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ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Plainfield, Indiana

ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

In the

Mar 27 2013, 1:51 pm

Indiana Supreme Court
No. 73S01-1209-CR-563 IN RE: PROSECUTOR'S SUBPOENA REGARDING S.H. AND S.C., S.H., Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below).

Appeal from the Shelby Superior Court, No. 73D02-1105-MC-63 The Honorable David N. Riggins, Judge On Petition to Transfer from the Indiana Court of Appeals, No. 73A01-1109-CR-468

March 27, 2013 Massa, Justice.

When a prosecutor has neither filed a charge nor initiated a grand jury proceeding, may she nevertheless petition a court to compel a party to testify under a grant of use immunity, when

that party is the primary target of the investigation and has asserted the constitutional privilege against self-incrimination? We think not.

Facts and Procedural History

On September 27, 2010, S.C. gave birth to an infant alone in the Shelbyville apartment she shared with her boyfriend, S.H. Shortly thereafter, S.H. returned to the apartment, found S.C. and the infant, and took them to a nearby hospital. Medical staff noticed seven puncture wounds on the infant's back and notified authorities.

During the ensuing investigation, police heard conflicting accounts of the circumstances of the infant's birth and the cause of the injuries. The Indiana Department of Child Services initiated a Child in Need of Services investigation, and the infant was ultimately removed from her parents' care.

On May 13, 2011, the Shelby County prosecutor petitioned the trial court for subpoenas to compel S.H. and S.C. to appear on May 17 and "give testimony relating to an incident involving the home birth of [the infant]." App. at 41. The court granted the petition and issued both subpoenas that same day.

The day before the parents were set to testify, their attorney moved to quash the subpoenas pursuant to their state and federal constitutional rights against self-incrimination. In a hearing held that day, the court granted the motion to quash. Immediately thereafter, the

prosecutor petitioned the court for a grant of use immunity pursuant to Indiana Code

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Indiana Law