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Abney v. State

Court of Appeals of Indiana

June 22, 2017

Keith D. Abney, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

         Appeal from the Howard Superior Court The Honorable William C. Menges, Jr. Trial Court Cause No. 34D01-1510-F2-914

          ATTORNEY FOR APPELLANT Donald E.C. Leicht Kokomo, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

          Brown, Judge.

         [¶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 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, 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 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 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."
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."
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 ...

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