Jones v. State: No Difference between the Substance of Cocaine and Heroin?

From yesterday: Thomas Jones v. State, Court of Appeals No. 49A05-0604-CR-211 (Ind. Ct. App. March 27, 2007). What can one say? The State amends a narcotics charge a week before trial, changing the controlled substance from cocaine to heroin. Because the charge was still under the same statute and section; and because the class of felony was the same, the court says that the amendment was merely "a matter of form." And this even though the State knew the substance was heroin and not cocaine in July 2004. The State made the change on March 15, 2006, almost two years later, and the trial began on March 20, 2006.

This cannot be right after Fajardo v. State, which the Indiana Supreme Court decided in January. Or let me put it differently: we'll see if Fajardo is worth taking seriously, if the Supreme Court grants transfer. Fajardo was a signal case, finally taking seriously the statutory limitations on amendments to charging informations.

The deal is that the State may amend charging informations at will, if the amendment is a matter merely of form and not substance. If an amendment is one of substance, then the State has to amend substantially before trial. (If you want the gory details of the statute, it's set out in Fajardo, or you can get to it here: Ind. Code 35-34-1-5.)

Fajardo purported to put some teeth in the statute and to clean up the awful mess in the cases on the subject going way, way back. The new test to determine if an amendment is one of substance or form has not changed much. As set out in Fajardo, without citations, it's simply this:

[A]n amendment is one of form, not substance, if both

(a) a defense under the original information would be equally available after the amendment, and

(b) the accused's evidence would apply equally to the information in either form.

And an amendment is one of substance only if it is essential to making a valid charge of the crime.

This doesn't make a lot of sense to me, since the test does not seem to cover the entire universe of possibilities. But under either test, changing cocaine to heroin seems to me almost obviously a change of substance. In Indiana, you don't get to charge someone with possessing any old controlled substance and then let the cat out of the bag about what substance it was at trial. So if you charge cocaine, it is a complete defense to the charge that it was heroin. And Jones's evidence that the substance was, in fact, heroin and not cocaine, might apply "equally" in some sense under both a cocaine and heroin charge. But not "equally" in any sense that Jones would appreciate.

And if you go to the second part of the test, possessing cocaine and possessing heroin are two different crimes, unless you buy Judge Mathias's opinion that, in essence, says that crimes are the same so long as they are charged under the same statutory section. But to repeat, I don't think that can be correct if possession of heroin is a complete defense to possession of cocaine.

In fact, it seems to me that this multiplicity of tests is unnecessary. What about simply the following, which partially comes out of the law regarding variances: If the case had been tried on the charge as made before the amendment, would the evidence sought to be introduced by the State have been sufficient for conviction under the pre-amendment charge? If not, then the amendment is one of substance. In Jones, since proof that the narcotic was heroin could not support the original charge that it was cocaine, the switch from cocaine is one of substance.

There's a nice case on this involving resisting law enforcement: Bonner v. State, 789 N.E.2d 491 (Ind. Ct. App. 2003). Essentially, the State does not get to change during trial which law enforcement officer was resisted:

In this case, the names of the particular officers from whom Bonner fled were essential to the proper description of the State’s two separate resisting charges, and the State had to specifically identify the officer or officers whose arrest efforts Bonner allegedly resisted in each information. Given the number of officers involved in the police chase and the number of ways Bonner was alleged to have fled from the different officers, the separate Resisting charges would not have provided Bonner with sufficient information to anticipate the proof that would be adduced against him with regard to each charge if the officers pertinent to each separate offense had not been particularly identified.

I don't see how the switch from cocaine to heroin is any different.

But the variance approach doesn't quite cover matters either. And, as the current test has it, something has to be included about defenses. If someone has an alibi defense all ready to go, the State should not get to change the date, time, or place of an offense at the last minute.

I guess, as always, we'll see what happens. It would be ashame if transfer were not sought and granted. It's an ideal case for the Indiana Supreme Court to give a meaningful edge, either way, to the law of amendments.

Oral Argument about Blakely and Belated Appeals

If you read the Indiana Law Blog--and who doesn't?-- then you probably saw this item about an oral argument in the Indiana Supreme Court about Blakely and belated appeals. Well, the argument did happen last week. And although I did not make it into the attorney list in the web description, I did do about 15 minutes of the argument.

The irony is that my 15 minutes of fame had nothing to do with Blakely, because my client's case (Moshenek in the Court of Appeals) had nothing to do with Blakely.

And here's how it happened. A friend of mine became a judge. I was "babysitting" the case on transfer. Suddenly I find myself going to the Little Big Top (SCOTUS has to be The Big Top) in a case not mine and about which I know almost nothing, on an issue I know almost nothing about (Post-Conviction Rule 2 and belated appeals), and I don't get to talk about Blakely--the other guy does. (And John Pinnow did a brilliant job of it too, I think.)

Christina Klineman had the unenviable job of doing rebuttal for three cases not her own in the four-case scrum. What a job she did.

Anyway, here's the direct link to the argument. (RealPlayer required and will open on clicking the link.) I think I spoke loudly enough for the court. The microphone is another matter. John Pinnow does the first 17 minutes or so about Blakely. I do the next 15 about Post-Conviction Rule 2. The State does its 40 minutes. Finally, Christina Klineman cleans up after the mess left by the State.

From total ignorance, I might have become the world expert at the moment on Indiana Post-Conviction Rule 2. And I hope the Indiana Supreme Court doesn't do anything to change that. If there was any point I tried to get across that was not specifically related to my client's case, it was the Post-Conviction Rule 2 is older than dirt--actually a 1970 codification of the common law--and that there is no reason Blakely should deform what has been the uniform analysis under the rule.

Also, as I said to the court, Post-Conviction Rule 2 is an odd sort of creature. There is a fundamental constitutional right to an appeal in a criminal case. It's right there in the Indiana Constitution. Post-Conviction Rule 2 puts the burden, the cases say, on defendants to prove that they did not waive their right to an appeal. The cases say that; the rule doesn't. And I cannot think of another context in which the law requires someone to prove that they did not waive a fundamental constitutional right. It (almost) always works the other way 'round.

Here are the links to the Court of Appeals opinions in the other cases: Gutermuth, Boyle, and Medina. The Supreme Court has granted tranfer in Gutermuth already. Transfer is pending in the others. Medina was NFP.

For some background, here are links to my previous posts about what I called Blakely "pop-up" appeals:

More about Post-Conviction Rule 2: When Plain Language Means Its Opposite (10/19/06)

Baysinger: Another Blakely Pop-Up Belated Appeal (10/13/06)

Gutermuth: The Blakely WayBack Machine (6/8/06)

And a final note. When you start into the history of the law, all kinds of things pop up--not just Blakely appeals. Possibly the best bit of irrelevance I stumbled upon was Sanders v. State, 85 Ind. 318 (1882). Turns out that Mr. Sanders confessed to the murder of his wife on the advice of his lawyer. The alternative was a lynch mob. Pretty good advice that lawyer gave. Here's a snippet from the facts:

The facts stated and proved are these: In April, 1878, Josephine Sanders, the wife of the appellant, was slain by a pistol shot; at the time she was in a room alone with her husband, and he did not and could not give any account of her death; he was then, and had been for many years, addicted to the use of alcoholic liquor and opium to such an extent that he had probably become insane; he was arrested shortly after the death of his wife; his case came on for trial; his counsel and many witnesses of unquestioned veracity testify that at the time of his trial he was insane; the homicide had aroused an intense feeling in the vicinity of the county-seat, where the killing was done, and the case put to trial; threats were made of lynching by a mob; counsel prepared an affidavit for delay, but feared to present it lest the mob should seize and hang the accused; the sheriff of the adjoining county came to the county-seat of Clay county and warned the sheriff of that county of imminent danger from an armed mob; a jury had been empanelled and a plea of not guilty entered, but so great was the threatened danger that counsel, to save, as they believed, their client's life, withdrew the plea of not guilty, entered a plea of guilty, on which, without evidence, the jury returned a verdict of guilty, and a life sentence was immediately pronounced upon the verdict by the court; the accused was at once hurried to the train and conveyed to the State's prison. For the purpose of clearly exhibiting the situation at the time the plea of guilty was entered, we quote from the testimony of the gentlemen who were then appellant's counsel, and who are men of high character and undoubted integrity. One of them says: "As one of his counsel I urged and demanded of him a plea of guilty, with which I pledged myself to save his life; his counsel all concurred; Sanders always denying any knowledge of the homicide; his counsel were responsible for the act of pleading guilty, believing at the time that it was the only course by which his life might be saved."

The Indiana Supreme Court stepped up to the plate and reversed Mr. Sanders conviction, even though procedurally there was no real way to do it:

It is almost a mockery to call that a trial, or a judicial hearing, which condemns an accused upon a plea of guilty forced from his reluctant counsel by threats of an angry and excited mob, and interposed because they believed that to proceed with a trial upon a plea of not guilty would result in the hanging of their client by lawless men. A man who makes a promissory note because of fear is entitled to relief. A man who executes a deed under duress is entitled to judicial assistance.

The court found itself in a pickle, because it could not grant a new trial where there had been no trial. An appeal would have been useless with the confession in the record. So, if I read the case correctly, the Sanders court pulls a writ of error coram nobis out of the English common law hat--with some modifications--and saves the day. And from Sander on, that was post-conviction relief in Indiana until the Post-Conviction Rules.

Before the Hour of Sunrise . . .

There is an execution on the horizon: May 4th. In this order, the Indiana Supreme Court today denied David Leon Woods' request to file a successive post-conviction petition. The online docket sheet shows the order setting the execution date.

Because the issue is access to successive post-conviction relief, I very much doubt a federal court is going to interfere.

Oliver: An NFP Reversal for the Denial of Counsel

There was an interesting NFP reversal today: Oliver v. State, Court of Appeals No. 16A01-0609-CR-413 (Ind. Ct. App. March 23, 2007) (Bailey, Vaidik, Barnes). The court unanimously reversed a marijuana misdemeanor conviction, because the trial court forced Ms. Oliver to go to trial without a lawyer. Or at least the trial court did not make sufficient inquiry into the matter.

Another NFP reversal. A misdemeanor conviction that the Indiana Supreme Court is unlikely, I would guess, to by much interested in. Especially if it's NFP.

So the question is: do judges on the Court of Appeals actually try to hide their cases among the NFP's? I don't have the statistics to say one way or the other. And the Supreme Court certainly grants transfer in a fair number of NFP's in which the Court of Appeals has granted a criminal appellant relief.

I will say that were I the Deputy Attorney General on this case, I'd ask the court to publish the opinion. And I'm a little surprised the court didn't publish on its own. There aren't that many Indiana cases around on forcing defendants to trial without a lawyer.

Just warming up on the NFP's.