                                                                                  FILED
                                                                            Jul 29 2020, 10:11 am

                                                                                  CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Curtis T. Hill, Jr.                                         Michael C. Cunningham
      Attorney General                                            Judson G. McMillin
                                                                  Mullin, McMillin &
      Angela N. Sanchez
                                                                   McMillin, LLP
      Assistant Section Chief,
                                                                  Brookville, Indiana
       Criminal Appeals
      Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                           July 29, 2020
      Appellant-Plaintiff,                                        Court of Appeals Case No.
                                                                  20A-CR-307
              v.                                                  Appeal from the
                                                                  Franklin Circuit Court
      Tammy R. Herrmann,                                          The Honorable
      Appellee-Defendant                                          Clay M. Kellerman, Judge
                                                                  Trial Court Cause No.
                                                                  24C02-1812-F5-1262



      Vaidik, Judge.



                                            Case Summary
[1]   After Tammy R. Herrmann was indicted by a Franklin County grand jury for

      theft and forgery, she filed a petition to appoint a special prosecutor, alleging


      Court of Appeals of Indiana | Opinion 20A-CR-307 | July 29, 2020                               Page 1 of 6
      that one of the three deputy prosecutors in the Franklin County Prosecutor’s

      Office had a conflict of interest and therefore the whole office should be

      disqualified. The trial court granted the petition and appointed a special

      prosecutor. The State now appeals.


[2]   It is well settled that if the elected prosecutor has a conflict of interest, the whole

      office is disqualified. However, it is not necessary to disqualify the whole office

      if one deputy has a conflict of interest. Here, it is not necessary to disqualify the

      whole office, since the deputy prosecutor who has the conflict is a part-time

      deputy who primarily handles child-support matters and has had no

      involvement in the criminal case against Herrmann. We therefore reverse the

      trial court.



                             Facts and Procedural History
[3]   The Franklin County Prosecutor’s Office consists of the elected prosecutor and

      three deputy prosecutors. Eugene Stewart is a part-time deputy prosecutor who

      also maintains a private practice. Although Stewart primarily handles child-

      support matters, see Tr. p. 8, his appearance has been entered in criminal cases

      too.1




      1
       In a separate order issued today, we grant Herrmann’s motion to take judicial notice that Stewart’s
      appearance has been entered in criminal cases.

      Court of Appeals of Indiana | Opinion 20A-CR-307 | July 29, 2020                                  Page 2 of 6
[4]   In 2018, Stewart represented the Estate of Evelyn Anthony. See Case No.

      24C01-1808-EU-559. At some point, Maria Hensley, Evelyn’s niece and the

      personal representative of the Estate, told Stewart she was concerned about

      several checks written from Evelyn’s account. Either Stewart or Maria

      contacted the prosecutor’s office, and an investigation ensued.


[5]   In December 2018, a grand jury indicted Herrmann, a home healthcare worker,

      for Level 5 felony theft and Level 6 felony forgery, alleging that she stole over

      $50,000 from Evelyn’s account between 2012 and 2018. Stewart has had no

      involvement with the criminal case against Herrmann. Id. at 8, 17.


[6]   About a year later, in November 2019, Herrmann filed a petition to appoint a

      special prosecutor under Indiana Code section 33-39-10-2(b)(2). Specifically,

      she alleged that the Franklin County Prosecutor’s Office had an “actual conflict

      of interest” because of Stewart’s representation of the Estate. Appellant’s App.

      Vol. II p. 33. Following a hearing, the trial court granted Herrmann’s petition

      and appointed the Dearborn County Prosecutor as special prosecutor.

      Specifically, the court found that “clear and convincing evidence has been

      presented establishing that the Franklin County Prosecutor’s Office has an

      actual conflict of interest[.]” Appellant’s App. Vol. II p. 45.


[7]   The State now brings this interlocutory appeal.




      Court of Appeals of Indiana | Opinion 20A-CR-307 | July 29, 2020           Page 3 of 6
                                  Discussion and Decision
[8]   The State appeals the trial court’s grant of Herrmann’s petition to appoint a

      special prosecutor. We review a trial court’s grant or denial of such a petition

      for an abuse of discretion. Camm v. State, 957 N.E.2d 205, 209 (Ind. Ct. App.

      2011), trans. denied.


[9]   The appointment of a special prosecutor is governed by Indiana Code section

      33-39-10-2, which provides, in relevant part, that a trial court may appoint a

      special prosecutor if:


              (A) a person files a verified petition requesting the appointment
              of a special prosecutor; and


              (B) the court, after:


                       (i) notice is given to the prosecuting attorney; and


                       (ii) an evidentiary hearing is conducted at which the
                       prosecuting attorney is given an opportunity to be heard;


              finds by clear and convincing evidence that the appointment is
              necessary to avoid an actual conflict of interest . . . .


      Ind. Code § 33-39-10-2(b)(2). The petitioner must produce evidence of an actual

      conflict of interest. Larkin v. State, 43 N.E.3d 1281, 1285 (Ind. Ct. App. 2015);

      Camm, 957 N.E.2d at 210. The purpose of the special-prosecutor statute is to

      protect the State’s interest in preserving the public confidence in the criminal-

      justice system and ensuring that the prosecutor serves the ends of justice. Camm,

      Court of Appeals of Indiana | Opinion 20A-CR-307 | July 29, 2020             Page 4 of 6
       957 N.E.2d at 210. “The public trust in the integrity of the judicial process

       requires that any serious doubt be resolved in favor of disqualification.”

       Williams v. State, 631 N.E.2d 485, 487 (Ind. 1994), reh’g denied.


[10]   Here, Herrmann requests that the entire Franklin County Prosecutor’s Office be

       disqualified based on Stewart’s conflict of interest. It is well settled that once the

       elected prosecutor is disqualified, the whole office is disqualified “in order to

       maintain the integrity of the process of criminal justice.” State ex rel. Goldsmith v.

       Superior Court of Hancock Cnty., 270 Ind. 487, 491, 386 N.E.2d 942, 945 (1979);

       see also Larkin, 43 N.E.3d at 1285; Banton v. State, 475 N.E.2d 1160, 1164 (Ind.

       Ct. App. 1985). The whole office is disqualified because the “prosecuting

       attorney exercises authority over and speaks through his deputies.” Goldsmith,

       270 Ind. at 491, 386 N.E.2d at 945.


[11]   However, it is not necessary to disqualify the whole office when one deputy

       prosecutor has a conflict of interest. Williams, 631 N.E.2d at 487; see also Page v.

       State, 689 N.E.2d 707, 709 (Ind. 1997). This is because the conflict of one

       deputy generally does not affect the other deputies in the office. Goldsmith, 270

       Ind. at 490, 386 N.E.2d at 945; Larkin, 43 N.E.3d at 1286; see also Johnson v.

       State, 693 N.E.2d 941, 953 (Ind. 1998) (noting that “the principal holding in

       State ex rel. Goldsmith was that the disqualification of an individual deputy

       prosecutor did not mandate the disqualification of the prosecutor or the rest of

       the prosecutor’s office”), reh’g denied; Swallow v. State, 19 N.E.3d 396, 400 (Ind.

       Ct. App. 2014) (the fact that the deputy prosecutor previously represented the

       defendant did not require the recusal of the entire prosecutor’s office since that
       Court of Appeals of Indiana | Opinion 20A-CR-307 | July 29, 2020             Page 5 of 6
       deputy did not work on the defendant’s case), trans. denied. Indiana’s approach

       to the disqualification of prosecuting attorneys due to a conflict of interest has

       primarily been a “top-down” approach, whereby an elected prosecutor’s

       conflict is imputed to the deputies, but not vice-versa.


[12]   Herrmann acknowledges this rule but claims that Stewart’s conflict of interest

       requires the disqualification of the whole office given its small size. Herrmann,

       however, cites no cases where the conflict of one deputy prosecutor required the

       whole office to be disqualified. In any event, the State argues that the size of the

       office does not matter here since Stewart primarily handles child-support

       matters, and he has not worked on the criminal case against Herrmann. We

       agree with the State. Although Stewart has a conflict of interest given his

       involvement in the Estate case, it does not require the whole office to be

       disqualified.2 We therefore reverse the trial court’s order appointing a special

       prosecutor and remand this case to the trial court for further proceedings.


[13]   Reversed and remanded.


       Baker, J., and Bailey, J., concur.




       2
         Herrmann claims that Stewart has a financial interest in the outcome of this case, as he stands to gain more
       attorney’s fees in the Estate case if she is convicted and ordered to pay restitution to the Estate. At the
       hearing, Stewart testified that he was paid a flat fee in the Estate case, that his fee had been paid, that his
       involvement in the Estate case was over, and that if Herrmann was ordered to pay restitution to the Estate he
       would not get any of it and it would go straight to the beneficiaries. Tr. p. 7. The record does not support
       Herrmann’s claim that Stewart has a financial interest in the outcome of this case.



       Court of Appeals of Indiana | Opinion 20A-CR-307 | July 29, 2020                                    Page 6 of 6
