INDIANA COURT OF APPEALS ORAL ARGUMENT AT A GLANCE SWITZERLAND COUNTY COURTHOUSE Derek Scott Geiger v. State of Indiana Appeal from: Oral Argument: Harrison Superior Court Wednesday, May 2, 2007 The Honorable Roger D. Davis, 10:30—11:10 a.m. Judge 20 minutes each side CRIMINAL LAW PRETRIAL DISCOVERY Did the State’s violation of a pretrial discovery order deny Mr. Geiger a fair trial? DOUBLE JEOPARDY Do Mr. Geiger’s two convictions for Impersonating a Public Servant violate the Double Jeopardy clause of the Indiana Constitution? PROPRIETY OF ENHANCED, CONSECUTIVE SENTENCES Did the Harrison County trial court err when it ordered Mr. Geiger’s enhanced twelve-year sentence to run consecutively to a Floyd County sentence? APPROPRIATENESS OF SENTENCE Is Mr. Geiger’s sentence appropriate in light of the nature of his offenses and his character? CASE SYNOPSIS Facts and Procedural and Beth told James, “I bet it’s police offi- History cers.” James pulled over to the side of the road and two men with firearms exited the On July 22, 2005, James and Beth Land Rover, quickly approached the Skaggs left their home in Harrison County at Skaggses, and yelled at them to exit their approximately 5:00 a.m. to drive to work. vehicle. Two other men remained near the As they exited their driveway, Beth observed Land Rover. a Land Rover in the distance, which she con- sidered unusual because of the early hour Defendant Derek Scott Geiger ap- and the couple’s rural location. As the vehi- proached James, pointed a nine- cle erratically approached the Skaggses, millimeter Glock handgun at him, told him Beth said, “Honey, pull over and let these that the men were with a narcotics drug idiots pass us.” James and Beth immedi- force, and alerted him that he and his wife ately noticed that the vehicle had flashing were under suspicion for drug dealing. blue and red lights in its front windshield, Geiger, who was wearing a shirt displaying Page 2 INDIANA COURT OF APPEALS Derek Scott Geiger v. State of Indiana CASE SYNOPSIS a police logo, proceeded to frisk James. interviewed Geiger. After signing a Meanwhile, the man near Beth asked her waiver, Geiger admitted that he was for her identification and bankcard, and the owner of the Glock handgun both men searched Beth’s bag and the and that he had had it with him vehicle’s glove box. Suddenly, a man during the Harrison County inci- near the Land Rover who appeared to be dent, but he insisted that he had re- on a police radio yelled, “Come on, let’s mained in the backseat of the Land go. We got a call. Let’s go, let’s go, let’s Rover during the encounter. go.” The four men immediately returned to the Land Rover and drove off. On August 22, 2005, the State charged Geiger with two While Beth and James were both counts of class D felony impersonat- distressed, they did not immediately call ing a public servant, two counts of the police because they believed that the class B felony criminal confinement, four men had been police officers. How- two counts of class A misdemeanor ever, when Beth told her brother-in-law unlawfully pointing a firearm, and about the incident later that day, he con- two counts of class D felony crimi- tacted the Harrison County Police De- nal recklessness. Geiger filed a mo- partment and learned that there had not tion for discovery and production of been a police stop near the Skaggses’ evidence on November 16, 2005, re- home that morning. After speaking with questing, among other items, that the police, James selected Geiger’s pho- the State turn over all recorded tograph from a photographic array and statements that Geiger had made to identified him as the man who had the police. The trial court granted pointed a gun at him and frisked him Geiger’s motion the same day, and during the encounter. the State produced the relevant evi- dence on December 1, 2005. As the police began to investigate, they learned that police stops had also On Friday, August 11, 2005— been feigned in Floyd County and Clark four days before the jury trial was County the same day. Floyd County Po- scheduled to begin—the Harrison lice Department Officer Thad Neafus ob- County prosecutor received a copy tained a search warrant for Geiger’s resi- of the Floyd County videotape con- dence and his vehicle, a Land Rover. A taining Geiger’s July 31, 2005, search of Geiger’s residence uncovered statement to police. It was the first red and blue strobe lights and copies of time that the prosecutor had seen two books commonly read by law en- the videotape, and he immediately forcement officers at the Indiana State contacted Geiger’s defense counsel, Police Academy. A search of Geiger’s ve- Nicolas Haverstock, and invited hicle uncovered a loaded nine-millimeter him to watch the videotape that af- Glock handgun. ternoon. Haverstock declined the invitation. On July 31, 2005, Floyd County Police Department Officer Russell Wyatt A jury trial was held on Derek Scott Geiger v. State of Indiana Page 3 Case Synopsis (continued) August 15, 2006, and the State played December discovery production the relevant portions of the videotape referenced the Floyd County in- for the jury. After hearing all of the terview, although, as the State evidence, the jury acquitted Geiger of admits, it did not actually in- the class A misdemeanor unlawfully clude the videotape. Further- pointing a firearm charge related to more, the State asserts that it Opinion in this Beth but found him guilty on the promptly notified Geiger’s attor- case expected: seven remaining charges. On Sep- ney after discovering the video- By end of sum- tember 5, 2006, the trial court sen- tape and gave him an opportu- tenced Geiger to an aggregate term of nity to view the tape. The State mer 2007 twelve years imprisonment and or- argues that Geiger’s proper rem- dered that the sentence run consecu- edy was to seek a trial continu- Mrs. Stearns will tively to an aggregate ten-year sen- ance, which he failed to do. be informed tence that Geiger had received for the when the Court Floyd County incident. Geiger now II. Double Jeopardy has issued an appeals. The principle of double opinion in this jeopardy protects a defendant from being punished multiple case. Check the Parties’ Arguments Court’s website to I. The Videotape times for the same actions. Gei- Geiger argues that the State ger argues that his two convic- read the opinion. violated a pretrial discovery order by tions for impersonating a public not producing a copy of the videotape, servant violate the Double Jeop- which contained his statement to the ardy Clause of the Indiana Con- For more Floyd County Police Department. stitution. Geiger argues that the information, While Geiger admits that the State statute that makes impersonat- please visit the gave his attorney an opportunity to ing a public servant a criminal Indiana Court of view the videotape four days before offense focuses on the perpetra- Appeals website the trial, Geiger contends that the tor’s state of mind when com- at http://www. State’s failure to actually give him a mitting the crime, not on the in.gov/ copy of the videotape deprived him of number of victims to whom the judiciary/ a fair trial. Geiger further argues that defendant misrepresents him- appeals/ the videotape was overwhelmingly self. Thus, Geiger asserts that prejudicial because, in the footage the State used the same evidence Or contact: relevant to the Harrison County of- to establish the material ele- Maura Pierce fenses, he admits that he was present ments of both impersonating a Indiana Court of at the scene of the crime with a fire- public servant convictions and that we must vacate one convic- Appeals arm. 115 W. Washington tion on appeal. Street The State argues that it Suite 1270 South promptly responded to Geiger’s dis- The State focuses on the two victims of Geiger’s offense— Indianapolis, covery request in December and that, Beth and James. The State ar- IN 46204 at the time of its response, it was un- gues that Geiger’s conduct was (317) 234-4859 aware of the videotape. The State contends that Geiger was on notice of not directed at society as a whole E-mail: the videotape because the State’s and, instead, was directed spe- mpierce@courts. cifically at Beth and James. state.in.us Derek Scott Geiger v. State of Indiana Page 4 Case Synopsis Thus, the State contends that Gei- convictions, which would result in B. Appropriateness ger’s two convictions for imperson- an aggregate sentence of ten years Geiger argues that his ating a public servant were proper imprisonment to run consecutively sentence is inappropriate in and should be upheld. to the Floyd County sentence. light of the nature of the of- fenses and his character. Re- III. Sentencing The State first argues that garding the nature of the of- Before Geiger’s trial began trial court had the authority to order fenses, Geiger points out that in Harrison County, he pleaded Geiger’s twelve-year sentence to run he did not physically harm guilty to armed robbery in Floyd consecutively to the Floyd County Beth or James and notes that County and that trial court sen- sentence because the Harrison the perpetrators did not steal tenced him to an aggregate term of County and Floyd County offenses the Skaggses’ vehicle or pos- ten years imprisonment. In the were not a single episode of criminal sessions. As for his charac- case before us, the Harrison County conduct. Although the offenses oc- ter, Geiger argues that he trial court sentenced Geiger to curred the same day, the State ar- had no prior criminal history twelve years imprisonment and or- gues that they did not stem from a except for the Floyd County dered that the sentence run con- single episode of criminal conduct. armed robbery conviction. secutively to the Floyd County sen- In support of its argument, the State In sum, Geiger argues that tence. notes that the Harrison County of- the trial court’s sentence is fenses and the Floyd County of- inappropriate because he A. Consecutive, Enhanced Sen- fenses can each be described without had no prior criminal history tences reference to the other. and simply made an error in Geiger first argues that the Harri- judgment when he commit- son County trial court did not have In response to Geiger’s argument ted the offenses. the authority to impose the twelve- that we follow the sentencing analy- year sentence consecutively to the sis in Robertson, the State directs us The State argues that Floyd County sentence. Specifi- to White v. State and argues that Geiger’s sentence is not inap- cally, Geiger directs us to an Indi- Robertson squarely conflicts with propriate in light of the na- ana statute that requires the trial White. In sum, the State argues that ture of the offenses and his court to find an aggravating cir- Robertson’s interpretation of the character. Regarding the na- cumstance to impose consecutive amended sentencing statutes pro- ture of the offenses, the State sentences. Geiger notes that the hibits a trial court from imposing argues that Geiger’s “reward” only aggravating factor that the consecutive sentences on the worst for not physically harming Harrison Country trial court cited offenders, which was not what the Beth or James was that he was the Floyd County conviction, legislature intended. Therefore, the was not charged with crimes which was an improper basis on State asks that we follow the analysis such as battery or attempted which to impose consecutive sen- in White. murder. Turning to Geiger’s tences. character, the State argues that Geiger’s actions show Alternatively, Geiger argues his failure to lead a law- that if the trial court had the au- abiding life and his desire to thority to impose consecutive sen- be entertained at the expense tences, Indiana Code sections 35- of others. In sum, the State 50-1-1.3(c) and -2 required the trial argues that Geiger’s sentence court to impose the advisory sen- is not inappropriate, and it tences, as a panel of our court re- requests that we uphold the cently held in Robertson v. State. sentence imposed by the trial Thus, Geiger requests that, at a court. minimum, we remand his case to the trial court and order it to im- pose the advisory sentence for his Derek Scott Geiger v. State of Indiana Page 5 TODAY’S PANEL OF JUDGES The Court of Appeals hears Hon. John G. Baker (Monroe County), Presiding oral argument • Judge of the Court of Appeals since June 1989 at venues • Chief Judge of the Court since March 2007 across the state to enable Hoo- John G. Baker is originally of Law in Bloomington. In ad- siers to learn from Aurora in Dearborn County dition, Judge Baker has about the judi- and lived in Monroe County for served on the faculties of the Indiana Judicial College, Indi- cial branch. 35 years. Since June 1989, he has served as a Judge of the Indi- ana Continuing Legal Educa- ana Court of Appeals represent- tion Forum, and the National This initiative ing the First District and has au- Institute of Trial Advocacy. began statewide thored more than 3,000 majority just prior to the opinions. Prior to becoming an His professional asso- Court’s centen- ciations include the American, nial in 2001. appellate court judge, he served Indiana State, Monroe County as county court and superior and Indianapolis Bar Associa- court judge for 13½ years in tions. For the latter, he served Bloomington, disposing of more as Vice-President in 1995. He Today’s oral than 15,000 cases. has been a member of the argument is the Indiana Judges Association's 186th case the Judge Baker graduated Board of Managers continu- Court of from Culver Military Academy ally since 1979 and served as Appeals has and received his A.B. degree from its President from January of heard “on the Indiana University in 1968 in 1987 through June of 1989. road” since History and his J.D. from the Indiana University School of early 2000. Judge Baker has been Law —Bloomington in 1971. He active in community and civic received his LLM in Judicial affairs as well. In addition to his church, YMCA, and other Sites for Process from the University of Virginia in 1995. Before assum- similar organizations, Judge traveling ing the trial bench, he was a part- Baker has been active in Boy Scouts of America since his oral ner in the firm of Baker, Barnhart and Andrews in Bloomington and youth and was awarded the arguments rank of Eagle Scout. was a Captain in the U.S. Army are often law Reserves. Judge Baker was re- schools, tained on the Court by elec- Since 1980, Judge Baker tion in 1992 and 2002. He colleges, has taught as an adjunct profes- sor at Indiana University's School and his wife have five children high schools, and – so far – four grandchil- of Public and Environmental Af- dren. and county fairs and since 2004 at the School courthouses. Derek Scott Geiger v. State of Indiana Page 6 TODAY’S PANEL OF JUDGES Hon. L. Mark Bailey (Decatur County) • Judge of the Court of Appeals since January 1998 The 15 members of L. Mark Bailey was raised in De- Judge Bailey is Past-Chair the Indiana catur County on the family farm of the Indiana Pro Bono Com- first homesteaded by his ancestors mission, having been awarded Court of more than 150 years ago. He was the Indiana Bar Foundation's Appeals issue appointed to the Indiana Court of Pro Bono Publico Award and the Appeals by Governor Frank O'Ban- 2002 Randall Shepard Award for some 2,500 non in January of 1998 and was re- his pro bono contributions. His written tained on the Court by election in writings include, “A New Gen- eration for Pro Bono,” published opinions 2000. in the Indiana Lawyer in each year. Before his appointment, 2006. He is also a certified civil Judge Bailey was a trial court judge, mediator and a Master in the In- an administrative law judge, and a dianapolis American Inn of practicing attorney. A husband and Court. father, he earned his B.A. from the The Court of A strong supporter of law- University of Indianapolis in 1978; related education, Judge Bailey Appeals his J.D. from Indiana University hears cases is currently a member of the Ju- School of Law at Indianapolis in dicial Education Committee of 1982; and his M.B.A. from Indiana the Judicial Conference of Indi- only in Wesleyan University in 1999. He ana. He is also an adjunct pro- three-judge was elected judge of the Decatur fessor at the University of Indi- County Court in 1991. From 1992 panels. anapolis and, in February of until his appointment to the Court 2006, served as the Distin- Panels rotate of Appeals, he served as judge of the guished Jurist in Residence at Decatur Superior Court. three times Stetson University College of Law. In 2004, Judge Bailey and per year. During his legal career, his First District colleagues re- Cases are Judge Bailey has served public in- ceived the Indiana Bar Founda- terest and professional organiza- tion Law-Related Education randomly tions in various capacities. He Award for their commitment to assigned. chaired the Local Coordinating bringing oral arguments into Council of the Governor's Task community settings. Judge Bai- Force for a Drug-Free Indiana and ley is also a frequent presenter at the Judicial Conference Alternative Indiana Continuing Legal Edu- Dispute Resolution committee. He cation seminars, and he regu- also served on the Board of Manag- larly volunteers to judge law ers of the Indiana Judges Associa- school trial advocacy and moot tion and the Judicial Ethics Com- court competitions and to teach mittee of the Indiana Judicial Cen- at National Institute of Trial Ad- ter. vocacy programs. Derek Scott Geiger v. State of Indiana Page 7 TODAY’S PANEL OF JUDGES Hon. Melissa S. May (Vanderburgh County) • Judge of the Court of Appeals since April 1998 Melissa S. May was appointed Indiana Bar Foundation, as to the Court of Appeals in April well as for the American Bar As- of 1998. Judge May was born in sociation, and she is a Master Elkhart, Indiana. She graduated Fellow of the Indianapolis Bar from Indiana University-South Association. Bend with a B.S. in 1980 and from Indiana University School From 1999 till December of Law-Indianapolis with a J.D. 2004, Judge May was a mem- in 1984. ber of Indiana’s Continuing Le- gal Education Commission, where she chaired the Speciali- Between law school and zation Committee. She is cur- her appointment to the Court, rently on an Advisory Panel to Judge May practiced law in the Specialization Committee. Evansville, Indiana, focusing on In 2005, she was named to the insurance defense and personal Indiana Pro Bono Commission. injury litigation. In 2003, Judge May was named to the American Bar Associa- Judge May has been active tion’s Standing Committee on in local, state, and national bar Attorney Specialization. She is associations and bar founda- now special counsel to that tions. She served the Indiana committee. Bar Association on the Board of Managers from 1992-1994, as In the spring of 2004, Chair of the Litigation Section Judge May became adjunct fac- from 1998-1999, as Counsel to ulty at Indiana University the President from 2000-2001, School of Law-Indianapolis, and as co-chair of the Futures where she teaches a trial advo- Taskforce. In addition, she was cacy course. Also in the spring a member of the Board of Direc- of 2004, she was awarded an tors of the Indiana Continuing Honorary Doctor of Civil Law Legal Education Forum from from the University of Southern Indiana. 1994-1999 and has been the co- chair of ICLEF’s Indiana Trial Judge May was retained Advocacy College from 2001 to on the Court of Appeals by elec- 2005. She is a fellow of the tion in 2000. Derek Scott Geiger v. State of Indiana Page 8 ATTORNEYS FOR THE PARTIES For Appellant, Derek Scott Geiger: Matthew Jon McGovern McGovern Law Firm Evansville Matthew Jon McGovern handles Mr. McGovern also worked as a criminal and civil appeals and consulta- clerk at a law firm in Indianapolis and tions as a solo practitioner of law in as a Congressional intern and page in Evansville. Previously he was First Deputy the Washington, DC office and as a Prosecutor in Floyd County, where he con- campaign aide in the Evansville office of ducted criminal trials and worked with lo- former Congressman Frank McCloskey cal and federal law enforcement in the de- of Indiana’s 8th Congressional District. tection and prosecution of crime. Mr. McGovern received his Prior to his job as a prosecutor, Bachelor of Arts degree in Philosophy Mr. McGovern was a judicial law clerk to and Biology from the University of the Honorable Margret G. Robb of the Evansville in 1994 and his law degree Indiana Court of Appeals. In this job he from Notre Dame Law School in 1998. researched Indiana law and legal theory, As a member of the National Moot drafted legal memoranda on various ap- Court Team, he was one of four stu- peals involving criminal, personal injury, dents to deliver the 1998 Notre Dame medical malpractice, corporate contracts Showcase Argument. He has presented and other issues, and reviewed and dis- appeals before the Indiana Supreme cussed cases with Judge Robb before panel Court and the Indiana Court of Appeals. votes. For Appellee, State of Indiana: Cynthia Ploughe Deputy Attorney General Indianapolis Cynthia Ploughe is a native of Tipton County who In 1997, she left the Attorney Gen- originally had no intention of attending college. After eral’s office to become a deputy prosecutor in graduating from Tipton High School, she moved to Marion County. She first prosecuted misde- Washington, D.C. to work for the Federal Bureau of Investigation, which trained her to be a fingerprint meanor crimes — minor drug possession, oper- examiner. Four years later, she returned to Indiana, ating a vehicle while intoxicated, prostitution, and after encouragement from a family friend, she shoplifting — but soon began prosecuting fel- began her collegiate studies at Indiana University in ony offenses, including major drug cases, such Kokomo. She eventually transferred to Ball State Uni- as dealing cocaine and methamphetamine. versity, earning a bachelor’s degree in 1986 with a major in political science and a minor in journalism. Ms. Ploughe returned to the Indiana Following graduation, Ms. Ploughe entered Attorney General’s office in 2001 and became Indiana University Law School in Indianapolis and Section Chief of Criminal Appeals in 2004. began working at the Office of the Attorney General at She supervises more than a dozen attorneys the end of her first year. In 1990, after graduating and acts as an appellate liaison for Indiana’s 90 from law school and passing the Indiana bar exam, elected prosecutors and their deputies. Prose- she was sworn in as a Deputy Attorney General. She cutors who obtain a trial court ruling they don’t conducted research and responded to briefs submitted like confer with Ms. Ploughe to determine by defendants in cases such as murder, child molesta- tion, and theft. She regularly presented cases in oral whether the State will appeal. If a case is ap- argument before the Indiana Supreme Court and the pealed, Ms. Ploughe compiles the case record Indiana Court of Appeals. and prepares the Brief of Appellant.