Argued: January 17, 2019
from the Marion Superior Court, No. 49G02-0903-PC-34210 The
Honorable Amy Barbar, Magistrate
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEY FOR APPELLANT Cynthia M. Carter Law Office of
Cynthia M. Carter, LLC Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Caroline G. Templeton Deputy Attorney General
Justice Rush and Justice David concur.
Justice Massa concurs in result.
Justice Slaughter concurs in part, dissents in part with
can only be characterized as a twist of fate, Anthony Bedolla
found himself sharing a holding cell with the man who could
help prove he had been wrongly convicted of murder. Securing
the man's testimony and presenting it to the
post-conviction court proved challenging for Bedolla's
attorney for various reasons, some outside her control. After
an unsuccessful deposition, yet with assurances from the
witness that he would cooperate, Bedolla's counsel sought
leave from the court to try again to get the testimony. But
the post-conviction court refused to hear argument from
Bedolla's attorney on this point, even denying her the
opportunity to make an offer of proof. The court then ended
discovery, closed the evidence, and demanded proposed
findings and conclusions from the parties. When Bedolla's
counsel attempted to make her case and develop a record for
appeal, the court silenced her with threats of contempt.
a judge's job is to listen. In re Van Walters v. Bd.
of Children's Guardians of Marion Cty., 132 Ind.
567, 571, 32 N.E. 568, 569 (1892) (stating judges must
"hear with deliberation, act with
impartiality, and decide upon the law and the evidence")
(emphasis added). When a judge refuses to hear a party's
offer to prove, she not only abdicates the duty to listen,
but she calls into question the principle of fundamental
fairness, which requires that parties, particularly those
bearing the burden of proof, receive every reasonable
opportunity to make their case. Hirsch v. State, 697
N.E.2d 37, 43 (Ind. 1998). Today we hold that a
post-conviction court abuses its discretion when it denies a
party's legitimate request to make an offer of proof.
and Procedural History
wee hours of March 8, 2009, Erick Espinoza was shot and
killed in an Indianapolis nightclub's parking lot.
Multiple witnesses placed Anthony Bedolla in the parking lot,
but only one witness identified him as the killer. The State
eventually charged Bedolla with murder and cocaine
possession. Following a bench trial in February 2010, the
court found Bedolla guilty as charged and sentenced him to 45
years in prison. See Bedolla v. State, No.
49A02-1003-CR-368, 2011 WL 240152, at *1 (Ind.Ct.App. Jan.
20, 2011), trans. denied.
October 2011, after exhausting direct appeals, Bedolla sought
post-conviction relief. He twice amended his petition over
the years before the court held an evidentiary hearing on
January 11, 2017. After that hearing, while Bedolla sat in a
Marion County Jail holding cell awaiting transport back to
prison, he met Miguel Barragan-Lopez. The two cellmates
struck up a conversation and Barragan-Lopez provided
information that, if true, would exonerate Bedolla.
told Bedolla that he knew Sarai Solano-the one witness that
testified she saw Bedolla shoot Espinoza-and she told him
that another man committed the murder. Specifically,
Barragan-Lopez recounted he had a brief relationship with
Solano and she confided to him that Jose Reyes (her old
boyfriend) shot and killed Espinoza, not Bedolla.
relayed this information to his post-conviction attorney
("Counsel") and asked her to investigate. Counsel
talked with both Barragan-Lopez and his attorney. In April
2017, Counsel submitted a third amendment to Bedolla's
PCR petition, alleging newly discovered evidence revealed a
different killer and entitled him to a new trial. Counsel
arranged to have Barragan-Lopez testify at an April 26, 2017
evidentiary hearing, but a week before the hearing United
States Marshalls moved him from Indianapolis to Litchfield,
19, 2017, Counsel attempted to take Barragan-Lopez's
recorded statement, but he refused to go on the record
without a court order. Counsel updated the post-conviction
court about the prior unsuccessful attempts to have
Barragan-Lopez testify. She moved for leave to depose
Barragan-Lopez and attached the subpoena to the motion.
Counsel acknowledged that since Barragan-Lopez was in
Kentucky, she would need to utilize the Uniform Interstate
Depositions and Discovery Act to serve the subpoena. The
State did not respond to Counsel's motion and the court
later granted it.
September 13, 2017, Counsel travelled to Kentucky to depose
Barragan-Lopez. The State participated via video conference.
Shortly into the deposition, the State objected to
Counsel's leading questions, calling them "totally
inappropriate for a trial deposition." Appellant's
App. Vol. III, p. 72, lines 17-18. Upon hearing the
State's objections, Barragan-Lopez said: "If
they're not appropriate, then I want to leave."
Id. at 72, lines 21- 22. Counsel tried to explain to
Barragan-Lopez that the State was objecting only as to the
questions' form and reminded him that he was under a
subpoena. After listening to the back-and-forth between the
attorneys, Barragan-Lopez said he could help Bedolla, but he
did not want to get into trouble. As Counsel tried to
continue the deposition, Barragan-Lopez repeatedly said he
wanted his attorney present because he did not trust what
either the State or Counsel was telling him. Barragan-Lopez
affirmed he would eventually talk, but he wanted his attorney
present. Before leaving the room, Barragan-Lopez told
Counsel: "I know that you feel bad because I want to
leave. But if you come back with my attorney, I will answer
all of the questions you have." Id. at 82,
lines 5-7. Counsel called Barragan-Lopez's attorney, but
the latter could not participate in the deposition that day.
week later, the parties appeared before the post-conviction
court for a status hearing. At the beginning of the hearing
the court said: "I think I had just set this for a
hearing to make sure that I got my order out on that
[deposition] motion. I meant to actually vacate this
hearing." Tr. Vol. III, p. 35, lines 1-3. The court then
cleared up a duplicate filing and asked, "So is there
anything else?" Id. at 36, lines 15-16. At this
Counsel updated the court:
We're still working on getting [the deposition]
completed, Your Honor. I'm in touch with the
deponent's counsel. He's on vacation this week and
we're scheduled to talk on ...