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Wednesday, November 21, 2012

Ind. Decisions - Court of Appeals issues 4 today (and 3 NFP)

For publication opinions today (4):

In Tyler A. White v. State of Indiana, an 18-page opinion, Judge Najam writes:

Tyler White appeals his conviction for murder following a jury trial. He presents the following issues for our review:

1. Whether the trial court erred when it found that certain testimony was admissible under Evidence Rule 804(b)(5), the “forfeiture by wrongdoing” hearsay exception.
2. Whether Indiana’s feticide enhancement statute, Indiana Code Section 35-50-2-16, is unconstitutional.
3. Whether the trial court erred when it did not judicially supply a mens rea element to the feticide enhancement statute.
4. Whether the trial court abused its discretion when it excluded evidence that the victim had previously had a miscarriage, which White proffered to support his defense to the feticide enhancement.

We affirm. * * *

[Issue One: Evidence Rule 804(b)(5)] White first contends that the trial court “misapplied” Evidence Rule 804(b)(5), the “forfeiture by wrongdoing” hearsay exception. Evidence Rule 804(b) enumerates exceptions to the hearsay rule where a declarant is unavailable as a witness, and Rule 804(b)(5) permits a “statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness for the purpose of preventing the declarant from attending or testifying.” White maintains that the State did not prove by a preponderance of the evidence that his purpose in shooting Amy was to prevent her from testifying. * * *

Because there is no reported Indiana case addressing the rule, the application of the rule to the circumstances in this case is an issue of first impression. * * *

Under Evidence Rule 804(b)(5), because White was at least partially motivated to kill Amy to prevent her from testifying at the provisional custody hearing, the trial court properly allowed the challenged hearsay evidence. * * * And we hold that the probative value of the 804(b)(5) evidence outweighed the danger of unfair prejudice to White.

[Issue Two: Constitutionality of the Feticide Enhancement Statute] * * * Here, the feticide enhancement statute expressly provides that neither a defendant’s knowledge of his victim’s pregnancy nor his intent to kill the fetus is required. Thus, the legislature’s intent on this issue is clear, and the State need not prove a defendant’s mens rea when it seeks a sentencing enhancement for feticide. Indeed, the principle underlying this statute derives from the nature and circumstances of the crime aggravator. * * *

Moreover, the feticide enhancement statute is not an outlier. Indiana Code Section 35-50-2-9(b)(12) provides that a defendant who murders a child less than the age of twelve can be punished by death regardless of the defendant’s knowledge of the victim’s age. * * *

Here, the feticide enhancement statute reflects the legislature’s policies of both increased protection of fetuses and harsher punishment for those who, by murdering a pregnant woman, cause the death of a fetus. White has not satisfied his heavy burden to show that the feticide enhancement statute is unconstitutional for lack of a mens rea requirement.

[Issue Three: Judicially-supplied Mens Rea] * * * We decline to add a mens rea requirement which the legislature has specifically excluded from the statute. * * *

We hold that the trial court properly allowed hearsay testimony regarding statements Amy had made to others prior to her death under Indiana Evidence Rule 804(b)(5). The preponderance of the evidence shows that White killed Amy, at least in part, for the purpose of preventing her testimony at the provisional custody hearing. The feticide enhancement statute, Indiana Code Section 35-50-2-16, is not unconstitutional. Also, because the legislature expressly excluded a mens rea requirement from the feticide enhancement statute, we will not judicially supply such a requirement. Finally, the trial court did not abuse its discretion when it excluded evidence that Amy had previously suffered a miscarriage.

ILB Comment: For background on Indiana Evidence Rule 804(b)(5), see this ILB entry from Sept. 16th, which discusses this case along with the Illinois Drew Peterson case and the so-called "Drew's Law," which, according to the Chicago Tribune, allowed "Peterson's slain ex-wife, Kathleen Savio, to 'testify from beyond the grave.'"

In Robert D. Davis v. State of Indiana , a 9-page opinion, Judge Brown writes:

Robert D. Davis, pro se, appeals the trial court’s denial of his motion to correct erroneous sentence. Davis raises one issue which we revise and restate as whether the trial court erred by denying his motion to correct erroneous sentence. We affirm. * * *

Davis also argues that Ind. Code § 35-50-1-2 was amended in 1994 and that this amendment should have limited the trial court’s consecutive sentencing. * * *

Generally, courts must sentence defendants under the statute in effect at the time the defendant committed the offense. Palmer v. State, 679 N.E.2d 887, 892 (Ind. 1997). When, however, the legislature enacts an ameliorative amendment without including a specific savings clause, the new statute will apply to all those sentenced after its effective date. Id. When a court sentences a defendant before the effective date of an ameliorative amendment, the new statute does not apply unless the legislature expressly designates that the new statute applies retroactively. Id. If an appellate court remands for a technical correction of a sentence, and not for re-sentencing, the general rule, that the court sentences the defendant under the statute in effect at the time the defendant committed the offense, applies. Id.

Even assuming, without deciding, that the 1994 amendment applied at the time that the court entered its order on January 26, 1995, Davis does not develop a cogent argument with respect to how the 1994 amendment would have affected his sentence.

In Romero Leslie v. State of Indiana, a 16-page opinion, Judge Najam writes:
Romero Leslie appeals his conviction for dealing in cocaine, as a Class B felony, following a jury trial. Leslie presents two issues for our review:
1. Whether the trial court committed fundamental error when it denied Leslie’s request that the court dismiss a juror who, during a recess, had been standing near Leslie and defense counsel while they were discussing trial strategy.
2. Whether the trial court abused its discretion when it replaced a juror with an alternate juror after deliberations had begun. * * *

Leslie has not shown that the trial court committed fundamental error when it denied his request to dismiss Shiflette from the jury. Nor has Leslie shown that the court abused its discretion when it dismissed Brown from jury service after she stated that she could not render a decision based on the evidence. As such, we affirm Leslie’s conviction for dealing in cocaine, as a Class B felony.

In Thomas H. Andrews v. State of Indiana

NFP civil opinions today (1):

Term. of the Parent-Child Rel. of K.S. and K.C. (Minor Children) and Y.C. (Mother) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (2):

James Henley v. State of Indiana (NFP)

Lanika Young v. State of Indiana (NFP)

Posted by Marcia Oddi on November 21, 2012 12:28 PM
Posted to Ind. App.Ct. Decisions