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Monday, November 24, 2014

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In In re the Visitation of H.B., Adam Burris v. Timothy W. Schmidt and Anita J. Schmidt , a 10-page opinion, Judge Najam writes:

Adam Burris (“Father”) appeals the trial court’s grandparent visitation order in favor of Timothy W. Schmidt and Anita J. Schmidt (“the Grandparents”) and with respect to Burris’ minor daughter, H.B. Father raises two issues for our review, which we consolidate and restate as whether the trial court’s order is clearly erroneous. We reverse. * * *

Here, there is no dispute that, following our instructions on remand, the trial court’s revised order addresses the requirements of In re M.L.B. Rather, on appeal Father asserts that the trial court’s findings are not supported by the evidence. In particular, Father contends that there is no evidence to support the trial court’s finding that Father would entirely deny the Grandparents visitation absent a court order. We must agree.

In Antonio Smith v. State of Indiana , a 15-page opinion, Judge Najam writes [ILB emphasis in bold]:
Antonio Smith appeals his conviction for burglary, as a Class C felony, following a jury trial. He presents two issues for our review, but we address a single dispositive issue, namely, whether his conviction was obtained by the State’s knowing use of perjured testimony at his trial. In particular, Nicole Greenlee, Smith’s former girlfriend, testified that Smith had committed the burglary while she hid outside in the bushes to serve as a lookout. But previously Greenlee had been convicted of the same crime on a guilty plea. Greenlee stated under oath, as the factual basis for her plea, that it was she who had broken and entered the building and committed the burglary, and she did not implicate Smith. The State also introduced at Smith’s trial a surveillance video and a detective’s testimony that a white female had committed the burglary. Greenlee is white, and Smith is African-American.

We conclude that the State was aware of a high probability that if Greenlee were called as a witness against Smith she would commit perjury and that Greenlee perjured herself at Smith’s trial. In particular, in its opening statement the State informed the jury that Greenlee would give two versions of the burglary, and the State granted immunity to Greenlee for her guilty plea testimony prior to her trial testimony. And after Greenlee had testified, the State did not correct the perjury. A conviction based on the knowing use of perjured testimony constitutes a denial of due process, and the error here was not harmless. Thus, we reverse Smith’s conviction. * * *

The State knowingly proffered perjured testimony at Smith’s trial, as there is substantial evidence that the State anticipated Greenlee’s testimony and was aware of a high probability that she would commit perjury. Moreover, after Greenlee had testified at Smith’s trial, the State knew that her guilty plea testimony and her trial testimony were inconsistent to the degree that one of them was necessarily false. See I.C. § 35-44.1-2-1. Greenlee’s perjury could not be cleansed, as the State suggests, by a jury determination that her testimony at Smith’s trial was credible. And the possibility that Smith was convicted as an accomplice does not render Greenlee’s perjured testimony harmless beyond a reasonable doubt. We hold that Smith’s conviction was obtained by the State’s knowing use of perjured testimony, and we reverse his conviction.[8]
[8] The Indiana Supreme Court Disciplinary Commission (“Disciplinary Commission”) has exclusive jurisdiction to discipline an attorney, where appropriate, for acting in violation of the Rules of Professional Conduct. We are troubled that the State knowingly proffered perjured testimony but are even more concerned that the State granted the witness immunity from prosecution, which encouraged such testimony. Thus, we direct the Clerk of this Court to send a copy of this opinion to the Disciplinary Commission. We also note that instances of prosecutorial misbehavior continue to come before us on appeal notwithstanding our admonishments. See Joel Schumm, “Isn’t it Time to Get Serious About Prosecutor Misconduct?,” The Indiana Law Blog (July 7, 2014), http://indianalawblog.com/archives/2014/07/ind_courts_isnt.html.

NFP civil opinions today (3):

Stanley F. Collesano v. Citimortgage, Inc. (NFP)

Daniel R. Walls v. Brian Joseph Eagan, and Dale Terrell (NFP)

In the Matter of the Termination of the Parent-Child Relationship of R.O., Minor Child, and J.T., Father, and M.O., Mother, J.T. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (3):

Michael E. Johnson v. State of Indiana (NFP)

Charles Case, II v. State of Indiana (NFP)

Robert C. Tiller v. State of Indiana (NFP)

Posted by Marcia Oddi on November 24, 2014 10:52 AM
Posted to Ind. App.Ct. Decisions