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Friday, October 19, 2012
Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)
For publication opinions today (2): In Rodney Killebrew II v. State of Indiana , a 14-page opinion, Judge Riley writes:
On March 3, 2011, Police Officer Chad VanCamp (Officer VanCamp) of the Kokomo Police Department was traveling northbound on Apperson Way in Kokomo, Indiana, when he observed a white Cadillac traveling southbound. The Cadillac had its turn signal activated but continued through an intersection without turning. Officer VanCamp thought that the driver might be impaired, so he initiated a traffic stop. * * *In Alton Neville v. State of Indiana , a 23-page opinion, Judge Crone writes:
Because we find that Officer VanCamp’s traffic stop of Killebrew was not justified based on a traffic violation, reasonable suspicion of criminal activity, or the community caretaking function, we conclude that the seizure violated the Fourth Amendment and the trial court abused its discretion in admitting the marijuana evidence obtained in the course of the unlawful search. Furthermore, the State was required to prove that Killebrew “knowingly or intentionally possess[ed] (pure or adulterated) marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid” in order to convict him of possession of marijuana as a Class A misdemeanor. The State did not present any evidence of lawfully obtained marijuana, so we reverse Killebrew’s conviction for possession of marijuana, a Class A misdemeanor. I.C. 35-48-4-11.
CONCLUSION Based on the foregoing, we conclude that the trial court abused its discretion when it admitted evidence obtained pursuant to an illegal traffic stop. We reverse Killebrew’s conviction for possession of marijuana, a Class A misdemeanor, I.C. § 35-48-4-11.
Alton Neville appeals his convictions and sentences for murder and carrying a handgun without a license. On appeal, Neville argues that fundamental error requiring reversal of his convictions occurred due to prosecutorial misconduct (1) during voir dire when the prosecutor commented on the possibility of a false conviction, and during closing argument when the prosecutor (2) vouched for the witnesses; (3) mischaracterized the evidence; (4) argued inconsistent facts; (5) presented facts not in evidence; and (6) inflamed the passions and prejudices of the jury. He also asserts that fundamental error occurred due to the improper admission of certain evidence. Finally, he contends that his fifty-five year aggregate sentence is inappropriate.> NFP civil opinions today (1):
We conclude that the prosecutor improperly presented facts not in evidence and improperly inflamed the passions and prejudices of the jury, but that the improper comments did not rise to the level of fundamental error. We further conclude that certain evidence was improperly admitted but did not result in fundamental error. Finally, we conclude that Neville has failed to carry his burden of persuading us that his sentence is inappropriate. Accordingly, we affirm.
NFP criminal opinions today (6):
Posted by Marcia Oddi on October 19, 2012 01:53 PM
Posted to Ind. App.Ct. Decisions