Monday, October 22, 2012
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of (10/22/12):
Wednesday, October 24th
- 9:00 AM - Joseph A. Davis v. Herbert Simon and Bui Simon (49S04-1208-CT-498) - When Simon and his wife sued Davis, a California attorney, for defamation and false light publicity based on a statement Davis made during a phone call with an Indianapolis-based news organization, Davis moved to dismiss, and the Marion Superior Court denied the motion to dismiss. The Court of Appeals reversed, concluding that the trial court lacks personal jurisdiction over Davis because he did not expressly aim his conduct at Indiana. Davis v. Simon, 963 N.E.2d 46 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal
ILB: This is a 26-page, Feb. 29, 2012 COA opinion, where the question is whether the Simons have jurisdiction to sue Mr. Davis (of California) in Indiana. "Joseph A. Davis appeals the trial court's denial of his Motion to Dismiss for Lack of Personal Jurisdiction, or in the Alternative, on Grounds of Forum Non Conveniens, in favor of Herbert and Bui Simon." The trial court denied Mr. Davis' motion to dismiss. The COA panel here reverses, 2-1.
- 9:45 AM - Whiskey Barrel Planters Co., Inc. v. American GardenWorks, Inc. (04S03-1209-PL-503) - After purchasing "substantially all" the assets of Whiskey Barrel Planters, American GardenWorks filed a complaint alleging Whiskey Barrel Planters and its two shareholders failed to turn over certain assets included in the sale. Whiskey Barrel Planters filed counterclaims for conversion and replevin. The Benton Circuit Court denied Whiskey Barrel Planters' motion for partial summary judgment. After a trial, the court entered judgment for American GardenWorks. The Court of Appeals reversed, concluding the sale of "substantially all" the assets of Whiskey Barrel Planters did not include season football tickets, shareholder loans, or personal property, and that the shareholders were entitled to recover any personal property converted by American GardenWorks. The Court of Appeals remanded for further proceedings on the attorney's fees awarded to American GardenWorks. Whiskey Barrel Planters Co., Inc. v. American GardenWorks Inc., 966 N.E.2d 711 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is an April 16, 2012 COA opinion involving contract interpretation, reversing the trial court decision.
- 10:30 AM - State of Indiana ex rel Indiana Supreme Court Disciplinary Commission v. Derek Farmer (94S00-1103-MS-165) - The Indiana Supreme Court Disciplinary Commission filed a verified petition under Indiana Admission and Discipline Rule 24 to enjoin the Respondent, Derek A. Farmer, from engaging in the unauthorized practice of law. Farmer filed a return opposing the petition. A Commissioner appointed by the Court held a hearing and made factual findings, after which the parties filed briefs responding to the Commissioner’s findings. The Court has granted a motion for oral argument.
- 9:00 AM - Ronald B. Hawkins v. State of Indiana (20S03-1208-CR-499) - Hawkins was tried in absentia and without counsel in the Elkhart Superior Court. He was found guilty of two counts of non-support of a dependent child as Class C felonies, and sentenced via videoconference to consecutive terms of four years but with all suspended and to be administered through a community corrections program. A divided Court of Appeals affirmed in part and reversed in part, finding that his due process rights were not violated by the trial or absence of counsel, that he had waived for appellate review argument relating to sentencing via videoconference, and that consecutive sentences were not an abuse of discretion, but that one of the felonies must be reduced to a Class D felony. Hawkins v. State, (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a 2-1, July 3, 2012 COA opinion (5th case), where the dissent writes in part: "I respectfully dissent from the majority’s conclusion that Hawkins knowingly, intelligently, and voluntarily waived his right to counsel. Because I believe that the facts in this case are readily distinguishable from the facts in Jackson and because of the importance of an attorney for a fair proceeding, I would reverse the trial court on this issue."
- 9:45 AM - In re Prosecutor’s Subpoena (S.H. v. State) (73S01-1209-CR-563) - At a time when no charges were pending and no grand jury investigation had begun, the Shelby Superior Court quashed subpoenas seeking the testimony of the parents about injuries to their infant, but later granted the State’s request that the parents be given use immunity and ordered to testify. The Court of Appeals affirmed the trial court in S.H. v. State, 969 N.E.2d 1048 Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a June 22, 2012 COA opinion (3rd case):
S.H. and S.C. (collectively, “Parents”) appeal a trial court order granting the State’s petition to compel their testimony by providing use immunity. Parents argue a prosecutor may not grant use immunity when there is no grand jury proceeding and the persons whose testimony is sought have not been charged with a crime. * * *
While Parents’ argument is persuasive, we cannot reconcile the result they advocate with our Indiana Supreme Court’s statement that a prosecutor has the same ability to accumulate evidence as does a grand jury. We must agree with the State that the legislature’s explicit reference to grand jury proceedings in Ind. Code § 35-34-2-8 cannot be read to restrict the right of a prosecutor to seek use immunity when prosecution is initiated by means of an information rather than an indictment. Nor could the legislature have intended that prosecutors have fewer investigative tools before deciding to bring charges than they do after charges are brought. We accordingly affirm the trial court.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 10/22/12):
Monday, October 22nd
- 10:30 AM - James O. Young v. State of Indiana (20A04-1112-CR-699) - James Young appeals his conviction for Class D felony domestic battery and Class D felony strangulation following a jury trial. Young’s wife, the victim, did not testify at trial, but two firefighters and a police officer who had spoken with her at or near the time of the incidents involved were allowed to testify concerning the substance of the statements she made to them. Young presents the following issues for review on appeal: (1) whether the firefighters’ and police officer’s testimony regarding the victim’s statement to them was a violation of the Confrontation Clause within the Sixth Amendment of the Constitution of the United States or permissible questioning during an ongoing emergency; (2) whether the trial court abused its discretion in concluding that the victim’s statement to the police officer, more than 45 minutes after the incidents, was an excited utterance; and (3) whether there was sufficient evidence to prove that Young committed the offenses in a child’s physical presence so as to elevate the domestic battery offense to a Class D felony. The Scheduled Panel Members are: Judges Vaidik, Mathias and Barnes. . [Where: Allen Superior Courtroom No. 1 715 S. Calhoun Street Fort Wayne, Indiana]
Tuesday, October 23rd
- 10:00 AM - Kenneth S. Tipton v. State of Indiana (47A01-1201-CR-4) - Kenneth Tipton was convicted of criminal recklessness after he shot at a house during a standoff with police He argues on appeal the evidence was insufficient to convict him because that offense requires proof there was a risk of injury to a person and nobody was in the house when he shot at it. The Scheduled Panel Members are: Judges Baker, May and Sr. Judge Shepard. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
Tuesday, October 30th
- 11:00 AM - Paul H. Gingerich v. State of Indiana (43A05-1101-CR-27) - Gingerich appeals his conviction following a plea of guilty pursuant to a plea agreement for conspiracy to commit murder as a class A felony. Gingerich asserts that the juvenile and trial courts abused their discretion in failing to order a competency evaluation based upon developmental immaturity; that the juvenile court abused its discretion by authorizing the delinquency petition to be filed, by denying Gingerich’s request for a continuance of the waiver hearing, and by waiving jurisdiction; and that the waiver provisions in the plea agreement are unenforceable. Additionally, the State argues on cross-appeal that Gingerich’s appeal should be dismissed because he waived his right to appeal in his plea agreement and by pleading guilty. The Scheduled Panel Members are: Judges Baker, Kirsch and Brown. [Where: Indiana Supreme Court Courtroom (WEBCAST)]
Wednesday, October 31st
- 1:00 PM - Jerry Vanzyll v. State of Indiana (34A02-1111-CR-1050) - As a result of a narcotics investigation by the Kokomo Police Department, Vanzyll was arrested and convicted of several methamphetamine-related offenses and resisting law enforcement. Specifically, Vanzyll resided in a home in which police officers discovered a methamphetamine lab pursuant to a search warrant. When Kokomo police officers initially attempted to gain access to the residence, Vanzyll opened the back door, saw the officers, ran back into the house and shut the door. The officers ordered Vanzyll to return to the back door, and he eventually complied, at which time he was arrested. Vanzyll raises three issues on appeal. First, he challenges the admission of incriminating statements he made to corrections officers while he was in custody at the Howard County Jail. Next, Vanzyll argues that the evidence that he returned to his residence and closed the back door after noticing KPD officers outside and failed to immediately return to the back door of his residence when ordered to do so by the police is insufficient to prove that he committed the criminal offense of resisting law enforcement. And, finally, Vanzyll argues that the evidence is insufficient to support his conviction for dealing methamphetamine because the State presented no evidence that there was an active methamphetamine lab in his residence on the date of the search. The Scheduled Panel Members are: Judges Vaidik, Mathias and Barnes. [Where:Seeger Jr.-Sr. High School, Fine Arts Center, 1222 South St., Road 263, West Lebanon, Indiana
Thursday, November 1st
- 10:00 AM - Thomson Inc., N/K/A Technicolor USA, Inc., v. Insurance Company of America, et al (49A05-1109-PL-470) - This appeal arises from a declaratory judgment action filed by Thomson against its liability insurers to obtain insurance coverage for a class action toxic tort case pending in Taiwan. In August 2011, the trial court granted partial summary judgment in favor of Thomson as to certain coverage issues and certified its order as a final judgment pursuant to Indiana Trial Rule 56(C). Thomson and the insurers (XL Insurance America, Inc., and Century Indemnity) each filed a notice of appeal from that order. The insurers subsequently filed a motion to dismiss the appeal, which essentially challenges the propriety of the trial court’s certification of its order. Oral argument is being held solely on the insurers’ motion to dismiss. The Scheduled Panel Members are: Judges Riley, Bailey and Crone. [Where: Indiana 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 October 22, 2012 08:53 AM
Posted to Upcoming Oral Arguments