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Hinkle v. State

Court of Appeals of Indiana

March 26, 2018

James E. Hinkle, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

          Appeal from the Elkhart Superior Court Nos. 20D03-0812-FB-61, 20D03-1312-PC-81 The Honorable Teresa L. Cataldo, Judge

          ATTORNEY FOR APPELLANT Richard J. Thonert Fort Wayne, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

          ATTORNEYS FOR AMICUS CURIAE PUBLIC DEFENDER OF INDIANA Stephen T. Owens Public Defender of Indiana J.Michael Sauer Deputy Public Defender Indianapolis, Indiana

          NAJAM, JUDGE.

         Statement of the Case

         [¶1] Employing the Davis-Hatton procedure, [1] James E. Hinkle appeals his convictions for child molesting, as a Class A felony, and sexual misconduct with a minor, as a Class D felony; his adjudication for being a repeat sexual offender; and the post-conviction court's denial of his petition for post-conviction relief. Hinkle raises the following four issues[2] for our review:

1. Whether the trial court abused its discretion when it excluded evidence of the victim's prior drug use.
2. Whether the post-conviction court abused its discretion when it prohibited Hinkle from obtaining, in the course of discovery on his post-conviction claim of ineffective assistance of trial counsel, all documents, records, and videos that his trial counsel had access to in preparing for Hinkle's trial.
3. Whether Hinkle's trial counsel rendered ineffective assistance.
4. Whether the post-conviction court's judgment is consistent with the requirement that such judgments be supported by findings of fact and conclusions of law.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] In the summer of 2004, S.B., who lived in Michigan with his mother, visited family in Elkhart County, Indiana. At the time, S.B. was thirteen years old. While S.B. was in Elkhart County for a few weeks, his mother returned to Michigan.

         [¶4] Hinkle is part of S.B.'s extended family in Elkhart County, and S.B. spent some of the nights he was in Elkhart County at Hinkle's residence. On at least one occasion while S.B. was with Hinkle at Hinkle's residence, Hinkle isolated S.B. and performed oral sex on S.B. Hinkle then had S.B. manually stimulate him.

         [¶5] In the summer of 2005, when S.B. was fourteen years old, he again spent some time over the summer at Hinkle's residence. On at least one occasion during that time, Hinkle again isolated S.B. and performed oral sex on him. And Hinkle again had S.B. manually stimulate him.

         [¶6] Over the next few years, S.B. began using illegal drugs. In the summer of 2008, when S.B. was seventeen years old, he used opiates and marijuana on a nearly daily basis. He was also experimenting with other drugs, and he had tried heroin a handful of times. His mother became concerned about changes in S.B.'s behavior, and when he again stayed with his family in Elkhart County that summer, his grandmother suspected drug use. S.B.'s family eventually discovered that S.B. had been using drugs and confronted him. During their discussion, S.B. admitted to his drug use and also revealed that Hinkle had been molesting him.

         [¶7] S.B.'s family reported Hinkle's molestations to local police. On August 13, 2008, S.B. participated in a video-recorded interview at the Child and Family Advocacy Center ("CFAC"). That interview was conducted by a CFAC employee and attended by Elkhart City Police Department Detective Carlton Conway as well as a representative of the Indiana Department of Child Services. A few days after that interview, Detective Conway conducted his own interview with S.B., and he separately interviewed P.B. and S.M., S.B.'s grandmother and uncle, respectively. Those interviews were also video-recorded. Susan Snyder, the deputy prosecuting attorney, conducted a third, unrecorded interview of S.B. in November.

         [¶8] In December, the State charged Hinkle with two counts of incest, each as a Class B felony; two counts of sexual misconduct with a minor, each as a Class D felony; and for being a repeat sexual offender. Marielena Duerring entered her appearance as Hinkle's trial counsel. In January of 2009, Snyder wrote Duerring a letter in which Snyder invited Duerring to view S.B.'s two video-recorded interviews from August of 2008 along with police reports that summarized the State's investigation. Snyder further informed Duerring that Snyder had "an open file policy meaning you may schedule a time to view my entire un-redacted file." Ex. Vol. III at 121.[3] However, to view the recordings or documents held by Snyder, Duerring was required to execute a "Discovery Compliance Agreement" in which Duerring "agreed that any privileged information would not be disclosed by counsel to anyone, " which apparently included Hinkle.[4] Appellant's App. Vol. IV at 58.

         [¶9] After numerous continuances, the court held Hinkle's jury trial in August of 2013. The morning of trial, the State moved to amend the charging information such that the State charged Hinkle with child molesting, as a Class A felony; sexual misconduct with a minor, as a Class D felony; and for being a repeat sexual offender. Duerring, who had had discussions with the State about amending the charging information for the preceding three months and had prepared for the new Class A felony allegation, did not object in order to avoid having Hinkle subjected to a new cause on the Class A felony.

         [¶10] During the ensuing trial, the State called S.B. as a witness, and he recounted Hinkle's molestations of him. On cross-examination, Duerring made an offer of proof outside the presence of the jury. During that offer, Duerring examined S.B. on his prior drug use on the theory that S.B. had made up Hinkle's molestations of him to avoid facing consequences from his family for his drug use. However, the trial court excluded S.B.'s drug use on the grounds that the court saw "no connection between this family meeting and the establishment of a motive to falsely accuse [Hinkle] of molestation." Tr. Vol. III at 187. The jury found Hinkle guilty on the child molesting counts, and he then admitted to being a repeat sexual offender. The trial court entered its judgment of conviction and sentence accordingly.

         [¶11] Thereafter, Hinkle filed a petition for post-conviction relief and alleged ineffective assistance of trial counsel. Richard Thonert, Hinkle's post-conviction counsel (and Hinkle's counsel in this appeal), requested that Duerring provide to him "the discovery . . . as it relates to this case, " but Duerring stated that "she [wa]s unable to provide . . . the discovery without permission from" the Elkhart County Prosecutor's office. Appellant's App. Vol. IV at 71. And when Thonert requested the prosecutor's office grant that permission to Duerring or otherwise "provide . . . a complete copy of the discovery in this matter, " a representative of the prosecutor declined. Id. at 28.

         [¶12] Accordingly, Thonert filed a motion to compel with the post-conviction court. In that motion, Thonert specified that he sought "all information upon which [the State] relied in bringing the charges against [Hinkle] in this cause, whether or not such information was used during the trial, including the identity of any and all persons contacted, information received from such person whether in writing, audio or video recording, or otherwise documented, which was either disclosed or not disclosed to trial counsel as it relates to the investigation [or] preparation of filing of charges in this cause against [Hinkle]." Id. at 25. On November 18, 2014, the post-conviction court entered its order denying the motion to compel. In that order, the court stated as follows:

20. In the instant case, Petitioner requests that the court compel the State to produce any and all documents, reports, affidavits, memorandum, police reports, audio/videos, or other items otherwise designated as discovery material previously produced or not produced to trial counsel in the underlying criminal case. Petitioner also requests that the State be compelled to answer interrogatories identifying any discovery materials in its possession and control that were or were not produced to trial counsel as the same relates to the basis upon which the charges made against Petitioner were made.
21. Although the post conviction rules provide for discovery, a post conviction proceeding is not a normal civil action. A post conviction proceeding is a special quasi-civil remedy designed for the presentation of errors unknown or unavailable at the time of trial or direct appeal. Sewell v. State, 592 N.E.2d 705, 707 (Ind.Ct.App. 1992). Because post conviction proceedings take place after trial or a guilty plea hearing, the convicted individual typically has discovered particular items of State evidence or foregone the opportunity to do so. Discovery is not required under the Due Process Clause of the Constitution; therefore, a defendant may waive pre-trial discovery rights by failing to exercise them. Id[.] A second opportunity to discover the same evidence will typically be precluded. Id.
22. The State has an affirmative duty to disclose evidence favorable to a criminal defendant. Thus, . . . such evidence is discoverable . . . .
23. The post conviction relief process is not, however, a device for investigating possible claims, but a means for vindicating actual claims and there is no post conviction right to fish through official files for belated grounds of attack on the judgment or to confirm mere speculation or hope that a basis for collateral relief may exist. Brown v. State, 698 N.E.2d 1132, 1139 (Ind. 1998). To the extent a petitioner does not contend that there is any specific information in official files that support his or her claims to post conviction relief, no rule of constitutional law or state procedure mandates unfettered access to those files in hopes of uncovering such information. [Id.] Any post conviction discovery order should be appropriately narrow and limited. Only where a petitioner presents the post conviction court with good cause to order the [S]tate to supply the petitioner with discovery that is relevant to the petitioner's case and is not privileged does the court have discretionary authority to grant relief. Roche v. State, 690 N.E.2d 1115, 1132 (Ind. 1997), aff'd in part, vacated in part on other grounds, Roche v. Davis, 291 F.3d 473[ ](7th Cir[. 2]002).
24. Further, where a timely work product objection has been made, a trial court's authority to control discovery does not extend to compelling production of verbatim copies of police reports because such reports are the work product of the prosecuting attorney, having been prepared for the prosecuting attorney by the police officer as the prosecuting attorney's agent. Gault v. State, 878 N.E.2d 1260, 1266 (Ind. 2008) (citing State ex rel. Keaton v. Circuit Court of Rush County, 475 N.E.2d 1146, 1148 (Ind. 1985)[)].
25. In the instant case, the record establishes that . . . the court directed the State to produce for Petitioner all exculpatory evidence in its possession and control. Additionally, the record reveals that the State disclosed discoverable materials to trial counsel in accordance with discovery procedures, including the execution of a Discovery Compliance Agreement whereby it was agreed that any privileged information would not be disclosed by counsel to anyone. . . . Moreover, a thorough review of Petitioner's MOTION reveals that Petitioner's discovery request is over broad in that Petitioner seeks "any and all" information in order to determine whether trial counsel may have been ineffective. This request is clearly a prohibited "fishing expedition" to determine if a claim for post conviction relief may exist rather than a request for specific information to support an actual claim for post conviction relief. Unfettered access of this kind is not authorized.

Id. at 56-59 (citations to the record omitted). Despite that order, on two subsequent occasions Thonert attempted to issue subpoenas duces tecum to the State for the same information he had attempted to obtain by way of his motion to compel, but the ...

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