Archer v. State
| Decision Date | 12 April 2021 |
| Docket Number | Court of Appeals Case No. 20A-CR-1677 |
| Citation | 166 N.E.3d 963 |
| Parties | Jeffrey ARCHER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Attorney for Appellant: Megan J. Schueler, Ferguson Law, Bloomington, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian A.T. McLean, Supervising Deputy Attorney General, Indianapolis, Indiana
[1] Jeffrey Archer brings this interlocutory appeal from the trial court's order granting the State's motion to quash his notice of deposition. We reverse and remand.
[2] The sole question presented in this appeal is:
Did the State meet its burden under the Dillard1 test to prevent Archer from taking the deposition of L.B.?
[3] A jury found Archer guilty of Class A felony child molesting and two counts of Class C felony child molesting of L.B., a child born on June 2, 2003, and on direct appeal this Court affirmed his convictions. See Archer v. State , 996 N.E.2d 341 (Ind. Ct. App. 2013), trans. denied. In that appeal, among several arguments, Archer2 challenged his trial counsel's performance on four separate grounds, none of which involved his performance during discovery. Id. at 352-54.
[4] Following direct appeal, Archer filed a petition for post-conviction relief, which was denied by the post-conviction court. Next, Archer appealed the denial of his petition for post-conviction relief, challenging appellate counsel's performance. See Archer v. State , No. 18A-PC-2681, 2019 WL 3331352 (Ind. Ct. App. July 25, 2019). Initially we affirmed the post-conviction court's denial of relief. Id. However, following Archer's petition for rehearing, we granted relief, reversed the judgment of the post-conviction court; and, remanded the case to the trial court for further proceedings. See Archer v. State , 133 N.E.3d 176, 178 (Ind. Ct. App. 2019).
[5] On rehearing, we more closely examined Archer's argument concerning appellate counsel's failure to argue on direct appeal that an obviously biased juror had been challenged, but nonetheless, had served on Archer's jury. Id. During the post-conviction hearing, appellate counsel testified that "it was not his policy to review voir dire because what transpires then is not evidence." Id. at 177. At Archer's original trial, a juror had expressed bias and defense trial counsel passively challenged her for cause. Id. The trial court conceded that the juror was "pretty bad," but did not excuse her. Id. at 178. At that point, trial counsel resumed voir dire, thanking the juror for her candor, and then moved on. Id. Apparently, without further challenge by trial counsel, the juror was seated and served during Archer's trial, which ended in his conviction.
[6] During the post-conviction hearing, trial counsel was asked about that juror's ability to be a fair and impartial juror to serve in Archer's case, and he testified that he tells clients in child molesting cases, "most people believe that the accused is guilty based on the accusation, so the case starts in a hole and we need to try to dig out of it." Id. (quotations omitted). After additional discussion of trial counsel's comment in light of the presumption of innocence and the right to a fair trial, this Court observed that there were two consequences of appellate counsel's decision, or failure thereof, to raise ineffective assistance of trial counsel on Archer's direct appeal.
[7] After remand, a trial date was set by the trial court and Archer, with new defense trial counsel commenced preparing to defend against the child molesting charges anew. During correspondence between the parties concerning discovery, trial counsel made known her need to depose L.B. The State objected, replying that L.B. already had been deposed for purposes of Archer's first trial and had testified, and there was no need for a second deposition.
[8] Trial counsel responded that the "trial was 7 years ago, lots of things happen in between, and the child has now grown, and I'm entitled as counsel for Archer, to learn what she will testify to and what she remembers." Appellant's App. Vol. 2, pp. 29-30. Trial counsel went on to state that Id. at 30. The State maintained that it would move to quash any subpoena for a second deposition of L.B. We note, however, that the State did not seek a protective order under Indiana Trial Rule 26(C) ().
[9] On February 19, 2020, defense counsel noticed the State to take the deposition of L.B. Two days later, the State moved to quash the deposition, and Archer moved to strike or deny the State's motion. The trial court held a hearing on the motions on March 6, 2020. Trial counsel also filed a post-hearing brief, wherein, she argued that she needed L.B.’s deposition because the initial interview had not been conducted using proper protocols. She also argued that this Court had implicitly found prior trial counsel was ineffective, and that as new defense counsel she should not be required to rely on that attorney's work product or to be held or limited to or by his prior trial strategy.
[10] In response, the State argued that "one of the first things the victim brought up was how awful an experience the past deposition was." Tr. Vol. 2, p. 13. The State further responded that trial counsel's desire to explore events that occurred after Archer's first trial was irrelevant to the case, and that questions about the interviewer's methodology were deposition topics better suited for the interviewer or interviewers.
[11] The State, in its correspondence resisting the deposition, had noted, "If you have legal authority showing that I'm wrong please share, [sic] it is not often that we have a case with these circumstances." Appellant's App. Vol. 2, p. 31. At the hearing, the State compared Archer's position to that of a defendant who replaces trial counsel during a trial, such that repetition of all prior discovery was not required after said replacement. The State further observed that it had an obligation to relay to trial counsel any statements by L.B. that might contradict her prior testimony.
[12] Trial counsel disagreed, arguing that as new counsel herein, she is not of the same status or in the same position as a trial counsel being replaced, taking over, or substituted in the midst of an ongoing trial or during the pendency of a case previously set for trial. Rather, she is serving in the capacity of new trial counsel for Archer who has been granted a new trial by the Indiana Court of Appeals. Trial counsel reiterated that the purpose of the deposition was: (1) to determine what L.B. remembers now as opposed to what she remembered before; (2) to discover areas of additional investigation concerning Archer and custody matters; and (3) to ask things not previously asked of L.B., such as L.B.’s sleeping arrangements with her non-custodial grandparents at the time alleged. Archer's post-hearing brief also raised the need for more information about L.B.’s relationships with her custodial grandparents and others who visited both homes, visitation with Archer, and background about her belief structures regarding the concepts of "good touch/bad touch." Id. at 45.
[13] The court granted the State's motion to quash the notice of deposition on June 30, 2020, also denying trial counsel's motion to strike. On July 30, 2020, trial counsel moved to certify the trial court's order for interlocutory appeal, and the motion was granted the next day. We granted Archer leave to proceed with his appeal.
[14] The cornerstone of our criminal justice system is based upon the premise that an accused is entitled to a fair trial and to receive effective assistance of counsel.3 The issue of effective assistance of both trial and appellate counsel has been litigated before this Court, resulting in remand and the granting of a new trial. Archer continues to face very serious charges with new counsel who is entitled to develop her own theories and strategies about defending her client. See Gibson v. State , 133 N.E.3d 673, 682 (Ind. 2019) ().
[15] The issue here involves the trial court's discovery ruling and our obligation to balance the equities and harms to a defendant and the State regarding that discovery. More particularly, we are asked to review whether the trial court correctly balanced the harm of using a prior deposition developed on the strategy of prior counsel, who tacitly has been found to be ineffective in representing Archer, against the "awful [ ] experience" a nearly eighteen-year-old victim remembered. See Tr. Vol. 2, p. 13.
[16] Our standard of review in discovery matters is limited to determining whether the trial court abused its discretion. Hale v. State , 54 N.E.3d 355, 357 (Ind. 2016). A trial court abuses its discretion when its decision is against the logic and effect of the facts and circumstances before the court. Id. " ‘We do not reweigh the evidence; rather, we determine whether the evidence before the trial court can serve as a rational basis for its decision.’ " Id. (quoting DePuy Orthopaedics, Inc. v. Brown , 29 N.E.3d 729, 732 (Ind. 2015) ). " ‘Due to the...
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