Criswell v. State
| Decision Date | 13 October 2015 |
| Docket Number | No. 02A03–1501–CR–22.,02A03–1501–CR–22. |
| Citation | 45 N.E.3d 46 |
| Parties | Scott A. CRISWELL, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
John F. Kautzman, Ruckelshaus, Kautzman, Blackwell, Bemis & Hasbrook, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
, Judge.
[1] At all times relevant to this appeal, Appellant–Defendant Scott Criswell was a Sergeant with the Fort Wayne Police Department (“FWPD”). Criswell attended a party at the home of another Fort Wayne police officer on August 10, 2013. While at the party, Criswell and the wives of two other Fort Wayne police officers are alleged to have forcibly entered a nearby home and removed certain items from the property. As part of a subsequent internal investigation by the FWPD, Criswell gave a statement regarding the events in question after signing a document which indicated that any statements made would not be used against him in any potential subsequent criminal action.
[2] In May of 2014, Appellee–Plaintiff the State of Indiana (the “State”) charged Criswell with Class A misdemeanor criminal conversion and Class A misdemeanor criminal trespass. Criswell subsequently filed a motion to dismiss and/or suppress, arguing that the criminal charges against him should be dismissed because the charges were brought in violation of his Fifth Amendment privilege against self-incrimination, as well as the legal protections enunciated by the United States Supreme Court in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967)
, and Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). Alternatively, Criswell argued that his statement and any evidence derived from his statement should be suppressed. Following a hearing, the trial court denied Criswell's motion.
[3] Concluding that the trial court abused its discretion in denying Criswell's motion to suppress, we reverse the ruling of the trial court. We remand the matter to the trial court with instructions for the trial court to grant Criswell's motion to suppress his statement as well as any other evidence that was directly or indirectly derived from the statement.
[4] On August 10, 2013, Criswell attended a party at the home of FWPD Detective Scott Tegtmeyer and his wife, Heather (“Tegtmeyer”). After arriving at the party, it is alleged that Criswell went with Tegtmeyer and Patricia Sabo (“Sabo”), the wife of yet another FWPD officer, to a nearby home which was the subject of a foreclosure. Once at the home, Criswell, Tegtmeyer, and Sabo are alleged to have forcibly entered the home. They are also alleged to have removed a chainsaw and some gas cans from the property. The alleged home invasion and theft was subsequently reported to the Allen County Police Department (“ACPD”). ACPD Detective John Zagelmeier was assigned to investigate the alleged home invasion and theft.
[5] On November 1, 2013, Russell York, the Chief of Police for the FWPD, filed a request for an internal investigation into the events that occurred on August 10, 2013. Before Criswell agreed to cooperate with the internal investigation, Criswell was presented with a document entitled “GARRITY NOTICE” which read as follows:
You are being questioned as part of an official internal affairs investigation by the [FWPD]. You will be asked questions specifically directed and related to the performance of your official duties or fitness for office. You are entitled to all the rights and privileges guaranteed by the laws of the Constitution of this State and the Constitution of the United States and the applicable collective bargaining agreements with the City of Fort Wayne. If you refuse to testify or to answer questions relating to the performance of your official duties or fitness for duty you will be subject to departmental charges that could result in your dismissal from this agency. Your statements and any information or evidence that is gained by reason of such statements cannot be used against you in any subsequent criminal proceedings, (except for perjury or obstruction of justice charges). These statements may be used against you in relation to subsequent departmental charges. The fruits of this investigation may be disclosed in civil litigation.
Defendant's Collective Exhibit, Exhibit B. Criswell signed the GARRITY NOTICE, agreed to participate in an internal affairs interview, and gave a compelled statement.
[6] During Criswell's internal affairs interview, which was conducted by FWPD Sergeant Jim Seay, the following exchange took place:
Defendant's Collective Exhibit, Exhibit C (last ellipsis in original).
[7] Although he initially suspected the victim's ex-husband, Detective Zagelmeier eventually learned of Criswell's potential involvement in the alleged home invasion and theft. As part of Detective Zagelmeier's investigation, the State requested a subpoena for the production of:
ANY AND ALL INFORMATION PERTAINING TO the internal affairs investigation involving Ed Sabo (Patricia Sabo), Scott Criswell, and Scott Tegtmeyer (Heather Tegtmeyer) for an incident from 8/10–8/11, 2013 in the 8600 block of Frazier Road, Allen County. These records should include all reports, any other documents, and copies of interviews.
Defendant's Collective Exhibit, Exhibit D. The trial court granted the State's request.
[8] On May 24, 2014, the State charged Criswell with Class A misdemeanor criminal conversion and Class A misdemeanor criminal trespass. On August 11, 2014, Criswell filed a motion to dismiss and/or suppress, arguing that the criminal charges against him should be dismissed because the charges were brought in violation of his Fifth Amendment privilege against self-incrimination, as well as the legal protections enunciated by the United States Supreme Court in Garrity and Kastigar. Following a hearing, the trial court denied Criswell's motion. This interlocutory appeal follows.
[9] Again, Criswell filed a motion before the trial court which requested that the trial court dismiss the charges brought against him or, alternatively, suppress any and all evidence derived from his compelled statement. On appeal, Criswell contends that the trial court erred in denying this motion. Specifically, Criswell contends that the trial court erred in denying his motion in light of the Supreme Court's decision in Garrity. For its part, the State argues that the trial court properly denied Criswell's motion because Garrity does not apply to the instant matter. The State alternatively argues that even if Garrity applies, the trial court properly denied Criswell's motion because it met its requirement of proving that it had an independent, legitimate source for the evidence at issue.
[10] “We review a trial court's denial of a motion to dismiss for an abuse of discretion.” Lebo v. State, 977 N.E.2d 1031, 1035 (Ind.Ct.App.2012)
(). Likewise, the admissibility of evidence is within the sound discretion of the trial court, and we will not disturb the decision of the trial court absent a showing of abuse of that discretion. Smith v. State, 780 N.E.2d 1214, 1216 (Ind.Ct.App.2003) (citing Gibson v. State, 733 N.E.2d 945, 951 (Ind.Ct.App.2000) ). Accordingly, in both situations we will reverse a trial court's ruling on the admissibility of evidence only when the trial court abused its discretion. Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App.2003) (citing Bradshaw v. State, 759 N.E.2d 271, 273 (Ind.Ct.App.2001) ). An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court. Id. (citing Huffines v. State, 739 N.E.2d 1093, 1095 (Ind.Ct.App.2000) ).
[11] Further, we review the denial of a motion to suppress in a manner similar to other sufficiency matters. Overstreet v. State, 724 N.E.2d 661, 663 (Ind.Ct.App.2000)
, trans. denied. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. Id. However, unlike the typical sufficiency of the evidence case where only the evidence favorable to the judgment is considered, we must also consider the uncontested evidence favorable to the defendant. Id.
[12] In Garrity, the United States Supreme Court considered a case involving police officers who were being investigated for allegedly fixing traffic tickets. 385 U.S. at 494, 87 S.Ct. 616
. Before being questioned, each of the officers involved was warned that anything he said might be used against him in potential subsequent state criminal proceedings, that he had the privilege to refuse to answer if the disclosure would tend to incriminate himself, but that if he refused to answer, he would be subject to removal from office....
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