The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 5 today (and 17 NFP)

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Friday, May 30, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 17 NFP)

For publication opinions today (5):

In John R. Myers, II v. State of Indiana , a 44-page opinion, Judge Bradford writes:

Today we state once again that a defendant is entitled to a fair trial, not a perfect trial. Concluding the imperfections in the murder trial of John Myers II did not deprive him of a fair trial, we affirm. * * *

We acknowledge that the case against Myers was entirely circumstantial and that there were certain discrete imperfections in his trial, specifically Dr. Radentz‟s references to rape, Detective Crussen‟s reference to a polygraph, and Detective Lang‟s reference to Myers‟s knowledge of the case. Upon a thorough review of the record, however, we are convinced that these imperfections, occurring over the span of a two-week trial, were more isolated than pervasive in nature, and that they did not create the cumulative effect of depriving Myers of his right to a fair trial. Both Detective Crussen‟s and Detective Lang‟s impermissible statements were countered by strict and thorough admonitions by the trial court, and Dr. Radentz‟s rape references, which were directed at the condition of Behrman‟s remains rather than the identity of the perpetrator, were thoroughly explored by defense counsel on cross-examination and demonstrated to be unconnected to any evidence specific to Behrman. As the State conceded at oral argument, Myers‟s trial may have been cleaner without these imperfections, but, separately or jointly, they were not sufficiently egregious to undermine our confidence in the trial proceedings leading to his conviction sufficient to constitute reversible error. A defendant is entitled to a fair trial, not a perfect one. See Averhart v. State, 614 N.E.2d 924, 929 (Ind. 1993). John Myers II received a fair trial. The judgment of the trial court is affirmed.

For background, start with this March 21 ILB entry, headed "Jill Behrman murder trial unfair, lawyer tells appeals court", and these from March 21 and March 19, with links.

Term. of Parent-Child Rel. of A.B., and Dawn B. v. Dept. of Child Services - "Appellant Dawn B. (“Mother”) appeals the involuntary termination of her parental rights, in Allen Superior Court, to her daughter A.B. We affirm."

Narendra Parbhubhai Patel v. United Inns, Inc. - "In sum, the trial court did not err in concluding that Patel breached his contractual obligation under the Patel Contract. Nor did the court err in granting partial summary judgment to United Inns on the issue of the validity of the liquidated damages clause in the Patel Contract. We therefore affirm the trial court’s order on summary judgment and entry of judgment after the bench trial. Affirmed."

In State of Indiana v. Shawn Massey , a 12-page opinion, Chief Judge Baker writes:

Indiana Code section 9-19-10-2 (the seatbelt statute) provides, in relevant part, that each occupant of a motor vehicle equipped with a safety belt “shall have a safety belt properly fastened about the occupant’s body at all times when the vehicle is in forward motion.” Is an occupant who has the lap belt fastened but who is not wearing the shoulder belt across his shoulder violating the statute? The purpose of the seatbelt statute and the language chosen by the legislature lead us to conclude that an occupant must have the lap belt fastened and wear the shoulder strap of the seatbelt across his shoulder to comply with the statute. * * *

Because the seatbelt’s shoulder strap was not positioned across her shoulder, the juvenile was not properly wearing her seatbelt and Massey, as the driver, had committed an infraction. I.C. § 9-19-11-3.3. Because Massey had committed an infraction, Officer Ferrer had statutory authority to detain her for the time sufficient to ask for her name and driver’s license. I.C. § 34-28-5-3. Thus, we conclude that the trial court erred as a matter of law when it granted Massey’s motion to suppress and we reverse and remand for further proceedings. The judgment of the trial court is reversed and remanded for further proceedings.

In Julie Moore Walker, et al v. James Thad Martin, et al , a 21-page opinion, Judge Kirsch writes:

Julie Moore Walker and Scot Moore, individually and as co-representatives of the Estate of Christopher Scot Moore, Deceased (“Christopher”) (collectively “the Moores”) appeal the trial court’s grant of summary judgment in favor of Timothy LaFountaine, individually and d/b/a LaFountaine Logging (“LaFountaine”). The Moores raise the following restated issues:

I. Whether the trial court erred in determining as a matter of law that truck driver, James Thad Martin (“Martin”), was an independent contractor rather than an employee of LaFountaine;

II. Whether LaFountaine owed a non-delegable duty to Christopher and was thus vicariously liable under one of the exceptions to the general rule that a principal is not liable for the negligence of an independent contractor; and

III. Whether a joint venture existed between LaFountaine and Martin.

We affirm.

NFP civil opinions today (5):

Howard Slusher v. Elizabeth Slusher Rogers (NFP) - "We remand this case to the trial court to enter an order containing: (1) a proper determination of Father’s credit for his prior born child; (2) findings as to whether Mother was voluntarily unemployed and a proper calculation as to her imputed income; and (3) correct calculations of Father’s share of the uncovered medical costs and a proper determination of Mother’s credit for insurance premiums paid. Therefore, we vacate the trial court’s modification order and remand for proceedings consistent with this opinion. Vacated and remanded with instructions."

Christopher Harrison v. Sheena Harrison (NFP) - "Christopher Harrison (“Father”) appeals a trial court judgment awarding primary physical custody of his son, Z.H., to Sheena Harrison (“Mother”). We affirm."

Bret D. Shaw v. American Family Mutual Insurance Co. (NFP) - "Bret D. Shaw appeals the trial court’s order granting summary judgment in favor of American Family Mutual Insurance Company (“American Family”) on Shaw’s bad faith and breach of contract claims based on American Family’s denial of coverage under his homeowner’s insurance policy. We affirm."

Guardianship of A.N.B. and J.N.B., William Baker v. Christine Leigh Baker n/k/a Christine Leigh Weitzenfeld (NFP) - "William Baker (“Father”) appeals from an order granting guardianship of Father’s children, A.B. and J.B. (collectively “the children”), to Mark Weitzenfeld (“Stepfather”) and Claudia St. Germain (“Grandmother”). Father presents a single issue for review, namely, whether the evidence is sufficient to support the guardianship order. We affirm."

T.S. v. Marion Co. Dept. of Child Services and Child Advocates, Inc. (NFP) - "Tiwanna S. (“Mother”) appeals the involuntary termination of her parental rights to her children, H.S. and A.S. Mother raises one issue on appeal, which we restate as whether the juvenile court’s judgment terminating Mother’s parental rights to the children is supported by clear and convincing evidence. We affirm."

NFP criminal opinions today (12):

Raymond East v. State of Indiana (NFP)

Payne T. Randle v. State of Indiana (NFP)

Kelly S. Thomas v. State of Indiana (NFP)

T.L.R. v. State of Indiana (NFP)

Kyle A. Aubuchon v. State of Indiana (NFP)

Tony E. Fields v. State of Indiana (NFP)

Joshua B. Wild v. State of Indiana (NFP)

Sajjad Q. Rasheed v. State of Indiana (NFP)

Luis Raul Lopez v. State of Indiana (NFP)

Nicholas J. Barnhill v. State of Indiana (NFP)

Perry L. Hicks v. State of Indiana (NFP)