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Wednesday, June 18, 2014

Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)

For publication opinions today (3):

In George Patrick v. Keith Butts, Superintendent, State of Indiana and Indiana Parole Board , a 3-page opinion, Judge May writes:

George Patrick argues an order he participate in the Sex Offender Management and Monitoring (“SOMM”) program violated his constitutional right against self-incrimination[1] and Indiana’s prohibition of ex post facto laws. He asserts the denial of his petition for writ of habeas corpus was therefore error. We affirm. * * *

Generally, the ex post facto clause prohibits the State from enacting a law that imposes a punishment for an act that was not punishable when it was committed or imposes additional punishment to that then prescribed. Gomez v. State, 907 N.E.2d 607, 610 (Ind. Ct. App. 2009), trans. denied. But these prohibitions do not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed. The clause is not designed to limit legislative control of remedies and modes of procedure that do not affect matters of substance. Id. Although it may work to the disadvantage of a defendant, a procedural change is not ex post facto. A statutory revision is procedural in nature for purposes of the ex post facto doctrine, and may be applied to crimes committed before the effective date, if it does not change the elements of a crime or enlarge its punishment.

Patrick argues participation in the SOMM program is similar to the requirement to register as a sex offender, which cannot be imposed on persons convicted before the requirement was passed into law. See, e.g., Wallace v. State, 905 N.E.2d 371, 384 (Ind. 2007), reh’g denied. Wallace does not control. * * *

As the Parole Board’s authority to impose conditions on parole is not limited by the date on which the program was created, but rather is limited by the program’s ability to help reintegrate the parolee into society, the order that Patrick participate in SOMM does not violate the ex post facto clause.
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[1] Our Supreme Court recently held participation in the SOMM program did not violate a defendant’s right against self-incrimination. Bleeke v. Lemmon, 6 N.E.3d 907 (Ind. 2014). We therefore need not address that specific allegation of error.

In Wells Fargo Bank, N.A. v. Edward P. Dechert, Trustee of the Bankruptcy Estate of John E. Smith and Isley's Plumbing, Inc., a 15-page opinion, Judge Bailey writes:
Wells Fargo Bank, N.A., as successor in interest to Washington Mutual Bank, F.A., appeals the trial court’s denial of its motion to set aside default judgments against it in favor of Edward P. Dechert, as bankruptcy trustee for John E. Smith Builders Inc., and Isley’s Plumbing, Inc. We affirm. * * *

Dechert’s and Isley’s second amended complaint and crossclaim did not vacate the default judgments entered in their favor against Wells Fargo. The trial court did not abuse its discretion when it denied Wells Fargo’s motion to set aside the default judgments on the basis of defective service of process. The trial court did not abuse its discretion on policy grounds when it denied the motion to set aside the default judgments.

In Michael Torres v. State of Indiana , a 7-page, 2-1 opinion, Judge May writes:
Michael Torres was convicted, after a jury trial, of murder, and Class A misdemeanor, carrying a handgun without a license. He argues his right to confront witnesses against him was violated. We affirm. * * *

Torres argues the trial court violated his right to confrontation and committed fundamental error when it permitted Dr. Carter to testify about the results of the victim’s autopsy when she did not perform the autopsy. We do not find fundamental error in the admission of Dr. Carter’s testimony. Dr. Carter was asked whether she had an occasion to “look at and examine the autopsy of a Darnell Lindsay, autopsy #12-0024?” (Tr. at 315.) But there is no reference to exactly what was included in that autopsy. Nor was any specific reference made to Dr. Cavanaugh’s report. When questioned about the number of times the victim had been shot, Dr. Carter referred to “the investigation” and “the doctor’s report,” (id. at 326), but it is not apparent from her testimony to which documents she was referring. We therefore cannot conclude that the “investigation” or “report” to which she was referring was Dr. Cavanaugh’s report, or that her testimony otherwise invoked Torres’ right to confront a witness.

Torres next argues there was fundamental error because he could not cross-examine Dr. Cavanaugh “on evidence critical to his claim of self-defense.” (Br. of Appellant at 7.) Specifically, he points to the State’s argument at trial that the number of gunshot wounds the victim sustained showed there was no struggle and Torres’ use of force was unreasonable.

Any error in admitting Dr. Carter’s testimony on that matter was harmless. Other witnesses testified about the number and location of bullets recovered from the scene, and about the number of gunshots they heard. Those witnesses were subject to Torres’ cross-examination.

In light of the fact her testimony was cumulative of testimony provided by other witnesses, the admission of Dr. Carter’s testimony was not fundamental error. See Hendrickson v. State, 163 Ind. App. 580, 582, 325 N.E.2d 499, 500 (1975) (introduction of otherwise inadmissible evidence that is merely cumulative and not decisive of guilt is not prejudicial error). Affirmed.

BAILEY, J., concurs.
KIRSCH, J., dissents with separate opinion. [which reads in full] In Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct. 2705, 2710 (2011), the United States Supreme Court held that with respect to autopsy reports, the “[t]he accused’s right is to be confronted with the analyst who makes the certification” and that “surrogate testimony” does not satisfy the constitutional requirement. Here, the only testimony to the cause and manner of death was the surrogate testimony of Dr. Joyce Carter who rendered her opinions based solely upon the autopsy report and autopsy photographs done by another pathologist.

The admission of this testimony violated the constitutional confrontation rights of the accused. Moreover, on the conflicting facts and inferences presented by the record before us, I cannot conclude that the error was harmless beyond a reasonable doubt.

I respectfully dissent and would reverse the conviction and remand for a new trial.

NFP civil opinions today (3):

In re the Paternity of E.S.: Makayla LeGault v. Michael J. Scott (NFP)

Signature Estates of Indiana, Inc. d/b/a Gordon Marketing, Stephens-Matthews Marketing, Inc., Shields Brokerage, Inc. et al. v. Conseco Medical Insurance Company, et al. (NFP)

Omert'a LLC, Dino Zurzolo d/b/a Shangri-La East, and Wholesalers, Inc. d/b/a Shangri-La Show Club v. Phillip Gray (NFP)

NFP criminal opinions today (8):

Keith D. Bott v. State of Indiana (NFP)

Joshua Ketchem v. State of Indiana (NFP)

Edwin Hunt v. State of Indiana (NFP)

Bruce L. Truett v. State of Indiana (NFP)

Larry Page v. State of Indiana (NFP)

Demitrus Grant v. State of Indiana (NFP)

Christopher Baxter v. State of Indiana (NFP)

David Gregg v. State of Indiana (NFP)

Posted by Marcia Oddi on June 18, 2014 12:47 PM
Posted to Ind. App.Ct. Decisions