explaining that the proximity in time of the historical facts alleged in the affidavit to the matter concerning the motion for a change of judge is a relevant inquiry
How later courts described this case
- explaining that the proximity in time of the historical facts alleged in the affidavit to the matter concerning the motion for a change of judge is a relevant inquiry
Written by the judges who cited it.
The opinion
FILED
Oct 24 2023, 10:07 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jimmy Gurulé Theodore E. Rokita
Kevin Murphy Attorney General of Indiana
Exoneration Justice Clinic Kelly A. Loy
Notre Dame Law School Deputy Attorney General
South Bend, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Reginald Dillard, October 24, 2023
Appellant-Petitioner Court of Appeals Case No.
23A-PC-261
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo,
Appellee-Respondent. Judge
Trial Court Cause No.
20D03-2207-PC-19
Opinion by Judge Pyle
Judges Crone and Bradford concur.
Pyle, Judge.
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 1 of 33
Statement of the Case
[1] In January 2000, a jury convicted Reginald Dillard (“Dillard”) of the August
1998 murder of Christopher Thomas (“Thomas”), and the trial court sentenced
Dillard to sixty-five years in the Department of Correction. In October 2001,
the Indiana Supreme Court affirmed Dillard’s conviction on direct appeal. See
Dillard v. State, 755 N.E.2d 1085 (Ind. 2001). In July 2022, Dillard, represented
by attorneys Jimmy Gurulé (“Attorney Gurulé”) and Elliot Slosar (“Attorney
Slosar”) filed a petition for post-conviction relief.1 Also, in July 2022, Dillard
filed a motion for a change of judge pursuant to Post-Conviction Rule 1(4)(b).2
The post-conviction court denied Dillard’s change of judge motion, and this
interlocutory appeal concerns only the post-conviction court’s denial of that
motion.3 Dillard specifically argues that the post-conviction court clearly erred
when it denied his motion for a change of judge. Concluding that the post-
1
At the outset, in full transparency, we note that on November 16, 2022, Attorney Gurulé, who is affiliated
with Notre Dame Law School’s Exoneration Justice Clinic (“the Clinic”), gave a presentation to several
judges on this Court. During this presentation, Attorney Gurulé spoke about the Clinic. He also spoke about
one of the Clinic’s cases, Royer v. State, 166 N.E.3d 380 (Ind. Ct. App. 2021). In Royer, this Court affirmed
the post-conviction court’s order that granted Royer’s successive petition for post-conviction relief based on
newly discovered evidence and Brady violations and vacated Royer’s murder conviction. Id. at 405. In
Dillard’s appellate brief, Attorney Gurulé cites Royer in support of his argument that the post-conviction court
erred in denying Dillard’s motion for a change of judge. We note that none of the judges on this panel of
Dillard’s appeal attended Attorney Gurulé’s presentation or discussed the Royer case with any of the judges
who attended the presentation.
2
Although Dillard’s motion was titled a motion for recusal, we note that Post-Conviction Rule 1(4)(b) does
not include the term recusal. Rather, Post-Conviction Rule 1(4)(b) uses the terms change of judge. We will,
therefore, refer to Dillard’s motion as a motion for a change of judge.
3
We express no opinion on the merits of Dillard’s post-conviction relief petition, which is pending before the
post-conviction court.
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 2 of 33
conviction court did not clearly err, we affirm the post-conviction court’s denial
of Dillard’s change of judge motion. 4
[2] We affirm.
Issue
Whether the post-conviction court clearly erred when it denied
Dillard’s motion for a change of judge.
Facts
[3] In July 2022, Dillard, represented by Attorney Gurulé, filed a 273-page petition
for post-conviction relief. In his petition, Dillard argued as follows:
An epidemic exists in Elkhart, Indiana where wrongful
convictions are a predictable product of police misconduct,
4
We note that Attorney Gurulé is also representing Leon Tyson (“Tyson”), Pink Robinson (“Robinson”),
and Iris Seabolt (“Seabolt”), three other petitioners who appealed the post-conviction court’s denial of their
change of judge motions. Tyson’s appeal was originally filed under Cause Number 22A-PC-143, Robinson’s
appeal was originally filed under Cause Number 22A-PC-1102, and Seabolt’s appeal was originally filed
under Cause Number 22A-PC-208. In May 2022, this Court’s motions panel granted Attorney Gurulé’s
motion to consolidate these three appeals.
Thereafter, in February 2023, Attorney Gurulé initiated Dillard’s appeal, which was originally filed under
Cause Number 23A-PC-261. The following month, March 2023, this Court’s motions panel granted
Attorney Gurulé’s motion to consolidate Dillard’s appeal with the three previously consolidated appeals
concerning Tyson, Robinson, and Seabolt.
However, it is well-established that we have the inherent authority to reconsider a ruling by the motions
panel while an appeal remains pending. Beasley v. State, 192 N.E.3d 1026, 1029 (Ind. Ct. App. 2022), trans.
denied. Here, we have determined that a de-consolidation of these four appeals is necessary. Accordingly, we
have returned each one to its original appellate cause number and will decide each appeal on its own merits.
On August 11, 2023, we affirmed the post-conviction court’s denial of Tyson’s change of judge motion. See
Tyson v. State, 217 N.E.3d 551 (Ind. Ct. App. 2023), trans. pending. On August 23, 2023, we affirmed the
post-conviction court’s denial of Robinson’s change of judge motion. See Robinson v. State, No. 22A-PC-
1102, 2023 WL 5420367 (Ind. Ct. App. Aug. 23, 2023), trans. pending. On September 20, 2023, we affirmed
the post-conviction court’s denial of Seabolt’s change of judge motion. See Seabolt v. State, No. 22A-PC-208,
2023 WL 6141530 (Ind. Ct. App. Sept. 20, 2023), trans. pending.
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 3 of 33
prosecutorial misconduct, and whirlwind trials. Tragically, these
unjust convictions often take decades to unravel, leaving
innocent men and women to languish in prison for crimes they
did not commit[.] Given the newly discovered evidence
discussed below, [Dillard]’s conviction must be overturned and a
new trial ordered. After 22 years of wrongful incarceration,
[Dillard] deserves to be Elkhart’s next exoneree.
(2023 App. Vol. 2 at 22, 23).5
[4] Further, in this petition, Dillard argued that he was entitled to post-conviction
relief because:
(1) he is actually innocent and has located newly discovered
evidence materially relevant to his innocence that he could not
with reasonable diligence have discovered and produced at trial;
(2) he has new evidence demonstrating that the State’s failure to
disclose material exculpatory and impeachment evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963) and United
States v. Giglio, 405 U.S. 150 (1972), materially affected his
constitutional right to due process; and (3) he has new evidence
demonstrating that the State relied upon perjured testimony at
trial which could have impacted the judgment of the jury in
violation of Gordy v. State, 270 Ind. 379, 385 N.E.2d 1145, 1146
(1979), State v. Hicks, 519 N.E.2d 1276, 1280-81 (Ind. Ct. App.
1988), State v. Royer, 166 N.E.3d 380, 404 (Ind. Ct. App. 2021),
and Napue v. Illinois, 360 U.S. 264 (1959).
5
On May 24, 2023, Dillard filed four volumes of appendices in the previously consolidated appeal. We will
cite to these four volumes, which the Clerk of the Court has transferred to this appeal, as “2023 App.” In
addition, on September 7, 2022, Tyson, Robinson, and Seabolt filed ten volumes of appendices in the
previously consolidated appeal. We will cite to these ten volumes, which the Clerk of the Court has also
transferred to this appeal, as “2022 App.”
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 4 of 33
(2023 App. Vol. 2 at 36). According to Dillard, “[t]o date, no court has
considered this evidence[,] and [e]ach ground provides an independent basis for
[the post-conviction court] to vacate the judgment and grant [Dillard] a new
trial.” (2023 App. Vol. 2 at 36).
[5] Also, in July 2022, Dillard filed a thirty-five-page motion for a change of judge
pursuant to Indiana Post-Conviction Rule 1(4)(b). In this motion, Dillard
specifically argued that the post-conviction court should grant his change of
judge motion because the post-conviction court judge had been a deputy
prosecutor in the Elkhart County Prosecutor’s Office from 1998 until 2002,
“during the time of the investigation of the Christopher Thomas homicide and
Mr. Dillard’s trial.” (2023 App. Vol. 3 at 105). According to Dillard, he
“intend[ed] to seek discovery from all prosecutors employed by the [Elkhart
County Prosecutor’s Office] at this time, including [the post-conviction court
judge], [Vicki] Becker, [current Elkhart Circuit] Judge [Michael] Christofeno
[(“Judge Christofeno”)], and Curtis Hill, and present this evidence in support of
his claims that the [Prosecutor’s Office] and [the Elkhart Police Department]
have long had a pattern and practice of failing to disclose Brady evidence[.]”
(2023 App. Vol. 3 at 106). Dillard further argued that because the post-
conviction court judge had worked in the prosecutor’s office during this time,
she would be a “material witness in the case as well.” (2023 App. Vol. 3 at
120).
[6] Dillard further argued that the post-conviction court should grant his change of
judge motion because the post-conviction court judge had been married from
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 5 of 33
1992 until 2003 to Stephen Cappelletti (“Cappelletti”), who had been an
Elkhart Police Department reserve police officer from 1983 through 1994.
According to Dillard, Cappelletti would be “a critical witness in support of Mr.
Dillard’s claims of [Elkhart Police Department] police misconduct[.]” (2023
App. Vol. 3 at 101). Dillard also argued that the post-conviction court should
grant his change of judge motion because the post-conviction court judge “sits
on the same bench as [Judge] Christofeno, who is implicated in significant
misconduct” in his role as a deputy prosecutor when he worked on Dillard’s
murder case more than twenty years ago. (2023 App. Vol. 3 at 117).
[7] In addition, Dillard argued that the post-conviction court should grant his
motion for a change of judge because the post-conviction court’s order in a
prior unrelated case involving Andrew Royer (“Royer”) had shown that the
post-conviction court judge had “already prejudged allegations identical to Mr.
Dillard’s to be ‘defamatory’ and false, based not on the evidence, but the
Court’s own extrajudicial prejudices and beliefs.” (2023 App. Vol. 3 at 112).
Dillard also argued that because the post-conviction court had ultimately
granted Royer’s motion for a change of judge, the post-conviction court should
grant Dillard’s motion for a change of judge as well.
[8] At this point, for a better understanding of Dillard’s argument and the post-
conviction court’s response to this argument in its order denying Dillard’s
motion for a change of judge, we find it helpful to review the facts and history
of Royer’s case. A jury convicted Royer of murdering Helen Sailor (“Sailor”)
in 2005. In 2006, this Court affirmed Royer’s conviction. Royer v. State, No.
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 6 of 33
20A03-0601-CR-14, 2006 WL 1634766 (Ind. Ct. App. May 31, 2006). In 2007,
Royer filed a petition for post-conviction relief, which the post-conviction court
denied after a hearing. This Court affirmed the denial. Royer v. State, No.
20A04-1106-PC-325, 2011 WL 6595351 (Ind. Ct. App. Dec. 20, 2011), trans.
denied.
[9] A few years later, in June 2018, Royer, represented by Attorney Slosar, filed a
motion for relief from judgment pursuant to Indiana Trial Rule 60(B).
Immediately after filing this motion, Attorney Slosar and Royer’s family
members gathered in front of the prosecutor’s office for a press conference.
During the press conference, Attorney Slosar stated there was a “‘systemic
failure’ and an ‘epidemic’ in Elkhart County where people [were] wrongfully
convicted because of police corruption, uninspiring defense counsel and an
overzealous prosecutor.” (2022 App. Vol. 3 at 57). Attorney Slosar also stated
that “these factors contributed to Andrew Royer being convicted of a murder
that he is absolutely innocent of.” (2022 App. Vol. 3 at 57). In addition,
Attorney Slosar stated that “we have proven that [Royer’s] conviction was an
absolute fraud and the conviction was based on intentional misconduct.” (2022
App. Vol. 3 at 57). Attorney Slosar further referred to the pending Trial Rule
60(B) motion as an appeal and released videotapes of witnesses that would be
testifying at the hearing on Royer’s motion.
[10] Following the press conference, the State filed a motion for an emergency
hearing and a request for an injunction. In support of its motion, the State
attached two newspaper articles from the South Bend Tribune. The headline
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 7 of 33
for one of the articles, which is dated June 13, 2018, is “Mentally disabled man
says shoddy policing, false statements led to Elkhart murder conviction.” (No.
20D03-0309-MR-155, Chronological Case Summary, June 19, 2018 entry).
The headline for the other article, which is dated June 14, 2018, is “Attorney of
Andrew Royer blasts Elkhart police for ‘miscarriage of justice.’” (No. 20D03-
0309-MR-155, Chronological Case Summary, June 19, 2018 entry). Royer filed
a response to the State’s motion. Following a hearing, the trial court judge in
Royer’s case, who is the post-conviction court judge in Dillard’s case, issued an
order that provides, in relevant part, as follows:
9. Additionally, Slosar contends that he made no statements
that violate Ind. Professional Conduct Rule 3.6, as only
information contained in the public record was stated at
the press conference, along with matters he has a
constitutional right to say on behalf of Royer. The Court
carefully reviewed the State’s Motion, as well as Royer’s
Response, along with the various attachments referencing
news articles about the conference. Particularly troubling
to the Court were Slosar’s statements at the subject press
conference characterizing “‘systemic failure’ and an
‘epidemic’ in Elkhart County where people are wrongfully
convicted because of police corruption, uninspiring
defense counsel and an overzealous prosecutor.” Slosar
went on to say that “these factors contributed to Andrew
Royer being wrongfully convicted of a murder that he is
absolutely innocent of.” Slosar also stated that “we have
proven that his conviction was an absolute fraud and the
conviction was based on intentional misconduct.”
Additionally, videos of proposed witnesses were released
and Slosar inaccurately referred to the pending Trial Rule
60(B) Motion filed in this Court as an “appeal.”
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 8 of 33
10. The Indiana Supreme Court in In re: Litz[,] 721 N.E.2d 258
(Ind. 1999) addressed behavior such as [Slosar’s] and held
that Litz’s publication of a letter in several local newspapers
which state[d] his client committed no crime, criticized the
prosecutor’s decision to retry the case, and mentioned his
client had passed a lie detector test constituted a violation
of Ind. Professional Conduct Rule 3.6(a).[6]
11. In sum, Slosar’s comments and statements are beyond the
scope of the exceptions stated in Ind. Professional Conduct
Rule 3.6(b) as to what a lawyer who is participating in
litigation of a matter may state.[7] The statements are highly
inflammatory, defamatory, inaccurately state the law as it
exists at this time with respect to Royer’s conviction, and
draw legal conclusions about matters not yet adjudicated.
6
Indiana Rule of Professional Conduct 3.6(a) provides as follows:
A lawyer who is participating or has participated in the investigation or litigation of a
matter shall not make an extrajudicial statement that the lawyer knows or reasonably
should know will be disseminated by means of public communication and will have a
substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
7
Indiana Rule of Professional Conduct 3.6(b) provides as follows:
Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the
identity of the persons involved;
(2) information contained in the public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is
reason to believe that there exists the likelihood of substantial harm to an
individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid
in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the
length of the investigation.
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 9 of 33
Slosar’s actions go beyond simply summarizing evidence
that is a matter of public record. Further, any alleged “new
evidence” must be heard in accordance with the judicial
process before any legal conclusions may be reached.
Essentially, the extrajudicial statements made by Slosar at
the public press conference, and which were reported in the
media, do exactly what the Rule prohibits - forming public
opinion that has a substantial likelihood of materially
prejudicing the adjudicative proceedings pending in this
Court.
* * * * *
13. Here, the Court finds that the statements Slosar made at
the public press conference held on June 13, 2018, violated
Ind. Rule of Professional Conduct 3.6(a) in that they were
extrajudicial statements that Slosar knew or reasonably
should have known would be disseminated by means of
public communication and would have a substantial
likelihood of prejudicing the adjudicative proceeding that
is pending in this matter, specifically, his Trial Rule 60(B)
Motion.
14. While the Court clearly recognizes Slosar’s First
Amendment right to free expression, as noted by the
Indiana Supreme Court in the Commentary to Ind.
Professional Rule of Conduct 3.6,[8] that right must be
8
The commentary to Indiana Rule of Professional Conduct 3.6 provides, in relevant part, as follows:
It is difficult to strike a balance between protecting the right to a fair trial and
safeguarding the right of free expression. Preserving the right to a fair trial necessarily
entails some curtailment of the information that may be disseminated about a party prior
to trial, particularly where trial by jury is involved. If there were no such limits, the result
would be the practical nullification of the protective effect of the rules of forensic
decorum and the exclusionary rules of evidence. On the other hand, there are vital
societal interests served by the free dissemination of information about events having
legal consequences and about legal proceedings themselves. The public has a right to
know about threats to its safety and measures aimed at assuring its security. It also has a
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 10 of 33
balanced with the right to fair and impartial legal
proceedings, which may entail some restriction of the
information that may be disseminated about a party prior
to and during those proceedings. Ind. Professional Rule of
Conduct 3.6 does not curtail free speech except to the
extent necessary to protect the corresponding right to fair
proceedings. This is the basis upon [which] the Court is
acting.
15. For all these reasons, Slosar is hereby enjoined from
making extrajudicial commentary and statements to the
extent explained in Ind. Professional Rule of Conduct 3.6
on the matter that is pending before this court. Failure to
comply with this Order will be deemed willful failure to
comply with Ind. Professional Conduct Rule 3.6 and is
subject to appropriate sanctions.
(2022 App. Vol. 3 at 56-59). Also, in the order, the trial court noted that
Attorney Slosar had argued that Indiana Rule of Professional Conduct 3.6 had
not applied to this case because no trial had been pending. The trial court
responded that it disagreed with Attorney Slosar’s “over[-]simplification of the
intent of the Rule” and found that “the clear and express language of paragraph
(a) is that dissemination of extrajudicial statements that will have a likelihood of
materially prejudicing an adjudicative proceeding (Emphasis added) is
prohibited. Indeed, that language, as well as ‘legal proceedings’ is used
legitimate interest in the conduct of judicial proceedings, particularly in matters of general
public concern. Furthermore, the subject matter of legal proceedings is often of direct
significance in debate and deliberation over questions of public policy.
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 11 of 33
throughout the Rule, the Commentary, and in case law.” (2022 App. Vol. 3 at
56).
[11] In August 2018, Royer filed a motion to withdraw, without prejudice, his Trial
Rule 60(B) motion, which the trial court granted. In May 2019, Royer filed a
motion for permission to file a successive petition for post-conviction relief,
which this Court granted. Royer then filed a successive petition for post-
conviction relief and a motion for change of judge. The post-conviction court
judge, who had issued the order finding that Attorney Slosar had violated
Indiana Rule of Professional Conduct 3.6(a), granted Royer’s motion for a
change of judge.
[12] Royer’s case was subsequently assigned to Kosciusko Superior Court Judge Joe
V. Sutton (“Judge Sutton”), who held a four-day hearing on Royer’s successive
petition for post-conviction relief in October and November 2019. Following
the hearing, Judge Sutton issued a fifty-five-page order granting Royer’s
successive petition for post-conviction relief and vacating Royer’s murder
conviction based on newly discovered evidence and Brady violations.
[13] Judge Sutton specifically found newly discovered evidence that Elkhart County
Forensic Specialist Dennis Chapman (“Forensic Specialist Chapman”) had not
been qualified to conduct the latent fingerprint comparisons that he had made
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 12 of 33
in Royer’s case.9 Judge Sutton noted that then-Elkhart County Chief Deputy
Prosecutor Vicki Becker (“Deputy Prosecutor Becker”)10 had been responsible
for meeting with Forensic Specialist Chapman and preparing him to testify.
However, Judge Sutton found that Deputy Prosecutor Becker had not been
provided with Forensic Specialist Chapman’s resume and had not been told
that he was not qualified to conduct comparisons of latent prints. Judge Sutton
further found that Forensic Specialist Chapman had “misled [Deputy
Prosecutor] Becker into believing that he was qualified to conduct the type of
latent print comparisons that [had] exist[ed]” in the case. (2022 App. Vol. 3 at
69). Judge Sutton also found a Brady violation because Forensic Specialist
Chapman’s lack of qualifications had not been disclosed to the defense.
[14] Judge Sutton further found newly discovered evidence that Detective Carl
Conway (“Detective Conway”), the lead investigator in the Sailor homicide,
had been removed from the homicide unit before Royer’s trial. The reason for
Detective Conway’s removal was a misrepresentation that he had made to an
attorney regarding one of the attorney’s clients. 11 Based upon this
9
In 2012, the Elkhart County Sheriff’s Department disciplined Forensic Specialist Chapman for his role in
Royer’s case. Forensic Specialist Champman retired in 2013.
10
Vicki Becker is currently the elected Elkhart County Prosecutor.
11
Judge Sutton further explained that Detective Conway’s appeal of his removal from the homicide unit had
been summarily denied. In addition, Detective Conway had later been removed from the sex-crimes unit.
According to Judge Sutton, during that removal process, Detective Conway had “made a complaint to
[Deputy Prosecutor Becker]. A disciplinary proceeding ensued that resulted in an agreement between
[Detective] Conway and the Elkhart Police Department. As part of that agreement, the Elkhart Police
Department agreed to withdraw any allegations alleging or suggesting that ‘he caused the Office of the
Prosecuting Attorney to lose faith in the Elkhart Police Department or to question its ability to supervise its
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 13 of 33
misrepresentation, Detective Conway’s supervisors had concerns about the
impact that his misrepresentations would have on future homicide
investigations and his credibility at trials if called to testify. However, Detective
Conway’s removal from the homicide unit had not been disclosed to Royer
before trial. Judge Sutton further found a Brady violation because the Elkhart
Police Department had not disclosed Detective Conway’s removal to the
defense.
[15] In addition, Judge Sutton found newly discovered evidence that Detective
Conway had threatened a critical witness in Royer’s case and had promised her
$2,000 to falsely testify against Royer at trial. Judge Sutton further found that
the witness’ recantation of her trial testimony at the post-conviction hearing and
her explanation for how her statement had been crafted were both credible. In
addition, Judge Sutton found a Brady violation because the coercion of the
witness and the fabrication of her testimony had not been disclosed to the
defense.
[16] Judge Sutton further found newly discovered evidence that Royer’s two audio-
recorded statements obtained on September 3 and September 4, 2003, which
totaled approximately sixty-one minutes, were unreliable and involuntary.
Judge Sutton specifically noted that Detective Conway had interrogated Royer
for approximately seven and one-half hours and that there was newly
detectives, investigate sex crimes or to perform any other form of police activities.’ In exchange, Detective
Conway accepted a written reprimand.” (2022 App. Vol. 3 at 83-84 n.7).
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 14 of 33
discovered evidence that Detective Conway had a reputation for obtaining
confessions from every suspect that he had interrogated while assigned to the
homicide unit. In addition, Judge Sutton found newly discovered evidence that
Detective Conway’s ability to obtain confessions had not been a direct result of
his internal interrogation training at the Elkhart Police Department. Judge
Sutton further found newly discovered evidence that the Elkhart Police
Department had not provided Detective Conway with any meaningful training
on how to conduct interrogations, including how to interrogate a suspect such
as Royer, who suffered from a mental disability. Judge Sutton also found that
although Detective Conway had been aware of Royer’s mental disability,
Detective Conway had not used any protections to safeguard against the
possibility of Royer giving false and unreliable statements. Judge Sutton
specifically pointed out that although another member of the homicide unit had
told Detective Conway that the Elkhart Housing Authority had documentation
revealing that Royer was severely disabled and had the mind of a child, Royer
had not been permitted to have a lawyer, counselor, or family members present
for his interrogations on September 3 and 4.
[17] In addition, Judge Sutton found newly discovered evidence that Royer had not
knowingly and voluntarily waived his Miranda rights because Detective
Conway had not properly taken the time to advise Royer of these rights. Judge
Sutton also found newly discovered evidence that Detective Conway had
“repeatedly provided information about the homicide to Mr. Royer throughout
the unrecorded two-day interrogation sessions.” (2022 App. Vol. 3 at 101). In
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 15 of 33
addition, Judge Sutton found newly discovered evidence that although
Detective Conway revealed at the successive post-conviction hearing that
Royer’s “mental well-being [had] broke[n] down[]” during the interrogations,
Detective Conway had taken Royer’s recorded statement and placed him under
arrest. (2022 App. Vol. 3 at 103). Royer had been “in such a state of confusion
that Detective Conway had to remind him that he [had given] a confession and
was under arrest.” (2022 App. Vol. 3 at 103).
[18] Judge Sutton also found newly discovered evidence that the Elkhart Police
Department’s investigation into Royer’s statements corroborated their
unreliability. (2022 App. Vol. 3 at 104). Specifically, Detective Conway
acknowledged that he was only able to corroborate the following two basic
pieces of information from all of Royer’s statements: (1) Royer knew the other
person who had been charged with killing Sailor; and (2) Royer lived in the
same building as Sailor. Further, many of the details in Royer’s recorded
statements conflicted with the physical evidence.
[19] Based on these extensive findings, including newly discovered evidence and
Brady violations, Judge Sutton vacated Royer’s murder conviction after
concluding that he was entitled to a new trial. We note that although Judge
Sutton found several Brady violations, Judge Sutton’s order does not specifically
state that Deputy Prosecutor Becker or any other prosecutor had known about
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 16 of 33
Detective Conway’s misconduct or had purposely withheld evidence from the
defense.12
[20] On appeal, we affirmed Judge Sutton’s grant of Royer’s successive petition for
post-conviction relief and vacation of Royer’s murder conviction. Royer, 166
N.E.3d at 380. We specifically highlighted instances of Detective Conway’s
misconduct and concluded that Royer had not received a fair trial. Like Judge
Sutton, we did not state that Deputy Prosecutor Becker or any other prosecutor
had known about Detective Conway’s misconduct or had purposely withheld
evidence from the defense.
[21] We now return to the facts in Dillard’s appeal. As stated above, Dillard filed a
thirty-five-page change of judge motion in July 2022. The trial court held a
hearing on Dillard’s change of judge motion in October 2022. At the hearing,
the State, which had not filed a written response to Dillard’s change of judge
motion, argued that Dillard had presented “no viable legal argument which
would call for the [post-conviction] court [judge] to recuse [her]self[.]” (Tr. Vol.
2 at 23).
[22] In November 2022, the post-conviction court issued an eleven-page order
denying Dillard’s change of judge motion. This order provides, in relevant part,
as follows:
12
“For Brady purposes, the prosecutor is charged with knowledge of information known by the police even if
the prosecutor herself is unaware of the information.” Royer, 166 N.E.3d at 400.
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 17 of 33
15. [Dillard’s] on-going claim that this Court is unable to be
impartial because the Judge held a position as a Deputy
Prosecutor in the Elkhart County Prosecutor’s Office from
1998-2002, and as such, would have served in the capacity
during the same time period as elected Elkhart County
Prosecutor, Vickie Becker, is not supported by any facts or
evidence. The working relationship between the Court
and Ms. Becker was always professional in nature, and
was not as [Dillard] suggests a “special” or
“extraordinary” relationship. The same is true with
respect to the Court’s contacts with law enforcement
officers and deputy prosecutors. Those working
relationships were not in the nature of private friendships
or of particular closeness so as to infringe on impartiality.
This Judge interacted with Ms. Becker as would any
deputy prosecuting attorney, as professional colleagues.
This Court does not recall any specific involvement in
[Dillard]’s case at all.
16. The same is true of Curtis Hill and the Hon. Michael
Christofeno. Never was the Court involved in any extra
judicial connection with either of them except on an
intermittent basis. [Dillard]’s opinion that this Court and
the Hon. Michael Christofeno share the “same bench” is
not accurate. Elkhart Circuit Court and this Court are
separate and distinct courts within Elkhart County. There
is nothing in the record of this case that is of any legitimate
concern or that presents an appearance of impropriety as
to the workings of the courts. Just as other Petitioners
being represented by these common counsel have not
previously demonstrated personal bias or prejudice on the
part of this Court, [Dillard] has not presented any evidence
to support how this Court’s prior employment as a deputy
prosecuting attorney, or its relationship with other courts
or judicial officers impacts this Court’s ability to be
impartial.
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 18 of 33
17. [Dillard] has included in his Motion for Recusal certain
detail about this Court’s former marriage to a former
Elkhart Police Department Reserve Officer, and argues
that this relationship surely renders this Court bias[ed]
because the ex-husband was allegedly involved in certain
wrongdoing; therefore, the Court must have been privy to
and accepted or engaged in the conduct itself. This Court
has already addressed this issue regarding her former
husband in previous orders wherein all of the same
arguments raised by [Dillard] in his current Motion were
raised. The arguments were specifically and expressly
addressed and explained by the Court. (See, Order, dated
April 29, 2022, denying Petitioner’s Renewed Motion for Recusal
in the case of Leon Tyson v. State, Cause No. 20D03-1807-PC-
000037), which the Court takes judicial notice of and
incorporates herein[.][13]
13
In the Tyson case, the post-conviction court judge, who is the post-conviction court judge in
Dillard’s case, stated as follows in her order denying Tyson’s renewed motion for recusal:
In his Renewed Motion for Recusal, [Tyson] alleges that this Court must recuse in the
pending post conviction case because the Judge was married to an Elkhart Police
Department reserve officer, Stephen Cappelletti (“Cappelletti”), from June 6, 1992
through April 15, 2003, and that Cappelletti had close ties to a group of officers who
framed [Tyson] and was involved in police misconduct similar to that alleged in [Tyson]’s
Post Conviction Relief Petition. Cappelletti was with the Elkhart Police Department part
time from 1983-1994; therefore, during most of that time, this Judge was not married to
him. Also, any direct allegation of misconduct by Cappelletti as espoused by Tyson in
his Renewed Motion allegedly occurred in 1989, prior to the marriage. Cappelletti did
not work at the Elkhart Police Department at any time when an investigation would have
ensued in [Tyson]’s case. Cappelletti’s employment with the Elkhart Police Department
ended in 1994. Tyson was charged with the offense of Murder on December 7, 2015, and
was convicted on January 26, 2017. That Cappelletti was involved in any investigation
of [Tyson]’s case between 1994 and 2003 and would have shared information with this
Court about a murder that did not occur until June 20, 2015 is not only incredulous, but
impossible. Moreover, this Judge had been divorced from Cappelletti for over twelve (12)
years when [Tyson] was charged and had no contact with him thereafter. Further, to
suggest that any of the activities or attitudes [Tyson] avers Cappelletti and/or his
associates engaged in or believed somehow means that this Court must also condone
such activities and harbor such beliefs based on the marriage many years earlier is entirely
without merit. Even if Cappelletti remained friends with former Elkhart Police Officers,
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 19 of 33
18. Petitioner Dillard also alleges that this Court’s findings in
the case of State v. Andrew Royer, in Cause No. 20D03-
0309-MR-0155, regarding the conduct of attorney Eliot
Slosar and the ultimate entry of an injunction against Mr.
Slosar, calls into question the ability of the presiding Judge
to remain unbiased and impartial in the instant case.
Specifically, [Dillard] complains that because this Court
previously found comments and allegations by Mr. Slosar
to be “defamatory,” the Court formed opinions on the
that does not implicate this Court. Contrary to [Tyson]’s contention, the Judge’s former
marriage does not provide “corroborative detail” that this Court cannot impartially assess
the credibility of witnesses who may be associated with police officers in general and their
alleged misconduct. Moreover, [Tyson] has failed to demonstrate how this Court’s ex-
husband bears any nexus to [Tyson]’s post-conviction matter. Other than a shared
employment status many years ago with individuals accused of wrongdoing who may or
may not testify in this case, there is no connection at all. [Tyson] has not shown that this
Judge was witness to or adheres to anything that would comprise his post conviction
case[.]
In the instant case, there is no evidence that this Court’s former marriage to an Elkhart
Police Department reserve officer in any way ever swayed the Judge’s decision making or
does so today nineteen (19) years post-divorce. Cappelletti stopped working for the
Elkhart Police Department in 1994, twenty-one (21) years prior to [Tyson]’s offense. It is
unlikely that Cappelletti himself obtained any information about [Tyson]’s case, let alone
imparted such knowledge to this Court. This Judge has no knowledge derived from
extrajudicial sources stemming from her marital relationship with Cappelletti about
[Tyson]’s case that could demonstrate personal prejudice or bias against [Tyson] in this
post conviction proceeding. [Tyson] has failed to draw any valid connection between his
case, Cappelletti and this Court other than self serving commentary that Cappelletti may
be a critical witness to a pattern and practice of alleged police misconduct at the Elkhart
Police Department. [Tyson], however, has not articulated any meaningful argument as
to how Cappelletti, a reserve Elkhart Police Department officer until 1994, constitutes a
critical witness to [Tyson]’s 2017 conviction. [Tyson] makes a final claim that this Court
had an obligation to disclose her past marriage to Cappelletti under Rule 2.11 Code of
Judicial Conduct, n.5. Honestly, why it would cross the mind of the Court to disclose
that she was once married to a man who served as a reserve Elkhart Police Department
officer for approximately two (2) years while they were married and whom the Court
divorced some nineteen (19) years ago is wholly untenable. This was not information
that this Judge should be expected to believe the parties or their lawyers might reasonably
consider relevant to a motion for disqualification. [Tyson]’s argument in this regard is
not persuasive and recusal is not required.
Tyson, 217 N.E.3d at 566-67.
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 20 of 33
merits of Royer’s case. Therefore, [Dillard] avers that this
Judge is duly biased and unfit to preside over the current
post conviction case in which [Dillard] raises similar
allegations. However, [Dillard] misstates the issue
addressed by the Court in Royer by stating that the Court
found that the allegations of “systemic failure” in Elkhart
County leading to the wrongful convictions were false;
and, that Royer’s counsel knowingly or recklessly made
false statements about the causes of Royer’s convictions.
[Dillard] further averred that this Court reached these
conclusions without hearing the testimony of a single
witness or considering any evidence in the Royer case.
19. This Court has previously addressed in full the facts
attendant to its July 3, 2018 Order in the Royer case, (See,
Order dated September 8, 2001 in the case of Tyson, supra), and
reiterates that reasoning here. A review of the actual
Order entered on July 3, 2018 clearly shows that
[Dillard]’s characterization of the proceedings in Royer is
wrong. That matter came on for hearing on the State’s
Motion for Emergency Hearing and Request for
Injunction based on Mr. Slosar holding a press conference
outside the Prosecutor’s Office in downtown Elkhart,
Indiana, during which he made a number of comments
about Royer’s then pending Ind. Trial Rule 60(B) motion.
Specifically, at the time the Court issued its July 3, 2018
Order, the statements made by Mr. Slosar to the press
characterized “‘systemic failure’ and an ‘epidemic’ in
Elkhart County where people are wrongfully convicted
because of police corruption, uninspiring defense counsel
and an overzealous prosecutor.” Slosar went on to say
that “these factors contributed to Andrew Royer being
wrongfully convicted of murder that he is absolutely
innocent of.” Slosar also stated that “we have proven that
his conviction was an absolute fraud based on intentional
misconduct.” The Court found Slosar’s statements to be
beyond the scope of the exceptions stated in Ind.
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 21 of 33
Professional Conduct Rule 3.6(b), as well as inflammatory
and defamatory as they inaccurately stated the law as it
existed at that time with respect to Royer’s conviction, and
inappropriately drew legal conclusions about matters that
had not yet been adjudicated. (Court’s July 3, 2018 Order).
20. [T]he Court carefully reviewed the [State’s Motion for an
Emergency Injunction] and Royer’s response, along with
numerous attachments; therefore, the Court did consider
evidence and testimony relevant to the Motion before it.
Royer’s 60(B) Motion was not before the Court; the State’s
Motion for an Emergency Injunction was. Royer’s 60(B)
Motion was pending, and . . . nothing had been proven,
and there was no ruling on the merits of that Motion;
therefore, Mr. Slosar’s statements to the public and media
were blatantly inappropriate and false. In his Motion for
Recusal, [Dillard] is attempting to frame the issues
addressed in the Court’s July 3, 2018 Order in the Royer
case nearly three (3) years ago to serve his own purpose in
the instant case. However, the facts surrounding the
Court’s finding and entry of an injunction in the Royer
case are in no way present, relevant or even similar to the
instant case and that argument is without merit.
* * * * *
22. [Dillard]’s attempts to cite Andrew Royer’s subsequent
successful post conviction action decided in 2021 as
evidence that counsel’s statements in 2018 were true and
an absolute defense to the Judge’s characterization of
attorney Slosar’s comments as defamatory also fail.
Although [Dillard] is correct that Andrew Royer
ultimately prevailed on his post conviction action, that fact
was not established when the Court ruled in the 2018
injunction case and has absolutely no bearing on the
instant case. Relying on the Court’s previous ruling as
evidence of personal bias on the part of the presiding
Judge erroneously treats the Court’s finding that counsel
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 22 of 33
violated Ind. Rule of Professional Conduct 3.6(a) as
pertaining to substantive issues in Royer’s post conviction
case. Clearly, the Court’s Order of July 3, 2018 does not
support a rational inference of personal bias toward
Petitioner Reginald Dillard. The Court’s July 3, 2018
injunction in the Royer case was issued on a very narrow
set of circumstances, and the impetus behind the Court’s
Order was to prevent conclusions from being reached
without a full adjudication on the evidence, ensure the
integrity of the litigation and circumscribe maneuvers that
might prejudice the pending adjudicative proceedings. It
cannot be said that an objective person with knowledge of
those circumstances would doubt the impartiality of the
Judge in the instant case. Andrew Royer’s success in his
post conviction case has no bearing on the instant case
simply because [Dillard] is again claiming the same
alleged “systemic failure.” There is no factual connection
between Royer and the instant case at all, let alone a
connection warranting recusal of the presiding Judge. In
fact, Royer’s success on his individual post conviction
petition does not unequivocally demonstrate the presence
of what [Dillard] frames as “systemic” misconduct in
Elkhart County.
23. Finally, [Dillard]’s argument that this Court must recuse
because the Judge may be subpoenaed as a witness is
purely speculative at this time and whether that would
ever come to fruition remains to be seen as simply making
that attempt does not automatically mean such an
endeavor would be successful. The allegation is certainly
not enough to warrant the recusal of the Court now.
24. In sum, [Dillard] has made no viable legal argument that
would require this Court to recuse. [Dillard] relies on
what he characterizes as facts, but which are actually
vague, speculative opinions and attacks on the Court. For
all the herein stated reasons, this Court concludes that
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 23 of 33
[Dillard] had not met his burden of overcoming the
presumption that this Judge is unbiased and unprejudiced
with respect to [Dillard]’s pending post-conviction
proceeding.
(2023 App. Vol. 4 at 17-23) (emphasis added) (footnote omitted).
[23] In January 2023, the post-conviction court certified its order for interlocutory
appeal. In its certification order, the post-conviction court stated as follows:
The Court believes that its Order denying recusal in this case
demonstrates that the Court took great care to research and
address each of [Dillard]’s arguments, and appropriately applied
well-settled case law regarding recusal in determining that no
actual bias had been shown and that recusal is not warranted[.]
Notwithstanding the foregoing, the Court believes that
substantial questions of law do exist as to the appropriateness of
[Dillard] repeatedly raising irrelevant matters outside this case,
whether [Dillard] has incorrectly interpreted previous Orders
issued by this Court in another unrelated case, and proceeding to
wrongfully perpetuate an argument based on that
misinterpretation, and whether [Dillard] has drawn conclusions
not based on facts and evidence in this case in support of his
position that this Court harbors bias and prejudice against him;
and, therefore, is unable to render an impartial decision in his
post conviction proceeding. With respect to these matters, the
Court finds that early resolution would promote a more orderly
disposition of the case and promote judicial economy and
resources. While this appeal will by no means resolve the
pending post conviction litigation, it will resolve the important
threshold issue of judicial recusal before the case proceeds on the
merits.
Therefore, in this regard, the Court sees no reason to deviate
from its inclination to certify the Order denying recusal in this
case for the same reasons as those articulated in previous similar
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 24 of 33
cases, to-wit to gain guidance and clarification from the Court of
Appeals with respect to [Dillard]’s allegations for recusal which
this Court believes are based on misinterpretation and
mischaracterization of the facts and unfounded conclusions that
this Court harbors actual bias based on tenuous, speculative and
specious claims not supported by the facts.
(2023 App. Vol. 4 at 25-26). In March 2023, this Court accepted jurisdiction
over Dillard’s interlocutory appeal. In addition, this Court’s motions panel
granted Dillard’s motion to consolidate his case with the three previously
consolidated cases, which, as explained above, we have de-consolidated.
[24] Dillard now appeals the denial of his motion for a change of judge in his post-
conviction case.
Decision
[25] Dillard argues that the post-conviction court clearly erred when it denied his
motion for a change of judge. We disagree.
[26] At the outset, we note that the law is well-settled that “adjudication by an
impartial tribunal is one of the fundamental requirements of due process
imposed on the courts of this state by the Fourteenth Amendment to the federal
constitution.” Matthews v. State, 64 N.E.3d 1250, 1253 (Ind. Ct. App. 2016)
(citing Tumey v. Ohio, 273 U.S. 510, 535 (1927)), trans. denied. Judges are
presumed impartial and unbiased. Matthews, 64 N.E.3d at 1253. “‘[T]he law
will not suppose a possibility of bias or favor in a judge, who is already sworn to
administer impartial justice, and whose authority greatly depends upon that
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 25 of 33
presumption and idea.’” Matthews, 64 N.E.3d at 1253 (quoting 3 William
Blackstone, Commentaries *361)).
[27] In post-conviction cases, parties seeking to overcome the presumption of
judicial impartiality must move for a change of judge under Post-Conviction
Rule 1(4)(b). That rule provides, in relevant part, as follows:
Within ten (10) days of filing a petition for post-conviction relief
under this rule, the petitioner may request a change of judge by
filing an affidavit that the judge has a personal bias or prejudice
against the petitioner. The petitioner’s affidavit shall state the facts
and the reasons for the belief that such bias or prejudice exists,
and shall be accompanied by a certificate from the attorney of
record that the attorney in good faith believes that the historical
facts recited in the affidavit are true. A change of judge shall be
granted if the historical facts cited in the affidavit support a
rational inference of bias or prejudice.
(Emphasis added).
[28] This rule requires the judge to examine the affidavit, treat the historical facts
recited in the affidavit as true, and determine whether these facts support a
rational inference of bias or prejudice. Pruitt v. State, 903 N.E.2d 899, 939 (Ind.
2009). A change of judge is neither automatic nor discretionary but calls for a
legal determination by the post-conviction court. Id. We presume that the post-
conviction court is not biased against a party and disqualification is not required
under the rule unless the judge holds a “personal bias or prejudice.” Id.
(quoting P.-C.R. 1(4)(b)). Typically, a bias is personal if it stems from an
extrajudicial source, which means a source separate from the evidence and
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 26 of 33
argument presented at the proceedings. Pruitt, 903 N.E.2d at 939. “Such bias
or prejudice exists only where there is an undisputed claim or the judge has
expressed an opinion on the merits of the controversy before [her].” L.G. v.
S.L., 88 N.E.3d 1069, 1073 (Ind. 2018).
[29] “Further, Indiana courts credit judges with the ability to remain objective
notwithstanding their having been exposed to information which might tend to
prejudice lay persons.” Id. In addition, “[a] showing of prejudice sufficient to
support a motion for a change of judge must be established from personal,
individual attacks on a defendant’s character, or otherwise.” Miller v. State, 106
N.E.3d 1067, 1076 (Ind. Ct. App. 2018), trans. denied. Stated differently, “a
motion for a change of judge should be granted only if the evidence reveals such
a high degree of favoritism or antagonism as to make a fair judgment
impossible.” State v. Shackleford, 922 N.E.2d 702, 707 (Ind. Ct. App. 2010)
(cleaned up), trans. denied.
[30] The ruling on a motion for change of judge is reviewed under the clearly
erroneous standard. Garland v. State, 788 N.E.2d 425, 433 (Ind. 2003).
Reversal will require a showing which leaves us with a definite and firm
conviction that a mistake has been made. Id.
[31] We restate Dillard’s first argument as whether the post-conviction court clearly
erred in denying his motion for change of judge because the post-conviction
court’s 2018 order in the unrelated Royer case finding that Attorney Slosar had
violated Rule of Professional Conduct 3.6(a) supports a rational inference of
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 27 of 33
bias or prejudice against Dillard.14 “Prior judicial rulings generally do not
support a rational inference of prejudice.” Voss v. State, 856 N.E.2d 1211, 1217
(Ind. 2006). “Adverse rulings and findings by a trial judge from past
proceedings with respect to a particular party are generally not sufficient
reasons to believe the judge has a personal bias or prejudice.” Id. Although the
mere assertion that certain adverse rulings by a judge constitute bias and
prejudice does not establish the requisite showing, there may be circumstances
in which a rational inference of bias or prejudice may be established if a judge’s
order is sufficiently egregious. Id.
[32] Here, however, we find nothing egregious in the July 2018 order that the trial
court judge, who is the post-conviction court judge in Dillard’s case, issued in
the unrelated Royer case. Rather, the trial court simply concluded that
Attorney Slosar’s press conference statements regarding systemic police
misconduct in Elkhart, which he had made before the adjudication of Royer’s
Trial Rule 60(B) motion, violated Rule of Professional Conduct 3.6(a). Further,
14
We note that Dillard asserts that in Royer, 166 N.E.3d at 380, this Court found systemic police and
prosecutorial misconduct in Elkhart. We did not. Specifically, we find no language in our opinion in Royer
to support such an interpretation. Rather, our review of our opinion in Royer reveals that the newly
discovered evidence related primarily to the horrific conduct of one Elkhart Police Department detective.
Dillard also asserts that in its July 2018 order in the Royer case, the post-conviction court found that there
was no systemic police or prosecutorial misconduct in Elkhart. It did not. The post-conviction court’s order
in the Royer case solely addressed the statements that Attorney Slosar made at a press conference after he
had filed in Royer’s case a motion for relief from judgment pursuant to Indiana Trial Rule 60(B).
Specifically, the post-conviction court found that Attorney Slosar’s statements violated Rule of Professional
Conduct 3.6(a) because Attorney Slosar knew or reasonably should have known that these statements would
be disseminated by means of public communication and would have a substantial likelihood of prejudicing
the adjudicative proceeding that was pending in the matter.
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 28 of 33
and more importantly, the trial court’s July 2018 order does not mention
Dillard or anything about Dillard’s case. In sum, we find nothing in the Royer
order that supports a rational inference of bias or prejudice against Dillard.15
[33] We restate Dillard’s second argument as whether the post-conviction court
clearly erred in denying Dillard’s motion for a change of judge because the post-
conviction court’s 1998-2002 tenure as a deputy prosecutor supports a rational
inference of bias or prejudice against Dillard. In Calvert v. State, 498 N.E.2d
105, 107 (Ind. Ct. App. 1986), this Court concluded “that a trial judge must
disqualify [her]self from a proceeding in which [s]he has actively served as an
attorney for one of the parties regardless of whether actual bias or prejudice
exists.” Here, although the post-conviction court judge worked in the
prosecutor’s office during the investigation of Thomas’ murder and during
Dillard’s murder trial, Dillard does not allege that the post-conviction court
judge actively served as a deputy prosecutor on Dillard’s case. Rather, Dillard
claims that the post-conviction court should grant his change of judge motion
because he intends to seek discovery from all the prosecutors who worked at the
15
We further note that Dillard’s argument that the post-conviction court should have granted his motion for
a change of judge because it granted the motion for a change of judge in the Royer case is unavailing.
Specifically, the fact that the post-conviction court granted a motion for a change of judge in Royer’s case
“appears to us to evidence the fact that [the post-conviction court judge] would conduct herself as an
unbiased jurist in applying the law to the particular facts of a case.” Smith v. State, 613 N.E.2d 412, 414 (Ind.
1993) (affirming the trial court’s denial of a motion for a change of judge where the petitioner argued that the
adverse publicity that the post-conviction court received as a result of granting an unrelated petition for post-
conviction relief would cause the post-conviction court to be biased against granting post-conviction relief in
petitioner’s case), cert. denied.
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 29 of 33
Elkhart County Prosecutor’s Office during that investigation and trial and that,
therefore, the post-conviction court judge will be a material witness at Dillard’s
post-conviction hearing. However, we agree with the State that Dillard’s intent
“to depose every prosecutor that was in the office[]” during that time establishes
that the post-conviction court “would not possess unique information about the
prosecutor’s office’s knowledge on this subject and that [Dillard] has other
means of learning this information.” (State’s Br. 14). See Stevens v. State, 770
N.E.2d 739, 763 (Ind. 2002) (affirming the post-conviction court’s denial of
petitioner’s change of judge motion where petitioner intended to interview the
post-conviction court regarding a trial issue and the post-conviction court
concluded that “there [were] ample witnesses who c[ould] testify about those
conversations . . . without the requirement of calling the trial judge as a witness
to add . . . perhaps cumulative testimony”), cert. denied. Indeed, we further
agree with the State that “Dillard’s intention to engage in a fishing expedition to
determine the knowledge of every prosecutor who worked in the office during
the relevant time period alone demonstrates that [the post-conviction court
judge] is not a material witness.” (State’s Br. 14). Dillard has failed to show
the post-conviction court’s 1998-2002 tenure as a deputy prosecutor supports a
rational inference of bias or prejudice against Dillard.16
16
Dillard also contends that more than twenty years ago, when the post-conviction court judge was a deputy
prosecutor, the post-conviction court judge “worked with Vicki Becker on a robbery prosecution of an
Elkhart man named Blease White” and failed to disclose Brady evidence to White. (Dillard’s Br. 17). Dillard
appears to believe this is an historical fact that supports a rational inference of bias or prejudice. However, as
we noted in the Seabolt case, this is not an accurate statement of the facts. Specifically, our review of the
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 30 of 33
[34] Lastly, we restate Dillard’s third argument as whether the post-conviction court
clearly erred in denying Dillard’s motion for a change of judge because the post-
conviction court judge’s 1992-2003 marriage to Cappelletti supports a rational
inference of bias or prejudice against Dillard. The post-conviction court judge’s
marriage to Cappelletti ended more than twenty years ago, and Dillard’s
affidavit does not allege that any relationship existed between Cappelletti and
the post-conviction court judge after their marriage had been dissolved. Indeed,
in her order denying Dillard’s motion for a change of judge, the post-conviction
court judge specifically noted that she had not had contact with Cappelletti
since their marriage had been dissolved in 2003. Given the remoteness in time
of the post-conviction court judge’s marriage to Cappelletti, Dillard has failed to
show that this prior marriage supports a rational inference of bias or prejudice
against Dillard. See Bloomington Magazine, 961 N.E. 2d at 66. See also McKinney
record in Seabolt revealed that the post-conviction court judge had not worked on the White case with Becker.
Rather, the post-conviction court judge attended one hearing for Becker on November 30, 2000, at which
time the only action taken was the setting of a jury trial date. Dillard has failed to show that the post-
conviction court judge’s attendance at this hearing supports a rational inference of bias or prejudice against
Dillard.
Dillard further alleges that the post-conviction court judge’s “close friendship with Vicki Becker, [who is]
representing the State in Mr. Dillard’s case[],” supports a rational inference of bias or prejudice against
Dillard. (Dillard’s Br. 16). However, Dillard’s allegation that the post-conviction court judge and Becker are
close friends is based on the fact that when they worked together at the prosecutor’s office more than twenty
years ago, they went to dinner together and talked on the phone. Dillard has neither alleged nor presented
any evidence that the alleged friendship that existed between the post-conviction court judge and Becker
continued after the post-conviction court judge left the prosecutor’s office. A prior friendship that existed
twenty years ago simply does not support a rational inference of bias or prejudice against Dillard. See
Bloomington Magazine, Inc. v. Kiang, 961 N.E.2d 61, 66 (Ind. Ct. App. 2012) (explaining that the proximity in
time of the historical facts alleged in the affidavit to the matter concerning the motion for a change of judge is
a relevant inquiry).
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 31 of 33
v. State, 873 N.E.2d 630, 640 (Ind. Ct. App. 2007) (explaining that where the
personal relationship between the trial court judge and her former employee,
who was the murder victim’s mother, had ended twenty years before the
defendant’s trial and the defendant had not alleged any facts suggesting that any
relationship existed between the two after that employment had been
terminated, the trial court did not clearly err in denying defendant’s motion for
a change of judge), trans. denied.17
Conclusion
[35] In sum, the recited historical facts on which Dillard based his motion for a
change of judge simply do not support a rational inference of bias or prejudice
against Dillard as contemplated by Post-Conviction Rule 1(4)(b). We further
17
Dillard further argues that the post-conviction court judge “cannot preside over a case where her judicial
colleague, [Judge Christofeno,] is a key witness implicated in misconduct.” (Dillard’s Br. 28). In support of
this argument, Dillard contends that “[c]ourts have repeatedly held that recusal is necessary where a judge’s
judicial colleague is a witness.” (Dillard’s Br. 28). However, Dillard misinterprets the authority that he cites
in support of this contention. Specifically, Dillard directs us to three federal district court cases where the
trial court judges granted the defendants’ motions for a change of judge. These cases do not “hold” that
recusal is necessary where a judge’s judicial colleague is a witness. Rather, they are simply the three judges’
decisions to recuse based on the specific facts of the cases. See U.S. v. O’Brien, 18 F.Supp.3d 25 (D. Mass.
2014); U.S. v. Gordon, 354 F.Supp.2d 524 (D. Del. 2005); U.S. v. Singer, 575 F.Supp. 63 (D. Minn. 1983).
Here, we note that Dillard has neither alleged nor shown that the post-conviction court judge, who is an
Elkhart Superior Court judge, and Judge Christofeno, who is an Elkhart Circuit Court judge, share a
personal friendship or even a close professional relationship. In addition, Dillard has neither alleged nor
shown that either of the judges supervise, is subordinate to, or is somehow responsible for the work of the
other. We further note that Dillard has not alleged that Judge Christofeno has committed misconduct as a
judicial officer. Rather, Dillard’s allegations of professional misconduct against Judge Christofeno concern
incidents that occurred more than twenty years ago when Judge Christofeno was a deputy prosecutor. Based
on the foregoing, and mindful of the presumption that judges are impartial and unbiased, see Matthews, 64
N.E.3d at 1253, we conclude that the post-conviction court did not clearly err in denying Dillard’s change of
judge motion.
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 32 of 33
note that the post-conviction court has neither expressed an opinion on the
merits of Dillard’s case nor attacked his character. Accordingly, because we are
not left with a definite and firm conviction that a mistake has been made, we
conclude that the post-conviction court did not clearly err in denying Dillard’s
motion for a change of judge. See Garland, 788 N.E.2d at 433. We, therefore,
affirm the post-conviction court’s denial of Dillard’s motion. See Pruitt, 903
N.E.2d at 939 (explaining that where Pruitt’s affidavit in support of his motion
for a change of judge had shown no historical facts that had demonstrated
personal bias on the part of the post-conviction court judge, Pruitt had been
provided with a full and fair post-conviction relief hearing before an impartial
judge).
[36] Affirmed.
Crone, J., and Bradford, J., concur.
Court of Appeals of Indiana | Opinion 23A-PC-261| October 24, 2023 Page 33 of 33