Monday, December 12, 2011
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 12/12/11):
Thursday, December 15th
- 9:00 AM - Tina Whiting v. State of Indiana (38A05-1008-CR-505) -
During voir dire in the Jay Circuit Court, both the State and Whiting challenged a juror for cause. The trial court denied the challenges for cause. Neither party used a peremptory strike, and the juror was seated. The Court of Appeals affirmed in a not-for-publication Memorandum Decision. Whiting v. State, No. 38A05-1108-CR-505, slip op. (Ind. Ct. App. Jun. 30, 2011). Whiting has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was a June 30, 2011 NFP COA opinion.
- 9:45 AM - John Berry v. State of Indiana (49S04-1110-CR-611) - At a bench trial in the Marion Superior Court, Berry was convicted of attempted murder for assaulting a person with a hammer. Berry’s defense, that he was not responsible by reason of insanity, was rejected on grounds there was evidence he knew the wrongful nature of his actions and his psychotic symptoms were brought on by the voluntary abuse of alcohol. The Court of Appeals reversed, concluding that psychosis resulted from prolonged, habitual, and severe alcohol abuse which was a mental disease or defect that rendered Berry unable to appreciate the wrongfulness of his actions within the meaning of Indiana Code section 35-41-3-6. Berry v. State, 950 N.E.2d 821 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a a 28-page, July 20th COA opinion that concluded:
We conclude that there is no evidence that Berry was intoxicated when he committed the offense. We adhere to the longstanding principle that a defendant suffering from a mental disease or defect caused by severe, prolonged, and chronic alcohol abuse that renders that person unable to appreciate the wrongfulness of his or her conduct is not responsible for prohibited conduct committed while in that condition. We conclude that the evidence is undisputed that at the time of the offense Berry suffered from psychotic symptoms caused by his prolonged and severe alcohol abuse and that he was unable to appreciate the wrongfulness of his conduct. Accordingly, we conclude that the trial court erred in rejecting his insanity defense. We reverse the judgment of the trial court and remand with instructions to find Berry not guilty by reason of insanity and for further proceedings as required by the Indiana Code.
- 10:30 AM - Mark J. Thatcher v. City of Kokomo, et al. (94S00-1109-CQ-570) - Pursuant to Indiana Appellate Rule 64, the United States District Court for the Southern District of Indiana certified the following questions of Indiana law for the Indiana Supreme Court’s consideration, which the Indiana Supreme Court accepted on October 6, 2011. The questions, as framed by the district court, are: 1. Does Indiana Code section 36-8-4-7(a) apply to a member of the 1977 Fund [a disability and pension fund for police officers and firefighters established by Indiana Code section 36-8-8-4 that is managed by PERF] who is receiving disability benefits and who has been determined to have been recovered pursuant to 35 IAC 2-5-5(c)? 2. If yes, does Indiana Code section 36-8-8-12(e) apply to determinations of eligibility under Indiana Code section 36-8-4-7(a), such that time spent receiving disability benefits counts toward “years of service” as that term is used in Indiana Code section 36-8-4-7(a)?
Next week's oral arguments before the Supreme Court (week of 12/19/11):
Tuesday, December 20th
- 9:00 AM - Sharon Gill v. Evansville Sheet Metal Works, Inc. (49S05-1111-CV-672) - Sharon Gill filed, under Marion County’s Mass Tort Litigation Docket, a complaint alleging that her husband Gale had been exposed to asbestos in the course of his work and died of an asbestos-related disease. Evansville Sheet Metal Works, a contractor for Gale’s employer, filed an initial summary judgment motion, arguing among other things that the Construction Statute of Repose barred Gill’s complaint. The trial court granted summary judgment to Evansville Sheet Metal Works, and the Court of Appeals affirmed. Gill v. Evansville Sheet Metal Works, Inc., 940 N.E.2d 328 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a Dec. 15, 2010 COA opinion, holding "Sharon’s claim was barred by the Construction Statute of Repose."
- 9:45 AM - Stephen Robertson, et al. v. B.O., et al. (49S04-1111-CT-671) - The plaintiff settled his medical malpractice claim against Lutheran Hospital and then filed this action in the Marion Superior Court seeking damages from the Patient's Compensation Fund. The court granted the plaintiff partial summary judgment in an order prohibiting the Fund from offering testimony that the plaintiff "does not have mild cerebral palsy consisting of spastic diplegia and/or that the plaintiff's condition was not caused by the conduct" of Lutheran Hospital. The Court of Appeals reversed and remanded, citing Atterholt v. Herbst, 902 N.E.2d 220 (Ind. 2009), clarified on reh'g, 907 N.E.2d 528 (Ind. 2009). See Robertson v. B.O., 949 N.E.2d 404 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. ILB: This is a May 23, 2011 COA opinion where the COA stated the issue as "Whether the [Indiana Patient’s Compensation Fund] can introduce evidence concerning the existence and compensable nature of B.O.’s damages after B.O. entered into a settlement with the healthcare provider settling his claim of medical malpractice," and "conclud[ed] that, here, the Fund can present evidence allegedly establishing that B.O. does not have spastic diplegia or that his symptoms are not due to an insult at birth."
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 12/12/11):
Monday, December 12th
- 1:00 PM - Indiana Newspaper, Inc., D/B/A/ The Indianapolis Star (49A02-1103-PL-234) - Jeffrey Miller is the former president and CEO of Junior Achievement of Central Indiana (“JA”). On March 19, 2010, The Indianapolis Star published an article about JA facing an audit. A reader, known as “DownWithTheColts,” anonymously posted a comment about the story on indystar.com, telling them to look to the former JA president for the missing money.
Miller filed a complaint against JA, Central Indiana Community Foundation, and their respective presidents alleging, among other things, defamation. Miller sought non-party discovery from The Indianapolis Star, specifically, the identity of “DownWithTheColts.” The Marion Superior Court granted Miller’s request. Non-Party The Indianapolis Star now appeals this issue of first impression in our state, arguing that the identity of “DownWithTheColts” is protected by Indiana’s Journalist Shield Statute, the First Amendment of the United States Constitution, and Article 1, Section 9 of the Indiana Constitution. The Scheduled Panel Members are: Judges Friedlander, Darden and Vaidik. [Where: Supreme Court Courtroom (WEBCAST)]
For background, start with this ILB entry from Dec. 10th and its links.
Tuesday, December 13th
- 1:30 PM - Bei Bei Shuai v. State of Indiana (49A02-1106-CR-486) - The State charged Bei Bei Shuai with murder and attempted feticide based on Shuai’s ingestion of rat poison when she was thirty-three weeks pregnant and the subsequent death of A.S., who was delivered by caesarean section. Shuai appeals the denial of her Motion to Dismiss the charges against her and the denial of her Petition for Habeas Corpus and Request for Hearing and Reasonable Bail.
The Scheduled Panel Members are: Judges May, Riley and Najam. [Where: Supreme Court Courtroom (WEBCAST)]
For background, start with this ILB entry from Dec. 6th and its links.
- 1:30 PM - Bradley Bradford v. State of Indiana (59A01-1104-CR-215) - Bradley Bradford appeals his conviction for child molesting as a class C felony. On appeal, he argues that testimony from a Department of Child Services worker regarding the conclusion of her investigation into the allegation of sexual abuse constituted improper vouching testimony in violation of Indiana Evidence Rule 704(b). The Scheduled Panel Members are: Judges Vaidik, Darden and Friedlander. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
Thursday, December 15th
- 10:30 AM - CBR Event Decorators, Inc. et al v. Todd M. Gates (49A02-1010-CT-1117) - This case deals with liability for breach of contract. CBR Event Decorators, Inc. was formed for the sole purpose of purchasing assets belonging to the Plaintiff, Todd M. Gates. Shortly after the parties closed on the deal, CBR breached the agreed-upon purchase agreement. Gates brought suit, and the trial court ruled in his favor, holding that Gates had presented sufficient evidence to justify piercing the corporate veil of CBR. On appeal, CBR claims that the trial court erred by imposing personal liability on its shareholders and argues that Gates failed to show detrimental reliance as required in the fraud context. The Scheduled Panel Members are: Judges Friedlander, Darden and Vaidik. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
Next week's oral arguments before the Court of Appeals (week of 12/19/11):
Monday, December 19th
- 1:00 PM - K. F. v. State of Indiana (49A02-1103-JV-290) - K.F. appeals her adjudication as a delinquent child for having committed acts that, if committed by an adult, would constitute burglary as a class B felony; theft as a class D felony; and carrying a handgun without a license, a class A misdemeanor. On appeal, K.F. challenges the sufficiency of the evidence to support her adjudications and the admission of certain testimony into evidence. The Scheduled Panel Members are: Judges Friedlander, Darden 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 December 12, 2011 08:00 AM
Posted to Upcoming Oral Arguments