Volume 37 Issue 1 January 11, 2010

Bowling v. State, No. 68A05-0906-CR-306, __ N.E.2d. __ (Ind. Ct. App., Dec. 30, 2009)

Interstate Agreement on Detainers 180 day trial right is not triggered until prosecutor and court in prosecution state receive prisoner’s request for trial.

Mogg v. State, No. 29A04-0902-CR-82, __ N.E.2d __ (Ind. Ct. App., Dec. 31, 2009)

Proper showing was made for probation revocation evidence of alcohol use generated by Secure Continuous Remote Alcohol Monitor (“SCRAM”) bracelet.

Hevner v. State, No. 27S02-1001-CR-5, __ N.E.2d __ (Ind., Jan. 6, 2010)

Indiana Constitution’s ex post facto clause precludes application of a sex offender registration requirement enacted after the offense was committed.

In re N.E., No. 49S02-0906-JV-270, ___ N.E.2d ___ (Ind. Jan. 6, 2010)

Juvenile court is not required to determine whether a child is a CHINS as to each parent, only whether the statutory CHINS elements have been established.

Allied Property & Cas. Ins. Co. v. Good, No. 85A04-0902-CV-89, ___ N.E.2d ___ (Ind. Ct. App., Dec. 31, 2009)

If a trial court finds that an attorney or party caused a mistrial by egregiously violating an order in limine, the trial court has the inherent power to sanction him or her.

Allied Property & Cas. Ins. Co. v. Good, No. 85A04-0902-CV-89, ___ N.E.2d ___ (Ind. Ct. App., Dec. 31, 2009)

If a trial court finds that an attorney or party caused a mistrial by egregiously violating an order in limine, the trial court has the inherent power to sanction him or her.



Bowling v. State, No. 68A05-0906-CR-306, __ N.E.2d. __ (Ind. Ct. App., Dec. 30, 2009)

DARDEN, J.

The IAD [Interstate Agreement on Detainers] is an agreement among most of the United States that provides for the return of prisoners so that pending charges from another jurisdiction can be resolved. State v. Smith, 882 N.E.2d 739, 742 (Ind. Ct. App. 2008) (citing Ind. Code § 35-33-10-4). Pursuant to the IAD, a defendant must be brought to trial “within 180 days” after he has [c]aused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint.

Id. (quoting I.C. § 35-33-10-4, Art. 3(a)). This request for early trial must be “accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held” and various other information. Id. The notice procedures of the IAD “are not mere technicalities.” State v. Greenwood, 665 N.E.2d 579, 582 (Ind. 1996).

Bowling argues that pursuant to Ward v. State, 435 N.E.2d 578 (Ind. Ct. App. 1982), his motion to dismiss should have been granted. Specifically, he argues that like Ward, he “did everything in his power to comply with” the IAD; therefore, “the prison’s failure to comply with” the IAD “should not be held against him,” and the charge against him “should be dismissed because more than” 180 days had elapsed since he “filed out the required paperwork.” Bowling’s Br. at 5, 6. We are not persuaded.

In Ward, the defendant originally wrote a letter (from his place of incarceration in Illinois) to the prosecuting attorney in Lake County, “stating his term and place of confinement and requesting that pending charges be speedily dealt with pursuant to the” IAD. 435 N.E.2d at 579. He then gave this letter “to his case manager” at the Illinois facility. Id. Ward testified that “his only communication link to the prison administration was through his case manager, who was responsible for all matters relating to his case, including detainers under the interstate agreement.” Id. Apparently, his case manager did not take further action to pursue the IAD process on Ward’s behalf for an early trial. Relying on U.S. v. Hutchins, 489 F. Supp. 710 (N.D. Ind. 1980), we found that after Ward “gave that notice and request to his case manager,” it was then “incumbent upon the custodial officials to fulfill their obligations under” the IAD “to send the required information to the appropriate prosecuting authorities and court.” Id. We concluded that because “Ward had given the custodial official notice of his request, the failure of the prison officials to comply with the mandate” of the IAD could not “be attributed to Ward to extinguish his right to a speedy trial and defeat a purpose of the IAD.” Id. Accordingly, we held that Ward’s motion to dismiss should have been granted.

Apparently, no transfer was sought in Ward. Further, subsequent to Ward, the United States Supreme Court decided Fex v. Michigan, 507 U.S. 43 (1993). Fex concerned the meaning of the phrase “caused to be delivered” in the IAD, id. at 47, a provision found in the Indiana statute at Indiana Code section 35-33-10-4, whereby a person against whom a charge is pending in another jurisdiction and subject to a detainer,

shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made . . . .

Fex considered the argument that the IAD notice should be considered delivered upon the “prisoner’s transmittal of an IAD request to the prison authorities,” and expressly “reject[ed]” this contention. 507 U.S. at 48, 47. Fex reiterated that “the IAD unquestionably requires delivery,” and concluded with the holding that the 180-day time period

does not commence until the prisoner’s request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him.

507 U.S. at 52.

. . . U.S. v. Brewington, 512 F.3d 995 (7th Cir. 2008), expressly noted that Fex had “rejected” the argument based on Hutchins [footnote omitted] – holding “that, even if delivery of the notice is delayed due to negligence or malice on the part of prison authorities, the IAD’s clock does not start running until the notice is actually received by both the prosecutor and the court.” Id. at 997 (citing Fex, 507 U.S. at 49-50). Moreover, Brewington involved circumstances similar to Bowlings’. Brewington was incarcerated in Indiana when he was informed on February 24, 2006, of his indictment in federal court. On that date, he was given forms, which he completed, to exercise “his right under the IAD to demand a speedy trial, and his demand was received by the U.S. Attorney’s office on March 7, 2006,” but “the district court never received a copy of the demand.” 512 F.3d at 996. Seven months later, he was brought into federal court. Brewington moved for a dismissal and argued that the 180-day period should have been triggered by the prosecuting attorney’s receipt of his demand. The district court “concluded that the 180-day clock did not start running until both the court and the prosecutor received Brewington’s demand,” and denied his motion to dismiss. Id. Brewington appealed.

The Seventh Circuit held that interpretation of the 180-day trigger “begins (and in this case ends) with the Supreme Court’s opinion in Fex,” which

held that the 180-day clock “does not commence until the prisoner’s request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him.”

512 F.3d at 997 (quoting Fex, 507 U.S. at 52). As to Brewington’s argument that the dual-delivery requirement “serves no purpose and that providing notice only to the prosecutor should be enough to start the running of the IAD clock,” it concluded such arguments were “more appropriately addressed to the legislature” of the states which adopted the IAD’s test. Id.

Bowling testified that he had received a copy of the paperwork constituting Exhibit A. As noted above, the forms contain multiple references to the requirement that an IAD early trial request must be sent to both the court and the prosecutor’s office. Yet, as the trial court found, there is no evidence that Bowling ever attempted to confirm that his request had been forwarded to both entities. Bowling did not elicit for the trial court any testimony or affidavit from any official of the London facility [in Ohio where Bowling was a prisoner] as to the transmittal of Exhibit A’s IAD documents. Thus, there was no evidence that any notice was sent to the trial court, and no evidence as to what was sent to the prosecutor’s office. Accordingly, the record cannot establish that Bowling “caused to be delivered” to either the trial court or the prosecutor’s office his IAD early trial request. Fex, 507 U.S. at 47 (quoting IAD Art. 3(a))d).  [Footnote omitted.]  The IAD “unquestionably requires delivery,” and without delivery, the IAD’s 180-day clock “does not commence.” Id. at 52. Therefore, the trial court did not err when it denied Bowling’s motion to dismiss the Indiana charge pending against him.

MAY, J., concurs.

KIRSCH, J., concurs in result.

 

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Mogg v. State, No. 29A04-0902-CR-82, __ N.E.2d __ (Ind. Ct. App., Dec. 31, 2009)

ROBB, J.

[T]he trial court extended Mogg’s probation and imposed a further condition that she continuously wear a Secure Continuous Remote Alcohol Monitor (“SCRAM”) bracelet. Following subsequent allegations of probation violations, the trial court revoked Mogg’s probation on the basis of findings she consumed alcohol as evidenced by positive readings while on SCRAM. Mogg now appeals the revocation of her probation, raising a single issue that we expand and restate as: 1) whether the trial court abused its discretion in admitting evidence of Mogg’s alcohol consumption generated by the SCRAM system; and 2) whether sufficient evidence supports the revocation of Mogg’s probation. We conclude the trial court, based upon the uncontroverted expert testimony and evidence before it, did not abuse its discretion in determining the SCRAM readings were sufficiently reliable to be admissible as evidence of Mogg’s alcohol consumption for purposes of a probation revocation. As a result, sufficient evidence supports the revocation of Mogg’s probation, and we affirm the judgment of the trial court.

. . . .

On December 8, 2008, the trial court held an evidentiary hearing on both informations. The State called Jeffrey Hawthorne, whom the trial court qualified as an expert witness based on his training as an electrical engineer, his experience in research and development of a hand-held alcohol breathalyzer, his position as co-founder and chief technology officer of Alcohol Monitoring Systems, Inc. (“AMS”), where he co-invented the SCRAM system, and his prior qualification as an expert witness in numerous jurisdictions. According to Hawthorne’s testimony, the SCRAM system, which AMS manufactures, measures concentrations of transdermal alcohol, that is, alcohol perspired through a person’s skin as sweat or vapor. Transdermal alcohol concentration (“TAC”) rises and falls on a curve that lags four to five hours behind the curve of blood alcohol concentration, as it takes longer for alcohol to be perspired through a person’s skin than to be absorbed into the bloodstream. The SCRAM bracelet, attached to the person’s lower leg or ankle, uses a fuel cell to detect alcohol in vapor drawn into a collection chamber, and this alcohol detection technology is similar to that employed in many breath-testing devices.

Hawthorne testified the SCRAM bracelet electronically transmits, every thirty minutes, transdermal alcohol readings through a modem in the person’s residence to an AMS central computer. An AMS technician monitors the flow of data, AMS analyzes the data, and AMS and its local service provider (here, Total Court Services, Inc.) notify the probation office supervising the person when the data indicate alcohol consumption of more than one drink per hour for an average person. The SCRAM system “does not ‘flag’ an event until three consecutive readings exceed [TAC of] 0.02%,” which the average person reaches only with “more than one drink in his or her system. This gives the wearer the benefit of the doubt.” Transcript at 299. When an alcohol consumption event is indicated, the person is given an opportunity to provide AMS with an alternative explanation for the positive readings, such as an environmental “interferant” or other non-beverage alcohol exposure. Id. at 312. AMS technicians are trained to distinguish the TAC curve resulting from a true drinking event from one that is the result of an interferant. According to Hawthorne, the SCRAM system is not designed to measure a precise amount of alcohol in the body, rather, it is a “semi-quantitative” screening device for determining “whether a person consumed a small, moderate or large amount of alcohol.” Id. at 290. AMS protects against mechanical error by testing all SCRAM bracelets before shipping them, calibrating each bracelet before placing it online, and running remote diagnostic checks. AMS has tested the accuracy of the SCRAM system in a study involving 839 total events, which registered 62 true positive drinking events and one false positive.

The State also called Joe Cook, an employee of Total Court Services who fitted Mogg with the SCRAM II device. According to Cook, he had received twenty-four hours of training from AMS on both SCRAM I – the original version of the SCRAM bracelet – and SCRAM II, including how to properly fit a person with the SCRAM II bracelet. Cook testified he fitted Mogg’s bracelet in accordance with his training, initialized the bracelet, and at that time the bracelet was working properly. The State also offered, and the trial court admitted over Mogg’s objection, the violation report from the SCRAM system showing, based on Mogg’s TAC graphs for the dates in question, two confirmed alcohol consumption events by Mogg on June 13-14, 2008, and October 31-November 1, 2008.

As a foundation for the reliability of the SCRAM results, the State offered, and the trial court admitted, two published studies. The first study (the “Sakai study”) was published as Joseph T. Sakai et al., Validity of Transdermal Alcohol Monitoring: Fixed and Self-Regulated Dosing, 30 Alcoholism: Clinical and Experimental Research 26 (2006). The Sakai study showed that in a laboratory study involving twenty-four persons and over eighty samples from those who did not consume alcohol, the SCRAM I bracelet had no false positive readings. However, “the [SCRAM I] device consistently detected consumption of approximately 2 standard drinks.” Tr. at 226. The Sakai study was funded in part by a grant from AMS. The second study (the “NHTSA study”) was a November 2007 report of the National Highway Traffic Safety Administration, which involved twenty-two persons who wore SCRAM I over a period averaging four weeks per person and engaged in laboratory-dosed and self-dosed drinking totaling 271 episodes. The study concluded SCRAM I had no “false-positive problems when true BAC was ˂.02 g / dL.” Id. at 241. The problems identified with SCRAM I were false negatives and that the bracelet‟s sensitivity and accuracy declined over the duration of wear. Hawthorne testified SCRAM II involves the same technology and scientific principles as SCRAM I, the only difference between the two units being the components of SCRAM II are smaller and fit “in one case rather than in two cases.” Id. at 88.

. . . .

The Indiana Rules of Evidence, except regarding privileges, do not apply in probation proceedings. Ind. Evidence Rule 101(c)(2). Rather, in probation revocation hearings, the trial court “may consider any relevant evidence bearing some substantial indicia of reliability.” Cox, 706 N.E.2d at 551. “Judges are not, of course, bound to admit all evidence presented to the court. In fact, the absence of strict evidentiary rules places particular importance on the fact-finding role of judges in assessing the weight, sufficiency and reliability of proffered evidence.” Id.; see also Reyes v. State, 868 N.E.2d 438, 440-42 (Ind. 2007) (holding, in light of due-process principles, hearsay is admissible in probation revocation hearings only if the trial court finds the hearsay is “substantially trustworthy”). Therefore, expert scientific testimony in probation revocation hearings is not subject to Indiana Evidence Rule 702(b), which provides “[e]xpert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.” However, expert scientific testimony, like any evidence in probation revocation hearings, is admissible only upon some showing of reliability. See Cox, 706 N.E.2d at 551. As in a criminal trial, the reliability of expert scientific evidence may be established by judicial notice or a sufficient foundation to persuade the trial court that the relevant scientific principles are reliable. See Malinski v. State, 794 N.E.2d 1071, 1084 (Ind. 2003).

. . . .

2. Indicia of SCRAM System’s Reliability

First, the record before the trial court established the SCRAM system both can be, and has been, tested regarding its accuracy in detecting a person’s alcohol consumption. To carry its burden of persuading the trial court the evidence generated by SCRAM rests on reliable scientific principles, the State introduced three studies based on laboratory-controlled testing of the SCRAM system: one study conducted internally by AMS and two external, published studies. Although these studies tested the SCRAM I bracelet and not SCRAM II, which was subsequently developed and worn by Mogg, Hawthorne’s uncontroverted testimony was that the SCRAM II bracelet uses the same technology and components as SCRAM I, and the trial court thereupon concluded the studies were relevant to the reliability of SCRAM II. Mogg points out that Hawthorne, as co-inventor of the SCRAM system and an employee of AMS, had a financial interest in his testimony offered to show the reliability of SCRAM. However, the credibility of an expert witness is a manner for determination by the trier of fact. State v. Vaughan, 243 Ind. 221, 184 N.E.2d 143, 147 (1962). Therefore, we cannot say the trial court abused its discretion in crediting Hawthorne’s testimony and concluding the reliability of the SCRAM system, including SCRAM II, had been subjected to testing.

Second, the evidence established the SCRAM system and results of its testing had been subjected to peer review and publication. The Sakai study was published in an academic journal devoted to alcoholism research, and the NHTSA study was published by a governmental body having responsibility for research related to public safety. The trial court did not err in finding the factor of peer review and publication weighed in favor of the SCRAM system’s reliability.

Third, each of the studies discussed above identified an error rate for the SCRAM system that the studies’ authors did not regard as problematic with respect to false positive readings. Specifically, the AMS internal study found one false positive and the Sakai study found zero false positives. The NHTSA study identified some false positives but concluded there was a greater incidence of false negatives: that is, the SCRAM system was more likely to err by not identifying a drinking event when one actually occurred than to err by registering a drinking event when the subject had not consumed alcohol. Thus, the NHTSA study supported Hawthorne’s testimony that the SCRAM system is designed to err, if at all, in the wearer’s favor. As Mogg points out, the AMS internal study was conducted by an entity having a financial stake in the results, and the Sakai study was funded in part by AMS. Although these facts were proper for the trial court to consider in assigning weight to the respective studies, it is well settled that on appeal we do not reweigh conflicting evidence. Smith, 889 N.E.2d at 839. As a result, the trial court did not abuse its discretion when it concluded based on the three studies that the SCRAM system had an established error rate that supported a finding of reliability.

Finally, the State presented evidence to support a finding the SCRAM system functioned properly in Mogg’s case. Hawthorne testified SCRAM bracelets are calibrated before they are shipped to the wearer, and Cook testified he properly fitted Mogg with the SCRAM II bracelet and observed the bracelet was working properly. All of this testimony was uncontroverted by Mogg, and Mogg did not present any evidence that at any time thereafter the SCRAM system ceased to function properly or that an environmental interferant may have caused or contributed to her positive TAC readings.

. . . .

For the foregoing reasons, the trial court considered the proper factors in ruling on the admissibility of the SCRAM data, and the record supported its conclusion the SCRAM data had sufficient indicia of reliability to be admissible for the purpose of proving Mogg’s alcohol consumption. As a result, the trial court did not abuse its discretion in admitting the SCRAM data to establish that Mogg violated the terms of her probation.

Our conclusion in this regard is not to be read for the proposition that SCRAM data are admissible in any type of proceeding or for purposes other than to prove the subject consumed alcohol.  [Footnote omitted.]  . . . For example, the record in this case would not support a finding that SCRAM data are reliable for purposes of showing a person’s intoxication. Moreover, we caution trial courts against admitting SCRAM data absent a sufficient foundation to show the system functioned reliably in the particular case, cf. Ind. Code § 9-30-6-5 (setting forth foundational requirements for breath alcohol tests), or upon affidavit without opportunity for cross-examination of the expert who analyzed the data and based a finding of consumption thereon. See Ind. Code § 35-38-2-3(e) (providing right of confrontation and cross-examination in probation revocation hearings). Our conclusion in this case, based as it is on the record before the trial court and expert testimony that was largely uncontroverted by Mogg, leaves for another day whether the result would be different upon a different record where the indicia of the SCRAM system’s reliability were more closely disputed.

BAKER, C.J., and DARDEN, J., concur.

 

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Hevner v. State, No. 27S02-1001-CR-5, __ N.E.2d __ (Ind., Jan. 6, 2010)

RUCKER, J.

At the time Hevner committed his crime, a person convicted for the first time of possessing child pornography was not considered a sex offender and thus was not required to register as such. See Ind. Code § 5-2-12-4(a)(13) (2005) (“As used in this chapter, ‘offender’ means a person convicted of . . . [p]ossession of child pornography [ ] if the person has a prior unrelated conviction for possession of child pornography. . . .”). While Hevner was awaiting trial in 2006, the Legislature repealed Ind. Code § 5-2-12-4 and recodified the statute at Ind. Code § 11-8-8-4.5. See Pub. L. No. 140-2006, §§ 13, 41. Effective July 1, 2007 – before Hevner was convicted but after he was charged – the legislature amended the statute to require anyone convicted of possession of child pornography to register as a sex offender regardless of whether the person had accumulated a prior unrelated conviction. See Ind. Code § 11-8-8-4.5(a)(13) (2007) (“. . . as used in this chapter, ‘sex offender’ means a person convicted of . . . [p]ossession of child pornography (IC 35-42-4-4(c)).”); see also Ind. Code § 11-8-8-7 (providing among other things, “. . . the following persons must register under this chapter: . . . [a] sex or violent offender who resides in Indiana . . . .” or “[a] sex or violent offender who works or carries on a vocation or intends to work or carry on a vocation full-time or part-time” for a specified period). Thus, at the time of his conviction, Hevner was required to register as a sex offender.

. . . .

We assume without deciding that when the Legislature amended Ind. Code § 11-8-8-4.5 (2007) requiring first time possessors of child pornography to register as sex offenders, it intended a civil regulatory scheme. The question is whether the registration requirement is punitive in effect. As declared in Wallace we examine this issue by applying a seven-factor test: “[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.” Wallace, 905 N.E.2d at 379 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)) (alterations in original). No one factor is determinative. “[O]ur task is not simply to count the factors on each side, but to weigh them.” Wallace, 905 N.E.2d at 379 (quoting State v. Noble, 829 P.2d 1217, 1224 (Ariz. 1992)).

Applying the test we concluded that only factor number six – advancing a non-punitive interest – favored treating the registration requirement as non-punitive. “The remaining factors, particularly the factor of excessiveness, point[ed] in the other direction.” Wallace, 905 N.E.2d at 384. This conclusion is equally applicable here.  [Footnote omitted.]

. . . Between October and November of 2005, when Hevner committed the crime of possession of child pornography, only persons convicted of a prior possession offense were required to register as sex offenders under the Act. By the time of Hevner’s trial and sentencing the Legislature had amended the Act making it applicable to first time offenders. As applied to Hevner the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when the crime was committed.

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.

 

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In re N.E., No. 49S02-0906-JV-270, ___ N.E.2d ___ (Ind. Jan. 6, 2010)

SULLIVAN, J.

The trial court adjudicated a child to be a “Child in Need of Services” (“CHINS”) without specifically alleging that the child was a CHINS with respect to the child’s father. The father contends that the CHINS adjudication does not apply to him. The question in a CHINS adjudication is not parental fault, but whether the child needs services. Because a CHINS determination regards the status of the child, the juvenile court is not required to determine whether a child is a CHINS as to each parent, only whether the statutory elements have been established.

. . . .

While we acknowledge a certain implication of parental fault in many CHINS adjudications, the truth of the matter is that a CHINS adjudication is simply that – a determination that a child is in need of services. Standing alone, a CHINS adjudication does not establish culpability on the part of a particular parent. Only when the State moves to terminate a particular parent’s rights does an allegation of fault attach. We have previously made it clear that CHINS proceedings are “distinct from” involuntary termination proceedings. State ex rel. Gosnell v. Cass Circuit Court, 577 N.E.2d 957, 958 (Ind. 1991). The termination of the parent-child relationship is not merely a continuing stage of the CHINS proceeding. Id. In fact, a CHINS intervention in no way challenges the general competency of a parent to continue a relationship with the child. Id.

In this case, the Court of Appeals majority opinion said that, “[n]ormally, a juvenile court would determine that a child is either a CHINS or is not a CHINS when presented with a CHINS petition.” In re N.E., 903 N.E.2d at 87. As such, the Court of Appeals said that the CHINS statutory scheme does not require the juvenile court to determine whether a child is a CHINS as to each parent. But the Court of Appeals went on to hold that “certain principles and considerations may make such a split analysis appropriate in some instances.” Id. (citing In re C.S., 863 N.E.2d 413, 418 (Ind. Ct. App. 2007) (determining that where the child had been found a CHINS with respect to his mother, the child was not a CHINS with respect to his father because there was neither an allegation nor evidence that the father was responsible for the circumstance which led to the CHINS determination), trans. denied).

We disagree with our colleagues and hold that a CHINS determination establishes the status of a child alone. Because a CHINS determination regards the status of the child, a separate analysis as to each parent is not required in the CHINS determination stage. As Judge Vaidik points out in her dissent, the conduct of one parent can be enough for a child to be adjudicated a CHINS. Id. at 89-90. Indeed, to adjudicate culpability on the part of each individual parent in a CHINS proceeding would be at variance with the purpose of the CHINS inquiry: determining whether a child’s circumstances necessitate services that are unlikely to be provided without the coercive intervention of the court. See I.C. §§ 31-34-1-1 & -2. Said differently, the purpose of a CHINS adjudication is to protect children, not punish parents. In re A.I., 825 N.E.2d 798, 805 (Ind. Ct. App. 2005), trans. denied. The resolution of a juvenile proceeding focuses on the best interests of the child, rather than guilt or innocence as in a criminal proceeding. Baker v. Marion County Office of Family & Children, 810 N.E.2d 1035, 1039 (Ind. 2004).

In this case, the domestic violence in Mother’s home served as the basis of the CHINS petition. Specifically, the State alleged that Mother failed to protect N.E. and her siblings from ongoing domestic violence between herself and the alleged father of her youngest child and that there had been several incidents of domestic violence against Mother in the presence of her children. In these circumstances, it was not necessary for the CHINS petition to make any allegations with respect to Father. We conclude that the trial court property adjudicated N.E. a CHINS.

Once CHINS status has been determined, the juvenile court holds a hearing to consider alternatives for the child’s care, treatment, placement, or rehabilitation; the participation of the parent, guardian or custodian; and the financial responsibility for the services provided. I.C. § 31-34-19-1. The juvenile court then fashions a dispositional decree setting forth the care, treatment, or rehabilitation necessary to address the child’s needs. . . .

. . . .

As described under Background, supra, the State had been unaware that N.E. spent a sub-stantial portion of her time with Father. The allegations in the CHINS petition neither pertained to Father nor contended that he knew of the acts or omissions by Mother that resulted in the CHINS proceeding. The State presented no evidence at the hearing that N.E. was in danger in Father’s care.3 The Guardian ad Litem stated that “[t]here is . . . no doubt that [N.E.] was appropriately cared for while in [Grandmother’s] home . . . .” (Appellant’s App. 154.)

The court’s dispositional orders read, in relevant part, with regard to Mother, all four of the children, and all four of the fathers:

The Court finds that reasonable efforts have been offered and available to prevent or eliminate the need for removal from the home. After reviewing the re-ports and information from the Office of Family and Children, service providers and other sources, which the Court now incorporates into this order (see Court file), the Court also finds that the services offered and available have either not been effective or been completed that would allow the return home of the children without Court intervention.

The Court finds that it is contrary to the health and welfare of the children to be returned home and that reasonable efforts have been made to finalize a permanency plan for the children[.]

(Appellant’s App. 63.)

We find, as did the Court of Appeals (the majority and Judge Vaidik), these findings deficient with respect to N.E. and to Father. As set forth above, Indiana Code section 31-34-19-10(a)(5) requires the trial court to accompany the court’s dispositional decree with written findings and conclusions concerning “[t]he court’s reasons for the disposition.” The juvenile court concluded that N.E. was a ward of the State based on Mother’s failure to protect her children and cooperate with the State. Considering that the dispositional decree in this case covered four fathers and multiple children, the court’s reasons for its disposition regarding N.E. do not seem to have taken into account the time she spent in Father’s (and Grandmother’s) care – or anything else regarding the suitability of placing N.E. with Father.

We find such omission of consequence for two related reasons.

First, when a juvenile court makes decisions during a CHINS hearing as to whether the child will become a ward of the State or orders services, this has the potential to interfere with the rights of parents in the upbringing of their children. Therefore:

procedural irregularities, like an absence of clear findings of fact, in a CHINS proceeding may be of such import that they deprive a parent of procedural due process with respect to a potential subsequent termination of parental rights. Our legislature’s enactment of an interlocking statutory scheme governing CHINS and involuntary termination of parental rights compels this court to make sure that each procedure is conducted in accordance with the law. Both statutes aim to protect the rights of parents in the upbringing of their children, as well as give effect to the State’s legitimate interest in protecting children from harm. We conclude that in order to properly balance these two interests, the trial court needs to carefully follow the language and logic laid out by our legislature in these separate statutes.

In re J.Q., 836 N.E.2d 961, 967 (Ind. Ct. App. 2005) (citations omitted).

Second, Indiana Code section 31-34-19-6(1)(A) requires the juvenile court to enter a dispositional decree that is “the least restrictive (most family like) . . . .” If an out-of-home placement is required, the court shall consider whether the child should be placed with a blood relative before considering other out-of-home placements. See I.C. § 31-34-19-7. “[U]nder the policy pronouncements inherent in the entire scheme of CHINS procedures, a primary purpose and function of the [State] is to encourage and support the integrity and stability of an existing family environment and relationship.” Jackson v. Madison County Dep’t of Family & Children, 690 N.E.2d 792, 793 (Ind. Ct. App. 1998), trans. denied.

Because the court’s dispositional decree did not address its reasons for not placing N.E. with Father, we believe it may well have interfered with Father’s rights in the upbringing of N.E. and violated the “least restrictive (most family like)” placement mandate of Indiana Code section 31-34-19-6(1)(A).

We vacate that part of the juvenile court’s judgment pertaining to N.E. and remand for proceedings consistent with this opinion.

Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.

 

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Allied Property & Cas. Ins. Co. v. Good, No. 85A04-0902-CV-89, ___ N.E.2d ___ (Ind. Ct. App., Dec. 31, 2009)

VAIDIK, J.

We conclude that Indiana trial courts possess the inherent power to sanction parties and attorneys for violating orders in limine and causing mistrials. This power is designed to protect the integrity of the judicial system and to secure compliance with the court‘s rules and orders. In order for a trial court to impose sanctions against a party or attorney, the court must find that the party engaged in egregious misconduct that causes a mistrial. We review a trial court‘s sanctioning power for an abuse of discretion. Here, the trial court did not abuse its discretion in (1) concluding that Allied Property and Casualty Insurance Company intentionally violated its order in limine when Allied‘s own employee referenced a party‘s criminal history and (2) awarding over $26,000 in attorneys‘ fees and expert witness fees to Plaintiff Linda Good and Third Party Defendant Randall Good and jury costs to the county as compensatory damages. We therefore affirm the trial court.

. . . .

Allied raises one issue in this interlocutory appeal: whether the trial court erred in ordering Allied to pay more than $26,000 in sanctions, including attorneys‘ fees, expert witness fees, and costs for the jury, when its own employee, Hornung, apparently after having been warned, violated the trial court‘s order in limine by testifying on direct examination about felony convictions, which resulted in a mistrial. Because this is an interlocutory appeal as of right from the payment of money, Allied does not appeal the trial court‘s grant of Linda‘s motion for mistrial.

We emphasize that this case is about our trial courts‘ inherent authority to enforce their own orders and not about their statutory contempt power. Our Supreme Court has recognized on multiple occasions that our courts have inherent authority. See, e.g., Major, 822 N.E.2d at 169 (“[A]mong the inherent powers of a court is that of maintaining its dignity, securing obedience to its process and rules, rebuking interference with the conduct of business, and punishing unseemly behavior.”). In Rogers, our Supreme Court expounded upon a trial court‘s inherent power to sanction attorneys and parties appearing before it and noted that it is a necessary precondition to the exercise of its independent judicial power:

To deny a court the power to enforce obedience to its lawful orders against parties who have been subjected properly to its jurisdiction in the first instance, is to nullify its effectiveness as an independent branch of our government. The power of a court to enforce compliance with its orders and decrees duly entered is inherent. No statutory sanction is needed. In both equity and law a court would be powerless to give effective relief were its arms tied by such requirements as relator asserts are necessary. To protect the proper functioning of judicial proceedings, we also have imbedded this power in numerous court rules. See, e.g., Ind. Trial Rule 11, Ind. Trial Rule 37. Similarly, the judicial power encompasses the ability to hold a litigant in contempt. See, e.g., Meyer v. Wolvos, 707 N.E.2d 1029, 1031 (Ind. Ct. App. 1999) (“We have recognized the inherent judicial power to deal with contempt. No statutory sanction is needed as a court‘s power to enforce compliance with its orders and decrees duly entered is inherent.”), transfer denied.

745 N.E.2d at 198 (citations omitted).

We also have recognized a trial court‘s inherent authority in Nichols. In doing so, we relied on a D.C. Circuit case, Shepherd v. American Broadcasting Companies, Inc., in which the district court entered default judgment against the defendant for its misconduct before trial. The Circuit Court stated on appeal, “As old as the judiciary itself, the inherent power enables courts to protect their institutional integrity and to guard against abuses of the judicial process with contempt citations, fines, awards of attorneys‘ fees, and such other orders and sanctions as they find necessary, including even dismissals and default judgments.” Shepherd, 62 F.3d 1469, 1472 (D.C. Cir. 1995). The court, however, “cautioned restraint in the use of inherent powers” “because of their very potency.” Id. at 1475.

From the above cases, it is clear that Indiana trial courts possess inherent power to sanction for discovery violations, contempt, and the government‘s wrongful conduct pursuant to Trial Rule 65(C). But the question presented in this appeal is whether this inherent power extends to imposing sanctions for violating an order in limine and causing a mistrial. Although it appears that Indiana appellate courts have not addressed this issue head-on, other jurisdictions have.

In the recent Vermont Supreme Court case of Turner v. Roman Catholic Diocese of Burlington, Vermont, — A.2d —, 2009 WL 3233764 (Vt. Oct. 9, 2009), the trial court imposed monetary sanctions against the Diocese for “repeatedly and deliberately” violating an order in limine and causing a mistrial. Id. at —. The sanctions, which amounted to $112,000, included attorneys‘ fees and expert witness fees. The trial court characterized defense counsel‘s actions as “misconduct.” Id. The Diocese appealed. On appeal, the Vermont Supreme Court first articulated that a mistrial can be an appropriate remedy for violation of an order in limine. Id. “Further, the court has inherent power to sanction a party ‗to protect the integrity of the judicial system.‘“ Id. Citing to its own law as well as Texas law, the court held that trial courts have inherent power to assess expenses for consequential damages suffered by the opposing side, including attorneys‘ fees and witness expenses, incurred due to an abuse of the judicial process. Id. at —. “Abuse of the judicial process includes ignoring court orders and acting in bad faith.” Id. But for the court to take action in response to a pre-trial order, the order must be specific. Id. Concluding that the trial court‘s pre-trial order was specific and definite and that the court had no obligation to specifically warn the Diocese that a violation of its order in limine may result in a mistrial and sanctions, the supreme court concluded that the trial court acted within its authority in declaring a mistrial and imposing a compensatory sanction on the Diocese. Id. at —. See also Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 646 (6th Cir. 2006) (“Furthermore, Roadway Express, Inc. v. Piper, 447 U.S. 752, 766-67, 100 S. Ct. 2455, 65 L.Ed.2d 488 (1980), held that federal courts have the inherent power to assess attorney‘s fees against counsel who willfully abuse judicial processes or who otherwise act in bad faith.”); Lasar v. Ford Motor Co., 399 F.3d 1101, 1118 (9th Cir. 2004) (“When a district court sanctions an attorney or a party based on its inherent powers, a primary aspect of [its] discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process. The district court‘s decision to require Ford to pay compensatory sanctions to the court was well within the court‘s discretion, particularly because the payments were carefully tailored to reimburse the court for those costs that were incurred as a result of the mistrial.”) (quotation omitted); Walker v. Ferguson, 102 P.3d 144, 145 (Okla. 2004) (holding that an award of sanctions for causing a mistrial under the trial court‘s inherent authority must reflect a finding of bad faith or oppressive conduct on the part of the sanctioned party); Terry v. Sweeney, 10 P.3d 554, 558 (Wyo. 2000) (holding that the authority for the trial court‘s sanctions, which included attorney‘s fees, against the plaintiffs for violating an order in limine and causing a mistrial “is founded in the inherent authority of all courts to take actions reasonably necessary to administer justice efficiently, fairly, and economically and [to ensure] the court‘s existence, dignity, and functions”) (quotation omitted). But see Clark v. Optical Coating Lab., Inc., 80 Cal. Rptr. 3d 812, 827, 828-29 (Cal. Ct. App. 2008) (holding that the trial court‘s award of attorney fees against plaintiff‘s counsel for their violation of the order in limine did not fall within the court‘s inherent powers because “allowing the trial courts to impose attorney fees as sanctions for attorney misconduct without statutory protections would undermine due process and threaten the independence of the bar”), reh’g denied, review denied.

In line with the Vermont Supreme Court, the Michigan Court of Appeals aptly stated a decade ago:

This Court has repeatedly recognized that a trial court has inherent authority to impose sanctions on the basis of the misconduct of a party or an attorney. In addition, our Supreme Court has “recognized the inherent power of a court to control the movement of cases on its docket by a variety of sanctions.” . . .

[T]his Court [has] held that a court has the inherent authority to dismiss a lawsuit as a sanction for litigant misconduct. It therefore follows that the less severe sanction of an assessment of attorney fees is within a court‘s inherent power as well. We conclude that a court‘s inherent power to sanction misconduct and to control the movement of cases on its docket includes the power to award attorney fees as sanctions when the egregious misconduct of a party or an attorney causes a mistrial. The ability to impose such sanctions serves the dual purposes of deterring flagrant misbehavior, particularly where the offending party may have deliberately provoked a mistrial, and compensating the innocent party for the attorney fees incurred during the mistrial.

Persichini v. William Beaumont Hosp., 607 N.W.2d 100, 108-09 (Mich. Ct. App. 1999) (citations omitted) (footnote omitted).

Based upon our Supreme Court‘s opinion in Rogers, which holds that the power of a court to enforce compliance with its orders duly entered is inherent and no statutory sanction is needed, and given the other jurisdictions‘ sound reasoning for sanctioning parties and attorneys for violating orders in limine and causing mistrials, we conclude that Indiana trial courts possess the inherent power to sanction parties and attorneys for violating orders in limine and causing mistrials. This power is designed to protect the integrity of the judicial system and to secure compliance with the court‘s rules and orders. We review a trial court‘s sanctioning power for an abuse of discretion.

The trial court has the power to impose sanctions against a party or attorney who engages in egregious misconduct that causes a mistrial. Egregious misconduct consists of intentional, reckless, or negligent conduct by the party or attorney. In addition, the court has the power to impose sanctions for violation of an order that the party or attorney believes to be (or turns out to be) erroneous. Therefore, if the party or attorney believes that the court‘s order is erroneous, then the proper remedy is to appeal that order and not violate it, thereby risking a mistrial and sanctions. Sanctions may include compensating the innocent parties for attorney‘s fees and other expenses incurred during the mistrial. To hold otherwise would work an injustice against the innocent party.

Before a trial court can impose sanctions against a party or attorney, the party or attorney is entitled to due process, which includes notice and the opportunity to be heard. See Lasar, 399 F.3d at 1109-10. These minimal procedural requirements give the party or attorney an opportunity to argue that its actions were acceptable, present mitigating circumstances, or apologize to the court for its conduct. See id. at 1110. Because these sanctions are compensatory in nature and are distinguishable from criminal contempt, a full-scale oral or evidentiary hearing is not required. This is particularly so because, “[u]sually, the events have occurred before the judge‘s own eyes, and a reporter‘s transcript is available” if needed. Id. at 1112 (quotation omitted).

On appeal, Allied does not argue it was justified in violating the order in limine as the order, in its opinion, was erroneous. Rather, Allied properly indicated at the oral argument that it was appealing the trial court‘s ruling precluding evidence of prior fires and criminal history from being admitted. Allied, however, argues that it was not afforded procedural due process because the trial court did not allow it to present Hornung‘s testimony concerning why she testified in violation of the order in limine and because the evidence does not show that it intentionally violated the order. We first address Allied‘s argument that it was not afforded due process.

Allied asserts that before the trial court could find that it violated the order in limine, the court should have questioned Hornung under oath. We first point out that the trial court imposed the sanctions against Allied and not Hornung. Allied‘s attorney, Mr. Jennings, spoke at length regarding Hornung‘s knowledge of the order in limine. Mr. Jennings told the court that he advised Hornung “on many occasions, in writing and orally, . . . not to talk about the prohibited areas.” Appellant‘s App. p. 54. Mr. Jennings said that Hornung knew about “these things,” apologized for her testimony, said it was just a simple mistake, and forgot that she was not supposed to talk about “these things.” Id. at 55. Thus, although Hornung did not testify, Mr. Jennings was able to relay to the court what Hornung would have said. Furthermore, although the trial court told Allied that it could make a record of Hornung‘s testimony later, Allied did not later ask to do so. In fact, when the trial court asked the parties if there was anything else they needed to do on the record, Allied said no. The trial court afforded Allied notice and the opportunity to be heard.

Allied next argues that the evidence does not show that it intentionally violated the order in limine. The trial court found “that Defendant Allied has intentionally violated the Court‘s Order in Limine.” Appellant‘s App. p. 33 (emphasis added). The court also found that given the ruling excluding Keel‘s deposition, Allied‘s trial strategy was to throw “an intentional harpoon . . . into this proceeding.Id. at 56 (emphasis added). Notwithstanding these findings, it is Allied‘s position that Hornung “accidently violated an Order in Limine even though she had been informed orally and in writing of the prohibited areas of discussion for Phase I, including Randall Good‘s felony history.” Appellant‘s Br. p. 20.

However, the trial court, and not this Court, is in the best position to gauge Allied‘s motives given that the court not only observed the violation first hand but also the attorneys‘ remarks. Just before Hornung testified there was a discussion on the record about the importance of Allied advising its witnesses of the orders in limine because of the violation that had occurred the day before with Allied‘s witness, Copeland. Nevertheless, Hornung violated the court‘s order a few answers into her testimony with a question posed by her own employer‘s attorney, Mr. Jennings. This violation occurred shortly after the trial court had ruled that Allied would not be able to introduce into evidence Keel‘s damaging deposition, which provided that Randall had offered him $3000 to burn down the Jackson Street property. From this evidence, the trial court could have reasonably inferred that Allied intentionally violated the order in limine. Because the trial court determined that Allied intentionally violated the order and such violation required a mistrial, the evidence supports the conclusion that Allied‘s conduct was egregious and caused a mistrial. Furthermore, the sanctions imposed by the court against Allied were compensatory in nature to reimburse the Goods, their attorneys, and the county for costs incurred as a direct result of Allied‘s violation of the order in limine. The trial court did not abuse its discretion in sanctioning Allied.

. . . .

Affirmed.

DARDEN, J., and BRADFORD, J., concur.

 

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Allied Property & Cas. Ins. Co. v. Good, No. 85A04-0902-CV-89, ___ N.E.2d ___ (Ind. Ct. App., Dec. 31, 2009)

VAIDIK, J.

We conclude that Indiana trial courts possess the inherent power to sanction parties and attorneys for violating orders in limine and causing mistrials. This power is designed to protect the integrity of the judicial system and to secure compliance with the court‘s rules and orders. In order for a trial court to impose sanctions against a party or attorney, the court must find that the party engaged in egregious misconduct that causes a mistrial. We review a trial court‘s sanctioning power for an abuse of discretion. Here, the trial court did not abuse its discretion in (1) concluding that Allied Property and Casualty Insurance Company intentionally violated its order in limine when Allied‘s own employee referenced a party‘s criminal history and (2) awarding over $26,000 in attorneys‘ fees and expert witness fees to Plaintiff Linda Good and Third Party Defendant Randall Good and jury costs to the county as compensatory damages. We therefore affirm the trial court.

. . . .

Allied raises one issue in this interlocutory appeal: whether the trial court erred in ordering Allied to pay more than $26,000 in sanctions, including attorneys‘ fees, expert witness fees, and costs for the jury, when its own employee, Hornung, apparently after having been warned, violated the trial court‘s order in limine by testifying on direct examination about felony convictions, which resulted in a mistrial. Because this is an interlocutory appeal as of right from the payment of money, Allied does not appeal the trial court‘s grant of Linda‘s motion for mistrial.

We emphasize that this case is about our trial courts‘ inherent authority to enforce their own orders and not about their statutory contempt power. Our Supreme Court has recognized on multiple occasions that our courts have inherent authority. See, e.g., Major, 822 N.E.2d at 169 (“[A]mong the inherent powers of a court is that of maintaining its dignity, securing obedience to its process and rules, rebuking interference with the conduct of business, and punishing unseemly behavior.”). In Rogers, our Supreme Court expounded upon a trial court‘s inherent power to sanction attorneys and parties appearing before it and noted that it is a necessary precondition to the exercise of its independent judicial power:

To deny a court the power to enforce obedience to its lawful orders against parties who have been subjected properly to its jurisdiction in the first instance, is to nullify its effectiveness as an independent branch of our government. The power of a court to enforce compliance with its orders and decrees duly entered is inherent. No statutory sanction is needed. In both equity and law a court would be powerless to give effective relief were its arms tied by such requirements as relator asserts are necessary. To protect the proper functioning of judicial proceedings, we also have imbedded this power in numerous court rules. See, e.g., Ind. Trial Rule 11, Ind. Trial Rule 37. Similarly, the judicial power encompasses the ability to hold a litigant in contempt. See, e.g., Meyer v. Wolvos, 707 N.E.2d 1029, 1031 (Ind. Ct. App. 1999) (“We have recognized the inherent judicial power to deal with contempt. No statutory sanction is needed as a court‘s power to enforce compliance with its orders and decrees duly entered is inherent.”), transfer denied.

745 N.E.2d at 198 (citations omitted).

We also have recognized a trial court‘s inherent authority in Nichols. In doing so, we relied on a D.C. Circuit case, Shepherd v. American Broadcasting Companies, Inc., in which the district court entered default judgment against the defendant for its misconduct before trial. The Circuit Court stated on appeal, “As old as the judiciary itself, the inherent power enables courts to protect their institutional integrity and to guard against abuses of the judicial process with contempt citations, fines, awards of attorneys‘ fees, and such other orders and sanctions as they find necessary, including even dismissals and default judgments.” Shepherd, 62 F.3d 1469, 1472 (D.C. Cir. 1995). The court, however, “cautioned restraint in the use of inherent powers” “because of their very potency.” Id. at 1475.

From the above cases, it is clear that Indiana trial courts possess inherent power to sanction for discovery violations, contempt, and the government‘s wrongful conduct pursuant to Trial Rule 65(C). But the question presented in this appeal is whether this inherent power extends to imposing sanctions for violating an order in limine and causing a mistrial. Although it appears that Indiana appellate courts have not addressed this issue head-on, other jurisdictions have.

In the recent Vermont Supreme Court case of Turner v. Roman Catholic Diocese of Burlington, Vermont, — A.2d —, 2009 WL 3233764 (Vt. Oct. 9, 2009), the trial court imposed monetary sanctions against the Diocese for “repeatedly and deliberately” violating an order in limine and causing a mistrial. Id. at —. The sanctions, which amounted to $112,000, included attorneys‘ fees and expert witness fees. The trial court characterized defense counsel‘s actions as “misconduct.” Id. The Diocese appealed. On appeal, the Vermont Supreme Court first articulated that a mistrial can be an appropriate remedy for violation of an order in limine. Id. “Further, the court has inherent power to sanction a party ‗to protect the integrity of the judicial system.‘“ Id. Citing to its own law as well as Texas law, the court held that trial courts have inherent power to assess expenses for consequential damages suffered by the opposing side, including attorneys‘ fees and witness expenses, incurred due to an abuse of the judicial process. Id. at —. “Abuse of the judicial process includes ignoring court orders and acting in bad faith.” Id. But for the court to take action in response to a pre-trial order, the order must be specific. Id. Concluding that the trial court‘s pre-trial order was specific and definite and that the court had no obligation to specifically warn the Diocese that a violation of its order in limine may result in a mistrial and sanctions, the supreme court concluded that the trial court acted within its authority in declaring a mistrial and imposing a compensatory sanction on the Diocese. Id. at —. See also Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 646 (6th Cir. 2006) (“Furthermore, Roadway Express, Inc. v. Piper, 447 U.S. 752, 766-67, 100 S. Ct. 2455, 65 L.Ed.2d 488 (1980), held that federal courts have the inherent power to assess attorney‘s fees against counsel who willfully abuse judicial processes or who otherwise act in bad faith.”); Lasar v. Ford Motor Co., 399 F.3d 1101, 1118 (9th Cir. 2004) (“When a district court sanctions an attorney or a party based on its inherent powers, a primary aspect of [its] discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process. The district court‘s decision to require Ford to pay compensatory sanctions to the court was well within the court‘s discretion, particularly because the payments were carefully tailored to reimburse the court for those costs that were incurred as a result of the mistrial.”) (quotation omitted); Walker v. Ferguson, 102 P.3d 144, 145 (Okla. 2004) (holding that an award of sanctions for causing a mistrial under the trial court‘s inherent authority must reflect a finding of bad faith or oppressive conduct on the part of the sanctioned party); Terry v. Sweeney, 10 P.3d 554, 558 (Wyo. 2000) (holding that the authority for the trial court‘s sanctions, which included attorney‘s fees, against the plaintiffs for violating an order in limine and causing a mistrial “is founded in the inherent authority of all courts to take actions reasonably necessary to administer justice efficiently, fairly, and economically and [to ensure] the court‘s existence, dignity, and functions”) (quotation omitted). But see Clark v. Optical Coating Lab., Inc., 80 Cal. Rptr. 3d 812, 827, 828-29 (Cal. Ct. App. 2008) (holding that the trial court‘s award of attorney fees against plaintiff‘s counsel for their violation of the order in limine did not fall within the court‘s inherent powers because “allowing the trial courts to impose attorney fees as sanctions for attorney misconduct without statutory protections would undermine due process and threaten the independence of the bar”), reh’g denied, review denied.

In line with the Vermont Supreme Court, the Michigan Court of Appeals aptly stated a decade ago:

This Court has repeatedly recognized that a trial court has inherent authority to impose sanctions on the basis of the misconduct of a party or an attorney. In addition, our Supreme Court has “recognized the inherent power of a court to control the movement of cases on its docket by a variety of sanctions.” . . .

[T]his Court [has] held that a court has the inherent authority to dismiss a lawsuit as a sanction for litigant misconduct. It therefore follows that the less severe sanction of an assessment of attorney fees is within a court‘s inherent power as well. We conclude that a court‘s inherent power to sanction misconduct and to control the movement of cases on its docket includes the power to award attorney fees as sanctions when the egregious misconduct of a party or an attorney causes a mistrial. The ability to impose such sanctions serves the dual purposes of deterring flagrant misbehavior, particularly where the offending party may have deliberately provoked a mistrial, and compensating the innocent party for the attorney fees incurred during the mistrial.

Persichini v. William Beaumont Hosp., 607 N.W.2d 100, 108-09 (Mich. Ct. App. 1999) (citations omitted) (footnote omitted).

Based upon our Supreme Court‘s opinion in Rogers, which holds that the power of a court to enforce compliance with its orders duly entered is inherent and no statutory sanction is needed, and given the other jurisdictions‘ sound reasoning for sanctioning parties and attorneys for violating orders in limine and causing mistrials, we conclude that Indiana trial courts possess the inherent power to sanction parties and attorneys for violating orders in limine and causing mistrials. This power is designed to protect the integrity of the judicial system and to secure compliance with the court‘s rules and orders. We review a trial court‘s sanctioning power for an abuse of discretion.

The trial court has the power to impose sanctions against a party or attorney who engages in egregious misconduct that causes a mistrial. Egregious misconduct consists of intentional, reckless, or negligent conduct by the party or attorney. In addition, the court has the power to impose sanctions for violation of an order that the party or attorney believes to be (or turns out to be) erroneous. Therefore, if the party or attorney believes that the court‘s order is erroneous, then the proper remedy is to appeal that order and not violate it, thereby risking a mistrial and sanctions. Sanctions may include compensating the innocent parties for attorney‘s fees and other expenses incurred during the mistrial. To hold otherwise would work an injustice against the innocent party.

Before a trial court can impose sanctions against a party or attorney, the party or attorney is entitled to due process, which includes notice and the opportunity to be heard. See Lasar, 399 F.3d at 1109-10. These minimal procedural requirements give the party or attorney an opportunity to argue that its actions were acceptable, present mitigating circumstances, or apologize to the court for its conduct. See id. at 1110. Because these sanctions are compensatory in nature and are distinguishable from criminal contempt, a full-scale oral or evidentiary hearing is not required. This is particularly so because, “[u]sually, the events have occurred before the judge‘s own eyes, and a reporter‘s transcript is available” if needed. Id. at 1112 (quotation omitted).

On appeal, Allied does not argue it was justified in violating the order in limine as the order, in its opinion, was erroneous. Rather, Allied properly indicated at the oral argument that it was appealing the trial court‘s ruling precluding evidence of prior fires and criminal history from being admitted. Allied, however, argues that it was not afforded procedural due process because the trial court did not allow it to present Hornung‘s testimony concerning why she testified in violation of the order in limine and because the evidence does not show that it intentionally violated the order. We first address Allied‘s argument that it was not afforded due process.

Allied asserts that before the trial court could find that it violated the order in limine, the court should have questioned Hornung under oath. We first point out that the trial court imposed the sanctions against Allied and not Hornung. Allied‘s attorney, Mr. Jennings, spoke at length regarding Hornung‘s knowledge of the order in limine. Mr. Jennings told the court that he advised Hornung “on many occasions, in writing and orally, . . . not to talk about the prohibited areas.” Appellant‘s App. p. 54. Mr. Jennings said that Hornung knew about “these things,” apologized for her testimony, said it was just a simple mistake, and forgot that she was not supposed to talk about “these things.” Id. at 55. Thus, although Hornung did not testify, Mr. Jennings was able to relay to the court what Hornung would have said. Furthermore, although the trial court told Allied that it could make a record of Hornung‘s testimony later, Allied did not later ask to do so. In fact, when the trial court asked the parties if there was anything else they needed to do on the record, Allied said no. The trial court afforded Allied notice and the opportunity to be heard.

Allied next argues that the evidence does not show that it intentionally violated the order in limine. The trial court found “that Defendant Allied has intentionally violated the Court‘s Order in Limine.” Appellant‘s App. p. 33 (emphasis added). The court also found that given the ruling excluding Keel‘s deposition, Allied‘s trial strategy was to throw “an intentional harpoon . . . into this proceeding.Id. at 56 (emphasis added). Notwithstanding these findings, it is Allied‘s position that Hornung “accidently violated an Order in Limine even though she had been informed orally and in writing of the prohibited areas of discussion for Phase I, including Randall Good‘s felony history.” Appellant‘s Br. p. 20.

However, the trial court, and not this Court, is in the best position to gauge Allied‘s motives given that the court not only observed the violation first hand but also the attorneys‘ remarks. Just before Hornung testified there was a discussion on the record about the importance of Allied advising its witnesses of the orders in limine because of the violation that had occurred the day before with Allied‘s witness, Copeland. Nevertheless, Hornung violated the court‘s order a few answers into her testimony with a question posed by her own employer‘s attorney, Mr. Jennings. This violation occurred shortly after the trial court had ruled that Allied would not be able to introduce into evidence Keel‘s damaging deposition, which provided that Randall had offered him $3000 to burn down the Jackson Street property. From this evidence, the trial court could have reasonably inferred that Allied intentionally violated the order in limine. Because the trial court determined that Allied intentionally violated the order and such violation required a mistrial, the evidence supports the conclusion that Allied‘s conduct was egregious and caused a mistrial. Furthermore, the sanctions imposed by the court against Allied were compensatory in nature to reimburse the Goods, their attorneys, and the county for costs incurred as a direct result of Allied‘s violation of the order in limine. The trial court did not abuse its discretion in sanctioning Allied.

. . . .

Affirmed.

DARDEN, J., and BRADFORD, J., concur.

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