Leona Rae Hawk v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Apr 14 2015, 9:23 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher B. Serak Gregory F. Zoeller
Jacob Hammerle & Johnson Attorney General of Indiana
Zionsville, Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Leona Rae Hawk, April 14, 2015
Appellant-Defendant, Court of Appeals Case No.
06A01-1411-MI-508
v. Appeal from the Boone Superior
Court.
State of Indiana, The Honorable Rebecca McClure,
Judge.
Appellee-Plaintiff
Cause No. 06D02-1410-MI-131
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Leona Rae Hawk (Hawk), appeals the Order of the trial
court holding her in indirect criminal contempt of court.
[2] We affirm.
ISSUES
[3] Hawk raises two issues on appeal, which we restate as follows:
(1) Whether Hawk was deprived of due process amounting to fundamental
error because the charging instrument failed to set forth an adequate description
of the facts establishing contempt; and
(2) Whether the trial court’s imposition of the maximum sanction for contempt
is unreasonable.
FACTS AND PROCEDURAL HISTORY
[4] At approximately 3:00 a.m. on October 13, 2014, Whitestown Metropolitan
Police Officer Ryan Batts (Officer Batts) observed a female—later identified as
Hawk—driving a vehicle with a license plate that was obscured by a tinted
cover. Officer Batts began following the vehicle at a close enough distance to
read the license plate number. While waiting for the results of the license plate
check, Officer Batts continued to follow Hawk and observed that she
committed several additional traffic infractions. When he learned that the
vehicle was registered to a man with a suspended driver’s license, Officer Batts
initiated a traffic stop.
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[5] Officer Batts approached the vehicle and asked for Hawk’s information, and he
noticed that her speech was slurred and her movements were slow. Officer
Batts ran a check on Hawk’s driver’s license, which was suspended indefinitely.
Officer Jacob King (Officer King) arrived on the scene to assist and asked Hawk
to exit her vehicle. As Hawk staggered to the rear of her vehicle, Officer Batts
observed that her pupils were constricted, but Hawk denied that she had been
drinking alcohol. At that point, Officer Batts arrested Hawk for driving while
suspended and to further investigate a possible charge of operating while
intoxicated.
[6] Officer Batts secured Hawk in handcuffs, and when he commenced a pat-down
search, Hawk became agitated. She demanded proof that her license was
suspended, argued that it was a civil rights violation to deny her request to have
a female officer conduct the pat-down, and told Officer Batts that “she was
gonna have [his] job.” (Tr. p. 13). Officer Batts placed Hawk in the front seat
of his vehicle. Hawk continued to demand proof that her driver’s license was
suspended, so Officer Batts displayed the information for her on his computer,
but Hawk insisted that the results were inaccurate. En route to the jail, Hawk
fell asleep in the squad car. Officer King, who had remained at the scene to
wait for the tow truck, radioed to Officer Batts that the inventory search of
Hawk’s vehicle had yielded a glass pipe, three spoons, and several syringe caps.
[7] At the Boone County Jail, Officer Batts administered three field sobriety tests,
of which Hawk passed one and failed two. A portable breathalyzer test
indicated that Hawk had not consumed any alcohol. Based on Hawk’s
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unsteadiness, droopy eyelids, and staggering, Officer Batts determined that
chemical tests were necessary to verify whether Hawk was under the influence
of alcohol or a controlled substance. Officer Batts read Indiana’s implied
consent law to Hawk, which provides that when a police officer has probable
cause to believe that a person has been operating while intoxicated, that person
“impliedly consents” to “submit to each chemical test offered” by the officer “as
a condition of operating a vehicle in Indiana.” Ind. Code §§ 9-30-6-1; -2. Hawk
stated that “she wasn’t doing anything” until Officer Batts “proved that [her
license] was suspended.” (Tr. pp. 8-9). Interpreting her response as a refusal to
voluntarily comply, Officer Batts applied for and, at 4:27 a.m., was granted a
search warrant “to use reasonable force to obtain” a sample of Hawk’s blood or
other bodily fluid. (Appellant’s App. p. 32).
[8] Officer Batts transported Hawk to the Witham-Anson emergency room in
Zionsville, Indiana, explaining to her that he had a search warrant to procure
blood and/or urine samples. When Hawk indicated that she would refuse,
Officer Batts informed her that the procedure was not optional because it was
ordered by a judge and that she could be held in contempt for refusing to
submit. Hawk stated that “she didn’t care what the [j]udge said, [and] she
didn’t care what the [w]arrant said.” (Tr. p. 13). While waiting for the lab
technician, Officer Batts read the search warrant to Hawk and allowed her to
review it, but Hawk was belligerent—screaming that she wanted her attorney,
Officer Batts’ superior officer, a female police officer, and a doctor present
because Officer Batts was violating her civil rights.
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[9] As the lab technician, Patricia Clinkenbeard (Technician Clinkenbeard),
prepared her equipment, she asked Hawk to stop screaming in order to avoid
scaring the children in the emergency room, but Hawk simply yelled, “I have
rights[,]” and continued with her tirade. (Tr. p. 23). When Technician
Clinkenbeard approached with her needle, Hawk pulled away and started
bouncing around on the hospital bed. Officer Batts and Officer King attempted
to restrain her, but Hawk squirmed, kicked, and screamed that she was being
subjected to police brutality. Because of the officers’ proximity to the struggling
Hawk, Technician Clinkenbeard was concerned that the vein might spray and
contaminate the officers. Realizing that it could not be safely accomplished, the
officers decided to forego the blood draw. Officer Batts instructed Hawk to
stand so they could leave, but Hawk refused. The officers removed her from
the bed, and because Hawk refused to walk, they had to pull her out of the
hospital. Hawk did not cease screaming until after she had been removed from
the building.
[10] On October 16, 2014, the State filed a petition for rule to show cause and an
Information, charging Hawk with indirect criminal contempt of court based on
her failure to comply with the search warrant. On October 30, 2014, the trial
court conducted a hearing and, at the close of the evidence, issued its Order
finding Hawk in indirect contempt of court. As a sanction, the trial court
ordered Hawk to serve 180 days in the Boone County Jail.
[11] Hawk now appeals. Additional facts will be provided as necessary.
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DISCUSSION AND DECISION
I. Adequacy of Charging Instrument
[12] In this case, the trial court found Hawk to be in indirect criminal contempt of
court for refusing to comply with the search warrant. Indirect contempt is the
willful disobedience, resistance, or hindrance of any process or other lawfully
issued order of a court. I.C. §§ 34-47-3-1; -2. “A criminal contempt can be any
act which manifests a disrespect for and defiance of a court.” In re Perrello, 291
N.E.2d 698, 700 (Ind. 1973). Hawk now claims that the finding of contempt
should be reversed because the Information “does not describe the charge with
the requisite specificity under prevailing law to apprise [her] of the nature of the
prohibited conduct underlying the charge.” (Appellant’s Br. pp. 5-6).
[13] At the outset, we note that Hawk relies on Indiana’s criminal charging statute,
which requires that a charging information “allege the commission of an
offense by . . . setting forth the nature and elements of the offense charged in
plain and concise language without unnecessary repetition.” I.C. § 35-34-1-
2(a)(4). The purpose of a charging information is to protect a defendant’s due
process rights by providing him “with notice of the crime of which he is charged
so that he is able to prepare a defense.” Ben-Yisrayl v. State, 738 N.E.2d 253,
271 (Ind. 2000), reh’g denied, cert. denied, 534 U.S. 1164 (2002). However, it is
well established that an action for contempt is a “sui generis proceeding neither
civil nor criminal in nature, although both of those labels are used to describe
certain categories of contempt” depending on “the nature and purpose of the
sanction imposed.” Wilson v. State, 988 N.E.2d 1211, 1218 (Ind. Ct. App. 2013)
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(quoting State v. Heltzel, 552 N.E.2d 31, 33 (Ind. 1990)). Accordingly, we look
to Indiana Code chapter 34-47-3—which specifically governs all cases of
indirect contempt—rather than the general criminal code.
[14] Indirect contempt involves actions that do not occur in the presence of the trial
court; thus, an indirect contempt proceeding “requires an array of due process
protections, including notice and an opportunity to be heard.” Ind. Bureau of
Motor Vehicles v. Charles, 919 N.E.2d 114, 118 (Ind. Ct. App. 2009). These due
process safeguards are codified at Indiana Code section 34-47-3-5(a), which
stipulates that an individual charged with indirect contempt must “be served
with a rule of the court against which the contempt was alleged to have been
committed.” In particular, the rule to show cause is required to
(1) clearly and distinctly set forth the facts that are alleged to constitute
the contempt;
(2) specify the time and place of the facts with reasonable certainty, as
to inform the defendant of the nature and circumstances of the charge
against the defendant; and
(3) specify a time and place at which the defendant is required to show
cause, in the court, why the defendant should not be attached and
punished for such contempt.
I.C. § 34-47-3-5(b). Before the trial court may issue a rule to show cause, an
information verified by oath or affirmation must be filed to apprise the court of
“the facts alleged to constitute the contempt.” I.C. § 34-47-3-5(d)(1).
[15] Hawk concedes that she did not move to dismiss or otherwise object to the
adequacy of the rule to show cause or the Information, thereby waiving her
claim for appeal. See Holler v. State, 106 N.E. 364, 364 (Ind. 1914) (“The proper
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mode of testing an information for indirect contempt is by a motion to
discharge the rule to show cause.”). Nevertheless, she contends that the
Information “contains fundamental errors that have important implications on
[her] basic constitutional rights.” (Appellant’s Br. p. 5).
[16] The fundamental error doctrine is a narrow exception to the waiver rule, under
which our court may consider the merits of an otherwise forfeited claim if there
are “blatant violations of basic principles, the harm or potential for harm is
substantial, and the resulting error denied the defendant fundamental due
process.” Ben-Yisrayl, 738 N.E.2d at 270. “To qualify as fundamental error, ‘an
error must be so prejudicial to the rights of the defendant as to make a fair trial
impossible.’” Absher v. State, 866 N.E.2d 350, 355 (Ind. Ct. App. 2007) (quoting
Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002)). On review, we are mindful of
the fact that the fundamental error exception is only applicable in the most
“egregious circumstances.” Id. Simply arguing “that a constitutional right is
implicated” is insufficient to invoke the fundamental error doctrine. Id.[17] In the present case, the Information charged that
on or about October 13, 2014 in Boone County, State of Indiana,
Leona Rae Hawk did willfully disobey a Search Warrant Order issued
under 06D02-1410-MC-543 by the Boone County Superior Court II
under the authority of law, after it had been served upon her, contrary
to the form of the statutes in such cases made and provided by [the
Indiana Code] and against the peace and dignity of the State of
Indiana.
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(Appellant’s App. p. 18). The State’s petition for rule to show cause
accompanied the Information and set forth the following factual details serving
as the basis for contempt:
Hawk informed Officer Batts that she didn’t care what the [j]udge said
and that Officer Batts wasn’t touching her until she spoke to her
attorney. Officer Batts informed [Hawk] that she would be held in
contempt of court for refusing and she said she didn’t care and that she
wanted to speak to her attorney. Upon arriving at Witham Hospital-
Anson and when [Technician Clinkenbeard] arrived in the room,
[Hawk] continued to scream and yell and said we weren’t taking her
blood or anything else until she spoke to her attorney. [Technician]
Clinkenbeard prepared the needle and tubes and [Officer King] and
[Officer Batts] took Hawk[’s] sweatshirt off down to her handcuffs and
she continued to yell and scream. [Hawk] started to resist by pulling
away and bouncing around on the hospital bed. [Officer King] and
[Officer Batts] attempted to hold [Hawk] down to get a blood sample
and she started kicking, kneeing, and screaming police brutality.
(Appellant’s App. p. 20).1
[18] Hawk argues that “[t]he charge of ‘willful disobedience’ . . . is . . . a ‘generic
term’ that ‘encompasses a large realm’ of potentially prohibited conduct, and is
inadequate to properly apprise her of the nature of the prohibited conduct
charged.” (Appellant’s Br. p. 7) (quoting Gebhard v. State, 459 N.E.2d 58, 61
(Ind. Ct. App. 1984)). We disagree.
1
Because the trial court’s rule to show cause specifically references the State’s petition for rule to show
cause, we will consider the documents together to determine whether Hawk received adequate notice of the
charge. See Smith v. Ind. State Bd. of Health, 303 N.E.2d 50, 58 (Ind. Ct. App. 1973), reh’g denied, cert. denied,
419 U.S. 836 (1974).
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[19] First, we find that the Information tracks the “willful disobedience’ language of
the indirect contempt statute. I.C. § 34-47-3-2. The dictionary defines “willful”
as “done deliberately” or “intentional,” and the ordinary definition of
“disobey” is “to not do what someone or something with authority tells you to
do” or “to refuse or fail to obey rules, laws, etc.” MERRIAM-WEBSTER,
http://www.merriam-webster.com/dictionary (last visited Mar. 31, 2015).
Furthermore, our courts have long held that “[t]he acts constituting the criminal
contempt ‘must be characterized by a deliberate intent to defy the authority of
the court.’” Allison v. State ex rel. Allison, 187 N.E.2d 565, 568 (Ind. 1963)
(quoting Denny v. State ex Inf. Brady, 182 N.E. 313, 321 (Ind. 1932)). Thus, “the
language is clear, explicit, and susceptible of but one meaning”—that is, that
Hawk intentionally refused to comply with the search warrant. Kilgallen v.
State, 132 N.E. 682, 686 (Ind. 1921), reh’g overruled.
[20] Second, the petition for rule to show cause sets forth a clear “statement of the
facts constituting the contempt.” In re Perrello, 291 N.E.2d at 701. Despite
being informed of the consequences of non-compliance, Hawk repeatedly stated
that she would not consent to a blood draw, and she specifically expressed her
disrespect for the court’s authority. When the officers attempted to use the
“reasonable force” permitted by the warrant to obtain the samples, Hawk
physically resisted—squirming, kicking, and screaming—making it unsafe for
Technician Clinkenbeard to complete the draw. (Appellant’s App. p. 32).
Accordingly, we find that Hawk received “clear notice” of the facts alleged to
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constitute the contempt. In re Paternity of C.N.S., 901 N.E.2d 1102, 1105 (Ind.
Ct. App. 2009).
[21] Nevertheless, although Hawk does not assert that she was unable to defend
herself in the contempt action based upon the facts set forth in the petition for
rule to show cause and the Information, she argues that she will be unable to
defend herself against double jeopardy in any future prosecution arising from the
same incident. Particularly, she avers that the Information does not specify
“which aspects of her conduct” were relied upon to establish willful
disobedience. (Appellant’s Br. p. 7). According to Hawk, the risk that she will
be “put in jeopardy for the same offense twice is not merely speculative but an
imminent reality” because she “has in fact been charged with [r]esisting [l]aw
[e]nforcement and [d]isorderly [c]onduct based on the same events of October
14, 2014 as formed the basis for the contempt action.” (Appellant’s Br. pp. 8-9).
[22] With the exception of Officer Batts’ incident report, which lists six offenses
supporting Hawk’s arrest, we find nothing in the record establishing that she
has officially been charged with resisting law enforcement, disorderly conduct,
or any other offense.2 There is no question that Hawk’s sanction was intended
to be punitive rather than remedial or coercive because the time for compliance
2
Hawk explains that the charges of resisting law enforcement and disorderly conduct “are currently pending
under Cause No. 06D02-1410-CM-542, which case is reference[d] in rhetorical paragraph 5 of the Petition for
Rule to Show Cause Hearing filed in this contempt action.” (Appellant’s Br. p. 6). We note that “rhetorical
paragraph 5” specifically refers to Officer Batts’ affidavit for probable cause, which does not include any
information about specific charges or the status of the case. (Appellant’s Br. p. 6).
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with the search warrant had long lapsed. See D.W. v. State, 673 N.E.2d 509,
511-12 (Ind. Ct. App. 1996), trans. denied. As such, the contempt sanction may
very well constitute “the first jeopardy” for purposes of a double jeopardy
analysis in the event that other charges have been or will be filed. Hunter v.
State, 802 N.E.2d 480, 483 (Ind. Ct. App. 2004), trans. denied. However,
whether any subsequent prosecution would actually violate the rule against
double jeopardy would depend upon the statutory elements of the charged
offenses and the factual bases upon which those new charges are predicated.
Ellis v. State, 634 N.E.2d 771, 773 (Ind. Ct. App. 1994). We have already
determined that Hawk was made aware of the facts giving rise to the charge of
contempt. Absent any information of additional charges that rely on the same
facts, we decline to engage in a purely speculative double jeopardy analysis. If
and when Hawk’s double jeopardy rights are implicated, it will be up to her to
make the relevant objections before the trial court. In this regard, we conclude
that the rule to show cause and the Information for contempt satisfied the due
process requirements of Indiana Code section 34-47-3-5(b), and we therefore
find no error, let alone fundamental error.
II. Reasonableness of Sanction
[23] Hawk claims that the trial court’s imposition of a 180-day jail sentence is an
inappropriate sanction. In general, a punishment for contempt is a matter
reserved to the sound discretion of the trial court. Hopping v. State, 637 N.E.2d
1294, 1298 (Ind.), cert. denied, 513 U.S. 1017 (1994). The trial court’s power to
punish contempt is limited only by reasonableness. Jones v. State, 847 N.E.2d
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190, 202 (Ind. Ct. App. 2006), reh’g denied, trans. denied. However, a trial court
may impose a maximum sentence of six months “for criminal contempt[]
without guilt or innocence being determined by a jury.” Holly v. State, 681
N.E.2d 1176, 1177 (Ind. Ct. App. 1997).
[24] Here, Hawk received the maximum sanction permitted in the absence of a jury
trial. In determining a proper sanction, the trial court explained to Hawk that it
“heard testimony today that has convinced the [c]ourt that you took actions
clearly calculated to prevent hospital personnel from drawing your blood.” (Tr.
p. 41). Moreover, the trial court found Hawk to be “the most resistant of any
person [that it has] heard testimony about in a [c]ourt on a[n] indirect contempt
hearing.” (Tr. p. 44).
[25] “[A] criminal contempt sanction is punitive in nature because its purpose is to
vindicate the authority of the court.” Jones, 847 N.E.2d at 199. In addition, a
punishment for criminal contempt is meant to “act as a deterrent for [the
defendant] and all others who might harbor the thought of defying an order of
[the court].” In re Perrello, 291 N.E.2d at 701. We find that Hawk’s 180-day
sentence effectuates both of these purposes. Hawk unequivocally announced
her disregard for the authority of the court and proceeded to verbally and
physically resist all efforts to execute the mandate of the search warrant. By her
actions, Hawk put herself, the officers, and Technician Clinkenbeard at risk of
injury or blood contamination. Moreover, by screaming, kicking, and flailing,
Hawk successfully thwarted the blood draw, thereby preventing Officer Batts
from collecting the necessary evidence to support a charge of operating while
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intoxicated. It would undermine the authority of all courts and render search
warrants meaningless if an individual subject to a warrant could forcibly resist
without fear of reprisal. As our supreme court has stated, “Open defiance of
the orders of [a court] will not be countenanced.” Id. Accordingly, we find that
Hawk’s sentence is reasonable in light of the given circumstances.
CONCLUSION
[26] Based on the foregoing, we conclude that Hawk was provided with adequate
notice of the charge against her, and the trial court imposed a reasonable
sanction of incarceration for 180 days.
[27] Affirmed.
[28] Bailey, J. and Barnes, J. concur
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