State of Indiana v. Samuel E. Vande Brake

FILED
Apr 03 2020, 6:17 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr. Ross G. Thomas
Attorney General of Indiana Indianapolis, Indiana
Justin F. Roebel
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, April 3, 2020
Appellant-Plaintiff, Court of Appeals Case No.
19A-CR-1772
v. Appeal from the Tippecanoe
Superior Court
Samuel E. Vande Brake, The Honorable Randy Williams,
Appellee-Defendant, Judge
Trial Court Cause No.
79D01-1903-F1-5
Robb, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 1 of 15
Case Summary and Issue
[1] Following an incident in which Samuel Vande Brake shot his roommate, the
State charged him with several battery offenses, criminal recklessness, and
attempted murder. Before trial, the State filed a motion to add a firearm
enhancement, which the trial court granted. A jury found Vande Brake guilty
of aggravated battery, a Level 3 felony; battery by means of a deadly weapon
and battery resulting in serious bodily injury, both Level 5 felonies; and
criminal recklessness committed with a deadly weapon, a Level 6 felony. The
jury found Vande Brake not guilty of attempted murder. After the jury
delivered its verdicts, the trial court accepted the verdicts and thanked the jury.
The jury was excused and permitted to leave the courtroom. The State then
raised the firearm enhancement issue and the trial court responded that the
enhancement was never discussed at any time prior to and during the trial. The
trial court sua sponte dismissed the enhancement as “a matter of course” and the
State did not object.
[2] Following the dismissal of the enhancement, the State filed a motion to correct
error requesting that the firearm enhancement be reinstated. The trial court
denied the motion. At sentencing, the trial court entered judgment of
conviction for aggravated battery, a Level 3 felony, and the remaining counts
were vacated. The trial court sentenced Vande Brake to serve nine years in the
Indiana Department of Correction (“DOC”), two of which were suspended to
probation. The State appeals and raises one issue for our review, namely
whether the trial court abused its discretion when it dismissed the firearm
Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 2 of 15
enhancement sua sponte. Concluding the trial court abused its discretion, we
reverse the dismissal of the firearm enhancement and remand with instructions
for the trial court to impanel a new jury to hear the enhancement charge.
Facts and Procedural History
[3] Since June 2017, Vande Burke and his friend, Tristan Fernandez, had been
living as roommates in Vande Burke’s parents’ basement in Lafayette, Indiana.
On October 19, 2017, law enforcement officers responded to a report by Vande
Burke’s mother, Barb, that Vande Burke had shot Fernandez in their basement.
When officers arrived, they found Fernandez in the basement and rendered first
aid until an ambulance arrived. Barb told officers that earlier that afternoon,
Vande Burke was angry and told her he intended to kick Fernandez out of the
house. At some point later, Barb heard “loud angry voices[,]” overheard Vande
Brake say “get out,” and then heard a shot. Appellant’s Appendix, Volume 2 at
17. Barb went downstairs where she saw Fernandez on the floor with blood on
him; Vande Brake told Barb that Fernandez had been shot.
[4] Fernandez was admitted to the hospital and treated for a gunshot wound to the
chest. The next day, officers spoke with Fernandez, who stated he and Vande
Brake had been living in the basement of Vande Brake’s parents’ home. On
October 19, Vande Brake got upset and told Fernandez to pack his things and
leave the residence. As Fernandez was packing, Vande Brake came downstairs,
became “hostile and began yelling at him and at one point . . . pulled out a
handgun.” Id. Vande Brake put the gun to Fernandez’s chest and Fernandez
Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 3 of 15
pushed the gun away and told Vande Brake not to pull the gun on him. Vande
Brake then shot him in the chest.1
[5] On October 26, 2017, the State charged Vande Brake with the following: Count
I, aggravated battery, a Level 3 felony; Count II, battery by means of a deadly
weapon, a Level 5 felony; Count III, battery resulting in serious bodily injury, a
Level 5 felony; and Count IV, criminal recklessness, a Level 6 felony, under
Case No. 79D01-1710-F3-26. On November 3, the State filed a motion to add
a “use of firearm” sentence enhancement. The trial court granted the motion
and directed the magistrate to conduct an initial hearing on the new count. See
id. at 24-26.
[6] Following an initial hearing, the magistrate issued an order stating that “[a]ll
proposed final instructions shall be submitted prior to the commencement of
trial but need not be exchanged with opposing counsel until the conclusion of
the evidence in this case.” Id. at 27. Vande Brake was ordered not to have any
contact with the victim in this case. In addition, the order required that an
objection to any portion of the order must be made in writing and filed within
fifteen days of the order’s entry. See id. at 30. No objections were filed.
[7] Vande Brake subsequently filed a Notice of Self-Defense. On December 28,
2018, the State filed a Motion to Add Additional Count of attempted murder, a
1
As the transcript and corresponding exhibits from the jury trial were not included in the record on appeal,
the underlying facts set forth in the first two paragraphs are derived solely from the probable cause affidavit
contained in the State’s Appendix.
Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 4 of 15
Level 1 felony. In its motion, the State also requested that the attempted
murder count be listed as Count V and the previously filed firearm
enhancement be listed as Count VI. See id. at 55. Over Vande Brake’s
objection, the trial court granted the State’s motion and later ordered the clerk
to assign a new cause number to the case. On March 26, 2019, all counts from
the previous case number were transferred to a new case number that also
included the attempted murder count: Case No. 79D01-1903-F1-5. See id. at 66-
67. Notably, neither Chronological Case Summary (“CCS”) lists the firearm
enhancement as a charged offense in the Case Information section. See id. at 2,
67. However, the CCS for Case No. 26 reflects the State’s motion to add the
enhancement and the trial court’s grant of that motion. See id. at 4-5. The State
never brought this to the trial court’s attention, nor did it mention the firearm
enhancement or the need for bifurcated proceedings at any pre-trial hearings in
which trial procedure was discussed.
[8] Vande Brake filed his proposed jury instructions on June 12, 2019. The State
filed its proposed preliminary and final instructions the next day, none of which
mentioned the firearm enhancement or bifurcation. The trial court provided its
preliminary instructions the same day. A jury trial was held on June 18-20,
2019. Ultimately, the jury found Vande Brake guilty of Counts I through IV
and not guilty of Count V (attempted murder). Following the verdicts, the trial
court accepted the verdicts and thanked the jury:
The Court: Court accepts the verdicts enters judgment of
conviction as to counts one, two, three and
Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 5 of 15
four and enters of acquittal as to count five.
Ladies and gentleman I want to thank you, it
took almost an entire three days. I hope you
– the things I talked about when you first got
here I hope they proved to be true in terms of
how important this process is and that going
through the process is something that not
necessarily that you would enjoy but you
understand the importance and that you
would be glad that you did it. We all thank
you for your time and efforts throughout this
process. I would ask that when you are
excused if you could please wait for me back
in the jury room, and I’ll be back in there in
just a couple minutes. Alright.
Court Bailiff: All rise.
[At this time the jury is excused and permitted to leave the
courtroom]
The Court: You may be seated, thank you.
Transcript, Volume 1 at 5-6.
[9] However, after this, the State immediately said, “Judge, there’s a firearm
enhancement that would attach to the aggravated battery count.” Id. at 6. The
trial court responded:
We’ve never talked about that. It was not discussed. It was not
discussed at any time during the course of this trial. It was not
discussed prior to and in preparation of this trial. I – there was
nothing stated about a jury. The jury has now been excused.
The defendant has not waived jury as to that. The Court
Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 6 of 15
dismisses it as a matter of course. Okay, seventy-two hours,
three days to confer about what will happen if that was the case.
We were here last night after the close of evidence, since 11:00
o’clock, 10:00 o’clock today, we’ve had the opportunity to
discuss that matter and nothing has been raised. . . .
Id.2 The State did not respond or object to the dismissal of the enhancement at
this time.
[10] Instead, on June 27, the State filed a Motion to Correct Error requesting that
the trial court reinstate the firearm enhancement. In support of reinstatement,
the State relied on Indiana Code section 35-50-2-11(f), which states that if an
individual is convicted of an offense defined by subsection (b) – here,
aggravated battery – “in a jury trial, the jury shall reconvene to hear evidence in
the enhancement hearing.” The State argued that “[a]t no point prior to the
trial or during the trial proceedings did defense counsel claim the enhancement
was untimely filed, or that he lacked notice that it would be tried, or that there
was any procedural defect in the filing.” Appellant’s App., Vol. 2 at 90. The
State suggested the following remedies with respect to the requested
reinstatement of the enhancement:
a. Empanel a new jury for the purposes of hearing evidence,
deliberating upon, and rendering a decision on the firearm
enhancement.
2
Notably, the same judge who granted the State’s motion to add the firearm enhancement also presided over
the trial and dismissed the enhancement. See Appellant’s App., Vol. 2 at 26; see generally Tr., Vol. 1.
Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 7 of 15
i. In Carter v. State, the trial court decided after the
original jury returned guilty verdict [sic] that its calendar
did not allow for an immediate Habitual Offender trial, so
it dismissed the original jury and called a new jury several
weeks later for a separate Habitual Offender trial. Carter v.
State, 505 N.E.2d 798, 801 (Ind. 1987).
ii. In Wade v. State, the trial court decided that the first
jury had done enough work when it returned a guilty
verdict after a five-day trial and that it would be
“inconvenient” to have them wait over a weekend to do
the Habitual Offender portion of the trial. Therefore, the
Court dismissed the first jury and empaneled a new jury
over six weeks later to do the Habitual Offender portion of
the trial. Wade v. State, 718 N.E.2d 1162, 1169 (Ind. Ct.
App. 1999).
b. Allow [Vande Brake] the opportunity to waive the
enhancement portion of the jury trial to a bench trial.
c. Allow [Vande Brake] the opportunity to admit to the
enhancement. During the trial, [Vande Brake] admitted to using
the firearm to shoot the victim while claiming self-defense.
Ultimately, the jury rejected his defense. With this only being an
enhancement, admitting to the enhancement would not affect
[Vande Brake]’s appellate rights – should the count to which the
enhancement attaches get reverse, so too would the
enhancement.
Id. at 91.
[11] Vande Brake responded, requested that the trial court deny the State’s motion
to correct error, and asserted:
Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 8 of 15
4. The trial is over. There is no jury to call back. There is no
time to have yet another jury trial before sentencing.
5. There before trial the State of Indiana submitted
Preliminary Instructions that did not mention a single word
about bifur[ca]tion or the Sentencing Enhancement.
6. That during the course of the trial, despite the State being
represented by two (2) Deputy Prosecuting Attorneys, was not a
single, solitary word about the Firearms Enhancement was
mentioned by the State and not a word before the dismissal of the
jury.
Id. at 93. The trial court subsequently denied the State’s motion to correct
error.
[12] After the trial court’s denial but prior to sentencing, the State filed two motions
– a Motion to Stay Sentencing Pending Appeal and a Motion to Reconsider
State’s Motion to Correct Error – but later withdrew these motions at the
sentencing hearing, which was held on July 19, 2019. See id. at 97-98, 101-02.
At sentencing, the trial court entered judgment of conviction on Count I only,
aggravated battery, a Level 3 felony, and vacated Counts II, III, and IV. The
trial court sentenced Vande Brake to serve nine years, seven years executed in
the DOC and two years suspended to probation. See Sentencing Order at 2.
The State now appeals.
Discussion and Decision
Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 9 of 15
I. Standard of Review
[13] Here, the State appeals from a negative judgment.
A judgment entered against a party bearing the burden of proof is
a negative judgment. On appeal from a negative judgment, this
Court will reverse the trial court only if the judgment is contrary
to law. A judgment is contrary to law if the evidence leads to but
one conclusion and the trial court reached an opposite
conclusion. In determining whether the trial court’s judgment is
contrary to law, we will consider the evidence in the light most
favorable to the prevailing party, together with all reasonable
inferences therefrom. We neither reweigh the evidence nor judge
the credibility of witnesses. Further, “[w]hen appealing from a
negative judgment, a party has a heavy burden to establish to the
satisfaction of the reviewing court that there was no basis in fact
for the judgment rendered.”
Burnell v. State, 56 N.E.3d 1146, 1149-50 (Ind. 2016) (internal citations omitted).
II. Dismissal of Firearm Enhancement
[14] The State argues the trial court improperly dismissed the firearm enhancement
because it lacked the authority to do so. We review a trial court’s decision to
dismiss a charging information for abuse of discretion. State v. Davis, 898
N.E.2d 281, 285 (Ind. 2008). And we will reverse only where the decision is
clearly against the logic and effect of the facts and circumstances. State v. Isaacs,
794 N.E.2d 1120, 1122 (Ind. Ct. App. 2003).
[15] “Ordinarily, a trial court may not sua sponte dismiss an action unless the court
lacks jurisdiction or is otherwise authorized by statute or the rules of
Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 10 of 15
procedure.” Zavodnik v. Richards, 984 N.E.2d 699, 703 (Ind. Ct. App. 2013)
(internal quotation omitted). Pursuant to the Indiana Code, upon motion by the
defendant or State, a trial court has the authority to dismiss an indictment or
information based on any of the enumerated statutory grounds. Ind. Code §§
35-34-1-4, 35-34-1-13. In addition, our supreme court has recognized a trial
court’s “inherent authority to dismiss criminal charges where the prosecution of
such charges would violate a defendant’s constitutional rights.” Davis, 898
N.E.2d at 285.
[16] With respect to a firearm enhancement, “[t]he state may seek, on a page
separate from the rest of a charging instrument, to have a person who allegedly
committed an offense sentenced to an additional fixed term of imprisonment if
the state can show beyond a reasonable doubt that the person knowingly or
intentionally used a firearm in the commission of the offense.” Ind. Code § 35-
50-2-11(d). An “offense” is defined as (1) a felony under Indiana Code article
35-42 that resulted in death or serious bodily injury; (2) kidnapping; or (3)
criminal confinement as a Level 2 or Level 3 felony. Ind. Code § 35-50-2-11(b).
If a person is convicted of an offense in subsection (b) of the statute “in a jury
trial, the jury shall reconvene to hear evidence in the enhancement hearing.”
Ind. Code § 35-50-2-11(f). And if the State proves the firearm enhancement, the
trial court may impose an additional fixed term of imprisonment of between
five and twenty years. Ind. Code § 35-50-2-11(g). There is no dispute that the
State properly filed the enhancement or that Vande Brake’s conviction is a
qualifying offense.
Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 11 of 15
[17] Here, the State contends that once Vande Brake was convicted of the predicate
offense, namely aggravated battery, and the State reminded the trial court that
the prerequisite for the enhancement phase was met, the trial court was then
required to reconvene the jury. The State further asserts that the trial court’s
“request for the jury to wait outside for him to confer with counsel was
consistent with the court still contemplating the possibility of a second phase.”
Brief of Appellant at 10 n.1.
[18] Vande Brake argues that “[w]hile the State would have been entitled to a
bifurcated trial and a second phase following the jury’s verdict, it waived that
procedure by failing to follow court rules in the preparation and conduct of the
trial.” Brief of Appellee at 8. In support of this proposition, Vande Brake relies
on the trial court’s Initial Hearing Order issued by the magistrate which, in part,
stated that “[a]ll proposed final instructions shall be submitted prior to the
commencement of trial but need not be exchanged with opposing counsel until
the conclusion of the evidence in this case.” Appellant’s App., Vol. 2 at 27.
Vande Brake notes that under Indiana’s Pattern Jury Instructions, “[a] proper
second stage of a bifurcated trial would require that such instructions be given.”
Br. of Appellee at 10. The State counters that they are not required by rule or
statute to submit jury instructions and instead, jury instructions are left to the
discretion of the trial court.
[19] We agree that neither the trial court order nor the trial rules required that the
State offer instructions on the enhancement phase. See Denton v. State, 496
N.E.2d 576, 581 (Ind. 1986); Ind. Trial Rule 51(C) (“At the close of the
Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 12 of 15
evidence and before argument each party may file written requests that the court
instruct the jury on the law as set forth in the requests.” (emphasis added)); T.R.
51(D). Here, the State properly filed a motion to add the firearm enhancement
count; the trial court granted the motion and therefore, was clearly aware of the
enhancement charge; neither the State nor Vande Brake moved to dismiss the
enhancement; the enhancement was pending throughout this case; and the trial
court lacked a legitimate basis for dismissing the enhancement sua sponte. We
therefore conclude the trial court abused its discretion when it dismissed a
legitimate and pending charge.
[20] We pause briefly to comment on the State’s shortcomings in this matter at the
trial court level. The heart of this dispute is rooted in the State’s tenuous
performance with respect to the enhancement. Except for the initial filing and
the trial court’s grant of the firearm enhancement, there is no evidence in the
record that the State raised the firearm enhancement or bifurcation in any
manner – it was not discussed prior to or during trial, was not included in any
proposed preliminary or final instructions, and was not included in the trial
court’s preliminary or final instructions. Furthermore, the State failed to object
to the trial court’s dismissal of the firearm enhancement on the spot and while,
presumably, the jury was still in the courthouse, waiting instead to file a motion
to correct error nearly one week later. And despite filing the enhancement
count, the State was careless in failing to observe that the count had not been
added to either CCS. We emphasize that parties bear a responsibility to
manage their cases and assist the court; a party may not sit idly by and
Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 13 of 15
subsequently place the blame elsewhere for their own shortcomings. Although
the State may not have been required to submit jury instructions on the issue,
the State, having the burden of proof in both phases, had an obligation to raise
the issue in a timely manner. But for the enhancement statute’s requirement
that the jury reconvene to hear the enhancement phase, this issue would have
been waived under these circumstances. We therefore take this opportunity to
remind the State to be mindful of this responsibility in the future.
[21] Nonetheless, our jurisprudence permits the trial court to impanel a new jury on
the enhancement phase as an appropriate remedy. See Carter v. State, 505
N.E.2d 798, 801 (Ind. 1987) (no error when the a trial court decided to impanel
a new jury for the habitual offender phase because the trial judge’s calendar did
not allow a trial on the habitual offender phase for several weeks); Wade v. State,
718 N.E.2d 1162, 1169 (Ind. Ct. App. 1999) (holding that, when necessary, a
trial court is authorized to impanel a new jury to hear a habitual charge), trans.
denied. And as such, we reverse the trial court’s dismissal of the enhancement
and remand with instructions that the trial court impanel a new jury to try
Vande Brake on the enhancement.
Conclusion
[22] We conclude that the trial court abused its discretion in dismissing the firearm
enhancement. Accordingly, we reverse the dismissal of the firearm
enhancement and remand to the trial court with instructions to impanel a new
jury to hear the enhancement charge.
Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 14 of 15
[23] Reversed and remanded.
Riley, J., and May, J., concur.
Court of Appeals of Indiana | Opinion 19A-CR-1772 | April 3, 2020 Page 15 of 15