Dave Stafford for www.theindianalawyer.com

A St. Joseph County man’s burglary conviction was reversed Monday by the Indiana Court of Appeals. The state’s knowing use of perjured testimony to obtain the conviction led the panel to refer the case for possible disciplinary action against a prosecutor.

“We are troubled that the State knowingly proffered perjured testimony but are even more concerned that the State granted the witness immunity from prosecution, which encouraged such testimony,” Judge Edward Najam wrote in an endnote in Antonio Smith v. State of Indiana, 71A04-1312-CR-609. “Thus, we direct the Clerk of this Court to send a copy of this opinion to the Disciplinary Commission. We also note that instances of prosecutorial misbehavior continue to come before us on appeal notwithstanding our admonishments.”

A jury convicted Antonio Smith of the Class C felony after a witness, Nicole Greenlee, testified that Smith had broken into a Dollar General store. Greenlee, though, had previously pleaded guilty to the crime in which she admitted breaking in. Greenlee testified despite defense objections that this was perjury and should result in a mistrial. Smith was sentenced to four years in prison.

Video surveillance from the store showed a white woman breaking into the store. Greenlee is white and Smith is African-American. The state offered testimony from an officer who said cell phone records showed Greenlee and Smith were in close proximity. On cross-examination, though, the detective said he didn’t know how far away each cell phone was.

“Greenlee gave perjured testimony as a matter of law at Smith’s trial. …(A) conviction based on perjury will not be upheld. … Perjured testimony renders a witness’ oath to tell the truth, the whole truth, and nothing but the truth meaningless. Perjured testimony contaminates a trial, violates due process and strikes a blow to the heart of our judicial system,” Najam wrote.

The state had offered Greenlee immunity for her testimony, Najam wrote, but also had a duty to correct her perjury and should have joined the defense motion for a mistrial.

The opinion does not identify the prosecutor who allowed the perjured testimony.

Hannah Troyer
TheStatehouseFile.com

INDIANAPOLIS – Duke Energy should not be allowed to raise rates to pay for its $1.87 billion infrastructure and technology update plan, according to a state agency that represents customers.

The Indiana Office of Utility Consumer Counselor has recommended that state regulators deny Duke’s request, which is meant to improve service to more than 800,000 residential and commercial properties.

The consumer agency said Duke Energy’s testimony and exhibits supporting the proposal don’t include adequate cost estimates or project scope details that are necessary for a proper evaluation. That’s something Duke denies, saying its filings are detailed and meet the requirements of state law.

The company filed its proposed rate increase under a 2013 law that allows a utility to file a seven-year infrastructure improvement program with the Indiana Utility Regulatory Commission and implement rate increases to pay for it. The plan must detail proposed transmission, distribution and storage system investments and identify the impact of the plan on rates and charges.

Regulators are expected to conduct hearings on Duke’s plan before the end of the year.

Duke Energy Senior Communications Consultant Lew Middleton said the company strongly disagrees with the comments filed by the consumer counselor and will be filing its response soon with state regulators.

“In addition to the hundreds of pages of testimony and exhibits we have filed, we have responded to approximately 500 requests for data from the Consumer Counselor’s Office and other parties to the case,’ Middleton said. “We have filed comprehensive plans on proposals such as smart meters, including a detailed cost/benefit analysis.”

But Indiana Utility Consumer Counselor David Stippler said the agency found that Duke filings do “not meet the statute’s requirements, while also falling short of the standards established in previous cases involving the approval of other utilities’ plans.”

“The statute does not remove the obligation the OUCC and IURC have to review these plans,” he said. “At the same time, it does not promise rate increases to utilities that fail to provide adequate evidence.”

The consumer counselor’s office also said in its recommendation that the scope of the seven-year project and the large amount of consumer money involved makes adequate and detailed information crucial. And the agency said Duke’s proposals go beyond what’s allowed by law – including a vegetation management project, radio communication system replacements, and a $3 million energy learning center.

Duke Energy insists that the plan will do nothing but benefit its customers. The proposal promises fewer and shorter power outages through “self-healing” technology, meaning the company would be able to detect the power problem, isolate it, and reroute the power so fewer customers are affected.

The plan also eliminates monthly walk-by meter reads because the new meters can be read automatically.

“Today we still deliver power much like we did a century ago, but there’s technology now that can help utilities reduce power outages,” Duke Energy Indiana President Doug Esamann said in a statement. “With advanced systems, we can pinpoint problems faster and get the lights on sooner while providing customers with better information.”

Duke Energy has until Dec. 5 to file rebuttal testimony with an IURC evidentiary hearing scheduled to start in mid December. By law, the IURC must issue an order in the case by March 27.

Hannah Troyer is a reporter at TheStatehouseFile.com, a news website powered by Franklin College journalism students.