State of Indiana v. Tammy R. Herrmann

FILED Jul 29 2020, 10:11 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Michael C. Cunningham Attorney General Judson G. McMillin Mullin, McMillin & Angela N. Sanchez McMillin, LLP Assistant Section Chief, Brookville, Indiana Criminal Appeals Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

State of Indiana, July 29, 2020 Appellant-Plaintiff, Court of Appeals Case No. 20A-CR-307 v. Appeal from the Franklin Circuit Court Tammy R. Herrmann, The Honorable Appellee-Defendant Clay M. Kellerman, Judge Trial Court Cause No. 24C02-1812-F5-1262

Vaidik, Judge.

Case Summary [1] After Tammy R. Herrmann was indicted by a Franklin County grand jury for

theft and forgery, she filed a petition to appoint a special prosecutor, alleging

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that one of the three deputy prosecutors in the Franklin County Prosecutor’s

Office had a conflict of interest and therefore the whole office should be

disqualified. The trial court granted the petition and appointed a special

prosecutor. The State now appeals. [2] It is well settled that if the elected prosecutor has a conflict of interest, the whole

office is disqualified. However, it is not necessary to disqualify the whole office

if one deputy has a conflict of interest. Here, it is not necessary to disqualify the

whole office, since the deputy prosecutor who has the conflict is a part-time

deputy who primarily handles child-support matters and has had no

involvement in the criminal case against Herrmann. We therefore reverse the

trial court.

Facts and Procedural History [3] The Franklin County Prosecutor’s Office consists of the elected prosecutor and

three deputy prosecutors. Eugene Stewart is a part-time deputy prosecutor who

also maintains a private practice. Although Stewart primarily handles child-

support matters, see Tr. p. 8, his appearance has been entered in criminal cases

too.1

1 In a separate order issued today, we grant Herrmann’s motion to take judicial notice that Stewart’s appearance has been entered in criminal cases.

Court of Appeals of Indiana | Opinion 20A-CR-307 | July 29, 2020 Page 2 of 6 [4] In 2018, Stewart represented the Estate of Evelyn Anthony. See Case No.

24C01-1808-EU-559. At some point, Maria Hensley, Evelyn’s niece and the

personal representative of the Estate, told Stewart she was concerned about

several checks written from Evelyn’s account. Either Stewart or Maria

contacted the prosecutor’s office, and an investigation ensued. [5] In December 2018, a grand jury indicted Herrmann, a home healthcare worker,

for Level 5 felony theft and Level 6 felony forgery, alleging that she stole over

$50,000 from Evelyn’s account between 2012 and 2018. Stewart has had no

involvement with the criminal case against Herrmann. Id. at 8, 17. [6] About a year later, in November 2019, Herrmann filed a petition to appoint a

special prosecutor under Indiana Code section 33-39-10-2(b)(2). Specifically,

she alleged that the Franklin County Prosecutor’s Office had an “actual conflict

of interest” because of Stewart’s representation of the Estate. Appellant’s App.

Vol. II p. 33. Following a hearing, the trial court granted Herrmann’s petition

and appointed the Dearborn County Prosecutor as special prosecutor.

Specifically, the court found that “clear and convincing evidence has been

presented establishing that the Franklin County Prosecutor’s Office has an

actual conflict of interest[.]” Appellant’s App. Vol. II p. 45. [7] The State now brings this interlocutory appeal.

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Discussion and Decision [8] The State appeals the trial court’s grant of Herrmann’s petition to appoint a

special prosecutor. We review a trial court’s grant or denial of such a petition

for an abuse of discretion. Camm v. State, 957 N.E.2d 205, 209 (Ind. Ct. App.

2011), trans. denied. [9] The appointment of a special prosecutor is governed by Indiana Code section

33-39-10-2, which provides, in relevant part, that a trial court may appoint a

special prosecutor if:

(A) a person files a verified petition requesting the appointment of a special prosecutor; and

(B) the court, after:

(i) notice is given to the prosecuting attorney; and

(ii) an evidentiary hearing is conducted at which the prosecuting attorney is given an opportunity to be heard;

finds by clear and convincing evidence that the appointment is necessary to avoid an actual conflict of interest . . . .

Ind. Code § 33-39-10-2(b)(2). The petitioner must produce evidence of an actual

conflict of interest. Larkin v. State, 43 N.E.3d 1281, 1285 (Ind. Ct. App. 2015);

Camm, 957 N.E.2d at 210. The purpose of the special-prosecutor statute is to

protect the State’s interest in preserving the public confidence in the criminal-

justice system and ensuring that the prosecutor serves the ends of justice. Camm,

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957 N.E.2d at 210. “The public trust in the integrity of the judicial process

requires that any serious doubt be resolved in favor of disqualification.”

Williams v. State, 631 N.E.2d 485, 487 (Ind. 1994), reh’g denied. [10] Here, Herrmann requests that the entire Franklin County Prosecutor’s Office be

disqualified based on Stewart’s conflict of interest. It is well settled that once the

elected prosecutor is disqualified, the whole office is disqualified “in order to

maintain the integrity of the process of criminal justice.” State ex rel. Goldsmith v.

Superior Court of Hancock Cnty., 270 Ind. 487, 491, 386 N.E.2d 942, 945 (1979);

see also Larkin, 43 N.E.3d at 1285; Banton v. State, 475 N.E.2d 1160, 1164 (Ind.

Ct. App. 1985). The whole office is disqualified because the “prosecuting

attorney exercises authority over and speaks through his deputies.” Goldsmith,

270 Ind. at 491, 386 N.E.2d at 945. [11] However, it is not necessary to disqualify the whole office when one deputy

prosecutor has a conflict of interest. Williams, 631 N.E.2d at 487; see also Page v.

State, 689 N.E.2d 707, 709 (Ind. 1997). This is because the conflict of one

deputy generally does not affect the other deputies in the office. Goldsmith, 270

Ind. at 490, 386 N.E.2d at 945; Larkin, 43 N.E.3d at 1286; see also Johnson v.

State, 693 N.E.2d 941, 953 (Ind. 1998) (noting that “the principal holding in

State ex rel. Goldsmith was that the disqualification of an individual deputy

prosecutor did not mandate the disqualification of the prosecutor or the rest of

the prosecutor’s office”), reh’g denied; Swallow v. State, 19 N.E.3d 396, 400 (Ind.

Ct. App. 2014) (the fact that the deputy prosecutor previously represented the

defendant did not require the recusal of the entire prosecutor’s office since that Court of Appeals of Indiana | Opinion 20A-CR-307 | July 29, 2020 Page 5 of 6

deputy did not work on the defendant’s case), trans. denied. Indiana’s approach

to the disqualification of prosecuting attorneys due to a conflict of interest has

primarily been a “top-down” approach, whereby an elected prosecutor’s

conflict is imputed to the deputies, but not vice-versa. [12] Herrmann acknowledges this rule but claims that Stewart’s conflict of interest

requires the disqualification of the whole office given its small size. Herrmann,

however, cites no cases where the conflict of one deputy prosecutor required the

whole office to be disqualified. In any event, the State argues that the size of the

office does not matter here since Stewart primarily handles child-support

matters, and he has not worked on the criminal case against Herrmann. We

agree with the State. Although Stewart has a conflict of interest given his

involvement in the Estate case, it does not require the whole office to be

disqualified.2 We therefore reverse the trial court’s order appointing a special

prosecutor and remand this case to the trial court for further proceedings. [13] Reversed and remanded.

Baker, J., and Bailey, J., concur.

2 Herrmann claims that Stewart has a financial interest in the outcome of this case, as he stands to gain more attorney’s fees in the Estate case if she is convicted and ordered to pay restitution to the Estate. At the hearing, Stewart testified that he was paid a flat fee in the Estate case, that his fee had been paid, that his involvement in the Estate case was over, and that if Herrmann was ordered to pay restitution to the Estate he would not get any of it and it would go straight to the beneficiaries. Tr. p. 7. The record does not support Herrmann’s claim that Stewart has a financial interest in the outcome of this case.

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