or a
court’s) determination of sufficiency and reasonable doubt.” Id. at 15. He also
asserts that doing so denies him a fair jury trial and the right to confront all
witnesses against him.
[33] The State contends that Abney’s claim is waived because he failed to make an
offer of proof, and that there was simply no information that Acord was selling
heroin. It also contends that, waiver notwithstanding, the court properly
excluded statements in the probable cause affidavit because they were hearsay.
The State also argues that any alleged error was harmless because the
prosecutor presented substantial independent evidence of Abney’s guilt.
[34] The record reveals that Sergeant Melton testified that Acord stated that he was
“only selling his prescription pills and that he wasn’t a heroin dealer” and that
Acord “sold, I think they were Oxycodones. They were the blue pills, and so
he wanted to take ownership of selling his own prescription because he needed
the money, but he didn’t say anything about selling heroin.” Transcript at 63.
On cross-examination, Sergeant Melton testified that Acord admitted to using
heroin. During the cross-examination of Officer Martin, Abney’s counsel asked
if Dullworth, Beck, and Sands had indicated to Sergeant Miller whether they
had ever bought drugs from Abney, the prosecutor objected on the basis of
hearsay, and the court sustained the objection. Abney’s counsel referenced
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Officer Martin’s affidavit, the prosecutor objected to defense counsel reading
from documents not in evidence, and the court sustained the objection.
Abney’s counsel asked Officer Martin if Acord told him that he sold drugs, the
prosecutor objected on the basis of hearsay, and the court again sustained the
objection.
[35] With respect to Abney’s attempt to reference the affidavit, he does not argue on
appeal that the court’s ruling to sustain the State’s objection was improper.
Abney does not point to the record to suggest that he attempted to introduce the
affidavit and the trial court denied its admission. He also does not argue that
the testimony he sought from Officer Martin did not constitute hearsay or that
the court abused its discretion in sustaining the State’s objections on the basis of
hearsay. Under these circumstances, we cannot say that the trial court abused
its discretion.
III.
[36] The next issue is whether the court erred in entering its sentencing order.
Abney argues that the sentencing order contains a scrivener’s error with respect
to Counts 1 and 3 because it states that the court gave him “295 actual days or
393 credit days, day for day credit, served while awaiting trial and disposition in
this matter.” Appellant’s Appendix Volume 3 at 55. He asserts that “‘295’
time two does not equal ‘395.’” Appellant’s Brief at 15. He also argues that
“[t]he Trial Court does not make the same error when it later sentences on
Counts 4 and 5--- ‘295 actual days or 590 credit days. . . .’” Id. The State
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contends that there is no scrivener’s error in the sentencing order, that Abney
does not receive day-for-day credit on Count 1 because it is a level 3 felony, that
he received ninety-eight good time credit days, one for every three that he
served for his level 3 felony sentence, and that when added together, 295 days
of actual credit plus ninety-eight days of good time credit, Abney correctly
received 393 days of credit.
[37] The sentencing order states:
The Defendant is now sentenced on Count 1 to the Indiana
Department of Correction for 4380 days, all executed.
Count 2 is merged with Count 1[.]
On Count 3 the Defendant is sentenced to the Indiana
Department of Correction for 2190 days, all executed.
On Counts 1 and 3, the Defendant shall receive jail time credit in
the sum of 295 actual days or 393 credit days, day for day credit,
served while awaiting trial and disposition in this matter.
On Count 4 the Defendant is sentenced to the Indiana
Department of Correction for 913 days, all executed.
On Count 5 the Defendant is sentenced to the Indiana
Department of Correction for 913 days, all executed.
On Counts 4 and 5 the Defendant shall receive jail time credit in
the sum of 295 actual days or 590 credit days, day for day credit,
served while awaiting trial and disposition in this matter.
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Appellant’s Appendix Volume 3 at 55.
[38] Ind. Code § 35-50-6-4(b) provides that a person “who is not a credit restricted
felon; and . . . who is imprisoned for a crime other than a Level 6 felony or
misdemeanor or imprisoned awaiting trial or sentencing for a crime other than
a Level 6 felony or misdemeanor . . . is initially assigned to Class B.” Count 1
was dealing in a narcotic drug as a level 3 felony, and Count 3 was possession
of cocaine as a level 5 felony. Thus, Abney was initially assigned to Class B
pursuant to Ind. Code § 35-50-6-4(b). Ind. Code § 35-50-6-3.1(c) provides that
“[a] person assigned to Class B earns one (1) day of good time credit for every
three (3) days the person is imprisoned for a crime or confined awaiting trial or
sentencing.” Abney does not challenge the court’s finding that he had 295
actual days. A person assigned to Class B would receive one day of good time
credit for every three days the person is imprisoned. Thus, Abney would have
received approximately ninety-eight days of good time credit for a total credit
time of 393 days. Accordingly, we do not disturb the court’s sentencing order.
Conclusion
[39] For the foregoing reasons, we affirm Abney’s convictions and sentence.
[40] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
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Keith D. Abney v. State of Indiana
Combined Opinion