Minges v. State
| Decision Date | 04 January 2022 |
| Docket Number | Court of Appeals Case No. 21A-CR-216 |
| Citation | 180 N.E.3d 391 |
| Parties | Frank E. MINGES, III, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
Attorneys for Appellant: Michael C. Cunningham, Judson G. McMillin, Zachary J. Anderson, Mullin, McMillin & McMillin, LLP, Brookville, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Sierra A. Murray, Deputy Attorney General, Indianapolis, Indiana
[1] Frank E. Minges, III, appeals the trial court's denial of his motion to compel discovery of a complete and accurate copy of the police report that outlined the events resulting in Minges being charged with two counts of misdemeanor operating while intoxicated. He raises a number of issues on appeal, which we consolidate and restate as one:
Did the trial court properly deny Minges’ motion to compel discovery of a complete and accurate copy of the arresting officer's police report because, pursuant to Keaton v. Circuit Court of Rush County , 475 N.E.2d 1146 (Ind. 1985), trial courts lack authority to order production of verbatim copies of police reports alleging criminal conduct when the prosecutor timely asserts the report is protected by privilege as the work product of the prosecuting attorney?
We affirm.
[2] On October 13, 2020, police conducted a traffic stop of a vehicle driven by Minges. As a result of the stop, on October 14, 2020, the Dearborn County Prosecutor's Office (hereinafter "Prosecutor") charged Minges with Class A misdemeanor operating while intoxicated1 and Class C misdemeanor operating while intoxicated.2 That same day, Minges’ counsel (hereinafter "Defense Counsel") entered an appearance and filed a motion for discovery that requested the Prosecutor turn over twenty-three different forms of evidence that the Prosecutor might have in the case. Amongst the requested documents was a request for police reports:
5. Any and all reports known to the State made in writing by any policeman or investigating officer which are relevant to the charge against Defendant. Also, any such reports which the Prosecuting Attorney may acquire or learn of in the future at any time prior to trial.
(Appellant's App. Vol. 2 at 19.)
[3] On October 26, 2020, the Prosecutor filed its Discovery Answer. The Prosecutor listed its witnesses therein, and thereto the Prosecutor attached copies of the following documents: charging information and probable cause affidavit, blood search warrant, toxicology request form, receipt for license form, defendant's driver's license, and law enforcement drug screen collections for Indiana Department of Toxicology. The Discovery Answer then indicated Minges’ "Criminal History" and the "Dearborn County Sheriff's Department Case Report Narrative" were "available to review upon appointment[.]" (Id. at 37.)
[4] On November 22, 2020, Defense Counsel emailed the Prosecutor and requested a copy of the police report by email. On November 23, 2020, the Prosecutor declined and indicated that, pursuant to its policy, Defense Counsel could view the police report in the Prosecutor's Office or, if Defense Counsel agreed to a non-negotiable protective order,3 the Prosecutor would give Defense Counsel a copy. That same day, Minges filed a motion to compel discovery that requested the trial court order the Prosecutor "to produce a complete and accurate copy" of the police report. (Id. at 59.) The trial court set Minges’ motion to compel for a hearing.
[5] At the hearing, Defense Counsel acknowledged he had reviewed the police report at the Prosecutor's Office, but he indicated he was not permitted to take a copy of that report with him because he would not sign the protective order. Defense Counsel asserted he did not feel comfortable signing the protective order, which required him to return the document after the case, because he had an ethical obligation to maintain his client file, and he argued the requirement to prepare the defense by viewing the document at the Prosecutor's Office was particularly limiting during the Covid-19 pandemic. The Prosecutor argued the trial court had no "power to order production of verbatim copies of police reports over a work product objection." (Tr. Vol. 2 at 6-7.) The trial court indicated that its hands were tied by Keaton unless Defense Counsel had case law overturning Keaton . Thereafter, the court denied Minges’ motion in an order that included no findings of fact or conclusions of law. Over the State's objection, the trial court certified its order for interlocutory appeal. We accepted jurisdiction and, following briefing by the parties, held oral argument.4
[6] Minges appeals from the trial court's denial of his motion to compel discovery of a police report. Discovery is a matter left to the "broad discretion" of the trial court. State v. Jones , 169 N.E.3d 397, 402 (Ind. 2021), reh'g denied. Accordingly, we review the trial court's denial of Minges’ motion for an abuse of discretion, see id. , which occurs if the "decision is clearly against the logic and effect of the facts and circumstances before the court or when the trial court has misinterpreted the law." Brown v. Katz , 868 N.E.2d 1159, 1165 (Ind. Ct. App. 2007).
[7] Indiana's discovery rules are intended " ‘to allow a liberal discovery procedure’ for the purpose of providing litigants ‘with information essential to the litigation of all relevant issues, eliminate surprise and to promote settlement.’ " Doherty v. Purdue Props. I, LLC , 153 N.E.3d 228, 235 (Ind. Ct. App. 2020) (quoting Canfield v. Sandock , 563 N.E.2d 526, 528 (Ind. 1990), reh'g denied ), trans. denied. Pursuant to Trial Rule 26(A),5 one of the discovery methods parties may use to prepare for trial is requesting the "production of documents." Generally speaking:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject-matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Trial Rule 26(B)(1). " Trial Rule 34(A) allows the defendant the opportunity not only to inspect the item but also to make a copy of it." Beville v. State , 71 N.E.3d 13, 18 (Ind. 2017).
[8] If a party wishes to assert a privilege and avoid divulging information during discovery, that party has "the burden to allege and prove the applicability of the privilege as to each question asked or document sought." TP Orthodontics, Inc. v. Kesling , 15 N.E.3d 985, 994 (Ind. 2014) (quoting Hayworth v. Schilli Leasing, Inc. , 669 N.E.2d 165, 169 (Ind. 1996) ). See also Ind. Trial Rule 26(B)(5) (). "Absent an articulation of specific reasons why the documents sought are privileged, the information is discoverable; otherwise, the whole discovery process is frustrated and vital information may be ‘swept under the rug.’ " Brown , 868 N.E.2d at 1167 (quoting Airgas Mid-America, Inc. v. Long , 812 N.E.2d 842, 845 (Ind. Ct. App. 2004) ).
[9] One such privilege is the work product privilege, which is defined in Indiana Trial Rule 26(B)(3) :
[A] party may obtain discovery of documents and tangible things otherwise discoverable ... and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
This privilege was created to ensure that lawyers can work " ‘with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel’ " and to allow lawyers to "best serve ‘the interests of clients and the cause of justice.’ " TP Orthodontics , 15 N.E.3d at 995 (quoting Hickman v. Taylor , 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947) ).
[10] While Rule 26(B)(3) permits a party to obtain discovery of documents prepared in anticipation of litigation if there is a showing of "substantial need" and if obtaining the information in another way would create "undue hardship," "a party seeking discovery is never entitled to the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of the party concerning the litigation." Nat. Eng'g & Contracting Co., Inc. v. C&P Eng'g & Mfg. Co., Inc. , 676 N.E.2d 372, 376 (Ind. Ct. App. 1997). These types of materials are called "opinion work product [and are] entitled to absolute protection from discovery." Id. See also T.R. 26(B)(3) ().
[11] A party asserting work-product privilege "must establish that the materials sought to be protected from disclosure were prepared in anticipation of litigation rather than in the normal course of business." TP Orthodontics , 15 N.E.3d at 995. "A document is gathered in anticipation of litigation if it can fairly be said that the document was prepared or obtained because of the prospect of litigation." WESCO...
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