Opinion
24A-CR-923
09-04-2024
Lori Lynn Carpenter, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Bart M. Betteau Krista L. Sutherland Betteau Law Office, LLC New Albany, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Clark Circuit Court The Honorable Nicholas Karaffa, Judge Trial Court Cause No. 10C01-2308-F1-13
ATTORNEYS FOR APPELLANT Bart M. Betteau Krista L. Sutherland Betteau Law Office, LLC New Albany, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Brown, Judge.
[¶1] Lori Lynn Carpenter appeals the denial of her Application for Reduction of Bail. We affirm.
Facts and Procedural History
[¶2] On August 31, 2023, the State charged Carpenter with three counts of attempted murder as level 1 felonies related to her alleged actions of intentionally shooting a handgun at three law enforcement officers. The State also filed a notice of intent to seek an enhanced penalty for the use of a firearm. According to the probable cause affidavit, police were dispatched to Carpenter's residence in Sellersburg due to a report of a firearm being discharged. Sellersburg Police Officer Andrew Byerly arrived at 9:51 p.m. and heard shots being fired. Indiana State Police Detective Tim Denby arrived at 10:25 p.m. to act as a crisis negotiator and spoke with Carpenter's daughter who stated Carpenter was drinking heavily, intoxicated, and shooting guns in the house. At approximately 11:55 p.m., when the SWAT team approached the house and opened the garage door to better communicate with and observe Carpenter, Carpenter exited the back door with a handgun in one hand and a phone in the other hand. Officers gave commands to put the gun down as she was "pointing it toward officers behind cover." Appellant's Appendix Volume II at 21.
[¶3] At 12:23 a.m., officers breached the front door to observe the interior of the house. Carpenter hung up the phone with the crisis negotiator. A SWAT team element started to breach the interior garage door, and Carpenter shot through the door. At that time, Harrison County Sheriff's Officer Sean O'Sullivan, Floyd County Sheriff's Officer Kenny Haas, and Clarksville Police Officer Ryan Roeder, all members of the SWAT team, were on the other side of the door. When the door was opened, Carpenter was still holding the pistol and Officer O'Sullivan returned fire. Carpenter was struck by the shots and went to the ground. Carpenter was transported to the University of Louisville Emergency Medical Center.
On appeal, Carpenter cites the probable cause affidavit and asserts that she sustained multiple gunshot wounds to her legs and chest.
[¶4] Also on August 31, 2023, the trial court found probable cause and issued a warrant. On April 15, 2024, the State filed an amended information which added Count IV, intimidation as a level 6 felony. On April 17, 2024, the State filed a second amended information which listed Count IV as criminal recklessness as a level 5 felony.
[¶5] Meanwhile, on November 28, 2023, the court held a hearing. The court observed that "bond is set at $100,000 full cash" and asked the prosecutor if he wanted "to keep that." Transcript Volume II at 7. The prosecutor answered affirmatively. After some argument, the court indicated that it would "leave bond where it is" and stated "[i]f we want to have a more in-depth bond hearing, we can do that." Id. at 9. That same day, the court entered a Bond Notice to Sheriff which remanded Carpenter "to the custody of the Clark County Sheriff pending the posting of bond in the amount of $100,000 cash only." Appellant's Appendix Volume II at 54.
[¶6] On January 5, 2024, Carpenter filed an Application for Reduction of Bail. The State filed a response requesting that her application be denied. On April 3, 2024, the court held a hearing. Dr. Jeffrey Anglen testified that he reviewed Carpenter's medical records and spoke with one of her treating physicians but acknowledged that he had not examined her. He indicated that the injuries were to both femurs that "basically shattered the bone on both legs" and an injury to the major blood vessel "behind the knee on the right side." Transcript Volume II at 15. He testified that the records he received were "a little bit spotty and not very well organized." Id. He testified that she had multiple medical procedures. With respect to her current condition, he testified that the surgical wounds had healed, she was "in the midst of her musculoskeletal reconstruction of the left leg," her right leg had developed a "non-union, which means the bone hasn't healed," "[h]er connection between the hip and the knee is not healed back together yet and it's not in a very good position," and the "knee joint alignment is rotated and shortened . . . so the knee is not where it's supposed to be in relation to the hip and the bone isn't healed." Id. at 16-17. He stated that she "needs extensive further treatment in order to make both of her legs functional." Id. at 17.
[¶7] When asked about the future care that Carpenter needs, Dr. Anglen testified that "it's a very complex situation" and "a very complex reconstructive situation." Id. He indicated she did not have "any active infection" but the "risk of infection coming back is very high" with this type of injury. Id. He also stated that she was going to need complex reconstructive surgery on both legs. Id. at 18. When asked if she would be able to receive adequate care to follow the comprehensive plan if she was incarcerated, he answered in part that he was not an expert "in what goes in jail." Id. at 20. He also stated: "I don't want to cast aspersions on the healthcare system and the" Department of Correction ("DOC"), "but they are underfunded and understaffed and they don't have the expertise required to deal with the complications that can arise from this situation." Id. He testified that Carpenter had previously received a "very low level of care" in the DOC. Id. He indicated that Carpenter had been seen in the orthopedic surgery department at Eskenazi Hospital.
[¶8] On cross-examination, Dr. Anglen testified that he spoke to Dr. Shively, an orthopedic surgeon on staff or with privileges at Eskenazi Hospital, about Carpenter. When asked if Eskenazi Hospital could complete all of the necessary surgeries if a treatment plan was outlined with the DOC through Eskenazi Hospital, he answered: "I think that all of her surgery could be done at Eskenazi Hospital, yes." Id. at 24-25.
[¶9] Carpenter's father testified that Carpenter had worked for the Department of Justice for about twenty-three years, worked for the Department of Commerce in Colorado for six or seven years, and then worked at the Census Bureau for the prior six years. He indicated she had been suspended from her position without pay, she did not have any other source of income, she did not have access to any assets, and she did not have the ability to post $100,000 for bail. He also testified that Carpenter had two daughters and five grandchildren. He indicated that Carpenter could live with him in Virginia if she was released.
[¶10] Carpenter testified that she was in the infirmary at Rockville Correctional Facility and was left in a bed "all day every day" and she did not believe she received adequate care. Id. at 31. She testified that she had two open skin grafts, she could not move her right hand "all the way," and her right breast, which had been shot, received a skin graft and was "on its way to being infected because [she] didn't get the follow-up appointments." Id. at 34.
[¶11] On cross-examination, the prosecutor referenced cause number 10C03-2105-CM-616 ("Cause No. 616") with an offense date of April 25, 2021, and asked Carpenter if the records of Clark County indicate that she had an "open pending OWI and leaving the scene of an accident, would you dispute that in those records." Id. at 36. Carpenter answered: "I believe that that was already settled, sir." Id. She acknowledged that she had a pending case in Floyd County under cause number 22D02-2307-CM-1204 ("Cause No. 1204") for operating a vehicle while intoxicated. When asked if she was "out on some form of bond in that case, whether it was bond or an ROR," she answered affirmatively. Id. The court entered an order denying Carpenter's application.
Discussion
[¶12] Carpenter claims that the amount of bail is unreasonable and excessive because there was insufficient evidence to show that she presents a risk of nonappearance or danger to a person or the community which would justify that amount. "An abuse-of-discretion standard of review applies to a trial court's bail determination." DeWees v. State, 180 N.E.3d 261, 264 (Ind. 2022). A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Id.
[¶13] Ind. Code § 35-33-8-4(b) provides in part that "[b]ail may not be set higher than that amount reasonably required to assure the defendant's appearance in court or to assure the physical safety of another person or the community if the court finds by clear and convincing evidence that the defendant poses a risk to the physical safety of another person or the community." The statute also provides that, in setting bail, the judicial officer shall take into account all facts relevant to the risk of nonappearance including:
(1) the length and character of the defendant's residence in the community;
(2) the defendant's employment status and history and the defendant's ability to give bail;
(3) the defendant's family ties and relationships;
(4) the defendant's character, reputation, habits, and mental condition;
(5) the defendant's criminal or juvenile record, insofar as it demonstrates instability and a disdain for the court's authority to bring the defendant to trial;
(6) the defendant's previous record in not responding to court appearances when required or with respect to flight to avoid criminal prosecution;
(7) the nature and gravity of the offense and the potential penalty faced, insofar as these factors are relevant to the risk of nonappearance;
(8) the source of funds or property to be used to post bail or to pay a premium, insofar as it affects the risk of nonappearance;
(9) that the defendant is a foreign national who is unlawfully present in the United States under federal immigration law; and
(10) any other factors, including any evidence of instability and a disdain for authority, which might indicate that the defendant might not recognize and adhere to the authority of the court to bring the defendant to trial.Ind. Code § 35-33-8-4(b).
[¶14] Ind. Code § 35-33-8-5 governs the alteration of bail and provides:
(a) Upon a showing of good cause, the state or the defendant may be granted an alteration or revocation of bail by application to the court before which the proceeding is pending. In reviewing a motion for alteration or revocation of bail, credible hearsay evidence is admissible to establish good cause.
* * * * *
(c) When the defendant presents additional evidence of substantial mitigating factors, based on the factors set forth in section 4(b) of this chapter, which reasonably suggests that the defendant recognizes the court's authority to bring the defendant to trial, the court may reduce bail. However, the court may not reduce bail if the court finds by clear and convincing evidence that the factors described in IC 35-40-6-6(1)(A) and IC 35-40
6(1)(B) exist or that the defendant otherwise poses a risk to the physical safety of another person or the community.
Ind. Code § 35-40-6-6(1)(A) and (B) provide:
(A) that an act or threat of physical violence or intimidation has been made against the victim or the immediate family of the victim; and
(B) that the act or threat described in clause (A) has been made by the defendant or at the direction of the defendant; ....
[¶15] The Indiana Supreme Court recently discussed the statutes governing bail, including Ind. Code §§ 35-33-8-4 and -5, and held that "this statutory scheme imparts considerable judicial flexibility in the execution of bail" and "these statutes clearly permit-indeed mandate-a trial court to consider all 'relevant factors' when setting or modifying bail." DeWees, 180 N.E.3d at 268.
[¶16] With respect to the nature and gravity of the offense and the potential penalty faced, the probable cause affidavit alleges that Carpenter became intoxicated, fired multiple shots in her house, and was involved in a standoff with law enforcement officers for more than two hours which ended in her shooting through the door that SWAT team officers were breaching. Carpenter is facing multiple charges including three counts of attempted murder as level 1 felonies. Ind. Code § 35-50-2-4 provides that a person who commits a level 1 felony shall be imprisoned for a fixed term of between twenty and forty years with the advisory sentence being thirty years. We also note that the State filed a notice of intent to seek an enhanced penalty for firearm use. A potentially lengthy sentence tends to increase the risk that a defendant will fail to appear for trial. See DeWees, 180 N.E.3d at 270 (observing that the crime the defendant allegedly committed carried a maximum penalty of thirty years and observing that "[s]uch a potentially lengthy sentence 'tends to increase the risk that [the defendant] will fail to appear for trial' and this 'cuts substantially against [the] argument that the trial court abused its discretion' by denying a motion to reduce bail") (quoting Sneed v. State, 946 N.E.2d 1255, 1258-1259 (Ind.Ct.App. 2011) (citing Ind. Code § 35-33-8-4(b)(7))).
[¶17] With respect to Carpenter's employment status and history, her father testified as to her lengthy employment history but also indicated that she had been suspended from her position. As for the length and character of Carpenter's residence in the community, Carpenter's father indicated that she lived in Jeffersonville for seven years. The record reveals that, at the time of the underlying offenses, Carpenter had a pending case in Floyd County under Cause No. 1204 for operating a vehicle while intoxicated and she was "out on some form of bond in that case." Transcript Volume II at 36. With respect to Cause No. 616, Indiana's Odyssey Case Management System indicates that the State charged Carpenter on May 7, 2021, with: Count I, operating a vehicle while intoxicated endangering a person as a class A misdemeanor; Count II, operating a vehicle while intoxicated as a class C misdemeanor; and Count III, leaving the scene of an accident as a class B misdemeanor. It also indicates that the case is pending and a jury trial is scheduled for December 3, 2024.
According to Indiana's Case Odyssey Management System, the State charged Carpenter with operating a vehicle while intoxicated endangering a person as a class A misdemeanor and operating a vehicle while intoxicated as a class C misdemeanor for alleged acts occurring on July 1, 2023. We note that Indiana's Case Odyssey Management System also indicates that Carpenter posted ten percent of a $500 bond on July 1, 2023, in Cause No. 1204, approximately two months before the alleged crimes in the present case. Thus, Carpenter likely violated the conditions of her bond in Floyd County.
[¶18] While we acknowledge Carpenter's medical situation, in light of the gravity of the offenses and the risk to the physical safety of the community, we cannot conclude that the trial court abused its discretion. See DeWees, 180 N.E.3d at 271 ("To be sure, several factors-DeWees's strong family ties, her lack of criminal record, and no evidence of past bad character-certainly militate against denying DeWees's motion. But when, like here, the trial court followed the appropriate procedural safeguards and the evidence provides sufficient support for its ruling, we refrain from interfering with the trial court's discretion-even when, like here, we consider it a close call.").
[¶19] For the foregoing reasons, we affirm the trial court's order.
[¶20] Affirmed.
May, J., and Pyle, J., concur.