State v. Taylor

• Citation: 49 N.E.3d 1019
• Decision Date: 30 March 2016
• Docket Number: No. 46S04–1509–CR–552.,46S04–1509–CR–552.
• Parties: STATE of Indiana, Appellant, v. Brian J. TAYLOR, Appellee.
• Court: Supreme Court of Indiana

49 N.E.3d 1019

STATE of Indiana, Appellant

v.Brian J. TAYLOR, Appellee.

No. 46S04–1509–CR–552.

Supreme Court of Indiana.

March 30, 2016.

Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

Elizabeth Flynn, David Payne, Craig V. Braje, Braje, Nelson & Janes, LLP, Michigan City, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 46A04–1407–CR–316

RUSH, Chief Justice.

A criminal suspect's state and federal rights to counsel and confrontation of witnesses are essential to a fair trial. Here, police officers and a prosecutor eavesdropped on a criminal suspect's pre-interrogation consultation with his lawyer, overhearing information regarding both evidence and trial strategy. Then, when called to testify about that eavesdropping in depositions and a suppression hearing, the officers' invocation of their Fifth Amendment rights against self-incrimination left the suspect with no means of confirming what they heard. The parties agree—as well they should—that the State's egregious misconduct violated the suspect's constitutional rights. Their dispute is only how to remedy that violation.

We hold that the State's intrusion is presumptively prejudicial. But that presumption does not necessarily require blanket suppression—as the trial court here ordered—of all testimony from witnesses who pleaded the Fifth Amendment about the eavesdropping. Rather, the State can rebut the presumption by disproving prejudice beyond a reasonable doubt for every item of tainted evidence and testimony.

Thus, even though the officers' testimony is presumptively tainted by the eavesdropping, they may yet have an independent basis for certain limited testimony, such as routine evidentiary foundation for the unsuppressed exhibits. On those matters, their credibility may be sufficiently “collateral” that neither their Fifth Amendment privilege nor the suspect's confrontation or cross-examination rights will be materially impaired. But because testimonial taint can be subtle and difficult to detect, the State must prove an independent basis beyond a reasonable doubt for the entire substance of each witness's testimony. We therefore reverse and remand the prospective blanket suppression of those witnesses' testimony.

Facts and Procedural History

On March 14, 2014, at some time before 7:30 a.m., Brian Taylor's grandfather dropped him off at the Michigan City Police Department and told him not to talk to the police. Police officers escorted the blood-covered Taylor to an interview room, where he apparently stayed while they investigated. Within hours, police discovered the body of Taylor's girlfriend, Simone Bush, at her grandparents' residence, with a fatal gunshot wound through the neck. Subsequently, at around 3:20 p.m., police arrested Taylor and asked him to sign a document waiving his right to an attorney. He refused.

Around 4:00 p.m., Taylor's attorney David Payne arrived at the police station, and Chief Deputy Prosecutor Robert Neary and Sergeant Steve Westphal accompanied him to the interview room. Sergeant Westphal told Attorney Payne that he should “flip a toggle switch” on the wall “unless you want us listening to your conversation.” At 4:12 p.m., Attorney Payne flipped the switch and began talking with his client.

Attorney Payne's conversation with Taylor was transmitted by a live audio feed into a large conference room next door—known at the station as the “War Room”—where the chief deputy prosecutor and an unknown group of police detectives were listening. For the next thirty to forty minutes, the War Room group listened in as Taylor and his attorney discussed “all aspects” of the case, including location of evidence and defense trial strategy. According to Chief Deputy Prosecutor Neary, the officers cut off the audio feed immediately after Taylor revealed the location of a handgun. The officers searched for and retrieved that gun despite Neary's “stern[ ]” instruction to the contrary.

On March 16, 2014, the State charged Taylor with murder. A few days later, Neary disclosed the eavesdropping. He sent a letter to one of Taylor's attorneys, admitting that

[a]t the time Mr. Payne entered the interview room to speak with Mr. Taylor the recorder was disabled. However, the video/audio still ran to monitor the events in the interview room which could be watched/listened to in another room.

I was present in the other room and overheard portions of Mr. Payne's and Mr. Taylor's conversation up to the point where Mr. Payne asked Mr. Taylor where the weapon was and Mr. Taylor's response. At that point, the audio portion was disabled as well.

... [T]hose present were sternly told not to search for this weapon. However, Monday afternoon I was informed, that despite the warnings, detectives went to the area and located the weapon. The weapon was now in possession of the Michigan City Police Department.

I explained I did not believe the weapon to be admissible under these circumstances. You indicated the issue of admissibility would need to be addressed at a later date.

Finally, ... I ha[ve] self-reported myself to the Indiana Disciplinary Commission for my conduct....

Taylor promptly deposed Sergeant Westphal and four other detectives involved in the investigation—Lead Detective Al Bush, Corporal Sean Steele, Detective Justin Frever, and Detective Matthew Barr. All five officers asked to consult with counsel about their Fifth Amendment rights against self-incrimination as to all questions relating to the eavesdropping—thereby preventing Taylor from learning who was present in the War Room during the eavesdropping and what information was overheard.

Taylor sought to suppress all information and evidence, including the handgun, obtained after the eavesdropping began at 4:12 p.m., and all testimony of any witness who invoked the Fifth Amendment. He attached to that motion an affidavit filed by Attorney Payne, which stated that the eavesdropped conversation covered “confidential matters ... regarding the criminal defense of charges likely to be filed.” In response to the motion to suppress, the State stipulated to the suppression of the handgun but asserted that all other evidence and information obtained after 4:12 p.m. had an independent, untainted source.

On what had been scheduled to be the first day of a two-week jury trial, the court held a day-long suppression hearing. The State called Lead Detective Bush and five other officers as witnesses, three of whom invoked the Fifth in response to all questions relating to the eavesdropping. Then Taylor called three more officers, each of whom did likewise—once again preventing Taylor and the court from learning the identity of the eavesdroppers and what exactly they overheard. Three of the officers—Detectives Bush, Barr, and Frever—were among the five who had invoked their Fifth Amendment rights in depositions. Three others—Detectives David Cooney, Gregory Jesse, and Jason Costigan—had not previously testified.

In Judge Kathleen Lang's commendably thorough written order issued the next morning, the trial court partially granted the motion to suppress. The court found that even though the officers' assertion of the Fifth Amendment “added [a] layer of ... difficulty,” the State had proved “an independent source of information ... in no way connected to the” eavesdropping for most (though not all) of its planned exhibits. Some were recovered before 4:12 p.m. when the eavesdropping began, and therefore were not challenged; and others were part of a standard homicide investigation.

The trial court then turned its attention to the officers' invocation of their Fifth Amendment privilege. Despite finding at least some of the post-eavesdropping evidence admissible, the court ordered blanket suppression of trial testimony from any witness “who has asserted the Fifth Amendment right of silence in a deposition or during testimony at the hearing on the Motion to Suppress,” and stated that it would “stri[ke] in its entirety” the testimony of any witness who did so at trial. The court was concerned that absent “exceptional circumstances,” the Fifth Amendment privilege should not be invoked in the jury's presence. It recognized that blanket suppression was “an extraordinary remedy,” but found that it was warranted in view of “the egregious actions by the police and the State,” and because the officers' Fifth Amendment privilege would violate Taylor's Sixth Amendment right to confront and cross-examine them about what police overheard, who overheard it, whom they told about what they heard, and what actions they took as a result.

On the State's motion, the trial court stayed the trial and certified that order for interlocutory appeal and ordered Taylor released because the seventy-day speedy trial deadline expired that day. On appeal, the State did not challenge the requirement that it demonstrate an independent source for evidence and information obtained after 4:12 p.m. but argued that blanket suppression was “extreme.” State v. Taylor, 35 N.E.3d 287, 295 (Ind.Ct.App.2015). In a split decision, the Court of Appeals agreed with the State, reversing the pretrial blanket suppression of all testimony from officers who pleaded the Fifth, declining to presume prejudice from the State's conduct. Id. at 302–03. Judge May dissented, concluding that blanket suppression of officer testimony was warranted, even before trial, based on the State's failure to disprove prejudice beyond a reasonable doubt. Id. at 305 (May, J., dissenting). We granted transfer, thereby vacating the opinion of the Court of Appeals. Ind. Appellate Rule 58(A). Additional facts are set forth below.

Standard of Review

The State, in appealing from the partial grant of Taylor's motion to suppress, must show the ruling was contrary to law. State v. Washington, 898 N.E.2d 1200, 1203 (Ind.2008). We defer to the specific findings of fact the trial court included in...