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Tuesday, May 22, 2007

Ind. Decisions - Supreme Court decides three today

In Fredrick Michael Baer v. State of Indiana, an 18-page opinion, Justice Dickson writes:

Fredrick Michael Baer was sentenced to death following his convictions for two murders and the jury's unanimous recommendation that he receive the death sentence. His direct appeal asserts the following claims of error: (1) prosecutorial misconduct; (2) erroneous admission of recorded telephone calls from jail; (3) trial court failure to comply with proper procedures in handling prospective jurors; and (4) inappropriateness of the death sentence. We affirm the judgment of the trial court. * * *

Sullivan, Boehm, and Rucker, JJ., concur. Shepard, C.J., concurs with separate opinion:

For the last several decades at least, Indiana law has assigned to judges the duty to decide sentences in criminal cases. Appellate court review of such trial court decisions has been highly deferential, but we have undertaken to review and revise sentences when persuaded that the trial court’s sentence is “inappropriate.”

As for death penalty and life without parole cases, the legislature has now largely shifted the sentencing decision from judges and assigned it instead to juries. I am inclined to think that we should be even less ready to set aside the sentencing judgment of jurors, and that the standard we adopted during the era of judicial sentencing should probably not apply to second-guess Indiana juries.

The parties here have not joined this question, however, and there appears no reason to reverse the jury’s decision. Accordingly, I join in the Court’s opinion.

In Alberici Constructors, Inc. v. Ohio Farmers Insurance Company, an 11-page, 4-1 Certified Question from the ND Ind., William C. Lee, Judge, Chief Justice Shepard writes:
The U.S. District Court for the Northern District of Indiana has certified to us a question of Indiana law, pursuant to Indiana Appellate Rule 64:
Does a performance bond required by and issued in accordance with Ind. Code § 8-23-9-9 afford coverage to a third-tier claimant?
We now answer that Ind. Code § 8-23-9-9 does not afford coverage to claimants who do not have privity of contract with the general contractor or a subcontractor. * * *

We hold that for purposes of Ind. Code § 8-23-9-9, “subcontractor” is any person or organization entering into a contract with a contractor to furnish labor and materials used in the actual construction of a state highway project. Accordingly, a claimant who does not share privity of contract with the contractor or a subcontractor is not entitled to the coverage of a performance bond issued under § 8-23-9-9.

Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., dissents without separate opinion.

In Wayne Kubsch v. State of Indiana, an 18-page, 5-0 opinion, Chief Justice Shepard writes:
Appellant Wayne Kubsch has been tried twice for triple murder. Two juries found him guilty and both juries recommended the death penalty. This appeal arises from his second trial. Among other claims, he contends that the trial court erred in failing to appoint a special prosecutor to the case because St. Joseph County Prosecutor Michael Dvorak had a previous professional relationship with a witness who testified against Kubsch. We conclude that a special prosecutor was not necessary because no actual conflict existed between Dvorak and his duties to his former client, to Kubsch, or to the citizens of St. Joseph County.

Posted by Marcia Oddi on May 22, 2007 10:54 AM
Posted to Ind. Sup.Ct. Decisions