Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Jul 15 2014, 10:14 am any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
BRIAN BAXTER GREGORY F. ZOELLER Carlisle, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
BRIAN BAXTER, ) ) Appellant-Defendant, ) ) vs. ) No. 49A05-1306-CR-285 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Steven J. Rubick, Magistrate Cause No. 49G01-0110-CF-197915
July 15, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge CASE SUMMARY
In 2003, Appellant-Defendant Brian Baxter was convicted under cause number
49G01-0110-CF-197915 (“Cause No. CF-197915”) of numerous offenses including three
counts of murder, conspiracy to commit robbery, resisting law enforcement, and carrying a
handgun without a license. On April 30, 2013, Baxter filed a motion to compel various
public agencies to produce copies of certain public records. The Marion County Clerk’s
Office (“Clerk’s Office”) docketed the motion under Cause No. CF-197915. The trial court
subsequently denied Baxter’s motion. On appeal, Baxter contends that his due process rights
were violated by both the Clerk’s Office’s act of docketing his motion to compel under Cause
No. CF-197915 and the trial court’s denial of his motion to compel. We affirm.
FACTS AND PROCEDURAL HISTORY
The memorandum decision of another panel of this Court, which was handed down on
June 4, 2004, instructs us as to the underlying factual background leading to the instant
appeal.
On October 5, 2001, Baxter, Terrance Thomas, and Larry Mitchell, armed with a gun, went to Edward Green’s apartment to rob him. Green was at his apartment with Antonio McGregor and Anthony Ashmore. During the robbery, Baxter shot and injured Green and fled from the apartment. While Baxter was waiting for Thomas and Mitchell in the car, Edward Gilbert entered the apartment. Thomas then shot and killed Green, Gilbert, and McGregor, and injured Ashmore. Later that night, Baxter and Thomas went to an apartment complex carrying a white bag containing the guns used in the crime. At the same time, Officer Kenneth Kunz arrived at the apartment complex in pursuit of two suspects unrelated to Baxter and Thomas, who had stolen a car, caused a police chase, and abandoned the car in the vicinity of the apartment complex. The suspects in the car theft were described as two black males. As Officer Kunz pulled into the apartment complex, he observed Baxter and Thomas, two black 2 men, running between two apartment buildings toward his police car. Believing that Baxter and Thomas were the men involved in the car theft, Officer Kunz turned his spot light on them. Baxter and Thomas then turned and ran in the other direction. Officer Kunz ran after them. He identified himself as a police officer and ordered them to stop several times. Officer Kunz chased Baxter and Thomas into an apartment building and eventually apprehended them with the grocery bag containing two handguns in an apartment in the complex.
Baxter v. State, 49G04-0309-CR-444 *2-3 (Ind. Ct. App. June 4, 2004) (“Baxter I”), trans.
denied.
On October 10, 2001, under Cause No. CF-197915, Baxter was charged with three
counts of felony murder, one count of attempted murder, conspiracy to commit robbery,
robbery, resisting law enforcement, and carrying a handgun without a license. Id. at 3.
Baxter was subsequently found guilty as charged and sentenced to an aggregate sentence of
140 years. Id. at 3-4. On direct appeal, a panel of this court reversed Baxter’s attempted
murder conviction and concluded that the trial court did not abuse its discretion in sentencing
Baxter. Id. at 12. The panel also remanded the matter to the trial court with instructions for
the trial court to vacate the robbery conviction and to reduce the conspiracy to commit
robbery charge to a Class B felony. Id. The Indiana Supreme Court denied Baxter’s transfer
petition. Baxter v. State, 49A02-0702-PC-128 *1 (Ind. Ct. App. Nov. 20, 2007) (“Baxter
II”), trans. denied.
Baxter later filed a petition for post-conviction relief. Id. at 2. Baxter’s petition was
denied by the post-conviction court. Id. at 2. A panel of this court affirmed the denial of
Baxter’s petition in Baxter II. Id. at 3-4. The Indiana Supreme Court once again denied
3 Baxter’s transfer petition. Id. at 1.
On April 30, 2013, Baxter filed a “Motion to Compel Public Agencies to Produce
Copies of Public Records” (“motion to compel”). Appellant’s App. p. 46. Baxter’s motion
to compel alleged that various public agencies, including the Indianapolis Metropolitan
Police Department, the Marion County Forensic Agency, and the Marion County
Prosecutor’s Office, had violated the Indiana Access to Public Records Act. Baxter’s motion
to compel requested that the trial court order these agencies to produce copies of the results
of certain gunshot residue tests conducted in connection to Cause No. CF-197915, claiming
that the failure to produce these test results “infringes upon [his] ability to access the courts.”
Appellant’s App. p. 46. Baxter’s motion to compel referred to certain “Exhibits” which he
claims support his various assertions. Appellant’s App. pp. 46-48. These exhibits, however,
were not attached to Baxter’s motion to compel.
In filing his motion to compel, Baxter did not file an appearance or a summons as
required by the Indiana trial rules for initiating a new civil action. Baxter did provide funds,
seemingly for payment of the required filing fee. The Clerk’s Office did not docket Baxter’s
motion to compel as a new civil action. Instead, it docketed the motion to compel under
Cause No. CF-197915. The trial court subsequently denied Baxter’s motion to compel. This
appeal follows.
DISCUSSION AND DECISION
Baxter contends that his due process rights were violated when the Clerk’s Office
docketed his motion to compel under Cause No. CF-197915 rather than under a new civil
4 cause number. Baxter also contends that his due process rights were violated by the trial
court’s denial of his motion to compel. We will address each contention in turn.
I. The Indiana Access to Public Records Act
Indiana Code section 5-14-3-3 provides that “[a]ny person may inspect and copy the
public records of any public agency during the regular business hours of the agency, except
as provided in section 4 of this chapter.” Indiana Code section 5-14-3-4(a) provides that
certain public records are excepted from Indiana Code section 5-14-3-3 and may not be
disclosed by a public agency unless access to the records is specifically required by a state or
federal statute or is ordered by a court under the rules of discovery. Indiana Code section 5-
14-3-4(b) provides that certain public records, including investigatory records of law
enforcement agencies, shall be excepted from Indiana Code section 5-14-3-3 at the discretion
of the public agency.
A request for inspection or copying of public records “must: (1) identify with
reasonable particularity the record being requested; and (2) be, at the discretion of the
agency, in writing on or in a form provided by the agency.” Ind.
Free access — add to your briefcase to read the full text and ask questions with AI
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Jul 15 2014, 10:14 am any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
BRIAN BAXTER GREGORY F. ZOELLER Carlisle, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
BRIAN BAXTER, ) ) Appellant-Defendant, ) ) vs. ) No. 49A05-1306-CR-285 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Steven J. Rubick, Magistrate Cause No. 49G01-0110-CF-197915
July 15, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge CASE SUMMARY
In 2003, Appellant-Defendant Brian Baxter was convicted under cause number
49G01-0110-CF-197915 (“Cause No. CF-197915”) of numerous offenses including three
counts of murder, conspiracy to commit robbery, resisting law enforcement, and carrying a
handgun without a license. On April 30, 2013, Baxter filed a motion to compel various
public agencies to produce copies of certain public records. The Marion County Clerk’s
Office (“Clerk’s Office”) docketed the motion under Cause No. CF-197915. The trial court
subsequently denied Baxter’s motion. On appeal, Baxter contends that his due process rights
were violated by both the Clerk’s Office’s act of docketing his motion to compel under Cause
No. CF-197915 and the trial court’s denial of his motion to compel. We affirm.
FACTS AND PROCEDURAL HISTORY
The memorandum decision of another panel of this Court, which was handed down on
June 4, 2004, instructs us as to the underlying factual background leading to the instant
appeal.
On October 5, 2001, Baxter, Terrance Thomas, and Larry Mitchell, armed with a gun, went to Edward Green’s apartment to rob him. Green was at his apartment with Antonio McGregor and Anthony Ashmore. During the robbery, Baxter shot and injured Green and fled from the apartment. While Baxter was waiting for Thomas and Mitchell in the car, Edward Gilbert entered the apartment. Thomas then shot and killed Green, Gilbert, and McGregor, and injured Ashmore. Later that night, Baxter and Thomas went to an apartment complex carrying a white bag containing the guns used in the crime. At the same time, Officer Kenneth Kunz arrived at the apartment complex in pursuit of two suspects unrelated to Baxter and Thomas, who had stolen a car, caused a police chase, and abandoned the car in the vicinity of the apartment complex. The suspects in the car theft were described as two black males. As Officer Kunz pulled into the apartment complex, he observed Baxter and Thomas, two black 2 men, running between two apartment buildings toward his police car. Believing that Baxter and Thomas were the men involved in the car theft, Officer Kunz turned his spot light on them. Baxter and Thomas then turned and ran in the other direction. Officer Kunz ran after them. He identified himself as a police officer and ordered them to stop several times. Officer Kunz chased Baxter and Thomas into an apartment building and eventually apprehended them with the grocery bag containing two handguns in an apartment in the complex.
Baxter v. State, 49G04-0309-CR-444 *2-3 (Ind. Ct. App. June 4, 2004) (“Baxter I”), trans.
denied.
On October 10, 2001, under Cause No. CF-197915, Baxter was charged with three
counts of felony murder, one count of attempted murder, conspiracy to commit robbery,
robbery, resisting law enforcement, and carrying a handgun without a license. Id. at 3.
Baxter was subsequently found guilty as charged and sentenced to an aggregate sentence of
140 years. Id. at 3-4. On direct appeal, a panel of this court reversed Baxter’s attempted
murder conviction and concluded that the trial court did not abuse its discretion in sentencing
Baxter. Id. at 12. The panel also remanded the matter to the trial court with instructions for
the trial court to vacate the robbery conviction and to reduce the conspiracy to commit
robbery charge to a Class B felony. Id. The Indiana Supreme Court denied Baxter’s transfer
petition. Baxter v. State, 49A02-0702-PC-128 *1 (Ind. Ct. App. Nov. 20, 2007) (“Baxter
II”), trans. denied.
Baxter later filed a petition for post-conviction relief. Id. at 2. Baxter’s petition was
denied by the post-conviction court. Id. at 2. A panel of this court affirmed the denial of
Baxter’s petition in Baxter II. Id. at 3-4. The Indiana Supreme Court once again denied
3 Baxter’s transfer petition. Id. at 1.
On April 30, 2013, Baxter filed a “Motion to Compel Public Agencies to Produce
Copies of Public Records” (“motion to compel”). Appellant’s App. p. 46. Baxter’s motion
to compel alleged that various public agencies, including the Indianapolis Metropolitan
Police Department, the Marion County Forensic Agency, and the Marion County
Prosecutor’s Office, had violated the Indiana Access to Public Records Act. Baxter’s motion
to compel requested that the trial court order these agencies to produce copies of the results
of certain gunshot residue tests conducted in connection to Cause No. CF-197915, claiming
that the failure to produce these test results “infringes upon [his] ability to access the courts.”
Appellant’s App. p. 46. Baxter’s motion to compel referred to certain “Exhibits” which he
claims support his various assertions. Appellant’s App. pp. 46-48. These exhibits, however,
were not attached to Baxter’s motion to compel.
In filing his motion to compel, Baxter did not file an appearance or a summons as
required by the Indiana trial rules for initiating a new civil action. Baxter did provide funds,
seemingly for payment of the required filing fee. The Clerk’s Office did not docket Baxter’s
motion to compel as a new civil action. Instead, it docketed the motion to compel under
Cause No. CF-197915. The trial court subsequently denied Baxter’s motion to compel. This
appeal follows.
DISCUSSION AND DECISION
Baxter contends that his due process rights were violated when the Clerk’s Office
docketed his motion to compel under Cause No. CF-197915 rather than under a new civil
4 cause number. Baxter also contends that his due process rights were violated by the trial
court’s denial of his motion to compel. We will address each contention in turn.
I. The Indiana Access to Public Records Act
Indiana Code section 5-14-3-3 provides that “[a]ny person may inspect and copy the
public records of any public agency during the regular business hours of the agency, except
as provided in section 4 of this chapter.” Indiana Code section 5-14-3-4(a) provides that
certain public records are excepted from Indiana Code section 5-14-3-3 and may not be
disclosed by a public agency unless access to the records is specifically required by a state or
federal statute or is ordered by a court under the rules of discovery. Indiana Code section 5-
14-3-4(b) provides that certain public records, including investigatory records of law
enforcement agencies, shall be excepted from Indiana Code section 5-14-3-3 at the discretion
of the public agency.
A request for inspection or copying of public records “must: (1) identify with
reasonable particularity the record being requested; and (2) be, at the discretion of the
agency, in writing on or in a form provided by the agency.” Ind. Code § 5-14-3-3(a). “A
person who has been denied the right to inspect or copy a public record by a public agency
may file an action in the circuit or superior court of the county in which the denial occurred
to compel the public agency to permit the person to inspect and copy the public record.” Ind.
Code § 5-14-3-9(e). “Whenever an action is filed under this subsection, the public agency
must notify each person who supplied any part of the public record at issue: (1) that a request
for release of the public record has been denied; and (2) whether the denial was in
5 compliance with an informal inquiry response or advisory opinion of the public access
counselor.” Id. “The person who has been denied the right to inspect or copy need not allege
or prove any special damage different from that suffered by the public at large.” Id. “The
court shall determine the matter de novo, with the burden of proof on the public agency to
sustain its denial.” Ind. Code § 5-14-3-9(f). In Marion County, an action alleging a violation
of the Access to Public Records Act is to be decided by the Environmental Court. See LR49-
TR3-200.
II. Motion to Compel Docketed Under Cause No. CF-197915
Baxter contends that his due process rights were violated by the Clerk’s Office’s act of
docketing his motion to compel under Cause No. CF-197915 rather than under a new civil
cause number. With respect to the initiation of a civil action, Indiana Trial Rule 3 provides
as follows:
A civil action is commenced by filing with the court a complaint or such equivalent pleading or document as may be specified by statute, by payment of the prescribed filing fee or filing an order waiving the filing fee, and, where service of process is required, by furnishing to the clerk as many copies of the complaint and summons as are necessary.
The party shall also file a summons which includes certain information relating to the other
party, whom must be provided with service of the complaint. Ind. Trial Rule 4(B). Indiana
Trial Rule 3.1 further provides that the party “shall file with the clerk of the court an
appearance form” at the time an action is commenced.
In the instant matter, Baxter filed a document entitled “Motion to Compel.” Baxter
also provided funds which were seemingly intended to pay the filing fee. Baxter, however,
6 did not file a summons or appearance. Accordingly, we determine that Baxter did not
comply with all of the requirements for the initiation of a new civil action.
Furthermore, the language included in Baxter’s motion to compel does not clearly
indicate that Baxter intended for the motion to compel to be considered a new civil complaint
rather than a pleading relating to Cause No. CF-197915. In light of Baxter’s failure to meet
the requirements for initiating a new civil action and the lack of a clear indication that Baxter
intended for the motion to compel to be treated as a new civil complaint, we conclude that
the Clerk’s Office reasonably docketed the motion to compel under Cause No. CF-197915
rather than under a new civil cause number. As such, Baxter’s due process rights were not
violated by the Clerk’s Office’s act of docketing the motion to compel under Cause No. CF-
197915.
II. Denial of Baxter’s Motion to Compel
Baxter also contends that his due process rights were violated by the trial court’s
denial of his motion to compel. On appeal, we review a trial court’s ruling on a motion to
compel de novo. See Novotny v. Renewal by Andersen Corp., 861 N.E.2d 15, 20 (Ind. Ct.
App. 2007). A de novo review is non-deferential to the trial court’s decision. See generally
BLACK’S LAW DICTIONARY 864 (8th ed. 2004).
While Baxter’s motion to compel asserts that he has been denied access to copies of
the results from certain gunshot residue tests conducted in connection to Cause No. CF-
197915, the motion to compel does not indicate what attempts Baxter made to obtain the
records or fully indicate why his request was denied. Thus, we are unable to determine
7 whether Baxter complied with the requirements of the Access to Public Records Act in
making his request or whether the requested records were exempt from the Act’s disclosure
requirements. Further, as the trial court noted, Baxter had previously been provided with
numerous opportunities to challenge any and all aspects of his conviction, including a direct
appeal and various post-conviction proceedings. Baxter’s motion to compel does not indicate
what he hoped to glean from the copies of the requested records or argue that any of the
information potentially gleaned from these documents would, in turn, justify additional
successive post-conviction proceedings. As such, we conclude that Baxter’s due process
rights were not violated by the trial court’s denial of his motion to compel.
The judgment of the trial court is affirmed.
RILEY, J., and ROBB, J., concur.