Appeal from the Marion Superior Court, No. 49D01-1110-MI-38687. The Honorable David Shaheed, Judge. The Honorable Shatrese Flowers, Commissioner.
On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-1307-MI-352.
ATTORNEY FOR APPELLANT: Stephen Gerald Gray, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, Kyle Hunter, Deputy Attorney General, Indianapolis, Indiana.
Rush, Chief Justice. Dickson, Rucker, David, and Massa, JJ., concur.
Rush, Chief Justice.
Under Indiana Trial Rule 56, summary judgment is precluded by any " genuine" issue of material fact--that is, any issue requiring the trier of fact to resolve the parties' differing accounts of the truth. Merely resting on the pleadings will not permit the non-movant to raise such an issue, but a competent affidavit will. Here, Defendant's affidavit was self-serving and none too detailed--but it was competent, and it contradicted the State's designated evidence on a material fact. It was therefore sufficient to preclude summary judgment, regardless of whether Defendant would likely prevail at trial. We accordingly reverse the trial court.
In August 2011, police were seeking a suspect who had led them on a car chase, crashed, and was last seen near Defendant's red 1977 Buick, which was parked in front of Defendant Antonio Hughley's home a few blocks from the crash. Police knocked on Defendant's door and obtained his consent to search for the suspect. The suspect wasn't there, but apparent cocaine residue and other indicia of cocaine dealing were in plain view on the kitchen table--leading to a search warrant and discovery of 550 grams of cocaine, plus further evidence of dealing. Police arrested Defendant, and a search incident to his arrest revealed $3,871 in cash, mostly $20s, in his front pocket. A jury convicted him of dealing cocaine and related offenses.
Thereafter, the State filed civil proceedings seeking forfeiture of Defendant's cash and car, alleging that both were proceeds of, or were meant to be used to facilitate, Defendant's dealing. After Defendant filed an answer, the State sought summary judgment, designating as evidence the probable-cause affidavits and judgment of conviction from the underlying criminal proceedings. In response, Defendant filed an affidavit denying that the cash was connected to his dealing. The perfunctory affidavit recited his competence to testify and then stated in full:
2. The U.S. currency seized from me during my arrest . . . is not the proceeds from criminal activity nor was it intended for a violation of any criminal statute. I did not intend to use that money for anything other [than] legal activities.
3. Likewise, my 1977 Buick was never used to transport controlled substances and it is not the proceeds ...