Thursday, March 03, 2011
Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)
For publication opinions today (2):
Indiana Association of Beverage Retailers, Inc. v. Indiana Alcohol and Tobacco Commission, et al. is a suit by the package liquor stores ass'n about the Commission's issuance of new beer dealer permits. The most interesting part of the opinion to the ILB was footnote 7, beginning on page 20, relating to "legislative acquiescence":
Both the Commission and the Retail Council have asserted, and the trial court found, that legislative acquiescence applies to the Commission's interpretation of Indiana Code section 7.1-3-22-4. Legislative acquiescence, however, does not apply here as there has been no previous judicial interpretation of Section 4 by our appellate courts. See Fraley v. Minger, 829 N.E.2d 476, 492 (Ind. 2005) (“[I]t is well-established that a judicial interpretation of a statute, particularly by the Indiana Supreme Court, accompanied by substantial legislative inaction for a considerable time, may be understood to signify the General Assembly's acquiescence and agreement with the judicial interpretation.”). Error notwithstanding, we affirm the trial court's denial of the preliminary injunction. See Lakes and Rivers Transfer v. Rudolph Robinson Steel Co., 795 N.E.2d 1126, 1133 (Ind. Ct. App. 2003) (“To the extent that [a] judgment is based on erroneous findings, those findings are superfluous and are not fatal to the judgment if the remaining valid findings and conclusions support the judgment.”).In Eddie M. Taylor v. State of Indiana , a 13-page opinion, with appellant represented by counsel, Judge Mathias writes:
On appeal, Taylor claims that he was denied his Sixth Amendment right to counsel when the trial court granted Taylor's request to proceed pro se. We affirm. * * *NFP civil opinions today (1):
We can only conclude that Taylor was not denied the right to counsel. He clearly and unequivocally expressed his desire to represent himself, and the trial court adequately advised him of the dangers and disadvantages of self representation. Yet Taylor still chose to proceed pro se. When Taylor changed his mind on the day before the scheduled trial, the trial court continued the trial and appointed Taylor counsel. And Taylor was represented by his appointed counsel during trial and at sentencing. Therefore, even if we agreed with Taylor that he had not waived his right to counsel, he fails to explain how the subsequent appointment of counsel to represent him at trial and sentencing was not an adequate remedy.
NFP criminal opinions today (3):
State of Indiana v. Danny Leflore (NFP) - "The State of Indiana appeals from the trial court’s denial of its motion to use pre-trial statements of witnesses who had been excluded. The State presents one issue for our review: Did the trial court abuse its discretion in excluding witnesses’ pre-trial statements where the unavailability of the witnesses may have been procured by Danny LeFlore (the accused)? We reverse and remand. * * *
"Having reviewed the record before us, we find that the trial court erred by failing to consider the State’s argument regarding forfeiture of the right of confrontation. We therefore reverse the ruling of the trial court and remand with instructions that the trial court hear the State’s evidence and make a determination as to whether LeFlore’s conduct rendered the witnesses unavailable for cross-examination and thus, whether LeFlore forfeited his right to confrontation."
Posted by Marcia Oddi on March 3, 2011 01:20 PM
Posted to Ind. App.Ct. Decisions