Monday, March 31, 2014
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 3/31/14):
Thursday, April 3
- 9:00 AM - Per the Court: "The following cases are being combined for the purposes of oral argument ONLY." An additional 20 minutes has been added for argument.
Keion Gaddie v. State of Indiana (49S02-1312-CR-789) and Phillip Griffin v. State of Indiana (49S02-1401-CR-50) Gaddie. Responding to a report of a disturbance at a house, police officers directed people to the front yard. Everyone complied except Gaddie, who continued walking toward an alley. Police twice ordered him to stop, but he did not. Following a bench trial in the Marion Superior Court, he was convicted of resisting law enforcement, a class A misdemeanor. See Ind. Code § 35-44.1-3-1(a)(3). The Court of Appeals reversed in Gaddie v. State, 991 N.E.2d 137 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
Griffin. Thinking that Griffin might have been “unstable,” a police officer stopped and asked what was happening. Griffin shouted incoherently, threw “two kinds of shadow punches” at the officer, and ran away. Griffin was ordered to stop, but he did not. He struck an officer as he was being taken into custody. In the Marion Superior Court, Griffin was convicted of resisting law enforcement, and of battery on a law enforcement officer. Ind. Code § 35-44-3-3 (2011) (resisting); Ind. Code § 35-42-2-1 (2009) (battery). The Court of Appeals reversed the convictions for resisting and affirmed the conviction for battery. Griffin v. State, 997 N.E.2d 375 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: Gaddie was a July 3, 2013 COA opinion reversing the trial court:
Keion Gaddie appeals his conviction, following a bench trial, of resisting law enforcement, a Class A misdemeanor. Gaddie raises the following issue for our review: whether the evidence was insufficient to sustain his conviction because he was free to disregard law enforcement in what was a consensual encounter. Concluding that Gaddie had no duty to stop when law enforcement ordered him to do so, we reverse. * * *Griffin - This Oct. 23, 2013 3-opinion COA ruling (by Sr. Judge Shepard) addresses the question: "When there is no indication of possible criminal activity, does a citizen who walks away commit the crime of resisting arrest by departing?"
Gaddie was under no duty to stop when Officer Newlin ordered him to do so. Moreover, there was no reasonable suspicion which would justify a seizure of Gaddie. Thus, his conviction for resisting law enforcement is reversed.
ILB readers may recall the Murdock COA opinion from March 18, 2014 (ILB summary here, 3rd case, where the panel, by a 2-1 vote, came to the opposite conclusion from the Gaddie panel and the Griffin panel.
- 10:05 AM - Gary Oswalt v. State of Indiana (35S02-1401-CR-10) Oswalt was convicted of two counts of child molesting as class A felonies, and other offenses, in the Huntington Circuit Court. Among other things on appeal, the Court of Appeals held that he had failed to exhaust his peremptory challenges when he moved to strike Juror No. 28, and had waived review of the trial court’s denial of his motion to strike that juror for cause. Oswalt v. State, 995 N.E.2d 658 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a 9/3/13 COA opinion involved child molestation and child pornography with five issues ....
- 10:50 AM - Eric Danner v. State of Indiana (71S03-1402-PC-73) In this post-conviction proceeding, Danner asserted that as a result of having been prosecuted for certain traffic offenses filed in a St. Joseph traffic court, he could not also be prosecuted for felony possession of cocaine and other offenses in a St. Joseph felony court. See Danner v. State, 900 N.E.2d 9 (Ind. Ct. App. 2008) (affirming the felony conviction). As a result, he argued, he had been deprived of the effective assistance of counsel because his trial attorney had not moved for dismissal of the felony court charges pursuant to the “successive prosecution statute,” Indiana Code section 35-41-4-4(a). The post-conviction court denied relief, noting that the evidence presented at the post-conviction hearing provided no basis for determining what the prevailing professional norm would be given the apparently unique circumstances of the case. The Court of Appeals affirmed in Danner v. State, No. 71A03-1304-PC-146 (Ind. Ct. App. Oct. 30, 2013) (NFP mem. dec.), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was an Oct. 30, 2013 NFP opinion affirming the post-conviction court's finding that Danner failed to prove his ineffective assistance of trial counsel claim.
Thursday, April 10
- 10:30 AM - Nick McIlquham v. State of Indiana (49S05-1401-CR-28) The Marion Superior Court denied McIlquham’s motion to suppress evidence obtained during a warrantless entry into an apartment, and following a bench trial, convicted him of unlawful possession of a firearm by a serious violent felon and other offenses. Applying a “community caretaking exception,” the Court of Appeals determined no Fourth Amendment violation had occurred, and affirmed. McIlquham v. State, 992 N.E.2d 904 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is an August 14, 2013 COA opinion (3rd case).
Webcasts of Supreme Court oral arguments are available here.
Next week's oral arguments before the Court of Appeals (week of 3/31/14):
Monday, March 31
- 10:00 AM - State of Indiana vs. David Lott Hardy (49A02-1309-CR-756) The State appeals the trial court’s dismissal of its four charges of Class D felony official misconduct against David Lott Hardy, the former Chairman of the Indiana Utility Regulatory Commission. The bases for the charges were four of Hardy's actions between 2008 and 2010 that allegedly violated Indiana law, including a violation of Indiana ethics laws, a civil law infraction, and two violations of administrative regulations. Under a previous version of Indiana's official misconduct statute, IC 35-44-1-2 (2010), the State could charge a public servant with official misconduct for "knowingly or intentionally perform[ing] an act that the public servant [was] forbidden by law to perform." Historically, the phrase "forbidden by law" included administrative and civil violations such as the ones for which the State charged Hardy. However, in 2011, the Indiana Legislature amended IC 35-44-1-2 so that a public servant could only be charged for "an offense" committed "in the performance of the public servant's official duties." Pursuant to IC 35-31.5-2-215 and IC 35-31.5-2-75, the term "offense"; only encompasses felonies or misdemeanors. The trial court dismissed the charges against Hardy because it determined that this amendment was remedial in nature and applied to Hardy retroactively, even though his alleged violations occurred before the amendment. On appeal, the State disputes the trial court's interpretation of the amendment as remedial and its dismissal of the State's charges based on a retroactive application of the amendment.
The Scheduled Panel Members are: Judges Mathias, Bradford, and Pyle.
[Where: Supreme Court Courtroom (WEBCAST)]
ILB: For background on the David Lott Hardy trial court opinion, see this Sept. 9, 2013 ILB post.
Wednesday, April 2
- 1:30 PM - Brandon Brummett v. State (49A02-1304-CR-378) Brandon Brummett appeals his convictions of Class B felony child molesting, Class C felony child molesting and three counts of Class D felony sexual misconduct with a minor. He argues that the State committed prosecutorial misconduct that rose to the level of fundamental error; that a victim's testimony was incredibly dubious; and that the trial court abused its discretion when it admitted evidence about allegations of molestation that occurred outside of Indiana. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Baker and May. [Where: Vincennes University, Shircliff Hall E101, Vincennes, IN]
Next week's oral arguments before the Court of Appeals (week of 4/7/14):
Tuesday, April 8
- 10:00 AM - Brandon Robey v. State of Indiana (12A02-1306-CR-502) At some point in the late summer or early autumn of 2010, Appellant-Defendant Brandon Robey caused his six-or-seven-year-old biological daughter, A.P., to fondle his penis and then forced her to fellate him. At some later point, Robey inserted his penis into A.P.’s vagina and anus before ejaculating after rubbing his penis between her thighs. Following a jury trial, Robey was found guilty of four counts of Class A felony child molesting and two counts of Class C felony child molesting. After trial, Robey admitted that he was a habitual offender and a habitual substance offender. Robey contends that his habitual offender admission lacked a sufficient factual basis, the trial court erred in denying his motion to correct error on the basis of alleged juror misconduct, he was denied a fair trial by the admission of what he alleges was impermissible vouching testimony, and the prosecutor committed misconduct by improperly vouching for a witness The Scheduled Panel Members are: Judges Riley, Robb, and Bradford. [Where:Ivy Tech/Lafayette, 1301 South Creasy Lane, Lafayette, Indiana ]
Wednesday, April 10
- 11:30 AM - Indianapolis Metropolitan Police Department v. Donald Prout (84A01-1304-CR-161) In April 2012, Donald A. Prout was arrested and charged with four counts of class D felony theft based on evidence that he engaged in ghost employment with the Marion County Sheriff’s Department on four occasions. The State alleged that Prout clocked in at the Sheriff’s Department and his part-time security job at the same time, and thus he received double pay for those hours reported to both entities. Prout pleaded not guilty on all counts. In September 2012, the State dismissed all charges against Prout, citing “Evidentiary Problems.” In December 2012, Prout filed a verified petition for expungement of his arrest records pursuant to Indiana Code Section 35-38-5-1, asserting that expungement was appropriate because no offense had been committed and there was an absence of probable cause. The trial court granted Prout’s petition. On appeal, the Indianapolis Metropolitan Police Department (“IMPD”) argues that the trial court abused its discretion in granting Prout’s petition for expungement because probable cause existed both at the time of Prout’s arrest and at the time the charges were dismissed. The parties argue about which time in the proceedings – at arrest or at dismissal – that probable cause is required under Indiana Code Section 35-38-5-1. IMPD also asserts that Prout did not prove that he did not commit theft, which was his burden in the expungement proceedings. Prout asserts that IMPD’s arguments are requests for this Court to reweigh the evidence and judge the credibility of witnesses. The Scheduled Panel Members are: Judges May, Crone, and Bradford. [Where: Indiana University South Bend, Education and Arts Building, 1700 Mishawaka Ave., South Bend, IN]
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 March 31, 2014 07:29 AM
Posted to Upcoming Oral Arguments