Monday, November 01, 2010
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 11/1/10):
Thursday, November 4th
- 9:00 AM - Jeffrey Akard v. State of Indiana (79S02-1009-CR-478) - A jury found Akard guilty of rape and other charges. the Tippecanoe Superior Court sentenced him to an aggregate sentence of ninety-three years. The Court of Appeals affirmed the convictions, and revised the aggregate sentence to 118 years. Akard v. State, 924 N.E.2d 202 (Ind. Ct. App. 2010), reh’g granted, 928 N.E.2d 623, vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: The Supreme Court held last March in McCullough v. State that appellate courts have the power to revise sentences upward on appeal, and this is the first case in which the power was exercised. See this ILB entry from Sept. 13, 2010 for copies of the briefs. Here is the March 30, 2010 COA opinion summary. See also this March 31st ILB entry headed "Appeal backfires on convicted rapist."
- 9:45 AM - Kevin Taylor v. State of Indiana (20S04-1009-PC-477) - The Elkhart Circuit Court denied Taylor post-conviction relief from his murder conviction. The Court of Appeals reversed and remanded for a new trial, after concluding that trial counsel’s failure to object to jury instructions deprived Taylor of the effective assistance of counsel. Taylor v. State, 922 N.E.2d 710 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: From the March 11, 2010, 2-1 opinion (ILB summary here, 3rd opinion) - Dispositive issue: "whether the post-conviction court erred when it found that Taylor had not received ineffective assistance of trial counsel. We reverse and remand for a new trial."
- 10:30 AM - Matter of J.C & D.C. (49A02-0909-CV-862) - A child's stepfather petitioned to adopt the child after the mother died. The trial court granted the petition. The Court of Appeals affirmed, holding that the Indian Child Welfare Act did not apply and that the biological father's consent was not required. 928 N.E.2d 602 (Ind. Ct. App. 2010). The biological father has petitioned the Supreme Court to accept jurisdiction over the appeal
ILB: This is a June 9, 2010 opinion where Judge Barnes' concurring opinion addresses "Indiana's minority position in applying the 'existing Indian family' doctrine."
- 3:30 PM - Richard Barnes v. State of Indiana (49A02-0909-CV-862) - Barnes was convicted of Class A misdemeanor battery, Class A misdemeanor resisting law enforcement and Class B misdemeanor disorderly conduct following a jury trial in the Vanderburgh Superior Court. The Court of Appeals reversed the convictions in Barnes v. State, 925 N.E.2d 420 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: Here is the April 15, 2010 ILB summary - 3rd opinion. The COA wrote: "We reverse Barnes's disorderly conduct conviction because the State failed to prove that Barnes's noisy political expression was an abuse of his right to free speech."
Next week's oral arguments before the Supreme Court (week of 11/8/10):
Next Wednesday, November 10th
- 10:00 AM - Jeffery Sloan v. State of Indiana (18S04-1009-CR-502) - In 2007, a victim reported that Sloan had regularly molested her from 1984 to 1991. Sloan was charged with one count of child molesting as a Class A felony and one count as a Class C felony. The Delaware Circuit Court denied Sloan’s motion to dismiss the Class C charge on grounds it had been filed after expiration of the five-year statute of limitations. Sloan was convicted on both counts and sentenced to forty years and six years, consecutive. The Court of Appeals reversed the Class C conviction, concluding that any concealment of the molestation ended in 1991, rather than the date on which the offenses were reported to authorities, but otherwise affirmed. Sloan v. State, 926 N.E.2d 1095 (Ind. Ct. App. May 17, 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: ILB summary here, 4th opinion. Both Appellant and Appellee petitions granted. From the opinion:To hold that the five-year statute of limitations does not begin to run until such time as a victim discloses the abuse to authorities, without regard to when a defendant’s acts of concealment terminated, does not serve the statute’s intended purpose. * * * Under these circumstances, and following the direction of Thakkar and Sipe, we find that although Sloan engaged in threats, intimidation, and other positive acts of concealment during the years that he was molesting M.A., the concealment ceased after the molestation stopped in 1991, and it was then that the statute of limitation began to run. The applicable five-year limitation period would therefore have expired in 1996; consequently, the trial court erred when it denied Sloan’s motion to dismiss.
- 10:45 AM - Elmer Baker v. State of Indiana (17S04-1009-CR-500) - At a second trial in the DeKalb Superior Court, Baker was convicted of molesting two granddaughters. The Court of Appeals affirmed in Baker v. State, 928 N.E.2d 890 (Ind. 2010), vacated. Baker raises issues concerning the application of Castillo v. State, 734 N.E.2d 299 (Ind. Ct. App. 2000), summarily aff’d 741 N.E.2d 1196 (Ind. 2001), and the application of Indiana Code section 35-34-1-5. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 11/1/10):
Monday, November 1st
- 10:30 AM - State Farm Automobile Mutual Insurance Company v. Flexdar, Inc. (49A02-1002-PL-111) - This is an insurance coverage dispute involving interpretation of a pollution policy exclusion. Flexdar, Inc., manufactured rubber stamps and printing plates at its factory in Indianapolis. Flexdar's manufacturing process involved a chemical solvent known as trichloroethylene (TCE). TCE accumulated on and leaked from the Flexdar factory premises, causing contamination in the adjacent subsoil and groundwater. Following initial investigations, the Indiana Department of Environmental Management (IDEM) informed Flexdar that it could be liable for the costs of clean-up. Flexdar requested defense and indemnification from its commercial general liability insurer, State Automobile Mutual Insurance Company. State Auto filed this action seeking declaration that it owed no coverage. State Auto invoked its policy provision excluding coverage for damages arising from the escape of "pollutants." The trial court entered summary judgment in favor of Flexdar. The trial court found that, in accordance with American States Insurance Co. v. Kiger, 662 N.E.2d 945 (Ind. 1996), State Auto's pollution exclusion was ambiguous, overbroad, and thus unenforceable. State Auto appeals. The Scheduled Panel Members are: Judges May, Robb and Vaidik. [Where: Court of Appeals Courtroom (WEBCAST)]
Thursday, November 4th
- 11:00 AM - Michael Nuckols v. State of Indiana (49A02-1002-CR-202) - An Indianapolis police officer noticed two persons in a vehicle in the parking lot outside a Chinese restaurant near its closing time. Concerned about the possibility that the occupants might be planning to rob the restaurant, he approached and asked the occupants for their names. Suspecting that he had been given a false name by the passenger, the officer asked Appellant-Defendant Michael Nuckols, the driver, for the woman's real name. Nuckols replied, "If I tell you who she is, I'll be in violation of my probation." Nuckols was convicted of Class A misdemeanor invasion of privacy after the evidence at trial showed that the woman passenger was the subject of a no-contact order against Nuckols. On appeal, Nuckols claims: (1) that the trial court abused its discretion by admitting evidence obtained as a result of an investigatory stop conducted without reasonable suspicion; (2) that the trial court abused its discretion by admitting into evidence Nuckols's statements obtained by the arresting officer in violation of Miranda; and (3) that the State presented insufficient evidence to support his conviction. The Scheduled Panel Members are: Chief Judge Baker, Judges Mathias and Bradford. [Where: Globe Theatre at Indiana Wesleyan University, Marion, Indiana]
Next week's oral arguments before the Court of Appeals (week of 11/8/10):
Next Monday, November 8th
- 1:30 PM - Robert Segar v. State of Indiana (49A02-1003-CR-269) - Robert Segar was convicted, following a bench trial, of possession of marijuana, a Class A misdemeanor. On appeal, Segar argues the trial court abused its discretion by admitting evidence obtained following an investigatory stop and a pat down search that Segar contends were unlawful. The Scheduled Panel Members are: Judges May, Robb and Vaidik. [Where: Court of Appeals Courtroom (WEBCAST)]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Posted by Marcia Oddi on November 1, 2010 07:20 AM
Posted to Upcoming Oral Arguments