October 2008 Posts

Accomplice liability instruction approved

Tyris Brooks v. State, 45A03-0804-CR-164 (Oct 24, 2008)

Attorney for Brooks: Mark Bates

State requested accomplice liability instruction arguing the defense might argue that the co-defendant rather than Brooks was the person who possessed the drugs. The instruction was given over Brooks’ objection. Brooks argues that the instruction is deficient because it does not require proof of voluntary conduct on his part in committing the crime.

Using the abuse of discretion standard, Court finds that sufficient evidence existed for giving he instructions. Although co-defendant was attempting to swallow drugs when police pulled car over, Brooks was originally called about delivering the drugs and more packets of drugs were found in the driven by Brooks than those the co-defendant was attempting to swallow.

Full opinion at http://www.in.gov/judiciary/opinions/pdf/10240801ebb.pdf

Friday, October 24th, 2008 | Posted in Indiana Court of Appeals | No Comments »

Maximum sentence inappropriate in child molest case

Mischler v. State, 20A03-0712-CR-577 (Oct 23, 2008)

Counsel for Mischler: Juan Garcia

One prior misdemeanor conviction for possession of marijuana did not “demonstrate a character of such recalcitrance or depravity that [it] justif[ies] a [maximum sentence].” Hollin v. State, 877 N.E.2d 462, 465-66 (Ind. 2007).

Court admitted hearsay statements under protected person statute. Mischler argued the hearsay statements were made months after the alleged molest and therefore are not reliable.

Considerations in determining reliability include: (1) the time and circumstances of the statement, considering whether there was significant opportunity for coaching; (2) the nature of the questioning; (3) whether there was a motive to fabricate; (4) use of age-appropriate terminology; and (5) spontaneity and repetition.

Court holds that “even though some time passed between the touchings and the statements, this is just one factor to be considered and is not necessarily dispositive.” Court also notes the hearsay statements were made “to trained professionals and nothing in the record suggests that any of the interviewers used leading questions.”

Full opinion at http://www.in.gov/judiciary/opinions/pdf/10230805jgb.pdf

Friday, October 24th, 2008 | Posted in Indiana Court of Appeals | No Comments »

Jury instruction – jury finder of facts and law

Walden v. State, 18S02-0710-CR-458 (Oct 20, 2008) – on transfer

Attorney for Walden: Kelly Bryan

Walden argues the trial court improperly rejected his habitual phase instruction:

Even where the jury finds the facts of the prerequisite prior felony convicitons to be uncontroverted, the jury still has the unquestioned right to refuse to find the Defendant to be a habitual offender at law.

Court notes that in Holden, 788 N.E.2d 1253 (Ind. 2003), “we made clear that Indiana juries do not have a broad, general nullification power in criminal cases.” But, “when a jury is evaluating a defendant’s habitual offender status, the jury is afforded slightly more leeway than Holden authorizes in the guilt phase.” Seay, 698 N.E.2d 732 (Ind. 1998) held the interplay between the habitual statute and the “law and facts” statute gives the jury “latitude in defining the habitual offender status in a way that it does not in defining guilt or innocence.” However, the Court finds that its statement in Seay that art. I §19 supported its holding was incorrect.

Because instructions as a whole advised jury that they were the finders of the law and facts and that they “may” — rather than “must” — find the defendant an habitual offender, no error in denying the instruction. Court of Appeals affirmed. Rucker & Dickson dissent.

Full opinion http://www.in.gov/judiciary/opinions/supreme.html

Wednesday, October 22nd, 2008 | Posted in Indiana Supreme Court | No Comments »

Waiving right to appeal sentence in plea agreement

Ricci v. State, 06A04-0805-CR-309 (Oct 21, 2008)

Attorney for Ricci: Michael Gross

Although a term in Ricci’s plea agreement was waiver of his right to appeal his sentence, the trial court “clearly and unambiguously stated at the plea hearing that it read the plea agreement and that, according to its reading of the agreement, Ricci had not surrendered the right to appeal his sentence.” Ricci’s case was found distinguishable from Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008) (trial court’s incorrect advisement at the conclusion of a defendant’s sentencing hearing has no effect on an otherwise knowing, voluntary, and intelligent waiver of the right to appeal his sentence) because neither the prosecutor or defense counsel corrected the trial court’s misstatement.

Full opinion http://www.in.gov/judiciary/opinions/pdf/10210803tac.pdf

Wednesday, October 22nd, 2008 | Posted in Published Opinions | No Comments »

Training on HEA 1001 – Juvenile Delinquency

HEA 1001 will be effective Jan. 1, 2009. The Department of Child Services (DCS) is conducting training sessions for judges and probation officers in the next two months to explain the changes that will take effect. DCS has offered to provide the same information to public defenders. The Indiana Public Defender Council has scheduled a training session from 1-4 p.m. on November 10, 2008, in the Assembly Room (2nd Fl.) in the City-County Bldg. in Indianapolis.

Registration required. CLE credit eligible. The following subjects will be covered:

• Permanency Hearings and their role in the delinquency process.
• Permanency options.
• General IV-E information, including that which is needed to process payment for placement.
• Required Court Order language.
• Plea agreement process.
• Appeals process.
• DCS Service Consultants, their role
• Pre-Dispositional Reports and other information required for submission to the Services Consultants.
• Case Plans, with examples.
• Independent Living Skills services.
• Residential Placements and their place on the continuum of graduated sanctions.
• Process for recommending out-of-state placements.

Tuesday, October 21st, 2008 | Posted in Announcements | No Comments »

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