Camm v. State

• Decision Date: 14 February 2012
• Docket Number: No. 87A01–1102–CR–25.,87A01–1102–CR–25.
• Parties: David R. CAMM, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

957 N.E.2d 205

David R. CAMM, Appellant–Defendant,
v.
STATE of Indiana, Appellee–Plaintiff.

No. 87A01–1102–CR–25.

Court of Appeals of Indiana.

Nov. 15, 2011.Transfer Denied Feb. 14, 2012.

[957 N.E.2d 206]

Stacy R. Uliana, Richard Kammen, Gilroy Kammen Hertzel & Moudy, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Joby D. Jerrells, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION BAKER, Judge.

Appellant-defendant David R. Camm appeals the trial court's denial of his petition for the appointment of a special prosecutor pursuant to Indiana Code Section 33–39–1–6(b)(2). More particularly, Camm argues that the trial court erred when it found that the prosecutor's now cancelled literary contract did not constitute clear and convincing evidence of an actual conflict of interest. Camm further contends that the trial court erred when it required that he show harm in order to prove an actual conflict of interest. Concluding that prosecutor's literary contract created an irreversible, actual conflict of interest with his duty to the people of the state of Indiana, we find that the trial court erred when it denied Camm's petition. Thus, we reverse and remand for the appointment of special prosecutor and for further proceedings consistent with this opinion.

FACTS¹

This case comes to us on interlocutory appeal. Camm now faces his third trial

[957 N.E.2d 207]

and second retrial for allegedly shooting and killing his wife, seven-year-old son, and five-year-old daughter at the family home in Georgetown. In the prior two trials, Camm was convicted of all three murders, but the convictions were overturned on appeal.

A panel of this court reversed Camm's convictions from the first trial after finding the State's evidence of Camm's extramarital affairs prejudicial. The panel then remanded for retrial. Camm v. State, 812 N.E.2d 1127, 1142 (Ind.Ct.App.2004). Following the retrial, our Supreme Court reversed Camm's convictions after determining that the trial court had committed reversible error when it admitted hearsay evidence and speculative evidence that Camm had molested his daughter. Camm v. State, 908 N.E.2d 215 (Ind.2009). But, our Supreme Court found that the evidence presented at the second trial was sufficient to support the convictions and, therefore, remanded the case for retrial. Id. at 229.

Keith Henderson is the Floyd County Prosecutor and served as prosecutor for Camm's second trial. At midday on March 3, 2006, hours before the jury reached a verdict in the second trial, Literary Agency East, Ltd. sent Henderson's wife an email together with a literary representation agreement to find a publisher for a book Henderson intended to write about the Camm case. On March 10, 2006, Henderson signed the agreement. On March 28, 2006, the trial court sentenced Camm to life without parole.

Frank Weimann served as Henderson's agent. Henderson, with his initial co-author Steve Dougherty, wrote a sixty-page proposal for his forthcoming book about the Camm case, which Weimann sent to several publishers. On June 3, 2009, Weimann negotiated a publishing agreement with Berkley Penguin Group (Penguin) for Henderson's book, tentatively titled, “Sacred Trust: Deadly Betrayal.” Henderson and his new co-author, Damon DiMarco, each received an advance of $1,700 and agreed to deliver a manuscript to the publisher by August 1, 2009.

After our Supreme Court reversed Camm's conviction following the second trial, Penguin decided to delay any decision to move forward with the book until our Supreme Court ruled on the State's petition for rehearing. On July 30, 2009, Henderson sent an email to Weimann raising several concerns should the State's petition for rehearing be denied. In that email, he wrote the following:

Frank, as you know Camm was reversed. On Monday, the State filed for reconsideration. I should know within 60 days or so the Court's decision. If the reversal stands, I will make a decision on whether or not to bring him to trial for the third time. If there is a third trial, I anticipate it occurring spring to summer of 2010.

I am committed to writing the book as is Damon. A tremendous amount of work has been done to this point. It's a great story that needs to be told. However, the book can not come out prior to the completion of a potential third trial. It would jeopardize the case, potentially getting me removed from the case due to certain disclosure and opinions we are writing in the book. This can not happen. In addition, as you and Damon have discussed, this is now a bigger story.

At a minimum, I want the publisher to acknowledge and agree to a pushed back time frame that allows me to do my job and not jeopardize justice for Kim,

[957 N.E.2d 208]

Brad, and Jill. They may be thinking that already, I simply need the acknowledgment. After that, I would like for you to push for something more out of the contract either on the front end or the back. That issue I will leave for your judgments and persuasion skills.

Finally is the issue of the advance check. I am concerned that by cashing the check, I and Damon are acquiescing to the publisher's time frame in the agreement notwithstanding the problems I cited above. If the worst case scenario occurs and the publisher wants to put a book on the shelf prior to the completion of a potential third trial, I would have no choice but to void the contract and hopefully start over after completion.

Appellants Ex. F at G (emphasis added.) Weimann communicated Henderson's concerns to Penguin. Penguin believed that the best solution to avoid compromising Henderson was for him and his co-author to return the advance checks and cancel the contract. It also suggested that they could “always start over again after the completion of the legal process.” Appellant's Ex. H at M.

Henderson and Penguin cancelled the contract in September 2009. He and his co-author subsequently returned their advance checks. Penguin never received a copy of a manuscript for the proposed book. No agreement exists between Henderson and Penguin to produce a book about the Camm case in the future.

On November 30, 2009, our Supreme Court denied the State's petition for rehearing, and, the next day, Henderson refiled the murder charges against Camm. Later that same day, Camm filed a verified petition for appointment of special prosecutor seeking the removal of Henderson as prosecutor. On December 2, 2009, Henderson issued a press release responding to Camm's petition for a special prosecutor in which he stated that the publishing agreement he had for a book about the Camm case had been cancelled after the second trial was reversed. Appellant's Ex. J. He also stated that he was “more convinced now than ever that when this matter is completed, the unedited version of events needs to be told.” Id. In a December 3, 2009, press release, he announced that he would retry Camm and reiterated his statements from the prior day's press release. Appellant's Ex. K....