Friday, March 16, 2012
Ind. Decisions - Two today from Supreme Court
In Jesse J. Harris, Jr. v. State of Indiana, a 5-page, 5-0 opinion, Chief Justice Shepard writes:
A jury found Jesse J. Harris, Jr. guilty of murder and two counts of attempted murder. We have accepted jurisdiction to clarify that a defendant claiming a violation of a local felony case assignment rule need not establish prejudice to prevail on appeal. Concluding no such violation occurred here, closely, we affirm. * * *In Indiana Department of State Revenue v. AOL, LLC, an 11-page, 5-0 opinion, Chief Justice Shepard writes:
Harris argues that the only reason his trial occurred in Howard Superior Court I in the first place is because the State engaged in forum shopping.
A criminal defendant has a right to a fair trial before an impartial judge. Everling v. State, 929 N.E.2d 1281 (Ind. 2010) (citing Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009)). In the eyes of the public, and certainly of the defendant, a judge’s impartiality seems less convincing if the prosecution can select the judge before whom it will be heard. To prevent forum shopping aimed at obtaining a judge believed to be more favorable to the State—even in cases in which the perceived advantage might be open to doubt—this Court has obliged the trial courts of each county to formulate a local rule for the nondiscretionary assigning of all felony and misdemeanor cases. Ind. Crim. Rule 2.2. The judges in each county design a rule that fits with local circumstances and submit the plan for approval by the Indiana Supreme Court. Ind. Crim. Rule 2.2.
Under this arrangement, the Howard Circuit and Superior Courts adopted a rule providing for a weekly rotation among the Circuit Court, Superior Court II, and Superior Court IV. Howard LR34-CR2.2 Rule 29(A). In general, a Howard County prosecutor must file a felony criminal charge in the court designated by the weekly rotation, on the basis of the date the offense occurred, subject to several exceptions. Local Rule 29(B). Under one of these exceptions, when a defendant already faces an earlier criminal charge in a court not on rotation, the prosecutor must file felony criminal charges in that court instead. Local Rule 29(B)(5). * * *
Although Harris’s interpretation of Local Rule 29 has some force, the trial court’s reading of its own rule, approved here through the standard process, is a plausible one entitled to some deference on appeal. We are thus inclined to accept its interpretation and conclude that no violation occurred.
Still, the shades of grey in Local Rule 29 that led to this dispute need sharpening up. We will therefore ask the judges in Howard County to draft amendments sufficient to prevent a recurrence.
We therefore affirm Harris’s conviction.
Under a complex series of arrangements with people like paper suppliers, printers, and packagers, AOL procured promotional mailers it sent to Indiana residents. None of the players in these transactions, AOL says, should owe sales or use tax. The Tax Court agreed. We reverse. * * *
AOL argues that it did not acquire the CD-ROM packages and promotional materials in any retail transactions because it merely purchased assembly and printing services. (Resp.’s Br. at 9–13.) AOL acknowledges that it may have purchased raw materials in retail transactions, and it may have used the CD-ROM packages and promotional materials in Indiana. (See Resp.’s Br. at 9–10.) But, AOL argues, its third-party contractors completely consumed the raw materials in producing final products that were separate and distinct from the raw materials. (Resp.’s Br. at 10–13.) In other words, AOL acquired raw materials in retail transactions but did not use them in Indiana, it used the final products in Indiana but did not acquire them in any retail transactions, and never the twain shall meet. * * *
Here, we think the assembly houses and letter shops were selling at retail. The assembly houses and letter shops acquired tangible personal property when they took possession of the individual components. That they did so for the purpose of resale is clear not only from the fact that neither AOL nor any third-party contractors ever paid any sales or use taxes on the raw materials, but also—and more importantly—from the fact that the assembly houses and letter shops completely consumed the raw materials, regardless of who provided them, to produce a separate and distinct final product that previously did not exist at all. AOL may have had title in the raw materials, but it could not have title in the final products until they came into existence. As AOL paid consideration and received title to goods in which it previously had none, we think a sale of goods occurred. The assembly houses and letter shops transferred that property to a person for consideration, its changed form notwithstanding, when they mailed the CD-ROM packages and promotional materials to AOL’s prospective and current members at AOL’s request and in exchange for payment from AOL.
Because the assembly houses and letter shops were selling at retail, the transactions between AOL and its assembly houses and letter shops constituted retail transactions that triggered Indiana’s use tax once AOL used the property in Indiana.
Conclusion: For the reasons stated above, we therefore reverse the Tax Court.
Posted by Marcia Oddi on March 16, 2012 01:03 PM
Posted to Ind. Sup.Ct. Decisions