Tuesday, January 31, 2017
Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 11 NFP memorandum decision(s))
For publication opinions today (4):
In Russell F. Dumka v. Lori Erickson and Edward Jones , a 9-page opinion, Judge Crone writes:
Russell F. Dumka appeals from the trial court’s order denying garnishment of an individual retirement account inherited by Lori Erickson from her husband. Although he concedes that the asset is exempt from garnishment, he argues that the trial court erred by applying the statutory exemption because it was Lori’s burden to assert the exemption and she failed to do so. Concluding that the order complies with the evidence and the law, we affirm.In Harrison County Sheriff's Department v. Leandra Ayers, Personal Representative of the Estate of Christine Britton, Deceased, a 9-page opinion, Judge Baker writes:
The Harrison County Sheriff’s Department (the Sheriff) appeals the trial court’s denial of its motion to correct error in which the Sheriff argued that it was entitled to judgment on the evidence. The trial court’s order came after a jury returned a verdict in favor of Leandra Ayers, representative of the Estate of Christine Britton (the Estate), for $1.2 million. The jury found the Sheriff vicariously liable under the doctrine of respondeat superior because Christine’s husband, Sheriff’s Deputy John Britton, knew that Christine had expressed suicidal thoughts but left her in a room by herself with his gun. The Sheriff argues that there is insufficient evidence, as a matter of law, that John was acting in the scope of his employment during the incident, and that the trial court made several errors in the admission of evidence and in its jury instructions. Finding that John’s actions were undertaken in a purely private capacity and had no connection to his employment as a sheriff’s deputy, we reverse and remand with instructions to grant the Sheriff’s motion to correct error. * * *ILB: See this Jan. 9th post, "Is a law enforcement agency liable for off-duty officers?"
In short, because John’s actions took place in the most private and intimate of circumstances, during an argument between two spouses, while he was off duty, in an encounter to which the Sheriff had absolutely no connection, as a matter of law the Sheriff cannot be held vicariously liable for his crimes.
In Kenneth Brittain v. State of Indiana , an 18-page opinion, Judge Brown writes:
Kenneth Brittain appeals his convictions for murder and attempted murder as a class A felony. Brittain raises three issues which we revise and restate as: I. Whether the court’s admission of deposition testimony violated Brittain’s right of confrontation; II. Whether the court abused its discretion in admitting deposition testimony into evidence; and III. Whether the court erred by denying Brittain’s motion for a mistrial. We affirm.In Devonte Owens v. State of Indiana , a 9-page opinion, Judge Baker writes:
Devonte Owens appeals his sentence for Carrying a Handgun Without a License, a Class A Misdemeanor, arguing that he was denied due process at his sentencing hearing. Finding that Owens did not receive due process, we reverse and remand for a new sentencing hearing. * * *NFP civil decisions today (4):
Owens argues that the trial court denied him due process during sentencing when it failed to advise him of his right to speak on his own behalf, failed to give him an opportunity to make a statement, and failed to allow his counsel to make a meaningful sentencing argument. We agree. * * *
We are dismayed by the trial court’s disregard for the statute that governs a defendant’s rights during sentencing. Our General Assembly clearly intended for a defendant to be advised of his right to speak at sentencing and to be able to speak if he wanted to do so; the statute mandates that, “before pronouncing sentence, the court shall ask the defendant whether the defendant wishes to make such a statement.” I.C. § 35-38-1-5 (emphasis added). Thus, a trial court must advise a defendant of this right and provide him with an opportunity to speak, if he so chooses. We understand that trial courts are busy, but to be so curt with defendants and their counsel, as the trial court was here, is penny wise and pound foolish—the denial of due process only leads us back to where defense counsel wanted us to be during sentencing, but at the expense of our taxpayers. See Ind. Judicial Conduct Rule 2.8(B) (“A judge shall be patient, dignified, and courteous to litigants . . . lawyers . . . and others with whom the judge deals in an official capacity . . .”). We take this opportunity to remind trial courts of their statutory duty to afford criminal defendants the rights that our General Assembly intended them to have during sentencing.
In the Commitment of S.C. (mem. dec.)
NFP criminal decisions today (7):
Posted by Marcia Oddi on January 31, 2017 01:23 PM
Posted to Ind. App.Ct. Decisions