Barnes, J.
….
The State raises one issue, which we restate as whether the trial court properly excluded all testimony of police officers that asserted their Fifth Amendment right to remain silent during depositions and testimony at the suppression hearing.
….
… Attorney David Payne arrived and met with Taylor in the interview room. Detective Steven Westphal “sarcastically, jokingly” told Payne to “flip a toggle switch” unless Payne wanted them to listen to the conversation. [Record citations omitted throughout.] Payne flipped the toggle switch and had a thirty to forty minute conversation with Taylor. According to Taylor, they discussed “all aspects of both the case and his defense.” Unbeknownst to Payne and Taylor, some officers and LaPorte County Chief Deputy Prosecutor Robert Neary were able to hear some parts of the conversation from a nearby room. It is clear that, however long the conversation was eavesdropped on, certain crucial information regarding Taylor’s guilt [including the location of the murder weapon, a gun] was heard by law enforcement personnel.
On March 16, 2014, the State charged Taylor with murder. On March 18, 2014, Neary informed Taylor’s counsel, Craig Braje, of the eavesdropping.…
During discovery depositions of detectives Al Bush, Steven Westphal, Sean Steele, Justin Frever, and Matthew Barr, the officers invoked their Fifth Amendment right against self-incrimination and refused to answer questions concerning the eavesdropping.
Taylor filed a motion to suppress and requested that the trial court suppress the gun and “any information or evidence which was obtained by investigating officers through improper eavesdropping by officials of the State of a confidential and privileged conversation between the Defendant and his attorney.” …
The State stipulated to the suppression of the gun. According to the State, “Any and all evidence or information obtained after 4:12 p.m. on March 14, 2014, other than the above referenced firearm, was procured in the standard course of investigation, has a source independent from the privileged conversation between the Defendant and his attorney and was procured without regard to the privileged conversation between the Defendant and his attorney thus rendering the connection between the allegedly lawless conduct and the discovery of the challenged evidence so attenuated as to dissipate any perceived taint.” …
….
At the hearing on the motion to suppress, detectives Al Bush, David Cooney, Gregory Jesse, Matthew Barr, Jason Costigan, and Justin Frever refused to answer questions concerning the eavesdropping and exercised their Fifth Amendment right to remain silent. After the hearing, the trial court entered an order partially granting the motion to suppress. The trial court found that the suppression of all evidence discovered “after the interview ended at 4:12 p. March 14, 2014” was not required. However, “There does have to be a specific finding by the Court . . . that there was an independent source of information and that the specific evidence was in no way connected to the conversation between defendant and his attorney in the interview room that afternoon.” The trial court ruled that many pieces of evidence discussed at the hearing “represent evidence that would be part of a standard police investigation of a homicide” and would not be suppressed. Some other pieces of evidence, especially exhibits involving the autopsy, were discussed at the hearing, and the trial court noted that the State had not established “an independent basis” for those exhibits. The trial court ruled that the State would be required to “establish an independent basis before these exhibits can be admitted.”
The trial court then addressed the police officers’ invocation of their Fifth Amendment right against self-incrimination and found:
….
The police misconduct that occurred in the course of this investigation resulted in a grave violation of the defendant’s constitutional rights. In light of all the facts of this case and the egregious actions by the police and the State, an extraordinary remedy must be fashioned. [Citation omitted.] Any witness who has asserted the Fifth Amendment right to silence in a deposition or during testimony at the hearing on the Motion to Suppress is barred from testifying at trial. Neither the prosecution nor the defense can call any witness knowing that the individual will assert the Fifth Amendment. If a witness is called to testify and invokes the Fifth Amendment without previously expressing that intent, the testimony of that witness will be stricken in its entirety.
….
On appeal, the State argues that the trial court improperly barred the officers who asserted their Fifth Amendment right from testifying at Taylor’s trial. The State does not appeal the suppression of the handgun and the procedure established by the trial court to verify an independent source for each piece of evidence discovered after the eavesdropping. Rather, the State’s argument concerns only the trial court’s exclusion of the officers’ testimony after they asserted their Fifth Amendment right at their depositions and at the suppression hearing.
We begin by noting our disappointment, displeasure, and disgust at the conduct of all the law enforcement officers. The integrity of the entire judicial system is called into question by the conduct engaged in here by all who should know better….
I. Fifth Amendment
….
The parties do not dispute that the officers are protected by the Fifth Amendment from testifying regarding the eavesdropping. However, the State contends that the trial court’s complete exclusion of the officers’ testimony is an extreme sanction. The State argues that the officers should be allowed to give limited testimony to establish foundational requirements for evidence that they collected.
….
Here too, the police officers presumably have relevant information on the investigation not subject to their assertion of their Fifth Amendment right. The police officers’ refusal to testify does not add weight to the State’s case or produce inferences that damage Taylor’s defense. We cannot say that, based on these cases, the State should have been automatically prevented from calling the officers to testify at Taylor’s trial due to the invocation of their Fifth Amendment right regarding the eavesdropping. Rather, further analysis of the officers’ testimony is necessary to determine the admissibility of their testimony.
II. Confrontation Clause
Taylor argues that his Sixth Amendment Confrontation Clause rights would be violated if the officers were permitted to testify at his trial. …
The Confrontation Clause is violated only when assertion of the privilege undermines the defendant’s opportunity to test the truth of the witness’ direct testimony. Bagby v. Kuhlman, 932 F.2d 131, 135 (2nd Cir. 1991), cert. denied. To reconcile a defendant’s rights under the Confrontation Clause with a witness’s assertion of his or her Fifth Amendment privilege, a court must initially consider: (1) whether the matter about which the witness refuses to testify is collateral to his or her direct testimony, and (2) whether the assertion of the privilege precludes inquiry into the details of his or her direct testimony. Id. “If the court determines that the privilege has been invoked with respect to a collateral matter, or that the invocation does not preclude inquiry into the witness’ direct testimony, then the defendant’s right to cross-examine has not been impinged and no corrective action is necessary.” Id. Conversely, the Sixth Amendment is violated when a witness asserts the privilege with respect to a non-collateral matter and the defendant is deprived of a meaningful opportunity to test the truth of the witness’s direct testimony. Id. “The distinction between matters which are ‘collateral’ and those which are ‘direct’ is not precise or easy. United States v. Seifert, 648 F.2d 557, 561 (9th Cir. 1980). “It can be drawn only by reference to the particular facts of the particular case . . . .” Id. at 561-62.
….
The trial court here made no analysis of whether the officers’ unanswered questions would relate to a “collateral matter.” Taylor acknowledges these cases, which require consideration of whether the unanswered questions relate to a collateral matter, but Taylor argues there is no way to know whether the unanswered questions concern a collateral matter because he does not know what the officers overheard. The State argues that it is premature to determine whether the officers’ unanswered questions relate to collateral matters. We agree.
….
This is the appeal of a blanket exclusion order preventing all officers who participated in the eavesdropping from testifying about any matter in the case. While the conduct of these officers surely merits and warrants the sternest of disapproval from us, we recognize such an extreme remedy has not been generally approved. The United States Supreme Court has held that “Sixth Amendment remedies should be ‘tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.’” Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012) (quoting United States v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 668 (1981)). “Thus, a remedy must neutralize the taint of a constitutional violation while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution.” Id. at 1388-89 (internal citations and quotations omitted). We believe that the common sense and legally tenable approach is to continue with the process we have outlined. The State must demonstrate an independent basis for each piece of evidence. Thus, the admissibility questions are in the purview of the trial court where they most appropriately belong. The trial court is also tasked with analyzing whether the officers’ unanswered questions relate to collateral matters.
III. Right to Counsel
Taylor also argues that the trial court’s exclusion of the officers’ testimony is supported by his Sixth Amendment right to counsel. … Although the Sixth Amendment right to counsel is distinguishable from the attorney-client privilege, the two concepts overlap. [Bassett v. State, 895 N.E.2d 1201, 1206 (Ind. 2008), cert. denied.] “‘The fundamental justification for the sixth amendment right to counsel is the presumed inability of a defendant to make informed choices about the preparation and conduct of his defense. Free two-way communication between client and attorney is essential if the professional assistance guaranteed by the sixth amendment is to be meaningful.’” Id. (quoting United States v. Levy, 577 F.2d 200, 209 (3rd Cir. 1978)).
Our supreme court has held that “[t]here is no per se rule that every intrusion by the prosecution into the relationship between a criminal defendant and his attorney constitutes a Sixth Amendment violation.” Malinski v. State, 794 N.E.2d 1071, 1081 (Ind. 2003) (citing Weatherford v. Bursey, 429 U.S. 545, 550-51, 97 S. Ct. 837, 841 (1977)). “Rather, some showing of prejudice is a necessary element of a Sixth Amendment claim based on an invasion of the attorney-client relationship.” Id. (citing United States v. Chavez, 902 F.2d 259, 267 (4th Cir. 1990)). “In cases of Sixth Amendment violations, ‘absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.’” Id. (quoting Morrison, 449 U.S. at 365, 101 S. Ct. at 668).
….
Taylor concedes that he must show prejudice. He argues that “the improperly overheard communications between Taylor and Payne included substantive facts and defense strategy.” According to Taylor, he “was disadvantaged and prejudiced by those officers who were privy to his privileged conversations because of their ability to formulate answers to anticipated questions and potential [sic] shade their investigation and testimony to meet expected defenses.”
….
Our supreme court in Malinski did not require the exclusion of all testimony by the police officers that copied the defendant’s [legal] documents. Rather, the court approved the trial court’s remedy of excluding the documents for any purpose. Similarly, the trial court here has already suppressed the gun, which was admittedly gained through the eavesdropping. The trial court also required the State to provide an independent basis for each piece of evidence discovered after the eavesdropping. As for Taylor’s assertion that the officers heard his defense strategy, we recognize that Taylor is placed in an unusual position. The officers who eavesdropped on the conversation with his attorney have asserted their Fifth Amendment right and will not discuss the eavesdropping. Taylor’s attorney clearly knows the substance of their conversation, but he is bound by attorney-client privilege. Taylor’s attorney testified at the suppression hearing that they discussed “all aspects of both the case and his defense.” However, Taylor has not, at this point, demonstrated prejudice, and we cannot presume prejudice from the eavesdropping.5 We find no legal support, at this time, for Taylor’s argument that the officers’ testimony should also be excluded based on Taylor’s Sixth Amendment right to counsel.
[Footnote 5:] In the dissent, Judge May advocates applying a presumption of prejudice. Courts are divided regarding whether such a presumption of prejudice should be applied. Our supreme court did not apply a presumption of prejudice in Malinski. Moreover, in Ingram v. State, 760 N.E.2d 615, 619 (Ind. Ct. App. 2001), we acknowledged that courts were split on the issue and held: “[I]n this case, we need not decide whether the trial court applied the appropriate burden of persuasion. Even assuming arguendo that requiring the State to rebut the presumption of prejudice was the appropriate burden of persuasion, the trial court did not abuse its discretion in denying Ingram’s motion to dismiss.” Consequently, Ingram is not determinative of the issue.
IV. Fourth Amendment
Next, Taylor argues that the trial court’s exclusion of the officers’ testimony is sustainable based on the Fourth Amendment … fruit of the poisonous tree doctrine….
We note that the trial court has already excluded the gun, which the State conceded should be suppressed. Moreover, the trial court is requiring the State to demonstrate an independent basis for each piece of evidence discovered after the eavesdropping. The officers’ testimony was not excluded based on an illegal search or the exclusionary rule. Rather, the trial court excluded the officers’ testimony based on their assertion of their Fifth Amendment right to avoid self-incrimination and Taylor’s Sixth Amendment rights. The officers here clearly have information that is not subject to the exclusionary rule, i.e., evidence discovered prior to the eavesdropping and evidence for which an independent basis has been established. Taylor cites no relevant authority that the officers’ testimony should be excluded based solely on the Fourth Amendment. This argument fails.
IV. [sic] Prosecutorial Misconduct
Next, Taylor argues that the trial court’s exclusion of the officers’ testimony is sustainable based on the principles of prosecutorial misconduct. … “The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury’s decision rather than the degree of impropriety of the conduct.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). To preserve a claim of prosecutorial misconduct, the defendant must ask the trial court, at the time the misconduct occurs, to admonish the jury or move for a mistrial if admonishment is inadequate. Castillo [v. State], 974 N.E.2d [458,] 468 [(Ind. 2012)]….
Although we are extremely troubled by the facts of this situation, it is clear that Neary did advise Taylor’s lawyer that the incident occurred, attempted to curb the police conduct, and self-reported his actions to the Disciplinary Commission. According to Taylor, Neary’s actions in eavesdropping on Taylor’s conversation with his attorney warrant the exclusion of the officers’ testimony. However, Taylor cites no relevant authority to support this argument, and we do not find the argument persuasive. [Footnote omitted.] Neary’s alleged misconduct and the officers’ assertion of their Fifth Amendment rights are different circumstances, subject to different standards. Further, under the prosecutorial misconduct standard used in Indiana, Taylor must demonstrate that the alleged misconduct subjected him to grave peril, which is measured by the probable persuasive effect of the misconduct on the jury’s decision. See Ryan, 9 N.E.3d at 667. Taylor must also object, request an admonishment, and request a mistrial. A prosecutorial misconduct claim is premature at this time.
Conclusion
We affirm the portions of the trial court’s suppression order not challenged by the State. We disagree with the trial court’s automatic exclusion of the officers that asserted their Fifth Amendment right during depositions and at the suppression hearing. Rather, based on Taylor’s Sixth Amendment right to confrontation, the trial court must determine whether each officer’s unanswered questions are collateral to matters that he testifies to on direct examination. The trial court’s exclusion of the officers’ testimony is also not sustainable at this time based on Taylor’s Sixth Amendment right to counsel, the Fourth Amendment, or the principles of prosecutorial misconduct. We remand for the trial court to conduct an analysis of each officer’s testimony as discussed in this opinion. We affirm in part, reverse in part, and remand.
Affirmed in part, reversed in part, and remanded.
Pyle, J., concurs.
May, J., dissents with separate opinion.
….
May, Judge, dissenting.
I believe the trial court correctly excluded all testimony by the police officers because the Sixth Amendment violation arising from the prosecution’s interference with the relationship between Taylor and his counsel requires it. I must therefore respectfully dissent.
The majority notes, in addressing Taylor’s Sixth Amendment argument, “Taylor has not, at this point, demonstrated prejudice,” (slip op. at 24), and then states, without citation to authority, “we cannot presume prejudice from the eavesdropping.” (Id.) I would decline to so hold, because I believe we can presume prejudice, without Taylor having an obligation to demonstrate it.
….
Other jurisdictions have agreed prejudice may be presumed. [Footnote omitted.] I believe we may, and should, presume prejudice from the egregious behavior in the case before us, which presumption the State has not rebutted.
….
I believe the State was obliged to show beyond a reasonable doubt that Taylor was not prejudiced, and it did not do so. The trial court properly barred the officers who asserted their Fifth Amendment rights from testifying at trial, and I would therefore affirm.
….
The State raises one issue, which we restate as whether the trial court properly excluded all testimony of police officers that asserted their Fifth Amendment right to remain silent during depositions and testimony at the suppression hearing.
….
… Attorney David Payne arrived and met with Taylor in the interview room. Detective Steven Westphal “sarcastically, jokingly” told Payne to “flip a toggle switch” unless Payne wanted them to listen to the conversation. [Record citations omitted throughout.] Payne flipped the toggle switch and had a thirty to forty minute conversation with Taylor. According to Taylor, they discussed “all aspects of both the case and his defense.” Unbeknownst to Payne and Taylor, some officers and LaPorte County Chief Deputy Prosecutor Robert Neary were able to hear some parts of the conversation from a nearby room. It is clear that, however long the conversation was eavesdropped on, certain crucial information regarding Taylor’s guilt [including the location of the murder weapon, a gun] was heard by law enforcement personnel.
On March 16, 2014, the State charged Taylor with murder. On March 18, 2014, Neary informed Taylor’s counsel, Craig Braje, of the eavesdropping.…
During discovery depositions of detectives Al Bush, Steven Westphal, Sean Steele, Justin Frever, and Matthew Barr, the officers invoked their Fifth Amendment right against self-incrimination and refused to answer questions concerning the eavesdropping.
Taylor filed a motion to suppress and requested that the trial court suppress the gun and “any information or evidence which was obtained by investigating officers through improper eavesdropping by officials of the State of a confidential and privileged conversation between the Defendant and his attorney.” …
The State stipulated to the suppression of the gun. According to the State, “Any and all evidence or information obtained after 4:12 p.m. on March 14, 2014, other than the above referenced firearm, was procured in the standard course of investigation, has a source independent from the privileged conversation between the Defendant and his attorney and was procured without regard to the privileged conversation between the Defendant and his attorney thus rendering the connection between the allegedly lawless conduct and the discovery of the challenged evidence so attenuated as to dissipate any perceived taint.” …
….
At the hearing on the motion to suppress, detectives Al Bush, David Cooney, Gregory Jesse, Matthew Barr, Jason Costigan, and Justin Frever refused to answer questions concerning the eavesdropping and exercised their Fifth Amendment right to remain silent. After the hearing, the trial court entered an order partially granting the motion to suppress. The trial court found that the suppression of all evidence discovered “after the interview ended at 4:12 p. March 14, 2014” was not required. However, “There does have to be a specific finding by the Court . . . that there was an independent source of information and that the specific evidence was in no way connected to the conversation between defendant and his attorney in the interview room that afternoon.” The trial court ruled that many pieces of evidence discussed at the hearing “represent evidence that would be part of a standard police investigation of a homicide” and would not be suppressed. Some other pieces of evidence, especially exhibits involving the autopsy, were discussed at the hearing, and the trial court noted that the State had not established “an independent basis” for those exhibits. The trial court ruled that the State would be required to “establish an independent basis before these exhibits can be admitted.”
The trial court then addressed the police officers’ invocation of their Fifth Amendment right against self-incrimination and found:
….
The police misconduct that occurred in the course of this investigation resulted in a grave violation of the defendant’s constitutional rights. In light of all the facts of this case and the egregious actions by the police and the State, an extraordinary remedy must be fashioned. [Citation omitted.] Any witness who has asserted the Fifth Amendment right to silence in a deposition or during testimony at the hearing on the Motion to Suppress is barred from testifying at trial. Neither the prosecution nor the defense can call any witness knowing that the individual will assert the Fifth Amendment. If a witness is called to testify and invokes the Fifth Amendment without previously expressing that intent, the testimony of that witness will be stricken in its entirety.
….
On appeal, the State argues that the trial court improperly barred the officers who asserted their Fifth Amendment right from testifying at Taylor’s trial. The State does not appeal the suppression of the handgun and the procedure established by the trial court to verify an independent source for each piece of evidence discovered after the eavesdropping. Rather, the State’s argument concerns only the trial court’s exclusion of the officers’ testimony after they asserted their Fifth Amendment right at their depositions and at the suppression hearing.
We begin by noting our disappointment, displeasure, and disgust at the conduct of all the law enforcement officers. The integrity of the entire judicial system is called into question by the conduct engaged in here by all who should know better….
I. Fifth Amendment
….
The parties do not dispute that the officers are protected by the Fifth Amendment from testifying regarding the eavesdropping. However, the State contends that the trial court’s complete exclusion of the officers’ testimony is an extreme sanction. The State argues that the officers should be allowed to give limited testimony to establish foundational requirements for evidence that they collected.
….
Here too, the police officers presumably have relevant information on the investigation not subject to their assertion of their Fifth Amendment right. The police officers’ refusal to testify does not add weight to the State’s case or produce inferences that damage Taylor’s defense. We cannot say that, based on these cases, the State should have been automatically prevented from calling the officers to testify at Taylor’s trial due to the invocation of their Fifth Amendment right regarding the eavesdropping. Rather, further analysis of the officers’ testimony is necessary to determine the admissibility of their testimony.
II. Confrontation Clause
Taylor argues that his Sixth Amendment Confrontation Clause rights would be violated if the officers were permitted to testify at his trial. …
The Confrontation Clause is violated only when assertion of the privilege undermines the defendant’s opportunity to test the truth of the witness’ direct testimony. Bagby v. Kuhlman, 932 F.2d 131, 135 (2nd Cir. 1991), cert. denied. To reconcile a defendant’s rights under the Confrontation Clause with a witness’s assertion of his or her Fifth Amendment privilege, a court must initially consider: (1) whether the matter about which the witness refuses to testify is collateral to his or her direct testimony, and (2) whether the assertion of the privilege precludes inquiry into the details of his or her direct testimony. Id. “If the court determines that the privilege has been invoked with respect to a collateral matter, or that the invocation does not preclude inquiry into the witness’ direct testimony, then the defendant’s right to cross-examine has not been impinged and no corrective action is necessary.” Id. Conversely, the Sixth Amendment is violated when a witness asserts the privilege with respect to a non-collateral matter and the defendant is deprived of a meaningful opportunity to test the truth of the witness’s direct testimony. Id. “The distinction between matters which are ‘collateral’ and those which are ‘direct’ is not precise or easy. United States v. Seifert, 648 F.2d 557, 561 (9th Cir. 1980). “It can be drawn only by reference to the particular facts of the particular case . . . .” Id. at 561-62.
….
The trial court here made no analysis of whether the officers’ unanswered questions would relate to a “collateral matter.” Taylor acknowledges these cases, which require consideration of whether the unanswered questions relate to a collateral matter, but Taylor argues there is no way to know whether the unanswered questions concern a collateral matter because he does not know what the officers overheard. The State argues that it is premature to determine whether the officers’ unanswered questions relate to collateral matters. We agree.
….
This is the appeal of a blanket exclusion order preventing all officers who participated in the eavesdropping from testifying about any matter in the case. While the conduct of these officers surely merits and warrants the sternest of disapproval from us, we recognize such an extreme remedy has not been generally approved. The United States Supreme Court has held that “Sixth Amendment remedies should be ‘tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.’” Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012) (quoting United States v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 668 (1981)). “Thus, a remedy must neutralize the taint of a constitutional violation while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution.” Id. at 1388-89 (internal citations and quotations omitted). We believe that the common sense and legally tenable approach is to continue with the process we have outlined. The State must demonstrate an independent basis for each piece of evidence. Thus, the admissibility questions are in the purview of the trial court where they most appropriately belong. The trial court is also tasked with analyzing whether the officers’ unanswered questions relate to collateral matters.
III. Right to Counsel
Taylor also argues that the trial court’s exclusion of the officers’ testimony is supported by his Sixth Amendment right to counsel. … Although the Sixth Amendment right to counsel is distinguishable from the attorney-client privilege, the two concepts overlap. [Bassett v. State, 895 N.E.2d 1201, 1206 (Ind. 2008), cert. denied.] “‘The fundamental justification for the sixth amendment right to counsel is the presumed inability of a defendant to make informed choices about the preparation and conduct of his defense. Free two-way communication between client and attorney is essential if the professional assistance guaranteed by the sixth amendment is to be meaningful.’” Id. (quoting United States v. Levy, 577 F.2d 200, 209 (3rd Cir. 1978)).
Our supreme court has held that “[t]here is no per se rule that every intrusion by the prosecution into the relationship between a criminal defendant and his attorney constitutes a Sixth Amendment violation.” Malinski v. State, 794 N.E.2d 1071, 1081 (Ind. 2003) (citing Weatherford v. Bursey, 429 U.S. 545, 550-51, 97 S. Ct. 837, 841 (1977)). “Rather, some showing of prejudice is a necessary element of a Sixth Amendment claim based on an invasion of the attorney-client relationship.” Id. (citing United States v. Chavez, 902 F.2d 259, 267 (4th Cir. 1990)). “In cases of Sixth Amendment violations, ‘absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.’” Id. (quoting Morrison, 449 U.S. at 365, 101 S. Ct. at 668).
….
Taylor concedes that he must show prejudice. He argues that “the improperly overheard communications between Taylor and Payne included substantive facts and defense strategy.” According to Taylor, he “was disadvantaged and prejudiced by those officers who were privy to his privileged conversations because of their ability to formulate answers to anticipated questions and potential [sic] shade their investigation and testimony to meet expected defenses.”
….
Our supreme court in Malinski did not require the exclusion of all testimony by the police officers that copied the defendant’s [legal] documents. Rather, the court approved the trial court’s remedy of excluding the documents for any purpose. Similarly, the trial court here has already suppressed the gun, which was admittedly gained through the eavesdropping. The trial court also required the State to provide an independent basis for each piece of evidence discovered after the eavesdropping. As for Taylor’s assertion that the officers heard his defense strategy, we recognize that Taylor is placed in an unusual position. The officers who eavesdropped on the conversation with his attorney have asserted their Fifth Amendment right and will not discuss the eavesdropping. Taylor’s attorney clearly knows the substance of their conversation, but he is bound by attorney-client privilege. Taylor’s attorney testified at the suppression hearing that they discussed “all aspects of both the case and his defense.” However, Taylor has not, at this point, demonstrated prejudice, and we cannot presume prejudice from the eavesdropping.5 We find no legal support, at this time, for Taylor’s argument that the officers’ testimony should also be excluded based on Taylor’s Sixth Amendment right to counsel.
[Footnote 5:] In the dissent, Judge May advocates applying a presumption of prejudice. Courts are divided regarding whether such a presumption of prejudice should be applied. Our supreme court did not apply a presumption of prejudice in Malinski. Moreover, in Ingram v. State, 760 N.E.2d 615, 619 (Ind. Ct. App. 2001), we acknowledged that courts were split on the issue and held: “[I]n this case, we need not decide whether the trial court applied the appropriate burden of persuasion. Even assuming arguendo that requiring the State to rebut the presumption of prejudice was the appropriate burden of persuasion, the trial court did not abuse its discretion in denying Ingram’s motion to dismiss.” Consequently, Ingram is not determinative of the issue.
IV. Fourth Amendment
Next, Taylor argues that the trial court’s exclusion of the officers’ testimony is sustainable based on the Fourth Amendment … fruit of the poisonous tree doctrine….
We note that the trial court has already excluded the gun, which the State conceded should be suppressed. Moreover, the trial court is requiring the State to demonstrate an independent basis for each piece of evidence discovered after the eavesdropping. The officers’ testimony was not excluded based on an illegal search or the exclusionary rule. Rather, the trial court excluded the officers’ testimony based on their assertion of their Fifth Amendment right to avoid self-incrimination and Taylor’s Sixth Amendment rights. The officers here clearly have information that is not subject to the exclusionary rule, i.e., evidence discovered prior to the eavesdropping and evidence for which an independent basis has been established. Taylor cites no relevant authority that the officers’ testimony should be excluded based solely on the Fourth Amendment. This argument fails.
IV. [sic] Prosecutorial Misconduct
Next, Taylor argues that the trial court’s exclusion of the officers’ testimony is sustainable based on the principles of prosecutorial misconduct. … “The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury’s decision rather than the degree of impropriety of the conduct.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). To preserve a claim of prosecutorial misconduct, the defendant must ask the trial court, at the time the misconduct occurs, to admonish the jury or move for a mistrial if admonishment is inadequate. Castillo [v. State], 974 N.E.2d [458,] 468 [(Ind. 2012)]….
Although we are extremely troubled by the facts of this situation, it is clear that Neary did advise Taylor’s lawyer that the incident occurred, attempted to curb the police conduct, and self-reported his actions to the Disciplinary Commission. According to Taylor, Neary’s actions in eavesdropping on Taylor’s conversation with his attorney warrant the exclusion of the officers’ testimony. However, Taylor cites no relevant authority to support this argument, and we do not find the argument persuasive. [Footnote omitted.] Neary’s alleged misconduct and the officers’ assertion of their Fifth Amendment rights are different circumstances, subject to different standards. Further, under the prosecutorial misconduct standard used in Indiana, Taylor must demonstrate that the alleged misconduct subjected him to grave peril, which is measured by the probable persuasive effect of the misconduct on the jury’s decision. See Ryan, 9 N.E.3d at 667. Taylor must also object, request an admonishment, and request a mistrial. A prosecutorial misconduct claim is premature at this time.
Conclusion
We affirm the portions of the trial court’s suppression order not challenged by the State. We disagree with the trial court’s automatic exclusion of the officers that asserted their Fifth Amendment right during depositions and at the suppression hearing. Rather, based on Taylor’s Sixth Amendment right to confrontation, the trial court must determine whether each officer’s unanswered questions are collateral to matters that he testifies to on direct examination. The trial court’s exclusion of the officers’ testimony is also not sustainable at this time based on Taylor’s Sixth Amendment right to counsel, the Fourth Amendment, or the principles of prosecutorial misconduct. We remand for the trial court to conduct an analysis of each officer’s testimony as discussed in this opinion. We affirm in part, reverse in part, and remand.
Affirmed in part, reversed in part, and remanded.
Pyle, J., concurs.
May, J., dissents with separate opinion.
….
May, Judge, dissenting.
I believe the trial court correctly excluded all testimony by the police officers because the Sixth Amendment violation arising from the prosecution’s interference with the relationship between Taylor and his counsel requires it. I must therefore respectfully dissent.
The majority notes, in addressing Taylor’s Sixth Amendment argument, “Taylor has not, at this point, demonstrated prejudice,” (slip op. at 24), and then states, without citation to authority, “we cannot presume prejudice from the eavesdropping.” (Id.) I would decline to so hold, because I believe we can presume prejudice, without Taylor having an obligation to demonstrate it.
….
Other jurisdictions have agreed prejudice may be presumed. [Footnote omitted.] I believe we may, and should, presume prejudice from the egregious behavior in the case before us, which presumption the State has not rebutted.
….
I believe the State was obliged to show beyond a reasonable doubt that Taylor was not prejudiced, and it did not do so. The trial court properly barred the officers who asserted their Fifth Amendment rights from testifying at trial, and I would therefore affirm.