Daugherty v. State

• Citation: 466 N.E.2d 46
• Decision Date: 18 July 1984
• Docket Number: No. 1-883A255,1-883A255
• Parties: Ray DAUGHERTY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Court of Appeals of Indiana

Page 46

466 N.E.2d 46

Ray DAUGHERTY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1-883A255.

Court of Appeals of Indiana First District.

July 18, 1984.

Rehearing Denied Sept. 10, 1984.

Paul G. Roland, Ruckelshaus, Roland & O'Connor, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

Ray Daugherty appeals his conviction of official misconduct, a class A misdemeanor, IND.CODE 35-44-1-2(1). Daugherty received a one year sentence with sixty days to be executed; he was fined $1000.00 and he was disenfranchised from holding public office for ten years. The misconduct was Daugherty's battery upon a prisoner in his custody while he was the Hendricks County sheriff.

Daugherty raises several issues for our review: 1) did the trial court err by refusing to dismiss the indictment because of a prosecutorial conflict of interests; 2) did the trial court err by denying a change of venue from the judge based upon the judge's partiality in favor of the original special prosecutor; 3) should the indictment have been dismissed because the circuit court made an untimely appointment of the jury commissioners; 4) was the second special prosecutor improperly appointed pursuant to IND.CODE 33-14-1-6; 5) whether the indictment should have been dismissed because battery is not an act that public servants are specifically forbidden to commit and therefore, Daugherty did not commit official misconduct; 6) whether the guilty verdict on the misconduct charge is irreconcilable with the jury's failure to return a verdict on the battery charge; 7) whether the trial court erred by admitting the prejudicial testimony of two inmates, who were also involved in the incident underlying the charged offense, on the basis of "res gestae"; 8) that the trial court improperly disenfranchised him.

First, Daugherty argues he was denied due process because the prosecutor had a conflict of interest. Relying on State Ex Rel Goldsmith v. Superior Court of Hancock County, (1979) 270 Ind. 487, 386 N.E.2d 942 and State v. Hardy, (1980) Ind.App., 406 N.E.2d 313, Daugherty argues Prosecutor Coleman assumed inconsistent positions by participating in the grand jury proceedings after he had acknowledged a conflict of interest. The potential conflict of interest arose from the fact that two deputy prosecutors represented the sheriff in civil matters and one of these deputies also gave the sheriff legal advice pertaining to the charge involved in the case at bar.

The facts reveal that in June, 1979, Daugherty allegedly committed battery on three prisoners in his custody while attempting to discover who had made an obscene drawing of his wife on a jail table. Subsequently, one of the inmates, Webb, alleged at a court appearance that he had been beaten by Daugherty. The circuit court judge, Judge J.V. Boles, told the deputy prosecutor who was present, Terry Kessinger, to investigate Webb's allegations.

Kessinger recalled informing Daugherty about the allegations. He also spoke with Prosecutor Coleman about the inmate's claims. He did not recall investigating the charges at length. Kessinger did not give the sheriff legal advice and he did not participate in the grand jury proceedings which ultimately occurred some two years later.

After Prosecutor Coleman became aware of the inmate's claims, he wrote to the FBI office in Indianapolis requesting it to investigate the matter. In his letter dated July 27, 1979. Coleman explained that he was reluctant to "call a grand jury or otherwise prosecute the case" because of political considerations and because a deputy prosecutor, Paul Hardin, represented the sheriff's department in civil matters. The resulting FBI investigation and federal grand jury proceedings ended with no charges being filed.

During the period when the inmates' allegations initially surfaced and when the FBI was beginning its investigation, Deputy Prosecutor Hardin met with the sheriff and his deputies to discuss the investigation. Hardin gave legal advice to the sheriff and his deputies.

On June 26, 1981, the Hendricks County grand jury indicted Daugherty on six counts; three counts of official misconduct and three counts of battery with one count from both groups applying to each of the three inmates. Coleman participated in the grand jury proceedings and presented evidence related to the batteries. According to Coleman, he did not specifically call a grand jury to investigate the alleged beatings but instead they resurfaced during an overall investigation of the sheriff's department.

After the indictments were returned, Prosecutor Coleman requested the appointment of a special prosecutor on grounds that he might not be able to exercise independent professional judgment, that Deputy Prosecutor Kessinger represented the sheriff's department in civil matters and that Canon 9 of the Code of Professional Responsibility admonishes lawyers to avoid even the appearance of impropriety. Judge Boles granted the petition and appointed Steven Oliver special prosecutor.

Daugherty filed his motion to dismiss and at the hearing on this motion, Hardin conceded he gave the sheriff legal advice, but he refused to answer specific questions on the grounds of attorney-client privilege.

As the state correctly points out, Daugherty's reliance on Goldsmith and Hardy is misplaced. Although both cases involved situations of potential prosecutorial conflict of interest, neither case was decided on the basis of due process considerations.

In Hardy, the trial court dismissed an indictment because of a defect in the grand jury proceedings, the presence of an unauthorized person. The unauthorized person was the Scott County prosecutor who had successfully sought the appointment of a special prosecutor because he foresaw a potential conflict of interest due to the possibility that he would be a witness. Despite the appointment of a special prosecutor, the prosecutor nevertheless actively participated in the grand jury proceedings. Relying on Goldsmith, this court affirmed the dismissal on the grounds that once a prosecutor recuses himself, the recusation applies to all aspects of the case. However, the issue was not due process, but whether the requirements of the grand jury statute had been followed. IND.CODE 35-3.1-1-4(a)(3), pertaining to dismissal of an indictment for a defect in grand jury proceedings, and IND.CODE 35-1-15-23, concerning a prosecutor's authority to be present during grand jury proceedings. For the current law, see, IND.CODE 35-34-1-4(a) 3 and 7 and IND.CODE 35-34-2-4.

In turn, Goldsmith was not resolved on a due process basis, but instead the issue was the application of the Code of Professional Responsibility and Disciplinary Rules to a prosecutor's staff. A deputy prosecutor filed a petition to withdraw from the underlying case and also sought the appointment of special counsel because of the likelihood that he would be called as a witness. The trial court disqualified the entire prosecutor's staff and appointed a special prosecutor. Additionally, the trial court determined the newly elected incoming prosecutor was disqualified.

Our supreme court held that the Disciplinary Rules do not require recusation of an entire prosecutorial staff in situations where a deputy prosecutor on that staff is a potential witness. The court examined DR5-102(A) and DR2-102(A) and concluded that they are primarily directed at private law firms with financial interests at stake in contrast to the relationship between a prosecutor and his circuit.

The court also drew a distinction between situations where a deputy prosecutor is seeking a replacement and where the prosecutor is petitioning for a replacement. In the latter case, the court concluded the entire prosecutorial staff must be recused to maintain the integrity of criminal justice.

It is apparent Daugherty's argument springs from this last point. He concludes that once Coleman petitioned for a special prosecutor, his entire staff had to be disqualified and then relying on Hardy, supra, concludes that the prosecutor could not participate in any aspect of the proceedings.

Again, we emphasize the distinction between due process considerations in relation to defendants and ethical considerations pertaining to lawyers. Judge Hoffman pointed out this distinction in Branan v. State, (1974) 161 Ind.App. 443, 316 N.E.2d 406 (dissenting opinion):

However, regardless of the propriety of this attorney's conduct under the Code of Ethics, the only question germane to the case at bar is whether the events described hereinabove resulted in prejudice to the defendant's right to due process of law.

* * *

In the case at bar there was simply no evidence of prejudice to the defendant by reason of Mr. Whitman's acts presented at the hearing on Branan's petition. Indeed, the evidence presented at that hearing overwhelmingly supports the determination of the trial court herein. Mr. Whitman testified that he never divulged to any fellow prosecutor any information obtained by reason of his attorney-client relationship with Branan. Moreover, Mr. Whitman never actively participated in the prosecution of Branan.

316 N.E.2d at 409.

The test for determining whether a defendant has been denied due process because of an attorney's conflict of interest resulting from his representation of both the defendant and prosecution was discussed in Trinkle v. State, (1972) 153 Ind.App. 524, 288 N.E.2d 165. Trinkle alleged he was denied a fair trial because the deputy prosecutor prosecuting theft charges had previously represented him on similar charges. We affirmed Trinkle's conviction after determining whether there was a substantial relationship between the prior representation and the criminal proceeding, and whether the prosecuting attorney gained any confidential information through their prior association.

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