Monday, October 26, 2015
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 10/26/15):
Wednesday, October 28
- 9:00 AM - State of Indiana v. Brian Taylor (46S04-1509-CR-522) Having been arrested for murder, Taylor was speaking to his attorney in the interview room of the Michigan City Police Department. They were later informed that some police officers and the chief deputy prosecuting attorney had heard part of the conversation. During discovery, some of the officers invoked their Fifth Amendment right against self-incrimination and refused to answer questions about their eavesdropping. Ruling on Taylor’s motion to suppress evidence, the LaPorte Superior Court ordered that the State would be required to establish an independent basis before certain exhibits could be admitted, and ruled that any officer who asserted the Fifth Amendment would be barred from testifying at trial. In the State’s interlocutory appeal, the Court of Appeals affirmed in part, reversed in part, and remanded with instructions. State v. Taylor, __ N.E.3d __ (Ind. Ct. App. 2015), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
- 9:45 AM - Dennis Johnson & Raymond Johnson v. State of Indiana (48A05-1408-CR-390; 84A05-1405-CR-206) The appellants were each sentenced to terms of 55 years in 1997. In 2013, they filed motions to modify their sentences; the prosecutor did not consent. The Madison Circuit Court denied both petitions. In this consolidated appeal, the appellants argue consent is not required under the current version of Indiana Code section 35-38-1-17. The Court of Appeals affirmed. Johnson v. State, __ N.E.3d __ (Ind. Ct. App. 2015). The appellants have petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a 35-page, June 25th COA opinion, including a separate concurring opinion.
- 10:30 AM - Travis Ley v. State of Indiana (84A05-1405-CR-206) Following a jury trial, Ley was convicted of causing the death of a person while operating a motor vehicle with a controlled substance in his blood and of causing serious bodily injury while intoxicated. Ley’s motion for discharge under Indiana Criminal Rule 4(C) and his motion for mistrial based on text messages between the jury foreman and an acquaintance during the trial were both denied by the Vigo Superior Court. The Court of Appeals affirmed in Ley v. State, No. 84A05-1405-CR-206 (Ind. Ct. App. Apr. 23, 2015) (Mem. Dec.), trans. pending. Ley has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a 2-1, 21-page, NFP April 23rd COA opinion.
Friday, October 30
- 9:20 AM - Leonard Suggs v. State of Indiana (02S03-1508-CR-510) Suggs threw a bowling ball while attending a family reunion. Children observed the event; the ball struck a woman who was the sister of a man who had once been married to Suggs’s aunt. When he was young, Suggs had called the woman “Auntie.” Following a jury trial in the Allen Superior Court, Suggs was convicted of battery as a Level 6 felony, which requires proof that the victim was a “family or household member” as defined in Indiana Code section 35-31.5-2-128. The Court of Appeals affirmed in Suggs v. State, 31 N.E.3d 998 (Ind. Ct. App. 2015), vacated.
[NOTE: This oral argument will take place in Porter County, in the East Auditorium at Portage High School, 6450 U.S. Highway 6, Portage, Indiana 46368 at 9:20 a.m. CDT.]
Next week's oral arguments before the Supreme Court (week of 11/2/15):
Thursday, November 5
- 9:00 AM - Ashonta Kenya Jackson v. State of Indiana (48S02-1509-CR-554) Following a jury trial in the Madison Circuit Court, Jackson was convicted of three counts of robbery and one count of “corrupt business influence,” see Ind. Code § 35-35-45-6-2(2), and found to be an habitual offender. The Court of Appeals reversed the corrupt business influence conviction. Jackson v. State, 33 N.E.3d 1173 (Ind. Ct. App. 2015), vacated. The Supreme Court has granted a petition to transfer and has assumed jurisdiction over the appeal.
ILB: This was a 2-1 June 4th opinion (2nd case) involving, inter alia, a question of statutory interpretation. From the majority:
While Indiana’s statute for corrupt business influence does not expressly include an element of continuing the criminal conduct into the future, the statute is patterned after the federal RICO statute, and we look to relevant federal case law for guidance in interpreting the Indiana version of the statute.
- 9:45 AM - Sidney Tyson v. State of Indiana (45S03-1509-CR-528) Tyson was charged with failure to register as a sex offender. The Lake Superior Court denied Tyson’s motion to dismiss the charge, and the Court of Appeals affirmed. Tyson v. State, 28 N.E.3d 1074 (Ind. Ct. App. 2015), vacated. The Court of Appeals concluded that Indiana Code sections 11-8-8-5-(b)(1) and 11-8-8-19(f)—which require sex offenders who must register in their home states to register in Indiana upon moving here—did not violate the Indiana Constitution’s ex post facto clause as applied to Zerbe. The Supreme Court has granted Tyson’s petition to transfer and has assumed jurisdiction over the appeal.
ILB: This was a March 3rd NFP decision where the COA ruled "Because Tyson had fair warning of the registration requirement, SORA was not an ex post facto violation as applied to Tyson."
- 10:30 AM - State of Indiana v. Scott Zerbe (49S05-1509-MI-529) Scott Zerbe petitioned the Marion Superior Court for removal of his sex offender designation, which the court granted. The Court of Appeals reversed in a divided opinion. State v. Zerbe, 32 N.E.3d 834 (Ind. Ct. App. 2015), vacated. The Court of Appeals concluded that Indiana Code sections 11-8-8-5-(b)(1) and 11-8-8-19(f)—which require sex offenders who must register in their home states to register in Indiana upon moving here—did not violate the Indiana Constitution’s ex post facto clause as applied to Zerbe. The Supreme Court has granted Zerbe’s petition to transfer and has assumed jurisdiction over the appeal.
ILB: This was a 2-1, May 29th COA opinion where the majority ruled: " Zerbe had fair warning of SORA’s registration requirement before he moved to Indiana, and SORA imposed no additional punishment because he was already required to register in Michigan."
This week's oral arguments before the Court of Appeals (week of 10/26/15):
Tuesday, October 27
- 1:00 PM - 2007 East Meadows LP v. RCHM Phoenix Partners LLC (49A05-1407-PL-300) RCM Phoenix Partners, LLC ("Phoenix") entered into a purchase agreement with the predecessor-in-interest to Texas-based East Meadows, LP ("Meadows"). While Meadows struggled to obtain bank approval to assume the mortgage on the property, the death of a child in the apartment complex attracted the attention of the Indianapolis Housing Authority, which brought an enforcement action against Phoenix regarding the manner in which it operated and managed the apartments. After closing was delayed several times at Meadows' request, it was still unable to obtain approval to assume the mortgage. When Meadows requested another extension of the closing date, Phoenix refused. Meadows then announced that it would not close on the agreement, citing the enforcement action as the reason and claiming that Phoenix was in breach of the purchase agreement. Phoenix sought a declaratory judgment that it was not in breach of contract and did not commit fraud. Meadows counter-claimed, alleging that Phoenix committed breach of contract and fraud and seeking a declaratory judgment, a constructive trust, and specific performance. Both parties moved for partial summary judgment, and the trial court granted partial summary in favor of Phoenix. Meadows appeals and claims: (1) that there are genuine issues of material fact regarding whether Phoenix breached the terms of the purchase agreement; (2) that the trial court erred in concluding that Meadows was not entitled to specific performance; and (3) that there are genuine issues of material fact regarding whether Phoenix committed fraud. The Scheduled Panel Members are: Judges May, Robb and Mathias. [Where: Court of Appeals Courtroom (WEBCAST)]
- 2:00 PM - Kerr v. City of South Bend (71A03-1502-CT-49) For years, noxious sewer gases have emanated into Raymond Kerr's home, forcing him to leave the home in 2005. Kerr sued the City of South Bend in 2012, alleging that the gases constituted a trespass, nuisance, and inverse condemnation. He also alleged injury to his health. The City filed a motion for summary judgment, arguing that Kerr's claim was barred by the applicable statutes of limitations and failure to file timely Indiana Tort Claims Act notice. The City also argued that it owed Kerr no duty. The trial court agreed on all points and granted the City's motion. The Scheduled Panel Members are: Judges Baker, Riley and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]
Thursday, November 5
- 1:00 PM - Summerhill v. Klauer (64A03-1503-CT-98) Carl Summerhill was riding his moped and was struck from behind by Craig Klauer's motorcycle while making a left turn. The police officer on the scene filled out a crash report that indicated that the "primary cause" of the crash was "improper turning." This report was entered into evidence without objection. Summerhill sought to introduce the testimony of Timothy Spencer, a qualified crash reconstructionist, who believed that the accident was more likely caused by improper passing than by improper turning. Klauer moved to exclude this testimony and the trial court granted his motion, finding the testimony inadmissible as expert testimony under Evidence Rule 702. The trial court relied heavily on this Court's decision in Lytle v. Ford Motor Co., 814 N.E.2d 301. Noting that Spencer had based his reconstruction of the crash off of Summerhill's testimony, the trial court reasoned that there was "a significant gap between the inputs used by Mr. Spencer and the opinion he reached." Summerhill also alleges that the trial court erred in excluding three other pieces of evidence.
The Scheduled Panel Members are: Judges Baker, Bailey and Mathias. [Where: Court of Appeals courtroom (WEBCAST)]
- 2:30 PM - Kapoor v. Dybwad (49A04-1410-CT-492) Defendants fulfilled various roles in assisting the various Plaintiffs to establish welfare benefit programs for their employees, programs which involved the purchase of cash-value life insurance policies. These plans were initially known as the Cronin Insured Secured Program (“Cronin ISP Plan”) and, later, the Cronin Group Term Life Insurance Program (“Cronin GTLP Plan”). Plaintiffs allege that they were assured that the Plans were IRS-approved and that they would be able to take tax deductions for their contributions. For several years, Plaintiffs made premium payments and deducted the contributions on their tax returns. In 2012 and 2013, the Plaintiffs received deficiency notices from the IRS, indicating that it had disallowed the deductions taken for contributions to the Cronin ISP and GTLP Plans. As a result, Plaintiffs incurred costs for back taxes, penalties, and interest. All Defendants were sued by various Plaintiffs (the Kapoor Plaintiffs, the Judson Plaintiffs, or all Plaintiffs) for fraud, fraud by omission, negligent misrepresentation, negligence, unjust enrichment, money had and received, and constructive fraud. The trial court granted Defendants’ motion to dismiss for failure to state a claim under which relief may be granted. The Scheduled Panel Members are: Judges May, Crone and Bradford. [Where: Court of Appeals courtroom (WEBCAST)]
- 10:00 AM - Pribie v. State (12A02-1412-CR-836) In this case, Jordan Pribie is appealing his conviction of class B felony rape. He argues that the trial court's decision to exclude certain DNA evidence constituted a misrepresentation of the Rape Shield Law and violated his constitutional rights. He further alleges that instances of juror misconduct violated his constitutional rights. The Scheduled Panel Members are: Judges Baker, Bailey and Mathias. [Where: IU School of Public and Environmental Affairs, 1315 E. 10th St., Bloomington]
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 October 26, 2015 08:37 AM
Posted to Upcoming Oral Arguments