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Wednesday, September 30, 2009

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

For publication opinions today (3):

In Arturo Garcia-Torres v. State of Indiana , a 26-page, 2-1 opinion, Judge Bradford writes:

Appellant/Defendant Arturo Garcia-Torres appeals from his convictions for Rape, two counts of Burglary, and Attempted Rape, all as Class B felonies. Concluding that (1) the taking of a cheek swab for purposes of extracting a DNA profile is a search requiring reasonable suspicion, and not probable cause, under the Indiana and federal constitutions; (2) police had reasonable suspicion to take a cheek swab from Garcia-Torres; (3) the taking of a cheek swab is not subject to the advice-of-counsel requirements of Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975); (4) the DNA evidence obtained from Garcia-Torres was not inextricably bound to his suppressed confession; and (5) the charges against Garcia-Torres were properly joined, we affirm. * * *

On the question of whether the trial court abused its discretion in admitting evidence generated by the cheek swab performed on Garcia-Torres, we conclude that was justified under the Fourth Amendment by the existence of reasonable suspicion. We further conclude that cheek swabs performed for the purpose of obtaining a DNA sample, while searches under Article I, Section 11, of the Indiana Constitution, are not subject to the advice requirements of Pirtle. Finally, we conclude that the DNA evidence was not inextricably bound to Garcia-Torres‘s confessions that were suppressed on other grounds. The trial court, therefore, did not abuse its discretion in admitting evidence related to the DNA profile obtained through the cheek swab.

On the question of whether the trial court correctly allowed the State to join all of the charges against Garcia-Torres, we conclude first that the charges were not joined solely on the basis that they were of the same or similar character. The totality of the evidence regarding the manner in which the crimes were committed, along with the discovery of Garcia-Torres‘s DNA at both scenes, constitutes a signature sufficient to establish a ―series of acts connected together‖ for purposes of Indiana Code section 35-34-1-9(a). Moreover, we conclude that Garcia-Torres has failed to establish that the trial court abused its discretion in declining to sever the charges against him.

The judgment of the trial court is affirmed.

BROWN, J, concurs.
CRONE, J., dissents with opinion. [with an opinion that begins, at p. 20] I believe that the taking of a cheek swab from a custodial suspect for purposes of extracting a DNA profile is a search requiring probable cause under the Fourth Amendment and is subject to the advice-of-counsel requirements of Pirtle. As such, I conclude that the trial court committed reversible error in admitting the DNA evidence obtained from Garcia-Torres‘s cheek swab in this case. Also, I believe that Garcia-Torres was entitled to severance of the charges against him as a matter of right. Therefore, I respectfully dissent.

In Kenneth Brown v. State of Indiana , a 20-page, 2-1 opinion, Judge Robb concludes:
The knock and talk investigation did not violate Brown's rights under the Fourth Amendment to the United States Constitution or Article 1, section 11 of the Indiana Constitution. The search of Brown's residence did not violate either Constitution because Brown was not in custody and he voluntarily consented to the search. Therefore, the trial court properly admitted the drugs and paraphernalia. Brown's convictions are affirmed.

DARDEN, J., concurs.
MATHIAS, J., dissents with opinion. [which begins, at p. 16] I respectfully dissent from the majority's conclusion that the knock and talk investigation and resulting search of Brown's residence were reasonable and not in violation of Article 1, Section 11 of the Indiana Constitution.

As our court has observed, the knock and talk procedure "'pushes the envelope' and can easily be misused." Hayes v. State, 794 N.E.2d 492, 497 (Ind. Ct. App. 2003), trans. denied. "Knock and talk might more aptly be named 'knock and enter,' because it is usually the officer's goal not merely to talk but to conduct a warrantless search of the premises."

In Paternity of S.G.H.; C.M. v. D.M. , a 10-page, 2-1 opinion, Judge Friedlander concludes:
We reverse the trial court’s order to the extent it requires a twenty percent change in the support obligation before awarding a portion of the windfall bonus as child support. On remand, the trial court shall calculate the appropriate amount of support due as a result of the recent windfall bonus. While ultimately within the trial court’s discretion, we observe that application of one of the methods suggested in the Guidelines may be helpful in this regard. Judgment reversed and remanded.

RILEY, J., concurs.
BAKER, C.J., dissents with separate opinion. [which begins, at p. 8] Although I concur with the result reached by the majority on the abatement issue, I respectfully dissent from its conclusion regarding the semiannual windfall bonuses.

NFP civil opinions today (5):

Melissa Ungar v. Don Hitchcock and Jean Hitchcock (NFP) - "Melissa Ungar appeals a trial court judgment denying her claims for monetary and injunctive relief against her neighbors, Don and Jean Hitchcock, for the alleged encroachment of their deck on her property. The dispositive issue is whether the trial court erred in concluding that Ungar failed to meet her burden of establishing that the Hitchcocks encroached on her property by constructing their deck in violation of the local zoning ordinance. We affirm."

B.C. v. L.L. (NFP)

Term. of Parent-Child Rel. of J.G., T.G., and V.G.; J.G. v. IDCS (NFP)

Rudolfo G. Rodriguez, Jr. v. Rainbow Searchers, Inc. (NFP) - "Appellant-Defendant Rudolfo Rodriguez, Jr. appeals the trial court’s denial of his request for attorney’s fees from Appellee-Plaintiff Rainbow Searchers, Inc., following remand by this court for a determination on the matter. We affirm."

Lawrence Tolley v. Review Board, and Mariane, Inc. (NFP) - "Tolley agrees that he filed his appeal on April 17, at least three days after the statutory deadline had passed. Prior cases strictly construe statutory time prerequisites to require dismissal in the case of untimely appeals. See, e.g., Szymanski v. Review Bd. of the Ind. Dep’t of Workforce Dev., 656 N.E.2d 290, 293 (Ind. Ct. App. 1995). The Review Board properly dismissed Tolley’s appeal."

NFP criminal opinions today (6):

Lisa M. Tibbs v. State of Indiana (NFP)

Erick Corey Morris v. State of Indiana (NFP)

Christopher M. Hickey v. State of Indiana (NFP)

Edward E. Jemison v. State of Indiana (NFP)

Oleksander Pushkarovych v. State of Indiana (NFP)

Chris Freeman v. State of Indiana (NFP)

Posted by Marcia Oddi on September 30, 2009 01:26 PM
Posted to Ind. App.Ct. Decisions