Opinion
24A-CR-1618
12-30-2024
M.B., Appellant v. State of Indiana, Appellee
Attorney for Appellant Kristopher A. Fuller Boren, Oliver & Coffey, LLP Martinsville, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Caroline G. Templeton 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Morgan Superior Court The Honorable Dakota VanLeeuwen, Judge Trial Court Cause No. 55D01-2405-MC-657
Attorney for Appellant Kristopher A. Fuller Boren, Oliver & Coffey, LLP Martinsville, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana
Caroline G. Templeton Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE
[¶1] M.B. appeals the trial court's order denying her motion to quash. The State agrees that reversal is warranted. We reverse.
Facts and Procedural History
[¶2] In February of 2024, the Morgan County Prosecutor's Office began an investigation related to possible unauthorized withdrawals from certain bank accounts. On May 10, 2024, the State filed a request for a subpoena duces tecum. On May 13, 2024, the court granted the request. On June 10, 2024, the subject of it filed a motion to quash the subpoena. On June 12, 2024, the State filed an amended request for a subpoena. On June 20, 2024, the court denied the motion to quash and granted the State's amended request. On June 25, the court recalled the first subpoena.
The May 10, 2024 filing, the May 13, 2024 order, and the June 10, 2024 motion are not included in the appellant's appendix.
The amended request asked the court to issue a subpoena directing "[J.A.] Attention: Keeper of Records" to provide the following:
For the time period beginning August 29th, 2016 through December lst, 2022 provide any/all documents, including receipts, invoices, bank records, and/or communications relating to purchases made on behalf of [M.A.A.] for which [M.B.] was reimbursed by [M.A.A.].
The financial institutions(s), account number(s) and account holder name(s) to which checks written to [M.B.], or cash received/collected by [M.B.], either from, or on behalf of, [M.A.A.], were deposited, and/or uttered.Appellant's Appendix Volume II at 9. M.B.'s July 1, 2024 motion to quash states that she is a self-employed sole proprietor doing business as J.A.
The June 20 and 25, 2024 orders are not included in the appellant's appendix.
[¶3] On July 1, 2024, M.B. filed a Motion to Quash Amended Prosecutor's Subpoena Duces Tecum. M.B. argued that any request under Ind. Criminal Rule 1.4 must include an affidavit under oath and that no such affidavit was produced or filed. She further argued that she is clearly the target of a criminal investigation; that, pursuant to Ind. Criminal Rule 1.4, a prosecuting attorney cannot apply for a subpoena duces tecum ordering a person that is a target of a criminal investigation to produce books, papers, documents, photographs, or tangible objects; that the request did not describe the items to be produced with reasonable particularity; and that the request violated her rights against self-incrimination under the Fifth and Fourteenth Amendments and the Indiana Constitution. The trial court denied M.B.'s motion to quash. M.B. filed a notice of appeal. The State filed a motion to dismiss arguing this Court does not have jurisdiction, and this Court denied the motion to dismiss.
In its appellee's brief, the State notes: "The State maintains its position that M.B.'s appeal of an order denying a motion to quash a subpoena is not properly a discretionary interlocutory appeal under Appellate Rule 14(A). However, given the State's position regarding the merits of M.B.'s claim, it is not requesting that this Court dismiss this appeal." Appellee's Brief at 4 n.1.
Discussion
[¶4] M.B. argues that any request under Ind. Criminal Rule 1.4 must include an affidavit under oath which sets forth the items to be produced either by individual item or by category and describe each item and category with reasonable particularity, an affidavit under oath was not produced or filed as required, and a list by individual item or by category describing each item and category with reasonable particularity was not provided. She further argues that, under Ind. Criminal Rule 1.4, a prosecuting attorney cannot apply for a subpoena ordering a person that is a target of a criminal investigation to produce books, papers, documents, photographs, or tangible objects, that she is clearly the target of a criminal investigation, that she is a sole proprietor, that the subpoena "was served to [J.A.] Keeper of Records, who is and can only be [her]," and that "[t]his is the same as directly ordering the target of the criminal investigation to produce books, papers, documents, photographs, or tangible objects, which is contrary to Rule of Criminal Procedure 1.4." Appellant's Brief at 9-10. She argues the denial of her motion to quash violated her rights under the United States Constitution and the Indiana Constitution.
[¶5] The State concedes that "[t]he signed statement submitted here does not include any statement that the investigator was verifying under oath the contents of the statement, much less that it was an affidavit," "agrees that its request below for a subpoena was not accompanied by an affidavit as required by Criminal Rule 1.4(A)(2)," and states "[t]he trial court should have granted the motion to quash." Appellee's Brief at 7. The State also argues "[i]t is unnecessary for this Court to consider M.B.'s other claims," "there is no reason to reach M.B.'s constitutional argument because even if the State resubmits its request for a subpoena, it could well contain information that would address M.B.'s constitutional arguments," and "any opinion issued now would merely be advisory." Id. at 7-8.
[¶6] We review a trial court's decision to grant or deny a motion to quash a subpoena for an abuse of discretion. Boulangger v. Ohio Valley Eye Inst., P.C., 89 N.E.3d 1112, 1116 (Ind.Ct.App. 2017). Ind. Criminal Rule 1.4, titled "Investigation Process," provides in part:
(A) Precharge Subpoena Duces Tecum
(1) When a prosecuting attorney receives information concerning the commission of a crime, the prosecuting attorney or deputy prosecuting attorney, acting without a grand jury, may apply to a court of criminal jurisdiction for a subpoena duces tecum ordering a person other than a target of the criminal investigation to produce books, papers, documents, photographs, or tangible objects.
(2) A request must include an affidavit under oath which sets forth the items to be produced either by individual item or by category and describe each item and category with reasonable particularity. The request may specify the form or forms in which electronically stored information is to be produced. The request must specify a reasonable time, place, and manner of delivering things or making the production. The request must demonstrate that the subpoena is as follows:
(a) relevant in purpose to a valid criminal investigation;
(b) sufficiently limited in scope; and
(c) specific in directive so that compliance will not be unreasonably burdensome.(Emphasis added).
[¶7] The appellee's appendix contains a document, stamped as filed on May 10, 2024, which is titled "Subpoena Request" and signed by an investigator for the Morgan County Prosecutor's Office. Appellee's Appendix Volume II at 2 (capitalization omitted). M.B. and the State agree that the State's request for a subpoena was not accompanied by an affidavit as required by Ind. Criminal Rule 1.4(A)(2). Based on the record, the trial court abused its discretion in denying M.B.'s motion to quash.
[¶8] Having found the State's request for a subpoena did not comply with Ind. Criminal Rule 1.4(A)(2), we do not address and do not express an opinion as to M.B.'s other arguments.
[¶9] For the foregoing reasons, we reverse.
[¶10] Reversed.
Mathias, J., and Kenworthy, J., concur.