[Copyrighted Material Omitted]
Appeal from the LaPorte Superior Court. Cause No. 46D01-1403-MR-110. The Honorable Kathleen B. Lang, Judge.
ATTORNEYS FOR APPELLANT: Gregory F. Zoeller, Attorney General of Indiana; Brian Reitz, Deputy Attorney General, Indianapolis, Indiana.
ATTORNEY FOR APPELLEE: Craig V. Braje, Elizabeth A. Flynn, Michigan City, Indiana.
Barnes, Judge. Pyle, J., concurs. May, J., dissents with separate opinion.
[¶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.
[¶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.
[¶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, 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.
[¶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 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.
[¶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 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 ...