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Wednesday, August 22, 2012

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In Ashley T. Tucker v. Michelle R. Harrison, M.D. , a 21-page opinion, Chief Judge Robb writes:

Ashley Tucker filed a medical malpractice complaint against Dr. Michelle Harrison, alleging Dr. Harrison’s negligence in performing a surgical procedure damaged her ovaries and left her infertile. A jury found in favor of Dr. Harrison and Tucker now appeals, raising three issues for our review: 1) whether the trial court abused its discretion in excluding testimony from one of Tucker’s expert witnesses; 2) whether the trial court abused its discretion in denying Tucker the opportunity to question witnesses about possible financial bias; and 3) whether the trial court abused its discretion in refusing to give the jury a res ipsa loquitur instruction. Concluding the trial court did not abuse its discretion in excluding Tucker’s expert testimony, limiting her questioning of a witness about possible bias, or in instructing the jury, we affirm.
In Ryan E. Bean v. State of Indiana, a 19-page opinion, Judge Barnes writes:
In this consolidated appeal, Ryan Bean appeals his convictions for two counts of Class A felony child molesting. We reverse and remand.

The dispositive issue we address is whether the two trial courts properly introduced into evidence Bean’s confession to police. * * *

After considering the totality of the circumstances, including but not limited to police informing Bean of the Miranda rights, we conclude that Bean was in custody when he finally gave his confession because a reasonable person would not have felt free to leave the police station at that point. The facts here are even more indicative of custody than those of Ackerman v. State, 774 N.E.2d 970, 979 (Ind. Ct. App. 2002), trans. denied, where we found a suspect to be in custody where she was “transported from home with no obvious means of returning, had admitted possible illegal activity to police, and then finally was advised of her Miranda rights . . . .”5 At the time of Bean’s confession, he was in custody but had either (a) not been meaningfully informed of his Miranda rights or (b) had earlier invoked those rights. * * *

Bean’s confession was obtained in violation of Miranda protocol and should not have been admitted into evidence in either trial. Those errors were not harmless and must result in reversal of his molestation convictions in Carroll and White Counties. We reverse and remand for retrials, if the State so chooses.

In Jorge Henriquez v. State of Indiana, an 8-page opinion, Sr. Judge Sharpnack writes:
Henriquez presents one issue for our review, which we restate as: whether Henriquez’s constitutional right to a fair and impartial jury was violated by the alleged improper influence of an alternate juror. * * *

From these facts it is clear that the trial court, in its proper discretion, determined that the alternate’s alleged conduct posed only a remote risk of prejudice, if any at all. Therefore, no full scale inquiry was warranted. We find no abuse of the trial court’s discretion and, thus, find no error, fundamental or otherwise. Moreover, in seeking a new trial based upon juror misconduct, Henriquez has not met his burden of showing that the alleged misconduct was gross and probably injurious to him.

NFP civil opinions today (3):

Gregory L. Brown v. Review Board of the Indiana Dept. of Workforce Development, and H & H Mechanical of Michiana LLC (NFP)

In Re: The Term. of the Parent-Child Rel. of: C.H. and G.H., and G.H. and J.H. v. Indiana Dept. of Child Services (NFP)

In the Matter of T.B., A Child Alleged to be a Delinquent Child v. State of Indiana (NFP)

NFP criminal opinions today (6):

Dennis Ogutu v. State of Indiana (NFP)

Tacuma G. Wolfe v. State of Indiana (NFP)

Kenneth W. Wegener v. State of Indiana (NFP)

Steven D. Powell v. State of Indiana (NFP)

Michael A. Ayers v. State of Indiana (NFP)

Ivan Brown v. State of Indiana (NFP)

Posted by Marcia Oddi on August 22, 2012 12:25 PM
Posted to Ind. App.Ct. Decisions