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Monday, February 11, 2013

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Edwin Jones v. State of Indiana , a 31-page opinion including a concurring opinion, Judge Brown writes:

Edwin Jones appeals his conviction and sentence for operating a vehicle while intoxicated as a class A misdemeanor. Jones raises three issues which we revise and restate as:

I. Whether the trial court abused its discretion and violated Jones’s confrontation rights by admitting a certificate of inspection asserting the accuracy of police testing equipment;
II. Whether the court abused its discretion in ruling on certain evidentiary matters; and
III. Whether the court erred in sentencing him. * * *

[I] Thus, based upon Williams and other recent statements from the U.S. Supreme Court, we reframe the third rationale articulated in Ramirez to provide that although certificates of inspection are kept on file by the court clerk and may be duplicated for use in court, their primary purpose is to ensure that certain breath test equipment is in good operating condition in compliance with Ind. Code § 9-30-6-5. However, we reaffirm our prior precedents and conclude that the Certification was nontestimonial and that the court did not err in admitting it.

Moreover, we agree with the State that any such error regarding the admission of the Certification and the attendant breath analysis was harmless. * * *

For the foregoing reasons, we affirm Jones’s conviction and sentence for operating while intoxicated as a class A misdemeanor. Affirmed.

BAILEY, J., concurs.
VAIDIK, J., concurs in result with separate opinion. [which includes] Therefore, in light of the Supreme Court’s decision in Williams, I would simply eliminate the third rationale articulated in Ramirez.

Despite this difference, I still agree with the majority that the Certification is non-testimonial and therefore not subject to confrontation under Crawford v. Washington, 541 U.S. 36, 68-69 (2004).

In Michael Gray v. State of Indiana , an 8-page opinion, Judge Vaidik writes:
Michael Gray was convicted of Class D felony possession of cocaine and received a four-year sentence. On appeal, Gray contends that the trial court erred in refusing to allow him to play portions of an audio recording of a police officer’s deposition for impeachment purposes. We find that the trial court did err in refusing to allow Gray to play a part of the audio recording that was inconsistent with the officer’s testimony on direct examination, but this error was harmless. We affirm. * * *

Although we conclude that Gray was entitled to use a specific portion of the tape, he went about doing so in the wrong way. Gray played the tape without any notice to the court. The court was well within its discretion in refusing to allow Gray to play the tape when the court had no knowledge of its content. However, Gray explained that he intended to use only a specific portion of the tape and made it available to the court. The court should have examined the portion of the tape Gray wished to use and determined whether it was inconsistent with Officer Morgan’s testimony. Given that the portions Gray wished to play were in fact inconsistent with the officer’s testimony, it was error to prevent Gray from playing the relevant portions of the tape.

We find the error harmless, however. Officer Morgan ultimately admitted that his testimony may have been inconsistent, making Gray’s impeachment attempt complete—though jurors likely found this admission less persuasive than an audio recording of the officer’s inconsistent statement.

NFP civil opinions today (3):

Ernestine Waldon, Christine Hampshire, and Vergie Small v. Donna Wilkins, MD, Joshua Williams, and Rodney Barber, and Carl Barber, Jr. (NFP)

AT&T v. Atlas Excavating, Inc. (NFP)

Tammy Syers v. JKL Construction & Home Maintenance (NFP)

NFP criminal opinions today (2):

Thomas Oakley v. State of Indiana (NFP)

Manuel Lloyd Jamersen v. State of Indiana (NFP)

Posted by Marcia Oddi on February 11, 2013 10:37 AM
Posted to Ind. App.Ct. Decisions