Leon Tyson v. State of Indiana ( 2023 )

FILED
Aug 11 2023, 10:16 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jimmy Gurulé Theodore E. Rokita
Elliot Slosar Attorney General of Indiana
Admitted Pro Hac Vice
Kelly A. Loy
Exoneration Justice Clinic Deputy Attorney General
Notre Dame Law School
Indianapolis, Indiana
South Bend, Indiana
Elliot Slosar
The Exoneration Project
Chicago, Illinois
Robert Hochman
Minje Shin
Admitted Pro Hac Vice
Sidley Austin LLP
Chicago, Illinois
Mark A. Bates
Highland, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Leon Tyson, August 11, 2023
Appellant-Petitioner Court of Appeals Case No.
22A-PC-143
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo,
Appellee-Respondent. Judge
Trial Court Cause No.
20D03-1807-PC-37
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 1 of 34
Opinion by Judge Pyle
Judges Crone and Bradford concur.
Pyle, Judge.
Statement of the Case
[1] A jury convicted Leon Tyson (“Tyson”) of murder in 2017. This Court affirmed
Tyson’s conviction on direct appeal. See Tyson v. State, No. 20A03-1704-CR-789,
2017 WL 5761227 (Ind. Ct. App. Nov. 29, 2017), trans. denied. In 2018, Tyson
filed a petition for post-conviction relief. In May 2021, Tyson, represented by
attorneys Jimmy Gurulé (“Attorney Gurulé”) and Elliot Slosar (“Attorney
Slosar”), filed an amended petition for post-conviction relief.1 Also, in May 2021,
Tyson filed a motion for a change of judge pursuant to Post-Conviction Rule
1(4)(b).2 The post-conviction court denied Tyson’s change of judge motion, and
1
At the outset, in full transparency, we note that Attorney Gurulé, who is affiliated with Notre Dame Law
School’s Exoneration Justice Clinic (“the Clinic”), filed Tyson’s appellate brief on September 8, 2022. On
November 16, 2022, Attorney Gurulé gave a presentation to several judges on this Court. During this
presentation, Attorney Gurulé spoke about the Clinic. He also spoke about one of the Clinic’s cases, Royer v.
State, 166 N.E.3d 380 (Ind. Ct. App. 2021). In Royer, this Court affirmed the post-conviction court’s order
that granted Royer’s successive petition for post-conviction relief based on newly discovered evidence and
Brady violations and vacated Royer’s murder conviction. Id. at 405. In Tyson’s appellate brief, Attorney
Gurulé cites Royer in support of his argument that the post-conviction court erred in denying Tyson’s motion
for a change of judge. We note that none of the judges on this panel of Tyson’s appeal attended Attorney
Gurulé’s presentation or discussed the Royer case with any of the judges who attended the presentation.
2
Although Tyson’s motion was titled a motion for recusal, we note that Post-Conviction Rule 1(4)(b) does
not include the term recusal. Rather, Post-Conviction Rule 1(4)(b) uses the terms change of judge. We will,
therefore, refer to Tyson’s motion as a motion for a change of judge.
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 2 of 34
this interlocutory appeal concerns only the post-conviction court’s denial of that
motion.3 Tyson specifically argues that the post-conviction court clearly erred
when it denied his motion for a change of judge. Concluding that the post-
conviction court did not clearly err, we affirm the post-conviction court’s denial
of Tyson’s change of judge motion.4
[2] We affirm.
Issue
Whether the post-conviction court clearly erred when it denied
Tyson’s motion for a change of judge.
3
We express no opinion on the merits of Tyson’s post-conviction relief petition, which is pending before the
post-conviction court.
4
We note that Attorney Gurulé is also representing Pink Robinson (“Robinson”) and Iris Seabolt
(“Seabolt”), two other petitioners who are appealing the post-conviction court’s denial of their change of
judge motions. Robinson’s appeal was originally filed under Cause Number 22A-PC-1102, and Seabolt’s
appeal was originally filed under Cause Number 22A-PC-208. In May 2022, this Court’s motions panel
granted Attorney Gurulé’s motion to consolidate these two appeals with Tyson’s appeal.
Thereafter, in February 2023, Attorney Gurulé initiated an appeal for Reginald Dillard (“Dillard”), a fourth
post-conviction petitioner who is appealing the post-conviction court’s denial of his change of judge motion.
Dillard’s appeal was originally filed under Cause Number 23A-PC-261. The following month, March 2023,
this Court’s motions panel granted Attorney Gurulé’s motion to consolidate Dillard’s appeal into Tyson’s
appeal.
However, it is well-established that we have the inherent authority to reconsider a ruling by the motions
panel while an appeal remains pending. Beasley v. State, 192 N.E.3d 1026, 1029 (Ind. Ct. App. 2022), trans.
denied. Here, we have determined that a de-consolidation of these four appeals is necessary. Accordingly, we
have returned each one to its original appellate cause number and will decide each appeal on its own merits.
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 3 of 34
Facts
[3] In May 2021, Tyson, represented by Attorneys Gurulé and Slosar, filed a 117-
page amended petition for post-conviction relief. In the introduction section of
his amended petition, Tyson argued as follows:
An epidemic exists in Elkhart, Indiana where innocent people are
wrongfully convicted as a result of police misconduct, false and
fabricated testimony, and the widespread failure to disclose
material exculpatory evidence. Tragically, these unjust
convictions often take decades to unravel, leaving innocent men
and women to languish in prison for crimes they did not
commit[.] The wrongful conviction of Petitioner, Leon Tyson,
bears many of the common characteristics of Elkhart’s other
known wrongful conviction cases: police misconduct; the
fabrication of evidence; eyewitness misidentification; and the
withholding of material exculpatory evidence. The newly
discovered evidence discussed below demonstrates that Leon
Tyson is wrongfully convicted, entitled to a new trial, and
deserves to be Elkhart’s next exoneree.
(App. Vol. 2 at 33-34) (emphasis in the original).
[4] Further, in this petition, Tyson argued that he was entitled to post-conviction
relief because:
(1) he [was] actually innocent, and ha[d] located new evidence
materially relevant to his innocence that he could not with
reasonable diligence have discovered and produced at trial [“(the
first post-conviction claim)”]; (2) he ha[d] new evidence
demonstrating misconduct by Elkhart police officers under Brady
v. Maryland, 373 U.S. 83 (1963), materially affecting his
substantial rights [(“the second post-conviction claim”)]; and (3)
he [had] received ineffective assistance of counsel in violation of
Strickland v. Washington, 466 U.S. 668 (1984) and Martinez v.
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Ryan, 566 U.S. 1 (2012) that [fell] below an objective standard of
reasonableness and prejudiced Mr. Tyson in a significant way
[(“the third post-conviction claim”)].
(App. Vol. 2 at 118) (footnote omitted). According to Tyson, “[e]ach ground
provide[d] an independent basis for [the post-conviction court] to grant [Tyson]
a new trial.” (App. Vol. 2 at 118).
[5] Also, in May 2021, Tyson filed a motion for a change of judge pursuant to
Indiana Post-Conviction Rule 1(4)(b). Tyson specifically argued that the post-
conviction court should grant his motion because the post-conviction court had
been a deputy prosecutor in the Elkhart County Prosecutor’s Office from 1998
until 2002 (“the first recusal claim”). According to Tyson, “[b]ased upon this
Court’s prior employment at the Elkhart County Prosecutor’s Office – during
the period of time that [Tyson] w[ould] present evidence of systemic
prosecutorial and police misconduct – there [was] a reasonable question as to
whether this Court c[ould] be impartial in determining whether police or
prosecutorial misconduct resulted in Mr. Tyson’s wrongful conviction.” (App.
Vol. 2 at 148).
[6] Tyson further argued that the post-conviction court should grant his motion for
a change of judge because the post-conviction court’s order in a prior unrelated
case involving Andrew Royer (“Royer”) had shown that the post-conviction
court had “formed an opinion on the merits of [Royer’s] pending claims
without hearing evidence.” (App. Vol. 2 at 152). Therefore, according to
Tyson, “[t]he same logic [held] true here, where . . . Tyson argues that the same
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 5 of 34
systemic failures caused his wrongful conviction.” (App. Vol. 2 at 152). Tyson
further argued that because the post-conviction court had ultimately granted
Royer’s motion for a change of judge, the post-conviction court should grant
Tyson’s motion for a change of judge as well.
[7] At this point, for a better understanding of Tyson’s argument and the post-
conviction court’s response to this argument in its order denying Tyson’s
motion for a change of judge, we find it helpful to review the facts and history
of Royer’s case. A jury convicted Royer of murdering Helen Sailor (“Sailor”)
in 2005. In 2006, this Court affirmed Royer’s conviction. Royer v. State, No.
20A03-0601-CR-14, 2006 WL 1634766 (Ind. Ct. App. May 31, 2006). In 2007,
Royer filed a petition for post-conviction relief, which the post-conviction court
denied after a hearing. This Court affirmed the denial. Royer v. State, No.
20A04-1106-PC-325, 2011 WL 6595351 (Ind. Ct. App. Dec. 20, 2011).
[8] A few years later, in June 2013, Royer, represented by Attorney Slosar, filed a
motion for relief from judgment pursuant to Indiana Trial Rule 60(B).
Immediately after filing this motion, Attorney Slosar and Royer’s family
members gathered in front of the prosecutor’s office for a press conference.
During the press conference, Attorney Slosar stated there was a “‘systemic
failure’ and an ‘epidemic’ in Elkhart County where people [were] wrongfully
convicted because of police corruption, uninspiring defense counsel and an
overzealous prosecutor.” (App. Vol. 3 at 57). Attorney Slosar also stated that
“these factors contributed to Andrew Royer being convicted of a murder that he
is absolutely innocent of.” (App. Vol. 3 at 57). In addition, Attorney Slosar
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 6 of 34
stated that “we have proven that [Royer’s] conviction was an absolute fraud
and the conviction was based on intentional misconduct.” (App. Vol. 3 at 57).
Attorney Slosar further referred to the pending Trial Rule 60(B) motion as an
appeal and released videotapes of witnesses that would be testifying at the
hearing on Royer’s motion.
[9] Following the press conference, the State filed a motion for an emergency
hearing and a request for an injunction. In support of its motion, the State
attached two newspaper articles from the South Bend Tribune. The headline
for one of the articles, which is dated June 13, 2018, is “Mentally disabled man
says shoddy policing, false statements led to Elkhart murder conviction.” (No.
20D03-0309-MR-155, Chronological Case Summary, June 19, 2018 entry).
The headline for the other article, which is dated June 14, 2018, is “Attorney of
Andrew Royer blasts Elkhart police for ‘miscarriage of justice.’” (No. 20D03-
0309-MR-155, Chronological Case Summary, June 19, 2018 entry). Royer filed
a response to the State’s motion. Following a hearing, the trial court judge in
Royer’s case, who is the post-conviction court judge in Tyson’s case, issued an
order that provides, in relevant part, as follows:
9. Additionally, Slosar contends that he made no statements
that violate Ind. Professional Conduct Rule 3.6, as only
information contained in the public record was stated at
the press conference, along with matters he has a
constitutional right to say on behalf of Royer. The Court
carefully reviewed the State’s Motion, as well as Royer’s
Response, along with the various attachments referencing
news articles about the conference. Particularly troubling
to the Court were Slosar’s statements at the subject press
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 7 of 34
conference characterizing “‘systemic failure’ and an
‘epidemic’ in Elkhart County where people are wrongfully
convicted because of police corruption, uninspiring
defense counsel and an overzealous prosecutor.” Slosar
went on to say that “these factors contributed to Andrew
Royer being wrongfully convicted of a murder that he is
absolutely innocent of.” Slosar also stated that “we have
proven that his conviction was an absolute fraud and the
conviction was based on intentional misconduct.”
Additionally, videos of proposed witnesses were released
and Slosar inaccurately referred to the pending Trial Rule
60(B) Motion filed in this Court as an “appeal.”
10. The Indiana Supreme Court in In re: Litz[,] 721 N.E.2d 258(Ind. 1999) addressed behavior such as [Slosar’s] and held
that Litz’s publication of a letter in several local newspapers
which state[d] his client committed no crime, criticized the
prosecutor’s decision to retry the case, and mentioned his
client had passed a lie detector test constituted a violation
of Ind. Professional Conduct Rule 3.6(a).[5]
11. In sum, Slosar’s comments and statements are beyond the
scope of the exceptions stated in Ind. Professional Conduct
Rule 3.6(b) as to what a lawyer who is participating in
litigation of a matter may state.[6] The statements are highly
5
Indiana Rule of Professional Conduct 3.6(a) provides as follows:
A lawyer who is participating or has participated in the investigation or litigation of a
matter shall not make an extrajudicial statement that the lawyer knows or reasonably
should know will be disseminated by means of public communication and will have a
substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
6
Indiana Rule of Professional Conduct 3.6(b) provides as follows:
Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the
identity of the persons involved;
(2) information contained in the public record;
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 8 of 34
inflammatory, defamatory, inaccurately state the law as it
exists at this time with respect to Royer’s conviction, and
draw legal conclusions about matters not yet adjudicated.
Slosar’s actions go beyond simply summarizing evidence
that is a matter of public record. Further, any alleged “new
evidence” must be heard in accordance with the judicial
process before any legal conclusions may be reached.
Essentially, the extrajudicial statements made by Slosar at
the public press conference, and which were reported in the
media, do exactly what the Rule prohibits - forming public
opinion that has a substantial likelihood of materially
prejudicing the adjudicative proceedings pending in this
Court.
* * * * *
13. Here, the Court finds that the statements Slosar made at
the public press conference held on June 13, 2018, violated
Ind. Rule of Professional Conduct 3.6(a) in that they were
extrajudicial statements that Slosar knew or reasonably
should have known would be disseminated by means of
public communication and would have a substantial
likelihood of prejudicing the adjudicative proceeding that
is pending in this matter, specifically, his Trial Rule 60(B)
Motion.
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is
reason to believe that there exists the likelihood of substantial harm to an
individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid
in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the
length of the investigation.
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14. While the Court clearly recognizes Slosar’s First
Amendment right to free expression, as noted by the
Indiana Supreme Court in the Commentary to Ind.
Professional Rule of Conduct 3.6,[7] that right must be
balanced with the right to fair and impartial legal
proceedings, which may entail some restriction of the
information that may be disseminated about a party prior
to and during those proceedings. Ind. Professional Rule of
Conduct 3.6 does not curtail free speech except to the
extent necessary to protect the corresponding right to fair
proceedings. This is the basis upon [which] the Court is
acting.
15. For all these reasons, Slosar is hereby enjoined from
making extrajudicial commentary and statements to the
extent explained in Ind. Professional Rule of Conduct 3.6
on the matter that is pending before this court. Failure to
comply with this Order will be deemed willful failure to
comply with Ind. Professional Conduct Rule 3.6 and is
subject to appropriate sanctions.
7
The commentary to Indiana Rule of Professional Conduct 3.6 provides, in relevant part, as follows:
It is difficult to strike a balance between protecting the right to a fair trial and
safeguarding the right of free expression. Preserving the right to a fair trial necessarily
entails some curtailment of the information that may be disseminated about a party prior
to trial, particularly where trial by jury is involved. If there were no such limits, the result
would be the practical nullification of the protective effect of the rules of forensic
decorum and the exclusionary rules of evidence. On the other hand, there are vital
societal interests served by the free dissemination of information about events having
legal consequences and about legal proceedings themselves. The public has a right to
know about threats to its safety and measures aimed at assuring its security. It also has a
legitimate interest in the conduct of judicial proceedings, particularly in matters of general
public concern. Furthermore, the subject matter of legal proceedings is often of direct
significance in debate and deliberation over questions of public policy.
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(App. Vol. 3 at 56-59). Also, in the order, the trial court noted that Attorney
Slosar had argued that Indiana Rule of Professional Conduct 3.6 had not
applied to this case because no trial had been pending. The trial court
responded that it disagreed with Attorney Slosar’s over[-]simplification of the
intent of the rule and found that “the clear and express language of paragraph
(a) is that dissemination of extrajudicial statements that will have a likelihood of
materially prejudicing an adjudicative proceeding (Emphasis added) is
prohibited. Indeed, that language, as well as “legal proceedings” is used
throughout the Rule, the Commentary, and in case law.” (App. Vol. 3 at 56).
[10] In August 2018, Royer filed a motion to withdraw, without prejudice, his Trial
Rule 60(B) motion, which the trial court granted. In May 2019, Royer filed a
motion for permission to file a successive petition for post-conviction relief,
which this Court granted. Royer then filed a successive petition for post-
conviction relief and a motion for change of judge. The post-conviction court
judge, who had issued the order finding that Attorney Slosar had violated
Indiana Rule of Professional Conduct 3.6(a), granted Royer’s motion for a
change of judge.
[11] Royer’s case was subsequently assigned to Kosciusko Superior Court Judge Joe
V. Sutton (“Judge Sutton”), who held a four-day hearing on Royer’s successive
petition for post-conviction relief in October and November 2019. Following
the hearing, Judge Sutton issued a fifty-five-page order granting Royer’s
successive petition for post-conviction relief and vacating Royer’s murder
conviction based on newly discovered evidence and Brady violations.
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[12] Judge Sutton specifically found newly discovered evidence that Elkhart County
Forensic Specialist Dennis Chapman (“Forensic Specialist Chapman”) had not
been qualified to conduct the latent fingerprint comparisons that he had made
in Royer’s case.8 Judge Sutton noted that then-Elkhart County Chief Deputy
Prosecutor Vicki Becker (“Deputy Prosecutor Becker”)9 had been responsible
for meeting with Forensic Specialist Chapman and preparing him to testify.
However, Judge Sutton found that Deputy Prosecutor Becker had not been
provided with Forensic Specialist Chapman’s resume and had not been told
that he was not qualified to conduct comparisons of latent prints. Judge Sutton
further found that Forensic Specialist Chapman had “misled [Deputy
Prosecutor] Becker into believing that he was qualified to conduct the type of
latent print comparisons that [had] exist[ed]” in the case. (App. Vol. 3 at 69).
Judge Sutton also found a Brady violation because Forensic Specialist
Chapman’s lack of qualifications had not been disclosed to the defense.
[13] Judge Sutton further found newly discovered evidence that Detective Carl
Conway (‘Detective Conway”), the lead investigator in the Sailor homicide had
been removed from the homicide unit before Royer’s trial. The reason for
Detective Conway’s removal was a misrepresentation that he had made to an
8
In 2012, the Elkhart County Sheriff’s Department disciplined Forensic Specialist Chapman for his role in
Royer’s case. Forensic Specialist Champman retired in 2013.
9
Vicki Becker is currently the elected Elkhart County Prosecutor.
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 12 of 34
attorney regarding one of the attorney’s clients.10 Based upon this
misrepresentation, Detective Conway’s supervisors had concerns about the
impact that his misrepresentations would have on future homicide
investigations and his credibility at trials if called to testify. However, Detective
Conway’s removal from the homicide unit had not been disclosed to Royer
before trial. Judge Sutton further found a Brady violation because the Elkhart
Police Department had not disclosed Detective Conway’s removal to the
defense.
[14] In addition, Judge Sutton found newly discovered evidence that Detective
Conway had threatened a critical witness in Royer’s case and promised her
$2,000 to falsely testify against Royer at trial. Judge Sutton further found that
the witness’ recantation of her trial testimony at the post-conviction hearing and
her explanation for how her statement had been crafted were both credible. In
addition, Judge Sutton found a Brady violation because the coercion of the
witness and the fabrication of her testimony had not been disclosed to the
defense.
10
Judge Sutton further explained that Detective Conway’s appeal of his removal from the homicide unit had
been summarily denied. In addition, Detective Conway had later been removed from the sex-crimes unit.
According to Judge Sutton, during that removal process, Detective Conway had “made a complaint to
[Deputy Prosecutor Becker]. A disciplinary proceeding ensued that resulted in an agreement between
[Detective] Conway and the Elkhart Police Department. As part of that agreement, the Elkhart Police
Department agreed to withdraw any allegations alleging or suggesting that ‘he caused the Office of the
Prosecuting Attorney to lose faith in the Elkhart Police Department or to question its ability to supervise its
detectives, investigate sex crimes or to perform any other form of police activities.’ In exchange, Detective
Conway accepted a written reprimand.” (App. Vol. 3 at 83-84 n.7).
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[15] Judge Sutton further found newly discovered evidence that Royer’s two audio-
recorded statements obtained on September 3 and September 4, 2003, which
totaled approximately sixty-one minutes, were unreliable and involuntary.
Judge Sutton specifically noted that Detective Conway had interrogated Royer
for approximately seven and one-half hours and that there was newly
discovered evidence that Detective Conway had a reputation for obtaining
confessions from every suspect that he had interrogated while assigned to the
homicide unit. In addition, Judge Sutton found newly discovered evidence that
Detective Conway’s ability to obtain confessions had not been a direct result of
his internal interrogation training at the Elkhart Police Department. Judge
Sutton further found newly discovered evidence that the Elkhart Police
Department had not provided Detective Conway with any meaningful training
on how to conduct interrogations, including how to interrogate a suspect such
as Royer, who suffered from a mental disability. Judge Sutton also found that
although Detective Conway had been aware of Royer’s mental disability,
Detective Conway did not use any protections to safeguard against the
possibility of Royer giving false and unreliable statements. Judge Sutton
specifically pointed out that although another member of the homicide unit had
told Detective Conway that the Elkhart Housing Authority had documentation
revealing that Royer was severely disabled and had the mind of a child, Royer
had not been permitted to have a lawyer, counselor, or family members present
for his interrogations on September 3 and 4.
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[16] In addition, Judge Sutton found newly discovered evidence that Royer had not
knowingly and voluntarily waived his Miranda rights because Detective
Conway had not properly taken the time to advise Royer of these rights. Judge
Sutton also found newly discovered evidence that Detective Conway had
“repeatedly provided information about the homicide to Mr. Royer throughout
the unrecorded two-day interrogation sessions.” (App. Vol. 3 at 101). In
addition, Judge Sutton found newly discovered evidence that although
Detective Conway revealed at the successive post-conviction hearing that
Royer’s “mental well-being [had] broke[n] down[]” during the interrogations,
Detective Conway had taken Royer’s recorded statement and placed him under
arrest. (App. Vol. 3 at 103). Royer had been “in such a state of confusion that
Detective Conway had to remind him that he [had given] a confession and was
under arrest.” (App. Vol. 3 at 103).
[17] Judge Sutton also found newly discovered evidence that the Elkhart Police
Department’s investigation into Royer’s statements corroborated their
unreliability. (App. Vol. 3 at 104). Specifically, Detective Conway
acknowledged that he was only able to corroborate the following two basic
pieces of information from all of Royer’s statements: (1) Royer knew the other
person who had been charged with killing Sailor; and (2) Royer lived in the
same building as Sailor. Further, many of the details in Royer’s recorded
statements conflicted with the physical evidence.
[18] Based on these extensive findings, including newly discovered evidence and
Brady violations, Judge Sutton vacated Royer’s murder conviction after
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concluding that he was entitled to a new trial. We note that although Judge
Sutton found several Brady violations, Judge Sutton’s order does not specifically
state that Deputy Prosecutor Becker or any other prosecutor had known about
Detective Conway’s misconduct or had purposely withheld evidence from the
defense.11
[19] On appeal, we affirmed Judge Sutton’s grant of Royer’s successive petition for
post-conviction relief and vacation of Royer’s murder conviction. Royer, 166
N.E.3d at 380. We specifically highlighted instances of Detective Conway’s
misconduct and concluded that Royer had not received a fair trial. Like Judge
Sutton, we did not state that Deputy Prosecutor Becker or any other prosecutor
had known about Detective Conway’s misconduct or had purposely withheld
evidence from the defense.
[20] We now return to the facts in Tyson’s appeal. In June 2021, Tyson filed a
supplement to his motion for a change of judge, wherein he advised the post-
conviction court that he had recently filed a 267-page petition for post-
conviction relief on behalf of “another victim of the Elkhart epidemic[.]” (App.
Vol. 3 at 207). The State subsequently filed a response to Tyson’s initial motion
for a change of judge. Also, in June 2021, the post-conviction court held a
hearing on Tyson’s motion for a change of judge. In September 2021, the post-
11
“For Brady purposes, the prosecutor is charged with knowledge of information known by the police even if
the prosecutor herself is unaware of the information.” Royer, 166 N.E.3d at 400.
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conviction court issued a ten-page order denying Tyson’s motion for a change
of judge. This order provides, in relevant part, as follows:
20. In the instant case, [Tyson’s] conclusory allegation that
this Court cannot be impartial in considering [his] post
conviction allegations of police and prosecutorial
misconduct simply because the presiding Judge worked as
a Deputy Prosecutor over twenty (20) years ago does not
support a finding of bias. The facts attendant to the instant
case occurred in 2015, thirteen (13) years after the end of
the presiding Judge’s tenure as a Deputy Prosecutor.
Moreover, even if this Judge may have once worked
alongside current elected Prosecutor Vickie Becker is of no
consequence. There is no evidence that any special,
enduring or extrajudicial relationship exists between Ms.
Becker and the Honorable Judge. Finally, [Tyson]’s
contention that this Court’s impartiality is questionable
based on this Judges’ theoretical relationships with law
enforcement personnel in general twenty (20) years ago,
does not taint the Court’s ability to determine credibility.
[Tyson]’s claim in this regard is not supported by any
corroborative detail or examples, and is based purely on
speculation.
21. [Tyson] also alleges that this Court’s findings in the case
of State v. Andrew Royer in Cause No. 20D03-0309-MR-
0155, regarding the conduct of attorney Elliot Slosar, one
of [Tyson]’s counsel, and the ultimate entry of an
injunction against Mr. Slosar, calls into question the ability
of the presiding Judge to remain unbiased and impartial in
the instant case. Specifically, [Tyson] complains that
because this Court previously found comments and
allegations made by Mr. Slosar to be “defamatory,” the
Court formed opinions on the merits of Royer’s case.
Therefore, [Tyson] argues that this Judge is duly biased
and unfit to preside over the current post conviction case
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in which [Tyson] raises similar allegations. However,
[Tyson] misstates the issue addressed by the Court in
Royer by stating that the Court found that the allegations
of “systemic” failure in Elkhart County leading to
wrongful convictions were false; and, that Royer’s counsel
knowingly or recklessly made false statements about the
causes of Royer’s convictions. [Tyson] further averred
that this Court reached these conclusions without hearing
the testimony of a single witness or considering any
evidence in the Royer case.
22. A review of the actual Order entered on July 3, 2018
clearly shows that [Tyson]’s characterization of the
proceedings in Royer is wrong. That matter came on for
hearing on the State’s Motion for Emergency Hearing and
Request for Injunction based on Mr. Slosar holding a press
conference outside the Prosecutor’s Office in downtown
Elkhart, Indiana, during which Mr. Slosar made a number
of comments and allegations about Royer’s then pending
Ind. Trial Rule 60(B) motion. Specifically, at the time the
Court issued its July 3, 2018 Order, the statements made
by Mr. Slosar to the press characterized “‘systemic failure’
and an ‘epidemic’ in Elkhart County where people are
wrongfully convicted because of police corruption,
uninspiring defense counsel and an overzealous
prosecutor.” Slosar went on to say that “these factors
contributed to Andrew Royer being wrongfully convicted
of murder that he is absolutely innocent of.” Slosar also
stated that “we have proven that his conviction was an
absolute fraud based on intentional misconduct.” The
Court found Slosar’s statements to be beyond the scope of
the exceptions stated in Ind. Professional Conduct Rule
3.6(b), as well as inflammatory and defamatory as they
inaccurately stated the law as it existed at that time with
respect to Royer’s conviction, and inappropriately drew
legal conclusions about matters that had not yet been
adjudicated. (Court’s July 3, 2018 Order).
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 18 of 34
23. To the contrary, the Court carefully reviewed the Motion
before it and Royer’s Response, along with numerous
attachments; therefore, the Court did consider evidence
and testimony relevant to the Motion before it. Royer’s
60(B) Motion was not before the Court; the State’s Motion
for an Emergency Injunction was. Royer’s 60(B) Motion
was pending, and as established by the case history in
FN l above, nothing had been proven, and there was no
ruling on the merits of that Motion; therefore, Mr. Slosar’s
statements to the public and media were blatantly
inappropriate and false. In his Motion for Recusal,
[Tyson] is attempting to frame the issues addressed in
the Court’s July 3, 2018 Order in the Royer case nearly
three (3) years ago to serve his own purpose in the instant
case. However, the facts surrounding the Court’s finding
and entry of an injunction in the Royer case are in no way
present, relevant or even similar to the instant case and
that argument is without merit.
24. [Tyson]’s attempts to cite Andrew Royer’s subsequent
successful post conviction action decided in 2021 as
evidence that counsel’s statements in 2018 were true and
an absolute defense to the Judge’s characterization of
attorney Slosar’s comments as defamatory also fail.
Although [Tyson] is correct that Andrew Royer
ultimately prevailed on his post conviction action, that fact
was not established when this Court ruled in the 2018
injunction matter and that case has absolutely no bearing
on the instant case. Relying on the Court’s previous ruling
as evidence of personal bias on the part of the presiding
Judge is misplaced as doing so erroneously treats the
Court’s finding that counsel violated Ind. Rule of
Professional Conduct 3.6(a) as pertaining to substantive
issues in Royer’s post conviction case. Clearly, the Court’s
Order of July 3, 2018 does not support a rational inference of
personal bias toward [Petitioner] Leon Tyson. The injunction
in the Royer case was issued on a very narrow set of
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 19 of 34
circumstances, and the impetus behind the Order was to
prevent conclusions from being reached prematurely
without a full adjudication on the evidence, to ensure the
integrity of the litigation and to circumscribe maneuvers
that might prejudice the pending adjudicative proceedings.
It cannot be said that an objective person with knowledge
of those circumstances would doubt the impartiality of the
judge in the instant case.
25. Andrew Royer’s success in his post conviction case also
has no bearing on the instant case simply because
[Tyson] is again claiming the same alleged “systemic
failure.” There is no factual connection between Royer
and the instant case at all, let alone a connection
warranting recusal of the presiding Judge. In fact, Royer’s
success on his individual post conviction petition does not
unequivocally demonstrate the presence of what
[Tyson] frames as “systemic” misconduct in Elkhart
County. Rather, the Indiana Court of Appeals in State v.
Royer, 166 N.E.3d 380 (Ind. Ct. App. 2021) addressed
misconduct regarding the behaviors of one detective
insofar as Royer’s case. Id at 404, n. 20.
26. [Tyson] further suggests that simply because this Court
ultimately recused in the post conviction case involving
Andrew Royer, it must reach the same conclusion here.
While the Court nonetheless did recuse itself from hearing
Royer’s post conviction case on the merits in order to cure
any lingering concerns in that case, that ruling does not
dictate how the Court must handle future post conviction
cases, including this one.
* * * * *
28. For all the herein stated reasons, this Court concludes that
[Tyson] has not met his burden of overcoming the
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 20 of 34
presumption that this Judge is unbiased and unprejudiced
with respect to [Tyson]’s pending post conviction
proceeding.
(App. Vol. 4 at 6-11) (emphasis added).
[21] Three weeks later, Tyson filed a motion for reconsideration, wherein he argued
that the post-conviction court’s “appalling misreading of the Royer case
show[ed] its inability to impartially consider [Tyson]’s claims[]” and that the
post-conviction court’s “claim that Royer ha[d] ‘absolutely no bearing’ on this
case [was] baseless.” (App. Vol. 4 at 16, 18). In October 2021, the post-
conviction court denied Tyson’s motion for reconsideration.
[22] In December 2021, the post-conviction court certified its order for interlocutory
appeal. In its certification order, the post-conviction court stated as follows:
As to [Tyson]’s allegation that the Orders he requests this Court
to certify involve substantial questions of law, [Tyson] most
disrespectfully avers that this Court has “ignored a clear
obligation to recuse, misapplied the governing law, and failed to
address several of Mr. Tyson’s arguments.” To the contrary, the
Court’s Order denying [Tyson’s] Motion for Recusal is a very
detailed ten (10) page Order in which the Court took great care to
research and address each of [Tyson]’s arguments. The Court
believes that it did appropriately apply well-settled law regarding
recusal in determining that recusal in the instant case is not
warranted. In this regard, it is the opinion of this Court that no
substantial question of law exists.
Notwithstanding the foregoing, the Court believes that
substantial questions of law do exist as to the appropriateness of
[Tyson] repeatedly raising and relying on matters outside this
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 21 of 34
case, whether [Tyson] has incorrectly interpreted and applied
previous Orders issued by this Court in an unrelated case, and
whether [Tyson] had drawn conclusions not based on evidence in
this case in support of his position that this Court harbors bias
and prejudice against him; and, therefore, is unable to render an
impartial decision in his post conviction proceedings. With
respect to these matters, the Court finds that early resolution
would promote a more orderly disposition of the case and
promote judicial economy and resources. While this appeal will
by no means resolve the pending post-conviction litigation, it will
resolve the important threshold issue of judicial recusal before the
case proceeds on the merits.
(No. 20D03-1807-PC-37, Chronological Case Summary, December 27, 2021
entry). In February 2022, this Court accepted jurisdiction over Tyson’s
interlocutory appeal.
[23] One month later, in March 2022, Tyson filed in this Court a verified motion
pursuant to Indiana Appellate Rule 37 to stay the appeal and remand the case
to the post-conviction court. In his motion, Tyson claimed that he had newly
discovered evidence, which revealed that the post-conviction court had been
married from 1992 until 2003 to Stephen Cappelletti (“Cappelletti”), who had
been an Elkhart Police Department reserve police officer from 1983 through
1994. Tyson advised this Court that he planned to file a renewed motion for a
change of judge based on this newly discovered evidence. In April 2022, this
Court granted Tyson’s motion to stay and remand. In our order, we stated that
“[w]ithin thirty-five (35) days of the date of this order, the [post-conviction]
court is ordered to hold a hearing, if necessary” and issue a ruling on Tyson’s
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 22 of 34
renewed motion for a change of judge. (No. 22A-PC-143, Chronological Case
Summary, April 4, 2022 entry).
[24] In April 2022, Tyson filed, in the post-conviction court, a renewed motion for a
change of judge pursuant to Indiana Post-Conviction Rule 1(4)(b). In his
twenty-four-page motion, Tyson argued that this Court had “ordered [the post-
conviction] court to reconsider its obligation to recuse in light of this new
evidence.” (App. Vol. 6 at 74). Tyson also argued that an evidentiary hearing
was necessary [because] . . . [the post-conviction court]’s failure to disclose its
marriage to Mr. Cappelletti raise[d] significant questions as to whether this
[post-conviction] Court ha[d] failed to disclose other information relevant to
recusal[.]” (App. Vol. 6 at 75). Tyson further argued that the post-conviction
court had a “clear obligation” to disclose its prior marriage to Mr. Cappelletti to
Mr. Tyson and that “[r]ecusal [was] necessary because [the post-conviction]
Court’s marriage to Mr. Cappelletti – and his involvement in police misconduct
– place[d] this Court’s orders in a far more disturbing light.” (App. Vol. 6 at 90,
91).
[25] The State filed a reply to Tyson’s renewed motion for a change of judge. The
post-conviction court initially scheduled a May 2022 hearing for Tyson’s
renewed change of judge motion. However, at the end of April 2022, the post-
conviction court entered an order denying Tyson’s motion without a hearing.
In this order, the post-conviction court explained that after having thoroughly
reviewed the record in the case, the post-conviction court had determined that
an evidentiary hearing was “not only unnecessary, but also was not mandated.”
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 23 of 34
(No. 20D03-1807-PC-37, Chronological Case Summary, April 29, 2022 entry).
The post-conviction court specifically explained, in relevant part, as follows:
The Court of Appeals directed this Court to hold a hearing, if
necessary, and issue a ruling on Appellant’s Renewed Motion
for Recusal. (Emphasis added). Just as counsel for [Tyson] has
previously and consistently drawn legal conclusions and
misinterpreted this Court’s orders, counsel once again ‘puts
words in the mouth’ of the Indiana Court of Appeals that are not
there, to-wit: [Tyson], by counsel informed this Court in his
Renewed Motion that a hearing was necessary, which is not
Tyson’s call at all. Then, after the Court accommodated counsel
by setting a one-hour hearing for relevant argument only in this
case as well as in Seabolt v. State, Cause No. 20D03-2106-PC-
000019, counsel informed the Court that the Indiana Court of
Appeals meant to say in its Order . . . that an evidentiary hearing
was mandated[.]
The specifically stated purpose of the remand in this case was for
this Court to consider and issue a ruling on [Tyson]’s Renewed
Motion for Recusal, not to reconsider its prior rulings[.]
Moreover, nowhere in the Court of Appeals Order remanding
this cause is this Court directed to reconsider its ‘obligation to
recuse’ as suggested by [Tyson]. The Court’s ruling at this time is
strictly limited to the alleged “newly discovered evidence” in
[Tyson]’s Renewed Motion for Recusal. The Court’s prior Order
of September 8, 2021 denying [Tyson]’s Motion to Recuse and
October 4, 2021 Order denying [Tyson]’s Motion to Reconsider
are affirmed and incorporated in their entirety herein.
(No. 20D03-1807-PC-37, Chronological Case Summary, April 29, 2022 entry).
(emphasis in the original).
[26] Regarding the substance of Tyson’s renewed recusal motion, the post-
conviction court stated as follows:
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 24 of 34
In his Renewed Motion for Recusal, [Tyson] alleges that this
Court must recuse in the pending post conviction case because
the Judge was married to an Elkhart Police Department reserve
officer, Stephen Cappelletti (“Cappelletti”), from June 6, 1992
through April 15, 2003, and that Cappelletti had close ties to a
group of officers who framed [Tyson] and was involved in police
misconduct similar to that alleged in [Tyson]’s Post Conviction
Relief Petition. Cappelletti was with the Elkhart Police
Department part time from 1983-1994; therefore, during most of
that time, this Judge was not married to him. Also, any direct
allegation of misconduct by Cappelletti as espoused by Tyson in
his Renewed Motion allegedly occurred in 1989, prior to the
marriage. Cappelletti did not work at the Elkhart Police
Department at any time when an investigation would have
ensued in [Tyson]’s case. Cappelletti’s employment with the
Elkhart Police Department ended in 1994. Tyson was charged
with the offense of Murder on December 7, 2015, and was
convicted on January 26, 2017. That Cappelletti was involved in
any investigation of [Tyson]’s case between 1994 and 2003 and
would have shared information with this Court about a murder
that did not occur until June 20, 2015 is not only incredulous, but
impossible. Moreover, this Judge had been divorced from
Cappelletti for over twelve (12) years when [Tyson] was charged
and had no contact with him thereafter. Further, to suggest that
any of the activities or attitudes [Tyson] avers Cappelletti and/or
his associates engaged in or believed somehow means that this
Court must also condone such activities and harbor such beliefs
based on the marriage many years earlier is entirely without
merit. Even if Cappelletti remained friends with former Elkhart
Police Officers, that does not implicate this Court. Contrary to
[Tyson]’s contention, the Judge’s former marriage does not
provide “corroborative detail” that this Court cannot impartially
assess the credibility of witnesses who may be associated with
police officers in general and their alleged misconduct.
Moreover, [Tyson] has failed to demonstrate how this Court’s ex-
husband bears any nexus to [Tyson]’s post-conviction matter.
Other than a shared employment status many years ago with
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 25 of 34
individuals accused of wrongdoing who may or may not testify
in this case, there is no connection at all. [Tyson] has not shown
that this Judge was witness to or adheres to anything that would
compr[om]ise his post conviction case[.]
In the instant case, there is no evidence that this Court’s former
marriage to an Elkhart Police Department reserve officer in any
way ever swayed the Judge’s decision making or does so today
nineteen (19) years post-divorce. Cappelletti stopped working for
the Elkhart Police Department in 1994, twenty-one (21) years
prior to [Tyson]’s offense. It is unlikely that Cappelletti himself
obtained any information about [Tyson]’s case, let alone
imparted such knowledge to this Court. This Judge has no
knowledge derived from extrajudicial sources stemming from her
marital relationship with Cappelletti about [Tyson]’s case that
could demonstrate personal prejudice or bias against [Tyson] in
this post conviction proceeding. [Tyson] has failed to draw any
valid connection between his case, Cappelletti and this Court
other than self serving commentary that Cappelletti may be a
critical witness to a pattern and practice of alleged police
misconduct at the Elkhart Police Department. [Tyson], however,
has not articulated any meaningful argument as to how
Cappelletti, a reserve Elkhart Police Department officer until
1994, constitutes a critical witness to [Tyson]’s 2017 conviction.
[Tyson] makes a final claim that this Court had an obligation to
disclose her past marriage to Cappelletti under Rule 2.11 Code of
Judicial Conduct, n.5. Honestly, why it would cross the mind of
the Court to disclose that she was once married to a man who
served as a reserve Elkhart Police Department officer for
approximately two (2) years while they were married and whom
the Court divorced some nineteen (19) years ago is wholly
untenable. This was not information that this Judge should be
expected to believe the parties or their lawyers might reasonably
consider relevant to a motion for disqualification. [Tyson]’s
argument in this regard is not persuasive and recusal is not
required.
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 26 of 34
(No. 20D03-1807-PC-37, Chronological Case Summary, April 29, 2022 entry).
Based on the foregoing, the post-conviction court denied Tyson’s renewed
motion for a change of judge. In May 2022, Tyson filed a motion for
reconsideration, which the post-conviction court denied.
[27] Also in May 2022, Tyson filed in this Court a status report regarding the change
of judge proceedings before the post-conviction court, wherein Tyson advised
this Court that he intended to proceed with his interlocutory appeal. Tyson also
asked this Court to consolidate his case with Iris Seabolt v. State, No. 22A-PC-
00208 and Pink Robinson v. State, No.20C01-2012-PC-00041. Tyson argued that
this Court should consolidate the cases “due to a significant overlap in factual
and legal issues.” (No. 22A-PC-143, Chronological Case Summary, May 17,
2022 entry). This Court’s motions panel granted Tyson’s motion to consolidate
the three cases, which, as explained above, we have de-consolidated.
[28] Tyson now appeals the denial of his motion for a change of judge in his post-
conviction case.
Decision
[29] Tyson argues that the post-conviction court clearly erred when it denied his
motion for a change of judge. We disagree.
[30] At the outset, we note that the law is well-settled that “adjudication by an
impartial tribunal is one of the fundamental requirements of due process
imposed on the courts of this state by the Fourteenth Amendment to the federal
constitution.” Matthews v. State, 64 N.E.3d 1250, 1253 (Ind. Ct. App. 2016)
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 27 of 34
(citing Tumey v. Ohio, 273 U.S. 510, 535 (1927)), trans. denied. Judges are
presumed impartial and unbiased. Matthews, 64 N.E.3d at 1253. “‘[T]he law
will not suppose a possibility of bias or favor in a judge, who is already sworn to
administer impartial justice, and whose authority greatly depends upon that
presumption and idea.’” Matthews, 64 N.E.3d at 1253 (quoting 3 William
Blackstone, Commentaries *361)).
[31] In post-conviction cases, parties seeking to overcome the presumption of
judicial impartiality must move for a change of judge under Post-Conviction
Rule 1(4)(b). That rule provides, in relevant part, as follows:
Within ten (10) days of filing a petition for post-conviction relief
under this rule, the petitioner may request a change of judge by
filing an affidavit that the judge has a personal bias or prejudice
against the petitioner. The petitioner’s affidavit shall state the facts
and the reasons for the belief that such bias or prejudice exists,
and shall be accompanied by a certificate from the attorney of
record that the attorney in good faith believes that the historical
facts recited in the affidavit are true. A change of judge shall be
granted if the historical facts cited in the affidavit support a
rational inference of bias or prejudice.
(Emphasis added).
[32] This rule requires the judge to examine the affidavit, treat the historical facts
recited in the affidavit as true, and determine whether these facts support a
rational inference of bias or prejudice. Pruitt v. State, 903 N.E.2d 899, 939 (Ind.
2009). A change of judge is neither automatic nor discretionary but calls for a
legal determination by the post-conviction court. Id. We presume that the post-
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 28 of 34
conviction court is not biased against a party and disqualification is not required
under the rule unless the judge holds a “personal bias or prejudice.” Id.(quoting P.-C.R. 1(4)(b)). Typically, a bias is personal if it stems from an
extrajudicial source, which means a source separate from the evidence and
argument presented at the proceedings. Pruitt, 903 N.E.2d at 939. “Such bias
or prejudice exists only where there is an undisputed claim or the judge has
expressed an opinion on the merits of the controversy before [her].” L.G. v.
S.L., 88 N.E.3d 1069, 1073 (Ind. 2018).
[33] “Further, Indiana courts credit judges with the ability to remain objective
notwithstanding their having been exposed to information which might tend to
prejudice lay persons.” Id. In addition, “[a] showing of prejudice sufficient to
support a motion for a change of judge must be established from personal,
individual attacks on a defendant’s character, or otherwise.” Miller v. State, 106
N.E.3d 1067, 1076 (Ind. Ct. App. 2018), trans. denied. Stated differently, “a
motion for a change of judge should be granted only if the evidence reveals such
a high degree of favoritism or antagonism as to make a fair judgment
impossible.” State v. Shackleford, 922 N.E.2d 702, 707 (Ind. Ct. App. 2010)
(cleaned up), trans. denied.
[34] The ruling on a motion for change of judge is reviewed under the clearly
erroneous standard. Garland v. State, 788 N.E.2d 425, 433 (Ind. 2003).
Reversal will require a showing which leaves us with a definite and firm
conviction that a mistake has been made. Id.Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 29 of 34
[35] We restate Tyson’s first argument as whether the post-conviction court clearly
erred in denying his motion for change of judge because the post-conviction
court’s 2018 order in the unrelated Royer case finding that Attorney Slosar had
violated Rule of Professional Conduct 3.6(a) supports a rational inference of
bias or prejudice against Tyson.12 “Prior judicial rulings generally do not
support a rational inference of prejudice.” Voss v. State, 856 N.E.2d 1211, 1217
(Ind. 2006). “Adverse rulings and findings by a trial judge from past
proceedings with respect to a particular party are generally not sufficient
reasons to believe the judge has a personal bias or prejudice.” Id. Although the
mere assertion that certain adverse rulings by a judge constitute bias and
prejudice does not establish the requisite showing, there may be circumstances
in which a rational inference of bias or prejudice may be established if a judge’s
order is sufficiently egregious. Id.[36] Here, however, we find nothing egregious in the July 2018 order that the trial
court judge, who is the post-conviction court judge in Tyson’s case, issued in
12
We note that Tyson asserts that in Royer, 166 N.E.3d at 380, this Court found systemic police and
prosecutorial misconduct in Elkhart. We did not. Specifically, we find no language in our opinion in Royer
to support such an interpretation. Rather, our review of our opinion in Royer reveals that the newly
discovered evidence related primarily to the horrific conduct of one Elkhart Police Department detective.
Tyson also asserts that in its July 2018 order in the Royer case, the post-conviction court found that there was
no systemic police or prosecutorial misconduct in Elkhart. It did not. The post-conviction court’s order in
the Royer case solely addressed the statements that Attorney Slosar made at a press conference after he had
filed in Royer’s case a motion for relief from judgment pursuant to Indiana Trial Rule 60(B). Specifically, the
post-conviction court found that Attorney Slosar’s statements violated Rule of Professional Conduct 3.6(a)
because Attorney Slosar knew or reasonably should have known that these statements would be disseminated
by means of public communication and would have a substantial likelihood of prejudicing the adjudicative
proceeding that was pending in the matter.
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 30 of 34
the unrelated Royer case. Rather, the trial court simply concluded that
Attorney Slosar’s press conference statements regarding systemic police
misconduct in Elkhart, which he had made before the adjudication of Royer’s
Trial Rule 60(B) motion, violated Rule of Professional Conduct 3.6(a). Further,
and more importantly, the trial court’s July 2018 order does not mention Tyson
or anything about Tyson’s case, which occurred ten years after Royer’s case. In
sum, we find nothing in the Royer order that supports a rational inference of
bias or prejudice against Tyson.13
[37] We restate Tyson’s second argument as whether the post-conviction court
clearly erred in denying Tyson’s motion for a change of judge because the post-
conviction court’s 1998-2002 tenure as a deputy prosecutor supports a rational
inference of bias or prejudice against Tyson. In Calvert v. State, 498 N.E.2d 105,
107 (Ind. Ct. App. 1986), this Court concluded “that a trial judge must
disqualify [her]self from a proceeding in which [s]he has actively served as an
attorney for one of the parties regardless of whether actual bias or prejudice
exists.” Here, there is no allegation that the post-conviction court judge actively
13
We further note that Tyson’s argument that the post-conviction court should have granted his motion for
a change of judge because it granted the motion for a change of judge in the Royer case is unavailing.
Specifically, the fact that the post-conviction court granted a motion for a change of judge in Royer’s case
“appears to us to evidence the fact that [the post-conviction court judge] would conduct herself as an
unbiased jurist in applying the law to the particular facts of a case.” Smith v. State, 613 N.E.2d 412, 414 (Ind.
1993) (affirming the trial court’s denial of a motion for a change of judge where the petitioner argued that the
adverse publicity that the post-conviction court received as a result of granting an unrelated petition for post-
conviction relief would cause the post-conviction court to be biased against granting post-conviction relief in
petitioner’s case), cert. denied.
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 31 of 34
served as a deputy prosecutor on Tyson’s case. Indeed, this would have been
an impossibility because the post-conviction court judge left the prosecutor’s
office in 2002, thirteen years before the State charged Tyson with murder in
2015 and twenty-one years before Tyson’s upcoming hearing on his post-
conviction petition. Given the remoteness in time of the post-conviction court’s
tenure in the Elkhart County Prosecutor’s Office in relation to the charges
against Tyson and his upcoming post-conviction hearing, Tyson has failed to
show the post-conviction court’s 1998-2002 tenure as a deputy prosecutor
supports a rational inference of bias or prejudice against Tyson. See Bloomington
Magazine, Inc. v. Kiang, 961 N.E.2d 61, 66 (Ind. Ct. App. 2012) (explaining that
the proximity in time of the historical facts alleged in the affidavit to the matter
concerning the motion for a change of judge is a relevant inquiry).
[38] Lastly, we restate Tyson’s third argument as whether the post-conviction court
clearly erred in denying Tyson’s motion for a change of judge because the post-
conviction court judge’s 1992-2003 marriage to Cappelletti supports a rational
inference of bias or prejudice against Tyson. We note that the post-conviction
court judge’s marriage to Cappelletti ended ten years before the State charged
Tyson with murder and twenty years before Cappelletti’s potential testimony in
Tyson’s post-conviction case. Tyson’s affidavit does not allege that any
relationship existed between Cappelletti and the post-conviction court judge
after their marriage had been dissolved. Indeed, in her order denying Tyson’s
motion for a change of judge, the post-conviction court judge specifically noted
that she had not had contact with Cappelletti since their marriage had been
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 32 of 34
dissolved in 2003. Given the remoteness in time of the post-conviction court
judge’s marriage to Cappelletti to the charges against Tyson and his upcoming
post-conviction hearing, Tyson has failed to show that this prior marriage
supports a rational inference of bias or prejudice against Tyson. See Bloomington
Magazine, 961 N.E. 2d at 66. See also McKinney v. State, 873 N.E.2d 630, 640
(Ind. Ct. App. 2007) (explaining that where the personal relationship between
the trial court judge and her former employee, who was the murder victim’s
mother, had ended twenty years before the defendant’s trial and the defendant
had not alleged any facts suggesting that any relationship existed between the
two after that employment had been terminated, the trial court did not clearly
err in denying defendant’s motion for a change of judge), trans. denied.
Conclusion
[39] In sum, the recited historical facts on which Tyson based his motion for a
change of judge simply do not support a rational inference of bias or prejudice
against Tyson as contemplated by Post-Conviction Rule 1(4)(b). We further
note that the post-conviction court has neither expressed an opinion on the
merits of Tyson’s case nor attacked his character. Accordingly, because we are
not left with a definite and firm conviction that a mistake has been made, we
conclude that the post-conviction court did not clearly err in denying Tyson’s
motion for a change of judge. See Garland, 788 N.E.2d at 433. We, therefore,
affirm the post-conviction court’s denial of Tyson’s motion. See Pruitt, 903
N.E.2d at 939 (explaining that where Pruitt’s post-conviction court judge was
the same judge who had presided over his trial and where Pruitt’s affidavit in
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 33 of 34
support of his motion for a change of judge had shown no historical facts that
had demonstrated personal bias on the part of the post-conviction court judge,
Pruitt had been provided with a full and fair post-conviction relief hearing
before an impartial judge).
[40] Affirmed.
Crone, J., and Bradford, J., concur.
Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 34 of 34