Monday, April 17, 2017
Ind. Decisions - Upcoming oral arguments this week and nextThis week's oral arguments before the Supreme Court (week of 4/17/17):
- No oral arguments scheduled.
Thursday, April 27
- 9:00 AM - In the Matter of J.B. and L.B.; J.J. (Mother) v. The Indiana Department of Child Services (20A05-1510-JC-01612) The mother and father shared joint custody of their children under an order entered by the Elkhart Superior Court in the parents’ paternity case. The Elkhart Circuit Court adjudicated the children to be Children in Need of Services (“CHINS”) and later issued an order giving the father sole custody and closing the CHINS case without entering a dispositional decree. The Court of Appeals reversed and remanded. In re J.B., 55 N.E.3d 903 (Ind. Ct. App.), superseded on reh’g, 61 N.E.3d 308 (Ind. Ct. App. 2016). The Indiana Department of Child Services has petitioned the Court to accept jurisdiction over this appeal. ILB: This was a June 8, 2016 COA opinion, reversed on a motion for rehearing in a Sept. 8, 2016 opinion (ILB summary here, 5th case)
- 9:45 AM - Howard County Assesor v. Kohl's Indiana LP (49T10-1502-TA-00004) After Kohl’s appealed the Howard County Assessor’s valuation of its property, the Indiana Board issued a determination in favor of Kohl’s, finding that its appraisal (which used vacant big-box stores, or “dark boxes,” as comparable properties) most accurately reflected the market value-in-use standard as interpreted in recent Tax Court decisions. The Tax Court affirmed. Howard County Assessor v. Kohl’s Indiana LP, 57 N.E.3d 913 (Ind. Tax Court Sept. 7, 2016), trans. pending. The Howard County Assessor has petitioned the Supreme Court to accept jurisdiction over the appeal, and amici curiae Indiana County Assessors Association, the Indiana Association of Cities and Towns, and the Indiana Municipal Lawyers Association have filed a brief in support of review.
- 10:30 AM - Summer Snow v. State of Indiana (45S03-1703-CR-00169) and Reginald Harris v. State of Indiana (45S03-1703-CR-00172) In these two cases tried together, Summer Snow and her co-defendant Reginald Harris filed a motion to exclude evidence of Snow’s lawfully-possessed handgun. The Lake Superior Court denied the motion, and the jury convicted Snow and Harris of battery against a public safety official, and convicted Snow of resisting law enforcement. A majority of the Court of Appeals affirmed. Snow v. State, 65 N.E.3d 1129 (Ind. Ct. App. 2016), vacated; Harris v. State, 66 N.E.3d 628 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted transfer and assumed jurisdiction over both appeals pursuant to Appellate Rule 56(A). [sic] The Court will hold a combined oral argument in the two cases, but otherwise has not consolidated the appeals.
ILB: Both were 2-1 opinions of the COA:
- Summer C. Snow v. State of Indiana - this was a 2-1, Dec. 29, 2016 COA opinion (ILB summary here, 6th case). From the dissent: "This case boiled down to Officer Peck’s word against Snow’s and the admission of the gun could have tipped the scales in favor of the State."
- Reginald Harris v. State of Indiana - this also was a 2-1, Dec. 29, 2016 opinion (ILB summary here - 7th case). From the dissent: "I respectfully dissent. For the same reasons explained in my dissent today in the case of Harris’ co-defendant, Summer Snow ...".
This week's oral arguments before the Court of Appeals (week of 4/17/17):
Monday, April 17
- 1:30 PM - David Oaks v. Timothy R. Chamberlain, M.D. (92A04-1609-CC-02041) David Oaks filed a complaint for damages against Dr. Timothy Chamberlain for medical malpractice, alleging that Dr. Chamberlain failed to follow the standard of care requiring serial x-rays for Oaks’ post-operative condition. At a five-day jury trial, both Oaks and Dr. Chamberlain produced expert medical testimony as to the standard of care for a patient in the same post-operative situation as Oaks. Oaks made an offer of proof in which he elicited testimony from one of Dr. Chamberlain’s witnesses, Dr. Moore, that Dr. Moore’s treatment of a patient in the same situation as Oaks would have included ordering x-rays, even though Dr. Moore had testified that x-rays were not required by the standard of care. The trial court excluded that testimony and the jury returned a verdict in Dr. Chamberlain’s favor. On appeal, Oaks raises an issue of first impression in Indiana, namely, whether a trial court abuses its discretion when it excludes a medical expert’s testimony about his medical practices as a provider elicited for the purpose of impeaching the expert’s prior testimony about the standard of care. The Scheduled Panel Members are: Judges Najam, Riley, and Bradford. [Where: Court of Appeals Courtroom (WEBCAST)]
Tuesday, April 18
- 3:30 PM - Larry C. Perry, Jr. v. State of Indiana (02A04-1608-CR-01890) dispatched to the Coliseum Inn located in Fort Wayne, Indiana, regarding a possible disturbance in one of the rooms. When officers arrived, they found Larry C. Perry, Jr. and his wife, Lydia Perry in the room. Officer DeLong noticed that Lydia had a bloody lip. She told him that Perry had hit her in the face. DeLong also noticed some bruising which he later learned was from a previous incident occurring in the evening hours of December 2 or early morning of December 3, 2015. Regarding that incident, Lydia told DeLong that Perry had punched her, attempted to choke her and stabbed her in the thigh with a dinner fork. Perry was arrested and charged with level 5 felony battery, level 6 felony battery, level 6 felony strangulation and two counts of level 6 felony domestic battery. On June 29, 2016, a jury found Perry guilty on all charges and found him to be a habitual offender. He was sentenced to an aggregate sentence of fourteen years. Perry appeals arguing that his convictions are not supported by sufficient evidence because during her testimony, Lydia recanted her statements made to police and testified that she had lied out of vindictiveness and jealousy. He also claims that there was no testimony indicating that the previous incident on December 2nd and 3rd occurred in Fort Wayne. Perry also claims that the trial court erred in denying his motion for mistrial when, during the investigating detective’s testimony, the detective stated that Perry told him he was with his father on December 2nd and 3rd and not with his wife. The detective then blurted out that Perry’s father denied his son’s claim. Finally, Perry claims that his sentence is inappropriate in light of both the nature of the offenses and his character. The Scheduled Panel Members are: Judges Barnes, Crone, and Altice. [Where: Manchester College, 604 E. College Ave., North Manchester, IN]
Thursday, April 20
- 10:00 AM - Bradley Baldwin v. State of Indiana (49A05-1609-CR-02025) Baldwin was charged with murder, attempted murder, unlawful possession of a firearm, and being a habitual offender. At trial, he attempted to introduce evidence of another shooting that occurred on the same night, but the trial court excluded the evidence. During the trial, a juror contacted lawyers she knew personally and discussed the burden of proof in a criminal case with them. The jury found Baldwin guilty of the three crimes, and then the trial court found he was a habitual offender. Baldwin appeals the jury verdicts asserting the trial court abused its discretion by excluding exculpatory evidence and by denying his motion for mistrial based on confirmed juror misconduct. The Scheduled Panel Members are: Judges Baker, May, and Altice. [Where: TriWest High School, 7883 N. State Route 39, Lizton, IN 46149]
Friday, April 21
- 10:00 AM - Rene DiBenedetto v. Timothy Devereux (49A05-1609-CT-02146) After being injured in a car accident, Rene DiBenedetto executed a contingent fee contract for legal services with Conour Law Firm where Timothy Devereux was employed as an attorney. While represented by Conour Law Firm, DiBenedetto met with Attorney Devereux, who responded to DiBenedetto’s inquiry concerning the distribution of her settlement proceeds. It was later discovered that DiBenedetto’s settlement proceeds had been stolen by William F. Conour. DiBenedetto filed this legal malpractice action against Attorney Devereux, arguing that that Attorney Devereux owed her a duty to provide truthful and accurate information, that he breached this duty, and that such breach was the proximate cause of her loss resulting from the mishandling of her settlement proceeds. The trial court granted Attorney Devereux’s motion for summary judgment. The Scheduled Panel Members are: Judges Riley, Crone, and Altice. [Where: Court of Appeals Courtroom (WEBCAST)]
Monday, April 24
- 1:00 PM - State of Indiana v. John B. Larkin (46A04-1607-C-01522) In 2012, John Larkin’s wife was found dead from multiple gunshots in their home. At the police station, a conversation between Larkin and his attorneys was recorded. Larkin was later charged with voluntary manslaughter. Prior to trial, Larkin moved to dismiss the charges against him because recording the conversation with his attorneys violated his Sixth Amendment right to counsel; the trial court denied the motion for lack of prejudice. Larkin also filed a motion to disqualify the prosecutor’s office and requested appointment of a special prosecutor because members of the prosecutor’s office had viewed the recording and/or read a transcript of the confidential conversation; the trial court also denied this motion. The trial court’s order denying the motion to disqualify was certified for interlocutory appeal but this court held the question of disqualification was moot because the county prosecutor was defeated in the 2014 primary election and the new prosecutor who took office in January 2015 was not involved in listening to the confidential conversation. Larkin v. State, 43 N.E.3d 1281 (Ind. Ct. App. 2015). After this court’s opinion was issued and the case returned to the trial court, a special prosecutor was appointed on the newly-elected prosecutor’s motion. Larkin then moved to disqualify the regular judge, who denied any reason for recusal but recused nonetheless. The special judge accepted his appointment in February 2016. Larkin then filed a motion for discharge pursuant to Criminal Rule 4(C) alleging the State failed to bring him to trial within one year and a motion to dismiss alleging continuing Sixth Amendment and Article 1, section 13 violations related to the recorded confidential conversation. The special judge granted both the motion to discharge and the motion to dismiss. The State now appeals, arguing 1) Larkin waived any Rule 4 violation and 2) the special judge abused his discretion in reversing the regular judge’s earlier orders and dismissing the case. With respect to Criminal Rule 4, the issue is when the clock began running after this court issued its opinion in the interlocutory appeal and whether the delay resulting from the defendant’s motion for change of judge is chargeable to him. With respect to the dismissal based on misconduct, the issue is whether the trial court erred in applying an irrebuttable presumption of prejudice and in denying the State a hearing on the issue. The Scheduled Panel Members are: Judges Riley, Robb, and Barnes. [Where: Hammond Academy of Science and Technology, 33 Muenich Court, Hammond, IN]
- 10:00 AM - Dustin Sorhaindo v. State of Indiana (49A05-1608-MI-01814) On June 30, 2015, a brown box with black duct tape addressed to Dustin Sorhaindo arrived at a local shipping company in Indianapolis, Indiana. That package was singled out for being suspicious and the local shipping company called the police. Upon conducting a narcotic examination of the package, a K9 officer gave a positive indication of a controlled substance in the suspect package. The State applied for a search warrant which was issued on the same day. Following the execution of the search warrant, the police found twenty-four rubber-banded stacks of United States currency, which amounted to $47,940. In December of 2015, the State filed a motion to transfer the seized money from the State to the federal authorities. In July of 2016, the trial court granted the State’s motion to transfer money.
Sorhaindo appeals, requesting this court to review whether the trial court erred in granting the State’s motion to transfer the money seized to the relevant federal authorities.
The Scheduled Panel Members are: Judges Riley, Robb, and Altice. [Where: Wabash College, Crawfordsville, IN ]
- 1:30 PM - Tyler R. Browder v. State of Indiana (49A04-1608-CR-01857) This case arises out of a traffic stop made just before midnight on November 11, 2014, in Indianapolis, Indiana. Tyler Browder (“Browder”) was driving from his apartment complex to a fast-food restaurant in a car with a license plate that was registered to a different vehicle. An Indianapolis Metropolitan Police Department officer, Sgt. Brady Ball (“Officer Ball”), driving behind Browder ran the license plate and found it did not match the vehicle. Officer Ball then pulled Browder over into a nearby gas station because he suspected the vehicle might be stolen. At that time, Officer Ball turned on his audio recording device and the rest of the stop and arrest were recorded. During the stop, Browder claimed that he and his wife had just purchased this vehicle and he thought they had thirty days to use the transferred plate from their previous vehicle. The Officer Ball explained that the statute required Browder have the title or bill of sale in the vehicle. Browder stated that the paperwork was at his home with his wife and indicated that he did not have a paper registration for the vehicle either. The officer returned to his patrol car and ran Browder’s driver’s license and criminal history against BMV and police records. The IMPD officer found that the vehicle was not registered to Browder and discovered that Browder had been a suspect in a prior auto theft. After learning this information about fifteen minutes into the stop, the officer asked Browder to step out of the vehicle in order to question him further about the vehicle’s ownership and his criminal history. During this conversation, Officer Ball asked Browder if there was any identifying paperwork left in the vehicle from the previous owner. He also asked Browder if anything illegal was in the vehicle. Seventeen minutes into the stop, Browder stated there was nothing illegal in the vehicle and told Officer Ball that he could “check it.” There was further discussion between the two, and Officer Ball advised Browder of his right to refuse a search. Browder stated he had “nothing to hide” and that the officer could search the vehicle. In the vehicle, the officer found a marijuana pipe under an insert in the center console. The officer then handcuffed Browder and placed him in the patrol car. Browder admitted that he smokes marijuana but denied ownership of the pipe and knowledge that it was in the vehicle. Browder was charged with possession of paraphernalia, a Class A misdemeanor, and operating a vehicle on a transferred plate for more than thirty-one days, a Class C infraction. The infraction was later dismissed by the State. The Marion Superior Court conducted a three-part bench trial on March 7, April 26, and July 20, 2016, where Browder was found guilty of possession of paraphernalia. During the trial, Browder objected to the admission of the pipe found during the stop. Browder appeals the trial court’s decision to admit the evidence from the vehicle search, arguing that the search and seizure violated the Fourth Amendment to the U.S. Constitution and Article I, Section 11 of the Indiana Constitution. Specifically, Browder argues that the extension of the stop for a traffic infraction was unreasonable. Browder also argues that his consent to search was not voluntary and, therefore, did not give the officer the authority to search the vehicle. The State responds that the officer did have reasonable suspicion to further investigate based on the nature of the traffic infraction. Thus, the State contends that there are no constitutional violations and that the trial court did not abuse its discretion in admitting the evidence. The Scheduled Panel Members are: Judges Kirsch, Mathias, and Pyle. [Where: Cathedral High School Auditorium, 5225 E. 56th St., Indianapolis, IN]
Thursday, April 27
- 2:00 PM - 401 Public Safety, LLC and Lifeline Data Centers, LLC v. David Ray and Committee to Elect David Ray (49A02-1609-PL-02132) Lifeline Data Center, LLC (“Lifeline”) is a tenant of the former Eastgate Mall site in Indianapolis, and 401 Public Safety, LLC is the owner and lessor of the property. Both Lifeline and 401 Public Safety are managed by an individual who is an owner of both companies. The City of Indianapolis is also a lessee of a portion of the property, which portion is commonly referred to as the “Regional Operations Center.” In 2015, during his successful campaign for the 19th District of the Marion County City-County Council, David Ray and the Committee to Elect David Ray (“collectively Ray”), distributed a flyer to residents in his eastside Indianapolis District stating that Lifeline contributed $1300 to incumbent Councilman Ben Hunter’s campaign. The flyer contains additional statements that Lifeline and 401 Public Safety alleges are false and defamatory. Specifically, the content of the flyer addressed the alleged deteriorating condition of the former Eastgate Mall site and accused incumbent Councilman Hunter of cutting “a sweetheart deal for a political insider. A deal that cost the city millions and ties up the former Eastgate site for 25 years.” The flyer stated, “[w]hat will $1300 from a political insider buy? A contract with the City.” The flyer alleged that code enforcement violations and fire and safety hazards existed, and that investigations had occurred at the former Eastgate Mall site. Finally, the flyer states that the community surrounding the site will be responsible for cleaning it up. Lifeline and 401 Public Safety filed a complaint in Marion Superior Court alleging that the statements in the flyer were false and defamatory. 401 Public Safety alleged that it was defamed because it owns the Eastgate Mall site, which was falsely depicted as a fire and safety hazard with existing code violations. 401 Public Safety also alleged that the flyer contains picture of the property from the 1950s, and the property’s condition is markedly different from the image used in the flyer. Lifeline alleged that it was defamed because Ray’s flyer implies that Lifeline bribed a public official to secure a contract to obtain a favorable lease with the City. Lifeline complains that the statement is false because 401 Public Safety owns the Eastgate Mall site and Lifeline does not have a lease with the City of Indianapolis. Ray raised an affirmative defense under Indiana Code chapter 34-7-7, the Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute and filed a motion to dismiss the complaint. Ray argued that the flyer contains speech on a public issue or a matter of public interest, and that he acted in good faith and with a reasonable basis in law and fact when making the statements contained in the flyer. As required by the Anti-SLAPP statute, the trial court treated the motion as a motion for summary judgment. After the trial court held a hearing on the motion, the court entered summary judgment in Ray’s favor. Lifeline and 401 Pubic Safety now appeal. The Scheduled Panel Members are: Judges Baker, Kirsch, and Mathias. [Where: Court of Appeals Courtroom (WEBCAST)]
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 April 17, 2017 09:58 AM
Posted to Upcoming Oral Arguments