Cannon Bruns & Murphy, LLC

Shifting Blame for Overdose Deaths: The Crime of Dealing Resulting in Death

Thu, 09 Mar 2023 17:33:00 GMT

Prosecutors are too eager to use Indiana's recent and severe Dealing Resulting in Death statute.

As one of the most serious crimes in Indiana, Level 1 felony dealing resulting in death carries severe penalties for those convicted. If you or someone you know is facing charges related to this crime, it is crucial to work with a criminal defense attorney who has extensive experience and knowledge of Indiana's criminal justice system.
What is Level 1 Felony Dealing Resulting in Death?
Under Indiana law, Level 1 felony dealing resulting in death occurs when an individual knowingly or intentionally delivers, sells or finances the delivery of a controlled substance to another person, and that person dies as a result of using the substance. The controlled substance in question is often an opioid (commonly fentanyl), methamphetamine, cocaine or any other illegal drug categorized in certain schedules of the Controlled Substances Act.
Penalties for Level 1 Felony Dealing Resulting in Death
The penalties for a level 1 felony conviction are severe. If convicted, you could face a prison term of twenty (20) to forty (40) years. In addition to the prison sentence, and a fine could be imposed up to $10,000. Under Indiana law, the minimum term of twenty (20) years is non-suspendible (otherwise called a "mandatory minimum"), meaning the judge must sentence the convicted individual to at least twenty years in prison. If you have prior drug convictions or other criminal history, the penalty could be even more severe.
Defending Dealing Resulting in Death Charges
If you've been charged with Level 1 felony dealing resulting in death, the prosecution must prove beyond a reasonable doubt that you knowingly sold or delivered or financed the deliver of a controlled substance to the victim. If your attorney can show a reasonable doubt as to whether you were involved in a transaction with the victim, that could present a defense to the charge. If your attorney can show that the defendant believed the substance was something other than a drug in schedules I or II of the Controlled Substances Act, that could constitute a defense to the level 1 felony charge. Likewise, if there are multiple drugs in the system which might have caused death, your attorney may be able to raise a reasonable doubt that the substance delivered by the defendant caused death.
In addition, there could be chain of custody, suppression or other evidentiary issues created by a dealing resulting in death prosecution. Police officers may make similar mistakes as in other cases, such as failing to properly interrogate the Defendant, violating the Defendant's rights in a search of his or her home or cell phone, for example, or failing to collect or maintain evidence properly. A thorough evaluation of the autopsy report for a specific cause of death is also important in these cases.
Contact an Experienced Criminal Defense Attorney Today
If you are being investigated for or being charged with Dealing Resulting in Death, do not delay in hiring an attorney. It is crucial to work with an experienced and qualified criminal defense attorney who can advise you on the evidence, the charges and the possible penalties. Attorneys Brandon Murphy and Patrick Wright at Cannon Bruns & Murphy have handled a number of these rare cases and are ready and willing to work with you. The earlier an attorney becomes involved in a case like this, the more able they will be to guide you to the correct outcome and prevent common missteps by defendants early in investigations. Contact us today to schedule a consultation and learn more about how we can help you with your case.

Navigating Law Enforcement Interrogation: Deceptive Tactics and Your Rights Against Self-Incrimination

Wed, 31 Aug 2022 19:39:00 GMT

Navigating Law Enforcement Interrogation

Police interrogations have long been the stuff of television drama. Most every crime-related program finds its emotional climax in the interview of the prime suspect. On screen, officers are often boisterous, intimidating, and committed to making the suspect admit to facts which are already known to the officer. Maybe police found the suspect’s fingerprints at the scene of the crime and now can use that knowledge to pry the suspect for the final piece of critical information needed to solve the case. Such programs would lead us to believe that questioning only occurs when there is already credible information linking the suspect to the crime. In everyday life, police interrogations are typically much more subtle, more often occurring on the street or in the suspect’s own backyard than isolated in a dark room. Officers will often do their best to conceal the fact that they are seeking information from you, perhaps framing the conversation as just one between friendly acquaintances. Once your guard is down, you are more likely to provide information which may be detrimental to your case moving forward. In any interaction with law enforcement, it is important to be aware of your rights as well as common techniques utilized by officers.
First, it is important to understand that you are NEVER required to answer an officer’s questions outside of identifying yourself. If they ask you how your day is going, you are not obligated to respond. Polite, respectful, short responses are often more effective than outright silence, however, your right to remain silent may be exercised in any police interaction. Pay attention to what questions are being asked. It is probably acceptable to answer how you are doing today and other pleasantries. Questions such as “where have you been today?” are more likely to provide information which could link you to a crime, even if you did not participate in said crime.
Second, you should recognize that police officers are NOT required to tell you the truth when questioning you. In the 1969 case entitled Frazier v. Cupp, the United States Supreme Court held that deceptive interrogation tactics do NOT violate a defendant’s constitutional rights. Take the previous example of fingerprints found at the scene. The police can tell you that they have found fingerprints linking you to the crime, even if they do not in fact have any such evidence. Police know that, if you feel vulnerable to criminal liability, you may be more likely to tell them what they want to hear. Police can also make you promises, such as “if you tell us what happened, we will make sure you don’t get in trouble.” Police can then utilize the information you provide to them and are under no obligation to keep you out of any sort of trouble.
Americans are conditioned to be trusting and respectful of police officers. Police officers are servants of the community, but they are also gatherers of information which may lead to arrests and convictions. Suspects will often speak with police consensually because they “have nothing to hide” or “didn’t do anything wrong.” Unfortunately, these facts do not preclude police from incriminating you in some circumstances. If a robbery occurred at a gas station and you tell officers you were at that gas station around the time of the robbery, you could be implicated even if you were not a participant in the robbery, or perhaps even aware of it.
The main takeaway is this; willingly speaking to police always carries with it some risk of self-incrimination, even if you don’t believe you have done anything wrong. If law enforcement requests any kind of information from you, it is always best to consult with an attorney before providing any form of response. If you are concerned about a recent interaction with police or are being asked to submit to law enforcement questioning, call Cannon Bruns & Murphy today for a consultation.

Murphy Again Named to Rising Stars List

Sun, 10 Mar 2019 15:31:00 GMT

Managing Attorney Brandon Murphy was again named to the Super Lawyers’ Rising Star list in the Criminal Defense practice area.

To be eligible to be a Rising Star, a candidate must be forty (40) years of age or younger or have fewer than ten (10) years experience in the practice of law. No more than 2.5% of eligible attorneys are named Rising Stars by Super Lawyers.

Mr. Murphy’s practice in criminal defense began upon his admission to the bar in 2011. Murphy has practiced as a public defender in Blackford, Jay, Delaware and Randolph counties. Murphy’s jury trial experience includes being lead counsel in a high-profile murder trial and several high-profile level 1 felony trials. Murphy is also an experienced appellate advocate, having represented criminal defendants in over twenty-five (25) criminal appeals. Murphy is available to represent those accused of crimes, ranging from misdemeanors to murder, in East Central Indiana. Murphy also is an experienced advocate for those seeking expungement under the Indiana Second Chance Law or reduction of aging D felony or level 6 felony convictions to misdemeanors.

Brandon takes pride in his 2017 appointment as an Assistant Teaching Professor of Criminal Justice and Criminology at Ball State University, administering the Department’s internship program and teaching courses on policing, courts and criminal justice.

The post Murphy Again Named to Rising Stars List appeared first on Cannon Bruns & Murphy, LLC .

Murphy Named Rising Star by Super Lawyers

Tue, 27 Feb 2018 16:26:00 GMT

Managing Attorney Brandon E. Murphy was named as a Rising Star in Criminal Defense in the 2018 publication of Indiana Super Lawyers. To be eligible to be a Rising Star, a candidate must be forty (40) years of age or younger or have fewer than ten (10) years experience in the practice of law. No more than 2.5% of eligible attorneys are named Rising Stars by Super Lawyers.

The post Murphy Named Rising Star by Super Lawyers appeared first on Cannon Bruns & Murphy, LLC .

The Corpus Delicti Rule

Fri, 17 Feb 2017 18:57:00 GMT

A recent Court of Appeals decision, Shinnock v. State, 18A05-1606-CR-1258 (opinion can be found here: http://www.in.gov/judiciary/opinions/pdf/02091701jts.pdf), highlights the little-known Corpus Delicti Rule in the course of some very unfortunate facts. This case was tried in the Delaware County Circuit Court No. 2. It should be noted that this opinion is still subject to appeal by the State of Indiana to the Indiana Supreme Court.

The Corpus Delicti Rule exists so that people are not convicted of crimes solely based on a nonjudicial confession of guilt. Independent proof of the corpus delicti is required before the defendant may be convicted upon a nonjudicial confession.Green v. State, 304 N.E.2d 845, 848 (1973). Proof of the corpus delicti means “proof that the specific crime charged has actually been committed by someone.” Walker v. State, 233 N.E.2d 483, 488 (1968). Before a confession or an incriminating statement may be admitted, there must be some independent evidence of the commission of the crime charged. Workman v. State, 716 N.E.2d 445, 447 (Ind. 1999).

Although the facts of this particular case are disturbing, this is one of the rare occasions that a court has reversed a conviction because the State failed to show a corpus delicti, or independent evidence that a crime had, in fact, been committed. These issues are more frequently seen in appeals of driving cases, such as operating a vehicle while intoxicated (OWI), driving while suspended (DWS) or operating a vehicle as an habitual traffic violator (HTV) where no one actually witnessed the defendant driving a car, but the defendant then admits to an investigating officer or another witness that they were, in fact, operating a vehicle. Typically, courts have rejected these sorts of arguments and Shinnock may give the Indiana Supreme Court a greater opportunity to clarify the full scope of the corpus delicti rule.

The post The Corpus Delicti Rule appeared first on Cannon Bruns & Murphy, LLC .

Court of Appeals Panel Split on Intimidation Charge

Mon, 25 Apr 2016 00:44:00 GMT

On April 21, 2016, the Indiana Court of Appeals affirmed Victor Roar’s conviction for intimidation in part because they “conclude[d] that the majority in [an earlier case] did not correctly decide that question.” Roar v. State , 49A02-1506-CR-506 (Ind. Ct. App. 2016). The case the Roar Court was criticizing was C.L. v. State , 2 N.E.3d 798 (Ind. Ct. App. 2014). Attorney Brandon Murphy of the law firm of Cannon Bruns & Murphy, LLC. had represented C.L. as his appointed appellate counsel and authored the appellate brief encouraging the Court of Appeals to adopt a certain rule with regard to intimidation in retaliation for a prior lawful act, which is one of two different ways an intimidation charge may be made. In the intimidation for a prior lawful act charge, the C.L. panel of the Court of Appeals adopted a standard that when “the allegedly threatening statements in the record … made were conditional and aimed at future, rather than past, conduct” a conviction for intimidation should be reversed. C.L., slip. op. at 5.

Intimidation is a crime for threatening another person. I.C. 35-45-2-1. Since threats are generally verbal, the statute may implicate free speech considerations under the First Amendment, see, e.g., Elonis v. United States, 575 U.S. — (2015), or under Article I, Section 9 of the Indiana Constitution, see, e.g., Jordan v. State, (Ind. Ct. App. 2015). The base charge of intimidation is a class A misdemeanor, punishable by up to one (1) year in jail and/or a $5,000 fine. However, the charge may be a felony if the threat is directed at a law enforcement officer or if the threat is made by wielding a deadly weapon. There are other ways the charge may be filed as a felony, but those are the most common types. In order to constitute a crime, however, the threat must have been made with the intent to retaliate for a prior lawful act or with the intent that the threatened person engage in conduct against that person’s will. I.C. 35-45-2-1.

In C.L., the crime was charged under the provision that the child’s threats aimed at his grandfather were made “with the intent to retaliate for a prior lawful act.” The evidence, however, showed that all of the threats were conditional and targeted future conduct. Essentially, the evidence was that C.L. was threatening his grandfather to give him loan proceeds that the grandfather had yet to receive. Because the threat was targeted at future conduct, the Court of Appeals reversed C.L.’s adjudication as a delinquent child, but did so over a dissent. The C.L. decision was 2-1 in favor of reversing the adjudication: Judges Baker and Crone were the majority and Judge Najam was the dissenter. The State did not seek that the matter be transferred to the Supreme Court, and the opinion was certified and published.

The Roar and C.L. decisions illustrate important misconceptions about the appeals process. For one, the Indiana Court of Appeals is one court with five panels, and the panels may disagree with each other as we saw in C.L. and Roar . However, the Court of Appeals is the intermediate appellate court and must treat precedent from the Indiana Supreme Court as binding precedent under the doctrine of stare decisis. Therefore, when a panel split occurs like in C.L. and Roar, the Supreme Court often will be more likely to take and decide the matter. When the Supreme Court accepts a matter, which they are not generally required to do, they “grant transfer,” which typically vacates the Court of Appeals opinion, making it as if it never happened. The Supreme Court could still grant transfer in Roar and then decide the issues presented in both C.L. and Roar.

It is important that if you wish to hire appellate counsel for yourself or a loved one that counsel be retained quickly after the offending order is issued. A notice of appeal must generally be filed within thirty (30) days of that offending order. Indiana Rule of Appelllate Procedure 9. This triggers certain deadlines. The Clerk of the Courts must assemble the documentary record of the case within thirty (30) days of the notice of appeal being filed. Indiana Rule of Appellate Procedure 10(B). The record of the proceedings must be transcribed, or typed-out, for the review of the Court of Appeals within ninety (90) days of the notice of appeal being filed. Indiana Rule of Appellate Procedure 11(B). The appellant’s brief is due within thirty (30) days of the transcript being prepared. The appellee’s brief is due thirty (30) days after the appellant’s brief is filed. The reply brief of the appellant is due within fifteen (15) days of the appellee’s brief being filed. Indiana Rule of Appellate Procedure 45. The matter is then “fully briefed,” and submitted to the Court of Appeals for review. While there is no time limit for the issuance of appellate opinions, it has been attorney Murphy’s experience that an opinion is typically issued approximately two (2) months after the matter is “fully briefed.” Therefore, if the matter is handled expeditiously with no extensions of time, a Court of Appeals opinion would be issued approximately nine (9) months after the offending order in a criminal case. Should you wish to seek transfer after the issuance of the Court of Appeals opinion, the “Petition for Transfer” must generally be filed within thirty (30) days of the issuance of the Court of Appeals decision. Indiana Rule of Appellate Procedure 57.

The post Court of Appeals Panel Split on Intimidation Charge appeared first on Cannon Bruns & Murphy, LLC .

The Limits of Indiana’s Misdemeanor Arrest Statute

Sat, 23 Jan 2016 22:09:00 GMT

Law enforcement always has authority to arrest when there is an arrest warrant for the person, and when the police have probable cause to believe the person has committed or attempted to commit a felony. However, there are limits to law enforcement’s power to arrest for a misdemeanor if they do not actually observe the misdemeanor.

I.C. 35-33-1-1 enumerates a number of misdemeanors for which law enforcement may arrest so long as they have probable cause, but a number of the most common misdemeanors require that the police actually observe the commission of the misdemeanor or the attempted commission of the misdemeanor in order to arrest. Some misdemeanors which must be committed in the off icer’s presence to justify an actual arrest in Indiana are public intoxication, illegal possession or consumption of alcohol, possession of marijuana, possession of a controlled substance and possession of drug paraphernalia.

This can be important as it relates to an actual search of the person “incident to an arrest.” Law enforcement routinely search those that they arrest, including their pockets and containers. This is generally permitted for safety. However, if the police lack the authority to arrest, they lack the authority to conduct a search incident to an arrest and must justify any search they perform on some other basis, which is frequently difficult. For example, the State might attempt to justify the search on the basis of what is called a Terry frisk, but Terry frisks are limited to external pat-downs unless law enforcement feels something “immediately and apparently incriminating,” which they are permitted to retrieve. Any manipulation of the suspect item or any other searches of the insides of pockets and containers are generally not permitted under Terry. The purpose of a Terry frisk is intended to be limited to ensure safety; it is not for evidence gathering purposes.

Should you have been arrested for a misdemeanor not listed as an exception in I.C. 35-33-1-1 and should the police not have actually observed the commission or attempted commission of a misdemeanor, you may have a basis for the suppression of any evidence found as a result of the search, and you should contact an experienced attorney regarding a Motion to Suppress Evidence.

The post The Limits of Indiana’s Misdemeanor Arrest Statute appeared first on Cannon Bruns & Murphy, LLC .

Lessons for Defense Counsel from Making a Murderer

Mon, 28 Dec 2015 20:57:00 GMT

One of the most popular recent shows on NetFlix is a series entitled “Making a Murderer,” concerning the investigation and murder trials of Defendants Steven Avery and Brendan Dassey.

The “hook” of the show is that Defendant Avery had previously been convicted, and later exonerated, of a brutal rape. Avery spent eighteen (18) years in prison before DNA evidence showed that a sexually violent individual in the community had likely committed the crime. Avery went on to sue the County, the Sheriff and the District Attorney for holding back evidence that was favorable to him from his defense attorneys, a violation of the seminal case of Brady v. Maryland, 373 U.S. 83 (1963). While that civil litigation was pending, Avery was arrested and charged for the murder of Teresa Halbach. In the salvage yard connected to his home, searchers found the Toyota vehicle, and officers then obtained a search warrant to search the property. Over a period of time, officers found the key to the Toyota vehicle in Avery’s home, bone fragments of Halbach’s in a burn pit near his home, a flattened bullet with her DNA in the garage, and other incriminating items. Avery’s defense was that members of the county sheriff’s department set out to frame him for the crime.

Avery was skillfully defended by attorneys Dean Strang and Jerry Buting, who had been retained out of the funds from the settlement of the civil litigation. Their thorough review of the physical evidence led to an excellent argument that officers of the county sheriff’s department had extracted some of Avery’s blood from a vial which was supposed to be sealed in the evidence room. The seal had been broken and the vial appeared to have been pierced, likely by a syringe.

Avery, however, had a co-defendant in the murder of Teresa Halbach: Brendan Dassey. Dassey, without access to Avery’s funds, was appointed attorney Len Kachinsky. Dassey had confessed to committing the crime with Avery prior to Kachinsky’s appointment.

Kachinsky’s first effort was to attempt to suppress the statement as coerced and involuntary. Dassey had been questioned without his parents or an attorney present and had been a special education student in school. Dassey was sixteen (16) years old at the time of his arrest. Kachinsky was unsuccessful in this regard as the interrogation was recorded and did not depict much in the way of coercion. It also appeared that Dassey understood the questions asked and answered sensibly. Dassey, however, had recanted his statements by the time of the suppression hearing.

Once the Motion to Suppress Statement was denied, Kachinsky sent his investigator up to discuss the incident with Dassey and to attempt to convince Dassey that he should take a deal and implicate his uncle. This led to a breakdown between attorney and client in that Kachinsky was advising Dassey to implicate Avery and Dassey, communicating with his family, had decided against cooperating and taking a plea. Nevertheless, Kachinsky arranged for Dassey to be interviewed again by law enforcement, without counsel, where he gave intrinsically contradictory statements to law enforcement, which may have destroyed his ability to cooperate and effectively implicate Avery.

This led, ultimately, to Kachinsky’s removal from the case. After Dassey’s conviction, he alleged Kachinsky was ineffective by way of a conflict of interest which should necessitate a new trial. Specifically, Dassey alleged that Kachinsky’s statements to the press, and his own credibility, interfered with the proper course of action in the case for Dassey. Kachinsky, notably upon appointment to the case, made comments which claimed Dassey had been manipulated by Avery, leading to the conclusion that his confession was true and that he was involved in these acts. Furthermore, Kachinsky testified in the post-conviction relief action that he mentioned the notion of a plea deal in the press for the purpose of “sending a message” to the Defendant’s family that their interests may not align with the Defendant. The Wisconsin Court of Appeals opinion, which rejects those arguments, can be found here: (https://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=92079).

Often, defense counsel must confront the possibility that a Defendant’s interests, and those of his or her loved ones, do not coincide. These occur frequently in cases where the Defendant and the victim are closely related, or in cases like this one where co-defendants are closely related. Complaints that a defense attorney will not respond to a family member or close friend’s phone calls are often unfounded because defense attorneys are frequently unable to answer calls requesting information as a result of the attorney-client privilege. Furthermore, a family member cannot make decisions on behalf of the Defendant in a criminal case. Neither can defense counsel.

Attorneys Strang and Buting confronted a very different case in defending Avery than did attorney Kachinsky in defending Dassey. Strang and Buting were defending a circumstantial case. Kachinsky was defending a case where Dassey had confessed to committing the crime with Avery, and providing grim details of the killing. Kachinsky also dealt with limited resources, a Defendant with limited mental capabilities and a Defendant subject to the powerful influences of his family, who also cared for his co-defendant and had unrealistic expectations of acquittal for both.

Although it is hard to render a verdict based just on what a television show’s editors choose to show you, it appears that Kachinsky’s primary mistake in the case was permitting Dassey to be interviewed without Kachinsky present. Kachinsky could have ensured, immediately prior to questioning, that Dassey was on the same page and wanted to give the statement to the police. Further, Kachinsky could have assisted in preventing the inconsistencies that Dassey gave in his statement by raising these issues with him prior to questioning. It appears that Dassey did not truly wish to give the statement that he gave, and it also appears that the statement he did give made his testimony useless to the State of Wisconsin such that he would receive little to no benefit from his cooperation.

The post Lessons for Defense Counsel from Making a Murderer appeared first on Cannon Bruns & Murphy, LLC .

The Mysterious Omnibus Date

Wed, 25 Nov 2015 20:37:00 GMT

Defendants in criminal matters are frequently confused by the “omnibus date” that the Court sets. Pursuant to statute, the omnibus date “shall” be set by the Court during the initial hearing, and the omnibus date is to be between 45 and 75 days after the initial hearing. See I.C. 35-36-8-1.

Omnibus Deadlines

So what is the omnibus date? According to attorney Brandon E. Murphy of the firm of Cannon Bruns & Murphy, LLC. the omnibus date is a “technical motions and notice deadline.” It is important, he says, in several respects. First, if the Defendant wishes to file a Motion to Dismiss the charges, a Motion to Dismiss generally must be filed twenty (20) days before the omnibus date in a felony case, or fifteen (15) days before the omnibus date in a misdemeanor case. See I.C. 35-34-1-4. Secondly, some defenses require the Defendant give notice of their intended defense at or before the omnibus date. Two notable defenses that require this pre-trial notice are the defenses of alibi and insanity. See I.C. 35-36-4-1, 35-36-2-1. Finally, some courts may tie various other deadlines to the omnibus date, such as for the filing of evidentiary motions, including Motions to Suppress Evidence.

Given the circumstances of the case at hand, it may be critical for a defendant to be able to preserve certain issues by making a timely motion or giving timely notice of a defense. The best way to ensure that these deadlines are met is by retaining counsel before or shortly after the initial hearing so that your counsel can evaluate your case and determine what must be done and when.

Be sure to listen carefully to the Judge at your initial hearing if you are unrepresented. The Judge will inform you of the dates you are required to attend. It is likely that the Judge will not require you to appear on your omnibus date unless the Judge also sets a pre-trial conference or some other hearing for the same date. In Muncie and Delaware County Courts, it is Mr. Murphy’s experience that Defendants typically are not ordered to appear on their omnibus date.

The post The Mysterious Omnibus Date appeared first on Cannon Bruns & Murphy, LLC .

Cleaning Criminal Records

Fri, 08 May 2015 19:17:00 GMT

One of the most under-utilized services the attorneys at Cannon Bruns & Murphy, LLC. provide is the process of cleaning an individual’s criminal record. Under certain circumstances, eligible convictions or arrests can be ordered expunged (or removed) from a person’s criminal history. The Order of Expungement is sent to the Indiana State Central Repository, law enforcement agencies and other organizations that provided the individual services. Recently, the law has changed in this regard to allow for expungement of convictions and/or arrests.

In other circumstances, and if they have successfully completed the terms of their sentence, individuals are eligible to have their class D felony or level 6 felony convictions reduced to class A misdemeanors. Taking advantage of this opportunity is key for reasons of employment for the many individuals saddled with just one felony conviction.

Attorneys at Cannon Bruns & Murphy, LLC. would be happy to assist you in determining if you are eligible for either expungement or the reduction of a prior class D felony or level 6 felony to a class A misdemeanor.

The post Cleaning Criminal Records appeared first on Cannon Bruns & Murphy, LLC .