RESPONDENT PRO SE                                   ATTORNEYS FOR THE INDIANA SUPREME COURT
Terry Lee Smith                                     DISCIPLINARY COMMISSION
Reynolds, Indiana                                   G. Michael Witte, Executive Secretary
                                                    Seth T. Pruden, Staff Attorney
                                                    Indianapolis, Indiana
                                                                                FILED
______________________________________________________________________________
                                                             Oct 25 2016, 9:59 am

                                                                                CLERK
                                           In the                           Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court


                          Indiana Supreme Court
                           _________________________________

                                    No. 91S00-1603-DI-136

IN THE MATTER OF:

TERRY LEE SMITH,
                                                     Respondent.
                           _________________________________

                                 Attorney Discipline Action
                            Hearing Officer Robert C. Reiling, Jr.
                           _________________________________


                                       October 25, 2016


Per Curiam.


       The Indiana Supreme Court Disciplinary Commission filed a “Verified Complaint for
Disciplinary Action” against Respondent Terry Lee Smith, charging him with attorney
misconduct based on actions taken while prosecuting a defendant’s retrial. Respondent’s 1977
admission to this state’s bar subjects him to this Court's disciplinary jurisdiction. See IND.
CONST. art. 7, § 4.


       This matter is now before the Court on the report of the hearing officer appointed by this
Court to hear evidence on the verified complaint and on the post-hearing briefing by the parties.
Based on the record before us, we conclude that Respondent did not engage in attorney
misconduct as charged and therefore enter judgment in Respondent’s favor.
                              Procedural Background and Facts


       At relevant times, Respondent served as a deputy prosecuting attorney in White County.
In 2011, Respondent represented the State during the trial of Ryan Bean on child molestation
charges. Bean was convicted and appealed. The Court of Appeals reversed and remanded for a
new trial, holding Bean’s confession to police was obtained in violation of his Fifth Amendment
rights and should not have been admitted into evidence. Bean v. State, 973 N.E.2d 35 (Ind. Ct.
App. 2012), trans. denied.


       Respondent again represented the State during Bean’s retrial in 2013. Respondent’s
actions during that retrial, which we examine below, provide the basis of the allegations in this
disciplinary proceeding. Bean was convicted following retrial, appealed, and again had his
conviction reversed, this time upon the Court of Appeals’ conclusion that improper vouching and
prosecutorial misconduct cumulatively amounted to fundamental error. Bean v. State, 15 N.E.3d
12 (Ind. Ct. App. 2014) (“Bean II”), trans. denied. Bean eventually pled guilty to lesser charges.


       The Commission charged Respondent with violating Indiana Professional Conduct Rule
8.4(d) by engaging in conduct prejudicial to the administration of justice during Bean’s retrial.
Following a hearing, the hearing officer filed his report to this Court on April 28, 2016,
concluding that the Commission had not met its burden of proving that Respondent violated Rule
8.4(d) as charged.


                                           Discussion


       The Commission has petitioned this Court to review the hearing officer’s findings and
conclusions. The Commission carries the burden of proof to demonstrate attorney misconduct by
clear and convincing evidence. See Ind. Admission and Discipline Rule 23(14)(i). While the
review process in disciplinary cases involves a de novo examination of all matters presented to
the Court, the hearing officer’s findings nevertheless receive emphasis due to the unique
opportunity for direct observation of witnesses. See Matter of Brizzi, 962 N.E.2d 1240, 1244
(Ind. 2012).



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       We first address the Commission’s threshold argument that Bean II should be given
preclusive effect in this disciplinary proceeding. The Commission concedes “that res judicata
does not technically apply when there is no exact privity of parties.” (Pet. for Review at 13).
Nevertheless, the Commission argues that the underlying question of Respondent’s misconduct
is the same in both proceedings, and therefore the Court of Appeals’ conclusions in this regard
should now be treated as “conclusively established.” (Id. at 14).


       We agree with the hearing officer’s conclusion that Bean II is not dispositive of this
disciplinary matter. “It is the exclusive province of this Court to regulate professional legal
activity.” Matter of Mitthower, 693 N.E.2d 555, 558 (Ind. 1998). While appellate claims of
prosecutorial misconduct and disciplinary allegations of Rule 8.4(d) violations may share some
similarities, the analyses are not exactly the same, nor are the parties and interests at stake in the
proceedings the same. A criminal appeal examines the propriety of a defendant’s conviction, not
whether an attorney’s conduct merits professional discipline. Respondent was not a party to the
criminal appeal and did not have an opportunity prior to the instant proceedings to defend his
own professional conduct.       Moreover, disciplinary proceedings afford the opportunity for
evidentiary development beyond the cold record available to the Court of Appeals in a criminal
appeal. We have previously recognized that a written trial transcript “presents only a small part
of the whole picture,” see Whiting v. State, 969 N.E.2d 24, 31 (Ind. 2012), and in a disciplinary
proceeding the parties may be able to offer additional evidence that paints a more complete
picture.


       Indeed, that is precisely what has happened here.            The Commission alleges that
Respondent committed misconduct in three respects – first, by improperly eliciting testimony
from the county sheriff (“Sheriff Shafer”) about Bean’s confession, in violation of an order in
limine; second, by eliciting improper vouching; and third, by making statements during closing
argument that were inaccurate and that placed undue emphasis on the improper vouching
testimony. However, we agree with the hearing officer’s conclusion that the evidence adduced
in these proceedings fails to prove the Commission’s allegations.




                                                  3
        On this first issue, the hearing officer credited Respondent’s disciplinary testimony that
he specifically instructed Sheriff Shafer prior to his trial testimony not to mention the police
interview. By contrast, the trial transcript is largely silent on this point. The Commission
concedes that Respondent did not directly ask Sheriff Shafer about the interview but argues that
asking Sheriff Shafer questions about his investigation “necessarily included the interview
assuming Sheriff Shafer was going to answer the question completely and truthfully.” (Pet. for
Review at 11).1 This argument rests on the untenable proposition that Respondent, having fully
and accurately advised Sheriff Shafer of the order in limine, nonetheless should have anticipated
that Sheriff Shafer would violate that order in responding to generally-worded questions about
his investigation.    While Sheriff Shafer’s reference to the interview unquestionably was
improper, the Commission has failed to prove by clear and convincing evidence that Respondent
elicited that reference.


        On the second issue, the Commission focuses largely on testimony by Darrel Noonkester
(an investigator for the Indiana Department of Child Services) that he and his agency
“substantiated” the allegations.2 This term of art was not encompassed by the trial court’s order
in limine and its brief use by Respondent and Noonkester prompted no objection. Further, Bean
II acknowledged divergent lines of Court of Appeals’ precedent on the propriety of
“substantiation” testimony, Respondent testified he attempted to craft his questions consistently
with appellate guidance and the order in limine, and the hearing officer credited that testimony.
We agree with the hearing officer’s conclusion that the Commission has failed to establish by
clear and convincing evidence that Respondent committed misconduct by eliciting improper
vouching testimony.




1
  Sheriff Shafer’s brief mention of an interview occurred at the end of a longer answer to Respondent’s
open-ended question, made in reference to police investigations of molestations that are not immediately
disclosed, “So, what do you do?” (Comm’n Ex. 3 at 130).
2
 The victim’s mother volunteered at one point that she believed the victim after talking with her. (Id. at
46-47). Respondent also asked the mother’s boyfriend if he believed the victim after talking with her;
however, a defense objection was sustained and the question was not answered. (Id. at 93). The
Commission’s petition for review does not mention the question Respondent asked the boyfriend and
mentions the mother’s volunteered statement only in passing.

                                                    4
       On the third issue, the evidence in these disciplinary proceedings includes the audio
recording of Respondent’s closing argument, which differs from the written transcript. The
Court of Appeals held in Bean II that Respondent’s statement in closing argument that Sheriff
Shafer “substantiated” the allegations against Bean was inaccurate.         However, the audio
recording demonstrates that Respondent did not actually make the statement attributed to him in
the written transcript; rather, Respondent stated that Sheriff Shafer arrested Bean. We agree with
the hearing officer that this is a material difference.    As reflected in the audio recording,
Respondent’s closing argument accurately described Sheriff Shafer’s testimony.


       Still, the Commission faults Respondent for referring in the same passage of closing
argument to Noonkester’s “substantiation” testimony and to the belief of the victim’s mother and
the mother’s boyfriend that the victim was telling the truth. For the reasons described above,
Respondent had no basis at this juncture to believe that a brief reference to “substantiation” was
improper. And while we are more troubled by Respondent’s subsequent statement about the
belief of the victim’s mother and her boyfriend, under the circumstances of this case we cannot
conclude that this isolated comment, standing alone, rises to the level of conduct prejudicial to
the administration of justice under Rule 8.4(d).


                                           Conclusion


       The Court concludes that the Commission has not met its burden of proving by clear and
convincing evidence that Respondent violated Indiana Professional Conduct Rule 8.4(d). We
therefore enter judgment in favor of Respondent. The hearing officer appointed in this case is
discharged.


All Justices concur.




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