Monday, September 22, 2014
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 9/22/14):
Thursday, Sept. 25
- 9:00 AM - State of Indiana v. Michael Cunningham (19A05-1310-CR-489) Cunningham’s vehicle had a broken tail light, and police stopped him. When he exited the car to examine the taillight himself, police conducted a pat-down search and found marijuana in Cunningham’s pocket, and when asked, Cunningham told them about a pipe in the car. Facing two Class A misdemeanor charges, Cunningham moved to suppress the evidence. The Dubois Superior Court granted the motion, and a divided Court of Appeals affirmed in State v. Cunningham, 4 N.E.3d 800 (Ind. Ct. App. 2014), trans. pending. The State of Indiana has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This was a 2-1, Feb. 27, 2014 COA opinion (2nd case), where the dissent writes: "In my view, however, the circumstances did not necessitate that Cunningham exit his vehicle, and indeed he chose to do so with full knowledge that, if he exited the vehicle, it would result in a pat-down search."
- 9:45 AM - In re Adoption of B.C.H. (41S04-1408-AD-515) The grandparents filed a motion to set aside an adoption decree on grounds they were defacto custodians of the child, and, therefore, they were "lawful custodians" under the adoption statute such that their written consent to the adoption was required and they were entitled to notice of the petition for adoption. The Johnson Superior Court denied the grandparents' motion. The Court of Appeals affirmed, with the majority holding “use of the phrase ‘lawful custody’ under Ind. Code § 31-19-10-1(a)(3) is equivalent to ‘legal custody,’ that is, court-ordered custody.” In the Matter of the Adoption of B.C.H., 7 N.E.3d 1000, 1005 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was an April 22nd, 2014 COA opinion, with a separate opinion "concurring in result".
- 10:30 AM - Kenneth Griesemer v. State of Indiana (49S04-1408-CR-564) At his bench trial on charges of patronizing a prostitute, Griesemer defended on grounds he had been entrapped by police, but the Marion Superior Court convicted him. A divided Court of Appeals reversed, concluding that the State had not met its burden to establish that Griesemer was predisposed to commit the offense. Griesemer v. State, 10 N.E.3d 1015 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a 2-1, May 23rd opinion where the majority concludes:
Because the evidence most favorable to the State permits an inference only that the police induced Griesemer’s criminal behavior, but does not contain any evidence permitting an inference that Griesemer was predisposed to commit patronizing a prostitute, entrapment was established as a matter of law, and we must reverse Griesemer’s conviction. Reversed.
Next week's oral arguments before the Supreme Court (week of 9/29/14):
Thursday, Oct. 2
- 9:00 AM - Matter of the Civil Commitment of T.K. v. Department of Veteran's Affairs (49A02-1310-MH-878) The Marion Superior Court found T.K. was dangerous to others and gravely disabled, and issued an order involuntarily committing T.K. The Court of Appeals affirmed in T.K. v. Dept. of Veteran Affairs, No. 49A02-1310-MH-878 (Ind. Ct. App. Jan. 30, 2014) (NFP memo. dec.), transfer pending. T.K. has filed a petition seeking transfer of jurisdiction to the Supreme Court.
- 9:45 AM - Daniel Pierce v. State of Indiana (78S05-1407-CR-460) Pierce was charged with multiple counts of child molesting with respect to three children. The Switzerland Circuit Court denied his motion to sever. The Court of Appeals reversed and remanded for a new trial. Pierce v. State, No. 78A05-1305-CR-211 (Ind. Ct. App. 2014) (NFP memo. dec), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 2-1, Jan. 27, 2014 NFP opinion, involving, inter alia, admission of evidence re pornography.
- 10:30 AM - State Board of Funeral and Cemetery Services v. Settlers Life (49S05-1408-PL-514) The State Board of Funeral and Cemetery Service determined a life insurance policy issued by Settlers Life Insurance Company does not comply with Indiana's prepaid funeral and burial service statutes. On Settlers' petition for judicial review, the Marion Superior Court entered summary judgment for Settlers. The Court of Appeals affirmed. State Bd. of Funeral and Cemetery Serv. v. Settlers Life Ins. Co., 5 N.E.3d 1170 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a March 14, 2014 COA opinion, holding: "The Board argues that Settlers’s product was intended to provide funding for the purchase of funeral services or merchandise, which is the same purpose the products regulated by the Pre-Need Act were intended to fulfill; the Board contends that all lawful funeral trusts must comply with the Pre-Need Act. We find that Settler’s product does not fall within the jurisdiction of the Pre-Need Act. Affirmed."
This week's oral arguments before the Court of Appeals (week of 9/22/14):
Tuesday, September 23
- 1:00 PM - Ballentine v. State (20A03-1402-CR-84) After a traffic stop along the Indiana Toll Road led to a search of the van he was driving and the discovery of a handgun, a plastic bag containing marijuana, a scale containing cocaine residue, a drug ledger, a bag containing $1,753 in cash, and a bag full of empty plastic baggies, William Ballentine was charged with Class C felony possession of cocaine, Class A misdemeanor possession of marijuana, and Class A misdemeanor carrying a handgun without a license. He appeals following his conviction for possession of cocaine as a Class C felony and possession of marijuana, a Class A misdemeanor. Ballentine argues first that the State of Indiana did not prove beyond a reasonable doubt that he constructively possessed or had knowledge of the presence of the marijuana and cocaine that were discovered in the vehicle he was driving. He further contends that his aggregate six-year sentence is inappropriate in light of the nature of the offense and the character of the offender. The Scheduled Panel Members are: Judges Bailey, Robb and Mathias. [Where:East Noble High School, Kendallville]
Friday, September 26
- 1:00 PM - McCloud v. State (48A02-1312-CR-1056) On Feb. 25, 2013, Officers Frazier and Boynton of the Anderson Police Department approached three men in a driveway to ask them if they knew of a man the police were searching for. The police believed that this man might be in the apartment complex across the street, an area known for its high drug activity. When the police approached the men, one of them, Marquise McCloud, recognized Officer Frazier and stated aloud, “Damn, Frazier.” Frazier also recognized McCloud as the man he had arrested three days earlier after McCloud had hidden marijuana and a handgun in the attic of a house. McCloud ducked behind a car in the driveway and began to attempt to pull something out of his coat pocket. Concerned that McCloud might be armed, Frazier drew his weapon and ordered McCloud to show his hands. McCloud initially refused to comply, but eventually raised his hands. Frazier performed a pat-down on McCloud and felt a large, hard object in McCloud’s front coat pocket, which he believed might be a knife. Upon emptying the contents of McCloud’s pockets, Frazier discovered a plastic bag containing cocaine. The State charged McCloud with Class A felony dealing in cocaine and Class A felony possession of cocaine within 1,000 feet of a family housing complex. The trial court denied McCloud’s motion to suppress the evidence found in the pat-down search, and the jury found McCloud not guilty of dealing in cocaine but guilty of possession of cocaine. The trial court sentenced McCloud to 40 years, with 33 years executed, two years on community corrections, and three years probation. McCloud argues on appeal that: (1) the admission of the evidence seized during the pat-down search was fundamental error because Frazier did not have reasonable suspicion to believe that McCloud was armed; (2) that the trial court abused its discretion in sentencing McCloud; and (3) that McCloud’s sentence is inappropriate in light of the nature of the offense and the character of the offender. The Scheduled Panel Members are: Judges Riley, Mathias and Crone. [Where:Wayne High School, Fort Wayne]
Next week's oral arguments before the Court of Appeals (week of 9/29/14):
Tuesday, Sept. 30
- 1:00 PM - Mosley v. State (Case# not provided) Officers acting on an anonymous tip that Jeremiah Mosley was making methamphetamine at his house and children might be present, approached the house on foot and detected a chemical smell they associated with the manufacture of methamphetamine. Mosley first told the officers that no one else was in the house, but when a loud crash came from inside, said it was caused by his wife. Due to the strong chemical odor, the noise and the inconsistent statements, officers entered the house to look for other occupants and saw in plain view items commonly associated with the manufacture of methamphetamine. Officers then obtained a warrant to search the house and during the more extensive search uncovered additional evidence. Mosley was convicted after a jury trial of dealing in methamphetamine, possession of chemical reagents or precursors with intent to manufacture, and possession of methamphetamine. He now appeals his convictions, arguing that: the evidence found inside his home was the product of an unconstitutional search and seizure and should have been excluded; allowing one of the officers to testify that Mosley admitted to previously manufacturing methamphetamine was fundamental error; and allowing evidence of Mosley's failed attempts to buy pseudoephedrine products was an abuse of discretion. The Scheduled Panel Members are: Judges Riley, Bailey and Robb [Where: Michigan City High School, Michigan City, IN]
Wednesday, Oct. 1
- 1:30 PM - Good Earth Natural Foods, et al v. Metropolitan Development Commission, et al (49A04-1403-PL-120) Good Earth Natural Foods and Patrick Skowrenek appeal the dismissal of their complaint for judicial review of a zoning decision made by Metropolitan Development Commission concerning variances sought by Broad Ripple Associates LLC with respect to the potential development of land. At issue are (1) the interpretation of the requirement under I.C. §36-7-4-1613 that, within 30 days of the filing of the complaint, parties must filed the record or seek an extension to do so, and (2) the showing necessary to justify variances from zoning regulation. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Friedlander and May [Where: Court of Appeals Courtroom, Statehouse]
Thursday, Oct. 2
- 1:30 PM - Weedman v. State (90A04-1311-CR-549) Derek Weedman was convicted of aggravated battery after a fight with his stepfather. He argues on appeal: 1) the trial court violated his Fifth Amendment right against self-incrimination by admitting evidence relating to Weedman's withdrawn insanity defense, including testimony of doctors appointed to evaluate him; 2) the prosecutor committed misconduct in commenting on Weedman's post-arrest silence, commenting on Weedman's withdrawn insanity defense, and offering inflammatory opening and closing arguments; and 3) the trial court should not have admitted an EMT's testimony about Weedman's mother's statements and should not have excluded evidence of Weedman's traumatic brain injury four years earlier. The Scheduled Panel Members are: Judges May, Barnes and Crone [Where: Northridge High School, Middlebury, IN]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [Note: This may be changing...]
The past COA webcasts which have been webcast are accessible here.
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 September 22, 2014 08:50 AM
Posted to Upcoming Oral Arguments