Wednesday, February 06, 2013
Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)
For publication opinions today (2):
In Pekin Insurance Company v. Jose and Carol Hanquier and Joseph Hall , a 7-page opinion, Judge Kirsch writes:
Pekin Insurance Company (“Pekin”) appeals the trial court’s order denying Pekin’s motion to correct error. Pekin raises the following restated issue on appeal: whether the trial court erred in failing to enforce the arbitration provision of the Pekin insurance policy as mandated by Indiana Code section 34-57-2-3. We reverse and remand with instructions. * * *In Walter E. Smith, Jr. v. State of Indiana , a 19-page opinion, Judge Kirsch writes:
We conclude that the trial court erred in failing to issue a stay of the proceedings as to Pekin pending arbitration. We reverse the trial court’s order and remand with instructions to enter an order compelling arbitration and staying the proceedings as to claims against Pekin until the completion of arbitration.
Walter E. Smith, Jr. (“Smith”) appeals his conviction for dealing in cocaine1 as a Class A felony. On appeal, Smith raises the following restated issues:
I. Whether the trial court committed reversible error when it refused to give Smith’s tendered jury instruction.
II. Whether the trial court’s scheduling of Smith’s trial entitled Smith to discharge under Indiana Rule of Criminal Procedure 4(B).
III. Whether the trial court abused its discretion when it admitted evidence obtained during a traffic stop.
We affirm. * * *
[Re III] We agree with the trial court’s sound reasoning. Here, Officer Long’s testimony during the telephonic hearing revealed that he stopped Smith for unsafe lane movement. See Navarro v. State, 855 N.E.2d 671, 673 (Ind. Ct. App. 2006) (Navarro was stopped for unsafe lane movement). While still completing the warning, fellow officers arrived at the scene. While Officer Ralston was completing the written warning, Officer Long took Shadow, a trained narcotics dog, around the U-Haul truck. See Myers v. State, 839 N.E.2d 1154, 1158 (Ind. 2005), cert denied, 126 S. Ct. 2295 (2006) (dog sniffs are not “searches” requiring probable cause under the Fourth Amendment). Shadow made an indication to the presence of drugs in the vehicle. Finding probable cause for the search, Judge Bolk issued a warrant. At the suppression hearing, Smith did not dispute the validity of the stop; instead, he argued that the length of the stop was unconstitutional, and therefore, the evidence seized following that stop should be suppressed. The trial court was unconvinced and denied Smith’s motion to suppress. At trial, Smith again objected to the introduction of the cocaine evidence, to which the trial court responded, “All right, I’m going to show continuing objection by defense counsel, and incorporate previous arguments made in proceedings before this court. Show the objection overruled . . . .” Jury Tr. at 185. Other than the arguments made at the suppression hearing, Smith has offered no evidence to suggest that the stop was unreasonable, the length of the stop was unreasonable or that the search warrant was not supported by probable cause. The trial court did not abuse its discretion in admitting at trial the cocaine evidence that was seized pursuant to a valid search warrant.
NFP civil opinions today (7):
NFP criminal opinions today (5):
Posted by Marcia Oddi on February 6, 2013 12:07 PM
Posted to Ind. App.Ct. Decisions