MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 09 2019, 6:10 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Mark K. Phillips Curtis T. Hill, Jr. M. Robert Phillips Attorney General of Indiana Boonville, Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Isaiah Albert Hagan, July 9, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1953 v. Appeal from the Warrick Circuit Court State of Indiana, The Honorable Greg A. Granger, Appellee-Plaintiff. Judge Trial Court Cause No. 87C01-1705-MR-203
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 1 of 23 Case Summary [1] Following a jury trial, Isaiah Albert Hagan (“Hagan”) was convicted of several
offenses: Murder, a felony;1 Murder While Committing or Attempting to
Commit Robbery, a felony;2 Robbery Resulting in Serious Bodily Injury, a
Level 2 felony;3 and Obstruction of Justice, a Level 6 felony.4 Hagan presents
several appellate issues, which we revise and restate as follows:
I. Whether the trial court abused its discretion when making certain evidentiary rulings, including admitting statements Hagan made to his mother, an employee of the Warrick County Sheriff’s Department, after Hagan had invoked the right to remain silent during a police interrogation.
II. Whether the State hindered the jury’s ability to effectively act as the fact-finder.
III. Whether Hagan was deprived of an impartial judge.
[2] We conclude Hagan has not identified reversible error. However, three of his
convictions rely on the same evidence—that Hagan shot his victim—violating
principles of double jeopardy. We affirm in part, reverse in part, and remand
with instructions to remedy the violation. In doing so, we note that because
1 Ind. Code § 35-42-1-1. 2 I.C. § 35-42-1-1. 3 I.C. § 35-42-5-1. 4 I.C. § 35-44.1-2-2.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 2 of 23 Hagan agreed to a fixed sentence of sixty years to avoid the possibility of life
imprisonment without parole, our disposition does not affect his sentence.
Facts and Procedural History [3] On April 24, 2017, the body of Halee Rathgeber (“Rathgeber”) was found in a
parking lot in rural Warrick County, next to a bloody blue towel. She died
from a gunshot wound to the head. On the day Rathgeber was found, Hagan—
who lived with his mother Donna Hagan (“Donna”) and father Wandel Hagan
(“Wandel”)—told Donna he had been with Rathgeber the previous day.
Donna was a long-time employee of the Warrick County Sheriff’s Department,
employed at the Warrick County Jail. She suggested that Hagan speak with
law enforcement to help with the investigation, which Hagan did. Law
enforcement later searched the residence that Hagan, Donna, and Wandel
shared. The search produced a blue towel—the same brand as the towel next to
Rathgeber. Law enforcement also discovered that a handgun was missing.
[4] The investigation led to an interview with Hagan on April 26, 2017, at the start
of which Detective Paul Kruse (“Detective Kruse”) read line-by-line from a
form containing an advisement of rights. This form also contained a Waiver of
Rights section, which Hagan signed. On April 29, 2017, Detective Kruse again
met with Hagan, who agreed to another interview at the Sheriff’s Department.
On the way to the interview, Detective Kruse reminded Hagan “of the waiver
that he had signed” and “asked if he recalled those rights.” Tr. Vol. II at 153.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 3 of 23 Hagan said that he understood. Before the interview began, Detective Kruse
obtained a blank copy of the advisement form. Hagan again signed the waiver.
[5] During the interview, Hagan said he had driven Rathgeber to the parking lot
where her body was found—contradicting a prior statement that he dropped her
off elsewhere. Hagan also said he had thrown away Rathgeber’s phone after
finding it in his car. At some point, Hagan said he wanted to talk with Donna.
Hagan eventually said he was done talking. Law enforcement then arranged a
meeting with Donna, who was on duty. Donna—in full uniform—met with
Hagan in a room at the Sheriff’s Department. This meeting was not recorded,
and Hagan was not given additional advisements prior to meeting with Donna.
[6] The State later charged Hagan with two counts of Murder—alleging, in one
count, that Hagan had murdered Rathgeber while committing or attempting to
commit Robbery. The State also charged Hagan with Level 2 felony Robbery
Resulting in Serious Bodily Injury and Level 6 felony Obstruction of Justice.
In addition to these counts, the State filed an enhancement seeking a sentence
of life imprisonment without parole.5 A jury trial began in early May 2018, but
resulted in a mistrial. A second jury trial commenced later that month.
[7] At trial, Donna testified about her meeting with Hagan. At the meeting, Hagan
told Donna that he accidentally shot Rathgeber. Hagan also told Donna that
he disposed of the gun in a dumpster behind a liquor store. Despite that
5 I.C. § 35-50-2-9.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 4 of 23 assertion of accident, there was evidence at trial that Hagan had tried to cover
his tracks—sending Rathgeber a text message well after discarding her phone.
There was also evidence that Rathgeber owed Hagan money, and that Hagan
owed Wandel money. The morning Rathgeber was found dead, Hagan put
$210 on the counter for Wandel. Later that day, Hagan tried to sell concert
tickets, claiming he was selling them for Rathgeber. Eventually, Rathgeber’s
wallet was found along the side of a road. The wallet had no paper bills inside.
[8] The jury found Hagan guilty of the four substantive counts. Hagan and the
State then reached an agreement whereby Hagan would avoid life without
parole, instead serving a sentence of sixty years in the Indiana Department of
Correction. The trial court sentenced Hagan in accordance with the agreement.
[9] Hagan now appeals.
Discussion and Decision Evidentiary Rulings Admission of Statements to Donna [10] Hagan challenges the denial of a pretrial motion to suppress evidence. Because
Hagan is appealing after a completed trial, we reframe this issue as “a request to
review the court’s decision to admit the evidence at trial.” Carpenter v. State, 18
N.E.3d 998, 1001 (Ind. 2014). In general, we review evidentiary rulings for an
abuse of discretion. Timberlake v. State, 690 N.E.2d 243, 255 (Ind. 1997), cert.
denied. “An abuse of discretion occurs when the ruling is clearly against the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 5 of 23 logic and effect of the facts and circumstances.” Snow v. State, 77 N.E.3d 173,
176 (Ind. 2017). We will affirm an evidentiary ruling “if it is sustainable on any
basis in the record.” Barker v. State, 695 N.E.2d 925, 930 (Ind. 1998).
[11] Hagan challenges the admission of his statements to Donna. However, because
Hagan failed to contemporaneously object to the admission of these statements,
he has waived this issue for appellate review. See Brown v. State, 929 N.E.2d
204, 207 (Ind. 2010) (“A contemporaneous objection at the time the evidence is
introduced at trial is required to preserve the issue for appeal, whether or not
the appellant has filed a pretrial motion to suppress.”). “A claim that has been
waived by a defendant’s failure to raise a contemporaneous objection can be
reviewed on appeal if the reviewing court determines that a fundamental error
occurred.” Id. This exception is “extremely narrow, and applies only when the
error constitutes a blatant violation of basic principles, the harm or potential for
harm is substantial, and the resulting error denies the defendant fundamental
due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006).
[12] According to Hagan, his statements to Donna were inadmissible because they
were obtained in violation of the Fifth Amendment to the United States
Constitution. Hagan directs us to Miranda v. Arizona, wherein the U.S. Supreme
Court held that a custodial interrogation jeopardizes “the privilege against self-
incrimination” conferred by the Fifth Amendment. 384 U.S. 436, 478 (1966).
To protect this privilege, evidence elicited through a custodial interrogation is
admissible against the defendant only if he received adequate warnings and
“knowingly and intelligently” waived his rights. Id. at 479. Moreover, Miranda
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 6 of 23 and its progeny protect the right to cut off police questioning. Michigan v.
Mosley, 423 U.S. 96, 103 (1975). To safeguard this right, when the accused
invokes the right to remain silent, “[t]he police must cease questioning
immediately and may resume questioning only after the passage of a significant
amount of time and after giving a fresh set of Miranda warnings.” Pilarski v.
State, 635 N.E.2d 166, 170 (Ind. 1994). As to the admissibility of statements
obtained after the accused invoked the right to remain silent, “[t]he burden
remains on the State to show the police scrupulously honored the accused’s
right to remain silent.” Moore v. State, 498 N.E.2d 1, 10 (Ind. 1986).
[13] Custodial interrogation “refers to questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.” Pasco v. State, 563 N.E.2d 587, 593
(Ind. 1990). Moreover, “the term ‘interrogation’ under Miranda refers not only
to express questioning, but also to any words or actions on the part of the police
(other than those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating response from the
suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (footnotes omitted). At
bottom, “Miranda’s premise is that ‘the interaction of custody and official
interrogation’ creates the danger of coercion.” D.Z. v. State, 100 N.E.3d 246,
249 (Ind. 2018) (quoting Illinois v. Perkins, 496 U.S. 292, 297 (1990)).
Importantly, however, “that coercion ‘is determined from the perspective of the
suspect.’” Id. (quoting Perkins, 496 U.S. at 296). Therefore, the U.S. Supreme
Court has “reject[ed] the argument that Miranda warnings are required
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 7 of 23 whenever a suspect is in custody in a technical sense and converses with
someone who happens to be a government agent.” Id. at 297. Indeed, Miranda
concerns “are not present” when the accused “speaks freely to someone” whom
he does not believe is an agent of the police. Id. at 296. In other words, “an
agency relationship implicates Miranda only if the suspect is aware enough of
the underlying police involvement to create a ‘coercive atmosphere.’” D.Z., 100
N.E.3d at 249 (quoting Perkins, 496 U.S. at 296). “[T]he Fifth Amendment
privilege is not concerned ‘with moral and psychological pressures to confess
emanating from sources other than official coercion.’” Colorado v. Connelly, 479
U.S. 157, 170 (1986) (quoting Oregon v. Elstad, 470 U.S. 298, 305 (1985)).
[14] Evidentiary rulings involving Miranda present “a mixed question of fact and
law.” State v. Ruiz, No. 19S-CR-336, 2019 WL 2336619, at *3 (Ind. June 3,
2019). To the extent the ruling turns on a determination of fact, we will not
reweigh the evidence, and will consider conflicting evidence in a light most
favorable to the ruling. Id. However, to the extent the ruling turns on a
question of law, our review is de novo. Id.; cf. Carpenter, 18 N.E.3d at 1001.
[15] During the April 29 interview with Detective Kruse, Hagan invoked his right to
remain silent by telling Detective Kruse he was done talking. See Berghuis v.
Thompkins, 560 U.S. 370, 382 (2010). At that point, Detective Kruse stopped
interrogating Hagan but proceeded to arrange a meeting with Donna. Hagan
asserts Donna “was being used as an agent of the State” and that he was
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 8 of 23 entitled to an advisement that statements to Donna could be used against him. 6
Br. of Appellant at 22. Hagan characterizes the meeting as “encouraged and set
up by the Sheriff’s Department.” Id. at 21. He alleges the police attempted to
“circumvent Miranda by sending in [Donna] to question him,” id., and that
arranging the meeting “demonstrates coercion, trickery and deceit,” id. at 22.
[16] Yet, there is evidence that Hagan insisted on meeting with Donna. At one
point, Hagan said, “I don’t want to lie to my mom anymore.” App. Vol. 2 at
78. Detective Kruse tried to persuade Hagan to first explain everything to him,
telling Hagan that Detective Kruse would then arrange a meeting with Donna.
Hagan declined, saying: “I would like to be able to talk to [Donna] first, sir. If
I’m under arrest, then I understand, but I would like to be able to talk to her
first.” Id. at 79. This exchange indicates Hagan viewed a conversation with
Donna as a personal conversation with his mother, not with an agent of the
police. Moreover, Detective Kruse testified he did not give instructions to
Donna before the meeting—and although law enforcement later asked Donna
about the conversation, Donna testified she did not feel obligated to meet with
Hagan and would have met with Hagan even if she did not work for the
Sheriff’s Department. Further, Donna’s description of the meeting suggests the
conversation was not the result of questioning but instead somewhat one-sided:
6 Hagan also asserts Donna was entitled to an advisement because she could have faced charges had she withheld pertinent information, but Hagan cannot obtain relief for the purported violation of Donna’s rights. See, e.g., Adler v. State, 225 N.E.2d 171, 172 (1967) (“Constitutional rights are personal, and violation of a third party’s constitutional rights cannot be claimed by a defendant in his trial.”).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 9 of 23 “Um, [he] came out and, um, he was crying and upset, um, telling me that he
was innocent, and he didn’t do this. . . . [H]e said other things, but he was so
upset I didn’t understand everything that he said.” Tr. Vol. VII at 15.
[17] Regardless of the employment relationship between Donna and the Sheriff’s
Department, there is evidence indicating Hagan volunteered the incriminating
statements during a personal, private meeting with his mother. Because
“[c]oercion is determined from the perspective of the suspect,” Perkins, 496 U.S.
at 297, it is inapposite whether law enforcement arranged the meeting with the
goal of eliciting incriminating statements, see id. (“Ploys to mislead a suspect or
lull him into a false sense of security that do not rise to the level of compulsion
or coercion to speak are not within Miranda’s concerns.”). Ultimately, viewing
the evidence most favorable to the evidentiary ruling, we cannot say Hagan
made the incriminating statements under improperly coercive circumstances.
Moreover, we cannot say law enforcement failed to scrupulously honor
Hagan’s right to remain silent by arranging a requested meeting with Donna.
We conclude Miranda required no additional advisements, and we discern no
error—let alone fundamental error—in the admission of the statements.7
7 Hagan has directed us only to the Fifth Amendment to the United States Constitution and to the attendant procedural safeguards articulated in Miranda. Nevertheless, federal principles of due process independently require exclusion of “confessions that were obtained involuntarily.” Dickerson v. United States, 530 U.S. 428, 434 (2000); see also D.M. v. State, 949 N.E.2d 327, 332-33 (Ind. 2011). The “due process test takes into consideration ‘the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.’” Dickerson, 530 U.S. at 434 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). Courts look to “‘whether a defendant’s will was overborne’ by the circumstances surrounding the giving of a confession.” Id. (quoting Schneckloth, 412 U.S. at 226). The Indiana Supreme Court has explained that “[t]he issues of voluntariness of a waiver [of rights] and voluntariness of a confession are
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 10 of 23 Exclusion of Evidence [18] Hagan directs us to certain evidentiary decisions. He points out he was not
permitted to elicit testimony about a rumor that someone else killed Rathgeber.
Hearsay—which is generally inadmissible, Ind. Evidence Rule 802—is “a
statement that: (1) is not made by the declarant while testifying at the trial or
hearing; and (2) is offered in evidence to prove the truth of the matter asserted,”
Evid. R. 801(c). A rumor is hearsay, and we discern no applicable exception to
the rule against hearsay evidence. Next, Hagan points out he was not permitted
to ask a witness who the witness thought killed Rathgeber. Yet, pursuant to
Indiana Evidence Rule 704, “[w]itnesses may not testify to opinions concerning
intent, guilt, or innocence in a criminal case.” Thus, we are not persuaded the
trial court abused its discretion by limiting cross-examination into these areas.
[19] Hagan also directs us to the exclusion of two videos. The first was prepared by
an unidentified person and used by Special Agent Kevin Horan of the Federal
Bureau of Investigation (“Agent Horan”) early in the investigation. This video
purportedly depicts the location of cellphones over time, displaying movements
on a map. Agent Horan used the video to form a preliminary opinion about the
movements of Hagan’s and Rathgeber’s cellphones, but later reached a different
opinion about the movements. Hagan now argues the video was admissible,
similar in that they both require evaluation of the totality of the circumstances,” but that “they are separate issues and should be presented, argued, and analyzed as such.” D.M., 949 N.E.2d at 334 n.10. Hagan has not presented this separate issue. Nonetheless, for the reasons already discussed, we conclude that admission of the statements to Donna did not run afoul of principles of due process.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 11 of 23 claiming it “clearly demonstrates” that Hagan and Rathgeber “were nowhere
near each other” at a pertinent point in time. Br. of Appellant at 45. However,
we conclude the video was not relevant because there was no evidence the
video was accurate or the preparer used reliable methods to map the locations.
See Evid. R. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the fact is
of consequence in determining the action.”). Thus, there was no abuse of
discretion in exclusion. Evid. R. 402 (“Irrelevant evidence is not admissible.”).
[20] The second video showed the person rumored to have killed Rathgeber inside a
car wielding a gun. The video cuts to another man in the car putting something
blue on his tongue, at which point someone offscreen says: “Acid. Whoa.” Ex.
S. At trial, Hagan asserted he was “not offering it to prove whether what’s in
the video is accurate” but instead to question the adequacy of the investigation
into the person with the gun. Tr. Vol. IX at 217. Yet, Indiana Evidence Rule
404(b) provides that “[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” The proffered
video goes beyond connecting a one-time suspect with a weapon—admission of
the video posed a risk of exposing the jury to prohibited evidence. A trial court
has latitude to “exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence.” Evid. R. 403. Here, Hagan had already elicited
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 12 of 23 testimony about the third-party suspect, offered a possible motive, and explored
why law enforcement stopped investigating the person. The video lacked
probative value. There was no abuse of discretion in excluding this evidence.
[21] Hagan directs us to a line of cases analyzing whether evidentiary rulings
deprived a defendant of “a meaningful opportunity to present a complete
defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v.
Trombetta, 467 U.S. 479, 485 (1984)). He argues that principles of due process
entitle him to present exculpatory evidence and present a theory of third-party
guilt. Yet, we have concluded that the curtailment of cross-examination and
the exclusion of the videos was proper under the Indiana Rules of Evidence.
The U.S. Supreme Court has noted: “Only rarely have we held that the right to
present a complete defense was violated by the exclusion of defense evidence
under a state rule of evidence.” Nevada v. Jackson, 569 U.S. 505, 509 (2013). In
Nevada, the Court cited four cases where it had identified a constitutional
violation despite a proffered justification under a state rule of evidence—in each
case, the State either “did not even attempt to explain the reason for its rule” or
the evidentiary rule itself was not defensible. Id. (noting one rule “did not
rationally serve any discernible purpose,” another was “arbitrary,” and a third
“could not be rationally defended”). As the instant evidentiary rulings were
justified under classic principles of evidence, we conclude the challenged rulings
did not violate the right to due process. See also Montana v. Egelhoff, 518 U.S. 37,
53 (1996) (explaining that a prior holding that exclusion of certain evidence
violated constitutional rights “rested not on a theory that all ‘competent,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 13 of 23 reliable evidence’ must be admitted, but rather on the ground that the . . . sole
rationale for the exclusion . . . was wrong”). In any case, Hagan was permitted
to present his theory of third-party guilt despite adverse evidentiary rulings.8
Reliance Upon Testimony [22] Hagan alleges the State knowingly relied on false testimony.9 Because Hagan
did not assert this claim at trial, we review only for fundamental error. See, e.g.,
Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009).
[23] The State may not knowingly rely on false evidence. E.g., Napue v. Illinois, 360
U.S. 264, 269 (1959). “Active or passive behavior by the State that hinders the
jury’s ability to effectively act as the fact-finder is impermissible and may violate
a defendant’s due process rights.” Smith v. State, 34 N.E.3d 1211, 1220 (Ind.
2015). “[T]he case law in this area focuses on whether the jury’s ability to
assess all of the facts and the credibility of the witnesses supplying those facts
has been impeded to the unfair disadvantage of the defendant.” Id.
8 Hagan suggests the State has an independent “duty to introduce exculpatory evidence” at trial. Reply Br. at 33. We are aware of no such duty. Rather, a trial is an adversarial proceeding—and, as the U.S. Supreme Court has explained, even the accused “does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Montana, 518 U.S. at 42 (alteration in original) (quoting Taylor v. Illinois, 484 U.S. 400, 410 (1988)). 9 Hagan also asserts that certain witnesses gave incredibly dubious testimony. To obtain relief under “the incredible dubiosity rule, there must be: ‘1) a sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the result of coercion; and 3) a complete absence of circumstantial evidence.’” Smith v. State, 34 N.E.3d 1211, 1221 (Ind. 2015) (quoting Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015)). Because there were multiple witnesses, this rule is inapplicable.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 14 of 23 [24] Hagan claims Donna lied at trial. He draws our attention to allegedly
inconsistent statements Donna made before the trial, contending Donna must
have been lying at trial because she had not previously said Hagan admitted to
accidentally shooting Rathgeber. Yet, Donna gave vague pretrial statements—
relaying, for example, that Hagan “said that he would never intentionally hurt
somebody.” Tr. Vol. VII at 23. Donna’s trial testimony was not per se
incompatible with her pretrial statements. Moreover, even if pretrial statements
were wholly incompatible with trial testimony, the existence of inconsistent
statements “does not inescapably lead to the conclusion that [the witness] was
lying” on the stand. Wallace v. State, 474 N.E.2d 1006, 1008 (Ind. 1985).
[25] Hagan also directs us to trial testimony from a police officer, who said he
heard—from Wandel—that Hagan told Donna it was an accident. Hagan
claims the officer must have been lying, and suggests the State must have
known as much, because this information was not contained in discovery.
Hagan further asserts that his parents “acted in collusion with one another in an
attempt to interfere with the evidence to be adduced at trial,” directing us to
evidence Donna and Wandel at one point discussed trial testimony. Br. of
Appellant at 26. Moreover, Hagan speculates that “[t]he State clearly took
advantage of [Donna’s] propensity for lying; her fear of losing her job; or her
belief that she could outsmart the system by concocting a story that she believed
created a barrier to the conviction of her son.” Id. at 25. Yet, Hagan ultimately
falls short of demonstrating the State knew witnesses were giving false testimony
at trial. Further, to the extent witnesses gave inconsistent statements regarding
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 15 of 23 what Hagan told Donna, Hagan subjected witnesses to vigorous cross-
examination on this issue. Indeed, his cross-examination strategy often focused
on impeachment through prior statements. Thus, we cannot say the jury was
impeded in its ability to fully function as an informed fact finder. See Smith, 34
N.E.3d at 1220-21 (noting, when finding no due process violation, “the defense
was enabled to, and did, actively emphasize such inconsistencies to the
defendant’s advantage”). Hagan has not demonstrated fundamental error.
Trial Court Judge [26] “A trial before an impartial judge is an essential element of due process.”
Everling v. State, 929 N.E.2d 1281, 1287 (Ind. 2010) (citing Caperton v. A.T.
Massey Coal Co., Inc., 556 U.S. 868, 876 (2009)). Indeed, justice “requires that
litigants (be they civil or criminal) receive equal opportunity to present their
case to an impartial factfinder.” Bedolla v. State, No. 19S-PC-328, 2019 WL
2264236, at *4 (Ind. May 28, 2019). Yet, merely asserting bias “does not make
it so.” Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002). The law presumes a
judge is unbiased. Id. “[T]o rebut that presumption, a defendant must establish
from the judge’s conduct actual bias or prejudice that places the defendant in
jeopardy.” Id. A defendant makes this showing “only where there is an
undisputed claim or where the judge expressed an opinion of the controversy
over which the judge was presiding.” Id. “The mere assertion that certain
adverse rulings by a judge constitute bias and prejudice does not establish the
requisite showing.” Voss v. State, 856 N.E.2d 1211, 1217 (Ind. 2006).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 16 of 23 [27] Hagan identifies several ways the trial court judge allegedly displayed partiality,
claiming this is a non-exhaustive list.10 We address these contentions in turn.
Pre-trial Confinement [28] Hagan points out that, before trial, the judge ordered that Hagan be confined in
the Pike County Jail—approximately one hour by car from Warrick County—
and be transported to the Warrick County Jail three days per week for potential
meetings with counsel. Hagan suggests that, through this arrangement, the
judge intended to interfere with Hagan’s ability to meet with local counsel and
prepare his defense. Yet, the record supplies a neutral goal, which was to avoid
having Hagan confined in the Warrick County Jail while Donna was working.11
Appointed Counsel [29] Hagan notes that the judge initially appointed defense attorneys who worked at
separate firms. Hagan baldly suggests one attorney was appointed because her
“law partner . . . served as Campaign Manager” for the judge’s campaign. Br.
of Appellant at 30. This suggestion is not well taken. Nonetheless, this pretrial
matter does not demonstrate the judge was biased against Hagan.
10 Hagan also alleges, without citation to the record, that the judge was incompetent due to illness. As Hagan has provided no support for this claim apart from the unverified assertions of counsel in briefing, we discern no proper basis for reversal. 11 Hagan appears to separately contend that this pretrial arrangement was tantamount to the complete denial of the assistance of counsel, resulting in presumed prejudice under United States v. Cronic, 466 U.S. 648 (1984). Yet, Hagan has not demonstrated that he was deprived of counsel. Indeed, although the arrangement could have posed an obstacle to impromptu in-person meetings, Hagan does not suggest he lacked the ability to communicate with counsel on the telephone if counsel was ever unable to travel to Pike County.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 17 of 23 Adverse Rulings [30] Hagan revives argument that he was entitled to pretrial release under Criminal
Rule 4(A) because of delays that should not have been attributed to him. Yet,
an adverse ruling does not demonstrate bias. See Voss, 856 N.E.2d at 1217.
Similarly, to the extent Hagan directs us to adverse rulings concerning—inter
alia—the admissibility of evidence and the handling of evidence by the jury, he
has not demonstrated the rulings were animated by partiality to the State.12
Redaction of Jury Questionnaires [31] Hagan claims that “[u]ntil days before the second trial, the trial court ordered
jury questionnaires to be redacted thereby preventing the defense from engaging
in meaningful examination of potential jurors.” Br. of Appellant at 34. Yet,
Hagan does not assert the judge gave the State unredacted questionnaires while
withholding them from Hagan. Rather, Hagan points out that “[t]he State
joined in on at least one of these motions.” Id. Thus, we discern no partiality.
Treatment of Counsel [32] Hagan asserts the judge demonstrated bias through the treatment of his counsel,
directing us to different points of the trial. He claims that when counsel was
12 Hagan focuses on whether the judge compromised the integrity of evidence by allowing the jury to handle exhibits, purportedly affecting future testing of evidence. Assuming arguendo the judge was indifferent to risk of contamination, the judge had no way of knowing the outcome of the trial. Thus, the judge would have had no way of knowing which party would be prejudiced by an inability to seek reliable testing in the future.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 18 of 23 trying to supplement argument on a motion, the judge told him to sit down. 13
Yet, the record reflects it was not the judge who said “sit down” but instead
counsel, with the remark directed toward co-counsel. Tr. Vol. IX at 76. Hagan
also asserts that when he “complained that the trial judge was doing nothing to
safeguard Hagan’s rights, the trial judge rose and walked out of the courtroom.”
Br. of Appellant at 33. Even if abrupt, this action was outside the presence of
the jury. Moreover, shortly before the recess, counsel had interrupted the judge
on several occasions and the judge had asked counsel to use a different tone in
argument to the court. “We afford trial judges ample ‘latitude to run the
courtroom and maintain discipline and control of the trial.’” In re J.K., 30
N.E.3d 695, 698 (Ind. 2015) (quoting Timberlake, 690 N.E.2d at 256). The
judge’s decision to recess does not evince bias.
[33] Hagan also points out that the judge questioned whether his counsel needed a
requested bathroom break, despite having previously let a prosecutor leave for
the bathroom without asking for a recess. Hagan argues this handling of
bathroom breaks reflected disparate treatment of counsel. Yet, where the
prosecutor left without requesting a recess, Hagan was seeking a recess. The
judge questioned whether a break was necessary in light of a recent recess.
13 Hagan draws our attention to the treatment of his counsel during argument in support of a motion for mistrial. Although Hagan provides background concerning the grounds for this motion, he articulates no appellate argument of entitlement to mistrial. We therefore do not further address the denial of this motion.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 19 of 23 Although it might have been better to avoid inquiry into urgency of bathroom
breaks, we discern nothing more than an attempt to keep the trial moving.
[34] Next, Hagan directs us to an exchange that took place after the judge observed
counsel make a remark under his breath. The judge interrupted counsel and
asked that he repeat the remark, at one point asking counsel whether he wanted
to be held in contempt. Counsel eventually told the trial court that he had
“asked my client and my [co-counsel] why you were arguing with me. That’s
what I asked.” Tr. Vol. VI at 211. The judge then allowed counsel to proceed
with argument. Hagan argues this exchange demonstrates judicial bias. Yet, it
appears the judge initiated the exchange because it was concerned counsel
made a contemptuous remark. “Contempt powers are necessary to protect the
orderly administration of justice and maintain the authority and dignity of the
court.” Johnson v. State, 426 N.E.2d 104, 106 (Ind. Ct. App. 1981). “Where
immediate action is necessary to protect those interests, the court’s interests
outweigh a defendant’s due process right to a neutral and detached bench.”
Smith v. State, 893 N.E.2d 1149, 1153 (Ind. Ct. App. 2008).
[35] Hagan directs us to several other exchanges and also generally asserts the trial
court made “public derogatory comments directed toward defense counsel.”
Br. of Appellant at 35. We have reviewed the cited instances and are satisfied
Hagan was at no point placed in jeopardy through the treatment of his counsel.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 20 of 23 Discovery Standard [36] Hagan alleges the judge “held Hagan to a different standard with regard to
discovery.” Id. at 34. Contrary to Appellate Rule 46(A)(8)(a), Hagan provides
no citation to the record to support his claim. Nevertheless, the essence of the
argument seems to be that, upon the State’s request, Hagan willingly provided
details about intended witnesses and exhibits. Yet, when Hagan allegedly did
not receive reciprocal information, the judge would not order the State to
provide that information. Hagan does not allege the State was obligated to
volunteer this information, and we discern no bias in declining to order the
State to do something just because Hagan volunteered additional detail.
[37] Hagan presents other allegations of bias—weaving the allegations into other
arguments or otherwise making “catchall” allegations. We have carefully
reviewed the record, evaluating the allegations individually and as a whole. We
conclude Hagan failed to rebut the presumption the judge was impartial.
Double Jeopardy [38] Hagan has not directed us to reversible error. However, our review of the
record reveals violations of the principles of double jeopardy, which we may
address sua sponte when the parties have not done so. See Whitham v. State, 49
N.E.3d 162, 168 (Ind. Ct. App. 2015), trans. denied. These violations arise from
three convictions—upon which the court entered judgment of conviction—that
rely on evidence Hagan shot Rathgeber: (1) Murder; (2) Murder While
Committing or Attempting to Commit Robbery; and (3) Robbery Resulting in
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 21 of 23 Serious Bodily Injury. See Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999)
(explaining the “actual evidence” test for double jeopardy violations). We may
remedy a double jeopardy violation “by reducing [a] conviction to a less serious
form of the same offense if doing so will eliminate the violation.” Id. at 54. To
cure the instant violations, we remand with instructions to vacate the
conviction of Murder While Committing or Attempting to Commit Robbery
and to revise the conviction of Robbery Resulting in Serious Bodily Injury to
the lesser-included offense of Theft, as a Class A misdemeanor. We otherwise
affirm the remaining convictions and the sentence.14
Conclusion [39] The trial court did not abuse its discretion by admitting statements Hagan made
to his mother. The trial court did not abuse its discretion by curtailing lines of
cross-examination or by excluding two videos, and those evidentiary rulings did
not violate principles of due process. Hagan has not demonstrated that the
State hindered the jury’s ability to effectively act as the fact-finder or that he was
denied an impartial judge. However, because three convictions relied upon the
same evidence, we remand with instructions to remedy the double jeopardy
violation.
14 Hagan bargained for a sixty-year sentence to avoid a possible sentence of life without parole. Hagan expressly reserved the right to appeal his convictions but has waived the right to appeal his sentence. See, e.g., Games v. State, 743 N.E.2d 1132, 1135 (Ind. 2001) (discussing waiver by bargaining for an agreed sentence).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 22 of 23 [40] Affirmed in part, reversed in part, and remanded with instructions.
Riley, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1953 | July 9, 2019 Page 23 of 23