« Environment - More on: Air permit request raises concerns in Allen County | Main | Ind. Decisions - 7th Circuit rules in Indiana case where defendant wore stun-belt throughout trial »

Tuesday, August 12, 2008

Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)

For publication opinions today (3):

In Star Transport, Inc. and Jeffrey Cottingham v. Hervey Byard, a 17-page opinion, Judge Barnes writes:

Star Transport, Inc., (“Star”) and its employee, Jeffrey Cottingham, appeal a judgment finding them jointly 75% at fault for injuries sustained by Hervey Byard when a car driven by Robert Peters struck Byard. We affirm.

Issues The issues before us are: I. whether the trial court properly instructed the jury on the “rescue doctrine”; II. whether the trial court properly refused to instruct the jury on the doctrine of incurred risk; and III. whether the trial court properly refused to permit Star and Cottingham to have peremptory juror challenges separate from Peters. * * *

The trial court did not abuse its discretion by instructing the jury on the rescue doctrine and refusing to instruct it on incurred risk. Star Transport and Cottingham have failed to demonstrate any actual prejudice from the manner in which the trial court assigned peremptory challenges. We affirm.

In Ricky L. Jackson v. State of Indiana , a 9-page opinion, Judge Najam writes:
Ricky Jackson appeals his conviction for Dealing in Cocaine, as a Class A felony, following a jury trial. He presents a single issue for our review, namely, whether he was denied his right to confront witnesses under the Sixth Amendment to the United States Constitution when the trial court admitted into evidence a laboratory report prepared by a technician who did not testify at trial. We reverse. * * *

Here, the Certificate of Analysis is a testimonial statement under Crawford. The State does not direct us to any law carving out an exception to the Confrontation Clause that applies here. While Lang [the lab technician] might have been unavailable to testify at trial, the Sixth Amendment requires that Jackson have been given an opportunity to cross-examine her prior to trial. See Crawford, 541 U.S. at 53-54. We hold that the admission into evidence of the Certificate of Analysis without Lang’s testimony violated Jackson’s Sixth Amendment right to confront witnesses.

Thus, we reject the State’s contention that the Certificate of Analysis is admissible under the business record exception to the hearsay rule under Indiana Evidence Rule 803. Cf. Pendergrass v. State, 889 N.E.2d 861 (Ind. Ct. App. 2008) (holding Confrontation Clause inapplicable to use of Certificate of Analysis pertaining to DNA test where Certificate used to provide context for expert’s testimony, not to prove element of charged crime), trans. pending. Neither is the Certificate admissible through Ballard’s [the lab supervisor] expert testimony under Indiana Evidence Rule 703. Jackson’s Sixth Amendment right to confrontation is not subordinate to a rule of evidence under the circumstances of this case. As the Court stated in Crawford, “[w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence[.]” 541 U.S. at 61. In sum, the Court in Crawford rejected “reliable hearsay” as a substitute for the right of confrontation. See Giles, 128 S. Ct. at 2695 (Souter, J., concurring in part). Jackson’s conviction must be reversed.

See Pendergrass, decided 7/8/08 by another panel, here.

In Pamela S. Fackler v. Melvin J. Powell, Jr. and M. Jack Powell, Jr. Living Trust, a 12-page opinion, Judge Bailey writes:

Appellant-Petitioner Pamela S. Fackler (“Fackler”) appeals a post-dissolution order interpreting a Mediated Settlement Agreement (“the Agreement”) and awarding attorneys’ fees to Fackler’s ex-husband Melvin J. Powell, Jr. and the M. Jack Powell, Jr. Living Trust (collectively, “Powell”). We reverse and remand. * * *

To the extent that Beck possessed relevant information regarding the amount of the claim, it was inadmissible having been obtained in the course of negotiations. * * *

Fackler established that Powell breached the Agreement. Accordingly, Powell must pay attorneys’ fees because of his breach, in an amount to be determined by the trial court.

We reverse and remand for an order that Powell pay the balance due upon the sale of Lot 22, reasonable attorneys’ fees, and prejudgment interest

FRIEDLANDER, J., concurs.
KIRSCH, J., concurs in result with opinion. [which begins] I fully concur with the decision of my colleagues holding the mediated settlement agreement was unambiguous and that, therefore, the trial court erred in admitting extrinsic evidence to prove the meaning of its terms. I also fully concur with the decision regarding attorney fees. I part ways with my colleagues, however, in regard to their discussion of mediation confidentiality.

NFP civil opinions today (3):

Cadleway Properties Inc. v. 5620 Industrial Rd., LLC, Richard A. Magley, et al (NFP) - "Appellant/Defendant Cadleway Properties, Inc. (“Cadleway”), appeals from the trial court‟s grant of partial summary judgment in favor of Ossian State Bank (“Ossian”). On appeal, Cadleway contends that the trial court erroneously concluded that Ossian, pursuant to a previously-issued mortgage containing a so-called “dragnet” provision, owns the right to a personal guaranty that Cadleway claims to own. We affirm."

Speedway International Trucks v. Clyde Baugh (NFP) - a 2-1 decision. "On appeal, Speedway contends there was no finding or evidence to support the Full Board’s conclusion that Baugh was entitled to future medical expenses for pain management treatment. We reverse."

Paternity of J.J.; I.Y. v. A.J. (NFP) - a 2-1 opinion. From the dissent: "Here, we have a custody dispute between a natural parent and a third-party custodian. The methodology in determining such a dispute was set out in In re: Guardianship of L.L., 745 N.E.2d 222, 230 (Ind. Ct. App. 2001), trans. denied. * * * Here, the trial court did not follow this methodology, but looked only to the best interest standard. By doing so, I believe the court erred and that the error is of constitutional dimension."

Rudrappa and Jayashree Gunashekar v. Kay Grose, d/b/a America's Affordable Housing J & K Mfg. (NFP) - a 2-1 opinion. "The trial court abused its discretion in denying the Gunashekars’ pro se motion to continue after their attorney withdrew six weeks prior to trial." [ILB Note: there are 3 NFP opinions today decided 2-1, all are from the same panel.]

Term. of Parent-Child Rel. of K.A., C.A., T.A., D.C., D.A., and T.A., and K.C., Father v. Marion Co. Dept. of Child Services, and Child Advocates (NFP) - "There is ample evidence that the conditions resulting in the Children’s removal will not be remedied. Accordingly, the juvenile court’s finding that the conditions were not likely to be remedied is not clearly erroneous. Affirmed."

NFP criminal opinions today (6):

Lee Ann Hughes v. State of Indiana (NFP)

Johana Marie Kalinowicz v. State of Indiana (NFP)

Eric K. Farnsley v. State of Indiana (NFP)

James Earl Brown v. State of Indiana (NFP)

Antreaun Rice v. State of Indiana (NFP)

Mareese S. Boyd v. State of Indiana (NFP)

Posted by Marcia Oddi on August 12, 2008 12:01 PM
Posted to Ind. App.Ct. Decisions