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Thursday, April 24, 2014

Ind. Decisions - Court of Appeals issues 3 today (and 2 NFP) [One of the opinions is not new, and what's wrong with that]

For publication opinions today (3):

Jason Taylor v. State of Indiana , a 9-page opinion filed April 24, appears to be intended to replace the earlier opinion, filed April 17, about which the ILB had this post on April 21 pointing to an error re the effective date of the 2014 expungement statute amendments.

I recognized the opinion, but many readers might not, and there is nothing to indicate it is a corrected version of the April 17th opinion. Indeed, it has a new filing date. Currently, both versions can be accessed online. A docket entry indicates the earlier version was withdrawn, but normally attorneys do not review the docket of each case they read. Further, the entry does not indicate what the changes are:

04-21-2014
HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS
FOLLOWS:
1. ON ITS OWN MOTION, THIS COURT HAS DETERMINED THAT THE
APRIL 17, 2014 FOR PUBLICATION OPINION IS RECALLED, WITHDRAWN,
AND VACATED. WITHIN TEN (10) DAYS OF THE DATE OF THIS ORDER,
THIS COURT WILL ISSUE A SUBSTITUTE OPINION WITH TECHNICAL
CORRECTIONS TO THE EFFECTIVE DATE OL P.L. 181-2014, WHICH WILL
NOT IN ANY WAY AFFECT THE SUBSTANCE OF THE DECISION REACHED IN
THIS COURT'S APRIL 17, 2014 OPINION. ACCORDINGLY, THE TIME
PERIODS FOR FILING REHEARING OR TRANSFER SHALL COMMENCE AS OF
THE DATE OF ISSUANCE OF THE LATER-FILED (SUBSTITUTE) OPINION.
FOR THE COURT, NANCY H. VAIDIK, CHIEF JUDGE
VAIDIK, C.J., MAY, J., CONCUR.
(ORDER REC'D 04/21/14 @ 3:36 PM) ENTERED ON 04/21/14 KF
Kudos to the panel for correcting the opinion the same day the problem was pointed out.

But the process the appellate courts use to correct filed opinions leaves much to be desired. On March 24th the ILB had an entry headed "This morning's Indiana Supreme Court opinion is not new, and what's wrong with that," detailing two earlier similar situations, both involving Supreme Court opinions. A snippet from that post discusses an even earlier, 2013, post:

On July 12, 2013, the ILB wrote a long post titled "Ind. Courts - Current process for dealing with corrected appellate opinions poses perils." The last part of the post discusses the perils posed by the haphazard way corrections to opinion appear to be dealt with. It concluded:
What to do? At a bare minimum, the changed version should be so identified. A change sheet should be included in the posting so that the changes are easily found.

More should be done if changes go beyond typos, perhaps refiling the opinion. The parties, of course, must be notified. And a general notice system, perhaps similar to the one now used by the Court of Appeals for NFPs changed to FP, might also be employed.

In short, the ILB is writing here to call for the Indiana appellate courts to address the problem of dealing with corrected opinions. Incidentally, Indiana's problems were also the focus of a post from a blog, Citing Legally, run by Peter W. Martin, the Jane M.G. Foster Professor of Law, Emeritus, at Cornell, as I mention in the March 24th ILB post.

In Donnetta Newell v. State of Indiana , an 8-page opinion, Sr. Judge Shepard writes:

Donnetta Newell appeals her conviction of intimidation, contending among other things that evidence suggesting she was engaged in an altercation involving a meat cleaver in the office at her apartment complex should have been inadmissible in her trial on a charge she subsequently threatened the manager. We affirm. * * *

Here, Growe testified that, based on Newell’s past interactions with him, she was aware his duties included reporting problems to the apartments’ manager. Furthermore, her threat against Young raised a security issue, and a reasonable person could conclude that Growe would have to act on that threat. There is sufficient evidence for the finder of fact to conclude Newell knew that her statement would be transmitted to Young. See Walls v. State, 993 N.E.2d 262, 268 (Ind. Ct. App. 2013) (defendant communicated a threat against a police officer by telling the officer’s son, another police officer, that he would kill the father for arresting him), trans. denied. * * *

There is no indication in the record that the court overestimated the value of the desk incident or that it inflamed prejudice on the part of the court. To the contrary, throughout the trial the court carefully barred evidence of Newell’s prior bad acts and admitted evidence of the desk incident only after she opened the door during her testimony. The court thus did not abuse its discretion in admitting evidence of the incident that led to Newell’s eviction.

In Brandon Robey v. State of Indiana, a 20-page opinion, Judge Bradford writes:
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 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, the prosecutor committed misconduct by improperly vouching for a witness, and his habitual offender admission lacked a sufficient factual basis. We affirm.
NFP civil opinions today (0):

NFP criminal opinions today (2):

Bryan Swineford v. State of Indiana (NFP)

Charles K. Corn v. State of Indiana (NFP)

Posted by Marcia Oddi on April 24, 2014 11:22 AM
Posted to Ind. App.Ct. Decisions