Dillard v. State

222 N.E.3d 338

Reginald DILLARD, Appellant-Petitioner

v.STATE of Indiana, Appellee-Respondent.

Court of Appeals Case No. 23A-PC-261

Court of Appeals of Indiana.

Filed October 24, 2023

Attorneys for Appellant: Jimmy Gurulé, Kevin Murphy, Exoneration Justice Clinic, Notre Dame Law School, South Bend, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Kelly A. Loy, Deputy Attorney General, Indianapolis, Indiana

Pyle, Judge.

Statement of the Case

[1] In January 2000, a jury convicted Reginald Dillard ("Dillard") of the August 1998 murder of Christopher Thomas ("Thomas"), and the trial court sentenced Dillard to sixty-five years in the Department of Correction. In October 2001, the Indiana Supreme Court affirmed Dillard's conviction on direct appeal. See Dillard v. State , 755 N.E.2d 1085 (Ind. 2001). In July 2022, Dillard, represented by attorneys Jimmy Gurulé ("Attorney Gurulé") and Elliot Slosar ("Attorney Slosar") filed a petition for post-conviction relief.¹ Also, in July 2022, Dillard filed a motion for a change of judge pursuant to Post-Conviction Rule 1(4)(b).² The post-conviction court denied Dillard's change of judge motion, and this interlocutory appeal concerns only the post-conviction court's denial of that motion.³ Dillard 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 Dillard's change of judge motion.⁴

[2] We affirm.

Issue

Whether the post-conviction court clearly erred when it denied Dillard's motion for a change of judge.

Facts

[3] In July 2022, Dillard, represented by Attorney Gurulé, filed a 273-page petition for post-conviction relief. In his petition, Dillard argued as follows:

An epidemic exists in Elkhart, Indiana where wrongful convictions are a predictable product of police misconduct, prosecutorial misconduct, and whirlwind trials. Tragically, these unjust convictions often take decades to unravel, leaving innocent men and women to languish in prison for crimes they did not commit[.] Given the newly discovered evidence discussed below, [Dillard]’s conviction must be overturned and a new trial ordered. After 22 years of wrongful incarceration, [Dillard] deserves to be Elkhart's next exoneree.

(2023 App. Vol. 2 at 22, 23).⁵

[4] Further, in this petition, Dillard argued that he was entitled to post-conviction relief because:

(1) he is actually innocent and has located newly discovered evidence materially relevant to his innocence that he could not with reasonable diligence have discovered and produced at trial; (2) he has new evidence demonstrating that the State's failure to disclose material exculpatory and impeachment evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and United States v. Giglio , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), materially affected his constitutional right to due process; and (3) he has new evidence demonstrating that the State relied upon perjured testimony at trial which could have impacted the judgment of the jury in violation of Gordy v. State , 270 Ind. 379, 385 N.E.2d 1145, 1146 (1979), State v. Hicks , 519 N.E.2d 1276, 1280-81 (Ind. Ct. App. 1988), State v. Royer , 166 N.E.3d 380, 404 (Ind. Ct. App. 2021), and Napue v. Illinois , 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

(2023 App. Vol. 2 at 36). According to Dillard, "[t]o date, no court has considered this evidence[,] and [e]ach ground provides an independent basis for [the post-conviction court] to vacate the judgment and grant [Dillard] a new trial." (2023 App. Vol. 2 at 36).

[5] Also, in July 2022, Dillard filed a thirty-five-page motion for a change of judge pursuant to Indiana Post-Conviction Rule 1(4)(b). In this motion, Dillard specifically argued that the post-conviction court should grant his change of judge motion because the post-conviction court judge had been a deputy prosecutor in the Elkhart County Prosecutor's Office from 1998 until 2002, "during the time of the investigation of the Christopher Thomas homicide and Mr. Dillard's trial." (2023 App. Vol. 3 at 105). According to Dillard, he "intend[ed] to seek discovery from all prosecutors employed by the [Elkhart County Prosecutor's Office] at this time, including [the post-conviction court judge], [Vicki] Becker, [current Elkhart Circuit] Judge [Michael] Christofeno [("Judge Christofeno")], and Curtis Hill, and present this evidence in support of his claims that the [Prosecutor's Office] and [the Elkhart Police Department] have long had a pattern and practice of failing to disclose Brady evidence[.]" (2023 App. Vol. 3 at 106). Dillard further argued that because the post-conviction court judge had worked in the prosecutor's office during this time, she would be a "material witness in the case as well." (2023 App. Vol. 3 at 120).

[6] Dillard further argued that the post-conviction court should grant his change of judge motion because the post-conviction court judge 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. According to Dillard, Cappelletti would be "a critical witness in support of Mr. Dillard's claims of [Elkhart Police Department] police misconduct[.]" (2023 App. Vol. 3 at 101). Dillard also argued that the post-conviction court should grant his change of judge motion because the post-conviction court judge "sits on the same bench as [Judge] Christofeno, who is implicated in significant misconduct" in his role as a deputy prosecutor when he worked on Dillard's murder case more than twenty years ago. (2023 App. Vol. 3 at 117).

[7] In addition, Dillard 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 judge had "already prejudged allegations identical to Mr. Dillard's to be ‘defamatory’ and false, based not on the evidence, but the Court's own extrajudicial prejudices and beliefs." (2023 App. Vol. 3 at 112). Dillard also argued that because the post-conviction court had ultimately granted Royer's motion for a change of judge, the post-conviction court should grant Dillard's motion for a change of judge as well.

[8] At this point, for a better understanding of Dillard's argument and the post-conviction court's response to this argument in its order denying Dillard'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), trans. denied.

[9] A few years later, in June 2018, 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." (2022 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." (2022 App. Vol. 3 at 57). In addition, Attorney Slosar stated that "we have proven that [Royer's] conviction was an absolute fraud and the conviction was based on intentional misconduct." (2022 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.

[10] 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 Dillard'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 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

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