May 2009 Posts

Freeman v. State, 89A05-0811-CR-662

5th Dist., 04-15-09, Ind.App. 904 N.E.2d 340

Attorney: Mark I. Cox

Holding: Trial court did not abuse its discretion in admitting evidence seized as a result of a traffic stop, where left tail lamp of Defendant’s vehicle was not operating. Defendant argued that because the vehicle had two functioning taillights, i.e., the rear right taillight and light mounted in rear window, the vehicle was in compliance with I.C. 9-19-6-4. Statute provides that a motor vehicle “must be equipped with at least two (2) tail lamps mounted on the rear that, when lighted, complies with this section.” Further, a “tail lamp or tail lamps, together with a separate lamp for illuminating the rear registration plate, must be wired so as to be lighted whenever the head lamps or auxiliary driving lamps are lighted.” Id. The left tail lamp was not operating. Only the right tail lamp and “light in the rear window” were working properly. The “light in the rear window” was obviously the vehicle’s brake light, which would only be lighted when Defendant stepped on the brake. Moreover, Defendant’s vehicle was not in good working order as required by I.C. 9-21-7-1. Thus, officer properly stopped Defendant’s vehicle because tail lamp was not illuminated. Held, judgment affirmed.

Friday, May 29th, 2009 | Posted in Indiana Court of Appeals | No Comments »

Montgomery v. State, 49A04-0810-CR-636

4th Dist., 04-20-09, Ind.App. 904 N.E.2d 374

Attorney: Stephen Gerald Gray; Todd Ess

Holding: Warrantless entry of Defendant’s motel room was justified under emergency exception to Fourth Amendment’s warrant requirement and was reasonable under Article 1, Section 11 of Indiana Constitution. As Defendant’s girlfriend was taken into custody elsewhere, she repeatedly insisted Defendant was in danger. Although officers believed that girlfriend was under influence of some chemical substance, she was at some point able to answer officer’s questions coherently and her actions were consistent with fear and concern. Thus, unlike situation in Cudworth v. State, 818 N.E.2d 133 (Ind.Ct.App. 2004), where officers received information upon arriving at scene that specifically refuted existence of emergency, officers in this case obtained no information upon arrival at motel room that cast doubt on girlfriend’s claims. And unlike majority of cases discussing exigent circumstances, officers here were not motivated by intent to apprehend a suspect and/or seize incriminating evidence, but rather to assist a person whom they reasonably believed was in danger or in need of aid. Under totality of circumstances, officers acted reasonably in entering motel room and trial court’s admission of evidence discovered upon their entry was not an abuse of discretion. Held, judgment affirmed.

Friday, May 29th, 2009 | Posted in Indiana Court of Appeals | No Comments »

Lewis v. State, 49A02-0807-CR-663

2nd Dist., 04-09-09, Ind.App. 904 N.E.2d 290

Attorney: Barbara Simmons

Holding: State is not required to produce an arrest warrant when Defendant does not challenge the validity of the warrant or request the warrant in discovery. Where defendant did not challenge warrant’s validity, and the record is otherwise devoid of any indication of invalidity, the State need not produce an active arrest warrant to support a search incident to arrest. Williams v. State, 898 N.E.2d 400 (Ind.Ct.App. 2008).

Here, during suppression hearing, officer testified, over hearsay and Fourth Amendment objection, that he discovered and confirmed there was an outstanding warrant for Defendant when he ran Defendant’s name through computer. Although State never provided Defendant with copy of arrest warrant, Defendant had access to the warrant. Defendant could have made a discovery request for the warrant, which was referenced by cause number in probable cause affidavit. There is no authority requiring State to take affirmative action to provide Defendant with warrant. Moreover, the officer’s testimony that the computer showed an active warrant was not hearsay because it was admitted to show the officer’s course of action. Even if it were hearsay, pursuant to Indiana Evidence Rule 104(a), hearsay can be considered when ruling on the admissibility of evidence. Lastly, to the extent the testimony was based on hearsay, Crawford v. Washington, 541 U.S. 36 (2004), does not apply to suppression hearings. Thus, trial court did not err in allowing the officer’s testimony regarding the warrant and denying Defendant’s motion to suppress. Held, judgment affirmed.

Friday, May 29th, 2009 | Posted in Indiana Court of Appeals | No Comments »

Perry v. State, 45A04-0805-PC-296

4th Dist., 04-14-09, Ind.App. 904 N.E.2d 302

Attorney: Pro Se

Holding: Appellate counsel was not ineffective for omitting certain arguments and for failing to present other arguments well enough in his direct appeal. Claims of inadequate presentation of certain issues, when such were not deemed waived in the direct appeal, are the most difficult for convicts to advance and reviewing tribunals to support. Here, on appeal from two convictions of voluntary manslaughter, appellate counsel argued that trial court abused its discretion in imposing an aggregate seventy-year sentence and that the sentence was inappropriate. On PCR, Defendant claims that his appellate counsel failed to argue against imposition of sentences skillfully enough. However, Defendant’s claims that his attorney should have argued that two counts of voluntary manslaughter could never lead to consecutive sentences is incorrect and would have been rejected on appeal if raised by appellate counsel. Although in the original appellate decision, Court claimed that appellate counsel “oversimplifie[d]” the sentencing statement and failed to include a table of contents, chronological case summary and PSI in the appendix, such comments did not suggest that appellate counsel was ineffecive. Even if the PSI included information about Defendant’s alleged mental illness and drug use, Defendant and his attorney proffered these issues to trial court as mitigating circumstances during the sentencing hearing of which the appellate court had a transcript. Moreover, the appellate court explicitly found that the record omissions did not result in waiver of Defendant’s sentencing claims. Thus, Defendant failed to establish prejudice as a result of the deficiencies in the appendix prepared for his direct appeal. Trial court properly denied Defendant’s petition for post-conviction relief. Held, judgment affirmed.

Friday, May 29th, 2009 | Posted in Indiana Court of Appeals | No Comments »

J.A. v. State, 49A02-0807-JV-612

2nd Dist., 04-07-09, Ind.App. 904 N.E.2d 250

Attorney: Ruth Johnson

Holding: Juvenile was not denied effective assistance of counsel by counsel’s failure to file a notice of appeal and incorporation of the child hearsay hearing into the trial record. A Trial Rule 60(B) motion cannot be used as a substitute for a direct appeal, nor can it be used to revive an expired attempt to appeal, but such a motion is an appropriate way for juvenile to present a claim of IAC in a delinquency proceeding. Here, Juvenile filed a Trial Rule 60(B) motion arguing that his attorney was ineffective for failing to file a notice of appeal. However, Juvenile’s argument assumes that he or his parents instructed his counsel to appeal his juvenile delinquency adjudication. It could very well be that Juvenile and his parents were not unhappy with the outcome of his juvenile delinquency proceeding for an act that would be child molest- probation and sex offender counseling. This Court cannot say that the failure to timely appeal is per se deficient performance in every case. Even had it been deficient performance, Juvenile was not prejudiced by the failure to appeal because there is no reasonably possibility Juvenile would have won on the claims he would have pursued. Moreover, attorney was not ineffective for incorporating the evidence from the child hearsay hearing that occurred just minutes before into the fact-finding hearing. Although the Court of Appeals in L.H. v. State, 878 N.E.2d 425 (Ind.Ct.App. 2007) held that a trial court should not incorporate evidence from a child hearsay hearing into a fact-finding hearing over a juvenile’s objection, L.H. was decided almost two years after Juvenile’s fact-finding hearing. Further, trial counsel could have made a strategic decision not to re-call the same witnesses who just testified and have the trial court hear yet again the testimony that Juvenile molested his half brother. Thus, trial court did not err in denying Juvenile’s Trial Rule 60(B) motion. Held, judgment affirmed.

Friday, May 29th, 2009 | Posted in Indiana Court of Appeals | No Comments »