Monday, September 24, 2012
Ind. Decisions - Court of Appeals issues 5 today (and 11 NFP)
For publication opinions today (5):
In State of Indiana v. Russell Oney, a 9-page opinion, Judge Najam writes:
The State appeals the trial court’s order granting Russell Oney’s motion to set aside his 2002 guilty plea to the charge of operating a vehicle while an habitual traffic violator, a Class D felony (“HTV conviction”). The State presents a single issue for review: whether the trial court erred when it vacated Oney’s 2002 guilty plea to the HTV conviction on the ground that one of the predicate offenses to the HTV conviction had been reversed in post-conviction proceedings with the agreement of the State. * * *Marquis Dayvon Brooks v. Anderson Police Dept., City of Anderson, and Chris Barnett, a 12-page opinion, Judge Baker writes:
The BMV’s determination in 1994 that Oney was an HTV was based on three predicate convictions and did not constitute manifest injustice. Nor did the BMV err, materially or procedurally, when it determined that Oney was an HTV in 1994. As such, when Oney operated a vehicle in 1999, despite his HTV status and resulting conviction, he was flaunting the law, even though one of the predicate convictions to his HTV status was later vacated. As such, we reverse and remand the trial court’s order granting post-conviction relief to Oney, vacating his HTV conviction, and allowing him to withdraw his guilty plea to that offense.
Appellant-plaintiff Marquis Dayvon Brooks appeals from the trial court’s order granting summary judgment in favor of appellees-defendants the Anderson Police Department, the City of Anderson, and Officer Chris Barnett (collectively, “the Appellees”). More particularly, Brooks argues that summary judgment was inappropriate because there are genuine issues of material fact regarding whether Officer Barnett violated the Reasonable Force Statute2 by permitting his police dog to bite Brooks during his arrest. Additionally, Brooks contends that a violation of the Reasonable Force Statute precludes the Appellees from alleging immunity under the Indiana Torts Claims Act.3 Concluding that there are genuine issues of material fact, we reverse the decision of the trial court and remand for further proceedings.In Parkview Hospital, Inc. v. Geico General Insurance Company, an 8-page opinion, Judge Bailey writes:
Parkview presents the issue of whether the Allen County Superior Court properly dismissed, for lack of subject matter jurisdiction, the lien impairment claim asserting entitlement to proceeds from a Tennessee judgment recovered by Smith. * * *InCarlos Hale v. State of Indiana, a 10-page opinion, Judge Baker writes:
The remedy Parkview seeks is recognition of a perfected lien, and attachment to a Tennessee judgment, without proof of causation and without prior notice upon the docket of that court. Although an Allen County, Indiana court can – pursuant to the Act – determine the amount Parkview is due from Smith personally on account of services provided to him, the Allen County court lacks jurisdiction to order a Tennessee judgment reinstated such that Parkview’s hospital lien could attach.
In other words, an Indiana court may decide that Smith’s personal liability for medical services is not extinguished, and there is an amount due and owing, but may not reinstate obligations of Gibbs or his insurer extinguished by compliance with the Tennessee Judgment. Indeed, Section 1 of the Act does not confer jurisdiction upon an Indiana court to entertain a “claim” of a hospital lien against a judgment unless the hospital has “enter[ed], in writing, upon the judgment docket where the judgment is recorded, the hospital’s intention to hold a lien upon the judgment, together with the amount claimed.”
In light of the foregoing, we affirm the dismissal of the claim against Geico. Affirmed.
Inasmuch as the show-up identification was not unduly suggestive, the trial court did not err by admitting it into evidence. Moreover, in light of the woman’s in-court testimony identifying the defendant, no fundamental error could have occurred even if the admission of the show-up identification had been error. Accordingly, we decline the defendant’s request to reverse his conviction.In Gregory Kirk v. State of Indiana , a 30-page opinion, JudgeKirsch writes, beginning at p. 12:
Finally, we note that the fundamental error doctrine is being casually invoked whenever there is a failure to timely object at trial. This is not the purpose of the fundamental error doctrine, which is extremely narrow and reserved only for the most egregious circumstances.
Kirk next contends that the trial court abused its discretion by admitting testimony regarding the content of Kirk’s text messages. Specifically, he contends that the evidence should have been suppressed because it violated the unreasonable search and seizure provisions in Article I, Section 11, of the Indiana Constitution and the Fourth Amendment to the United States Constitution, and the State failed to prove an exception to the warrant requirement to justify the warrantless search of his cell phone. * * *NFP civil opinions today (4):
Where, like here, we can decide this issue without addressing the Fourth Amendment issue, we will do so. * * *
Unlike the Fourth Amendment, where we focus on the defendant’s reasonable expectation of privacy, under Article I, section 11, we focus on the actions of the police, concluding that the search is legitimate where it is reasonable given the totality of the circumstances. Trimble v. State, 842 N.E.2d 798, 803 (Ind. 2006). As we consider reasonableness based upon the particular facts of each case, we give Article I, section 11 a liberal construction in favor of protecting individuals from unreasonable intrusions on privacy. Rush v. State, 881 N.E.2d 46, 52 (Ind. Ct. App. 2008). * * *
Police then arrested Kirk for neglect of a dependent and public intoxication and, while performing a search incident to arrest, found he was in possession of marijuana, a pipe, and a cell phone. Immediately after finding Kirk’s cell phone, Detective Schwomeyer opened the inbox and looked at six to eight text messages. * * *
By requiring the need for a warrant in order to search a cell phone, our court has recognized that the seizing of the contents of such items are deserving of protection and court oversight. * * * The State did not make clear the reason for the search of Kirk’s private cell phone. Kirk was not seen talking on his phone or even holding his phone prior to his arrest. Here, Kirk was arrested for neglect of a dependent and public intoxication; neither crime of which clearly implicated use of a cell phone.
Although Detective Schwomeyer was within his rights to confiscate the cell phone during the search incident to arrest, there was no real law enforcement need to open the cell phone, press a button to access the inbox, and read six to eight text messages. The State attempts to justify the search of the cell phone under the Indiana constitution by stating that the search intruded only a small amount into Kirk’s ordinary activities and that law enforcement needs were great. On balance, we are not persuaded.
The State contends that the law enforcement needs to search the phone immediately were great because the contents of the cell phone could have been remotely cleansed. The State, however, fails to prove that this was a reasonable concern or to demonstrate that less intrusive means such as removing the SIM card or simply turning the cell phone off could not have been used to block any effort to remotely cleanse the cell phone until a warrant could be obtained. * * *
The State’s failure to act promptly to secure the contents of the text messages suggests that the warrantless search was not motivated by concerns about the destruction of evidence. Under these facts and circumstances, we conclude that the warrantless search of the cell phone was unreasonable under Article I, Section 11 of the Indiana Constitution, and it was error for the trial court to admit the testimony regarding the contents of Kirk’s cell phone.
NFP criminal opinions today (7):
Posted by Marcia Oddi on September 24, 2012 02:00 PM
Posted to Ind. App.Ct. Decisions