September 2009 Posts

Kimbrough v. State, 20A03-0901-CR-29

3rd Dist., 08-13-09, Ind.App. 911 N.E.2d 621

Attorney: Nancy A. McCaslin

Holding: In opinion affirming Defendant’s conviction for battery with deadly weapon, Court held: 1) trial court did not abuse its discretion in continuing trial for four weeks to obtain a second alternate juror; 2) trial court did not err in admitting 911 call into evidence, police officer’s testimony regarding comments that victim made to him about incident, or in permitting victim to testify about amount of time that he was in pain; 3) trial court properly instructed jury as to definition of “serious bodily injury” even though he was charged only with committing battery by means of a deadly weapon; 4) evidence was sufficient to rebut Defendant’s self-defense claim; and 5) trial court did not err in ordering Defendant to reimburse Public Defender Fund in amount of $500 even though no indigency hearing was held regarding his ability to pay. Held, judgment affirmed and remanded for clarification of restitution order.

Monday, September 21st, 2009 | Posted in Indiana Court of Appeals | No Comments »

Meister v. State, 68A04-0604-CV-196

4th Dist., 08-31-09, Ind.App.

Attorney:

Holding: On remand from the U.S. Supreme Court in light of Arizona v. Gant, 129 S.Ct. 1710 (2009), Court of Appeals found a search of a car was justified under the automobile exception even if not authorized as a search incident to arrest. In Gant, the Supreme Court’s primary aim was to revisit New York v. Belton, 101 S.Ct. 2860 (1981). The Gant Court clarified that, henceforth, Belton should be understood only to permit an officer to conduct a vehicle search when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest. However, the Gant Court did not disturb other established exceptions to the warrant requirement that authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand. For instance, a search falls within the automobile exception when a vehicle is readily mobile and probable cause exists to believe it contains contraband or evidence of a crime. Here, the State filed a forfeiture action for Defendant’s car in which drugs were found when her son was arrested for driving with a suspended license. The officer had arrested the son on two prior occasions and both times found drugs either on his person or in his vehicle. While arresting the son, officer patted the son down and discovered an ink pen without any of its internal parts, with a powdery-looking residue inside of it. The officer then searched the son’s car and found more white substance which field tested positive for methamphetamine. Although the search would not have been justified by Gant because the son was already removed from car, handcuffed and was being arrested for driving while suspended for which no evidence could be found in the car, the son’s prior drug arrests and the powdery substance in his pen constituted probable cause to believe a search of the car would uncover contraband. Thus, the search was proper under the automobile exception to the warrant requirement, and trial court properly denied the motion to suppress in the forfeiture of Defendant’s car. Held, judgment affirmed; Riley, J., dissenting on basis that the son was not being arrested for drug possession at the time of the search, and thus, the search of the car was unconstitutional.

Monday, September 21st, 2009 | Posted in Indiana Court of Appeals | No Comments »

Gerber v. State, 02A03-0902-CR-73

3rd Dist., 08-28-09, Ind.App.

Attorney: Donald C. Swanson

Holding: Trial court erred by treating the running of the statute of limitations period as a prerequisite to petitioning for expungement. Court rejected State’s argument that, for cases in which no charges are filed, person should wait a reasonable time after being arrested to file a petition for expungement and limitations period constitutes a reasonable time. This position has no support in text of expungement statute, and would “effectively prevent anyone arrested for a Class A felony of murder from petitioning for expungement when no charges are filed because a prosecution for those offenses may be commenced at any time.

Here, State did not file notice of opposition to Gerber’s petition for expungement, and trial court thus had discretion to summarily deny the petition only if it found the petition “insufficient.” I.C. 35-38-5-1(d)(3)(A). Although meaning of the term “insufficient” remains unclear, trial court has discretion on remand to either: 1) summarily grant the petition; 2) set matter for hearing; or 3) summarily deny the petition after finding it insufficient. Because prosecutor did not file a notice of opposition, trial court should not have permitted prosecutor to file a brief opposing Gerbers’ petition and “such participation should not be permitted on remand.” Held, judgment reversed and remanded; Baker, C.J., concurring in part and dissenting in part, believes that on remand, trial court has no authority to summarily deny Gerber’s petition. Barnes, J. concurring in result in part and dissenting in part, would permit participation by prosecutor on remand.

Monday, September 21st, 2009 | Posted in Indiana Court of Appeals | 1 Comment »

In re J.G. v. , 32A04-0902-JV-79

4th Dist., 08-07-09, Ind.App.

Attorney: Eric M. Oliver

Holding: Trial court erred in ordering Indiana Department of Child Services (DCS) to pay for appointment of counsel to represent Mother in termination of parental rights proceeding. It is not evident that the legislature intended that legal services be included in statutory definition of “services” in termination proceedings, for which DCS is responsible for paying. See I.C. 31-40-1-2; I.C. 31-40-1-1.5(c). As a general rule, the legislature prefers for the counties, rather than the State, to be responsible for the cost of legal services. Held, judgment reversed and remanded; Barnes, J., dissenting, believes that after passage of HEA 1001, DCS is responsible for cost of appointed counsel in termination proceedings and majority’s reliance on statutory definition of “services” is misplaced.

Monday, September 21st, 2009 | Posted in Indiana Court of Appeals | No Comments »

In re D.S. v. , 48A02-0905-JV-428

2nd Dist., 08-10-09, Ind.App. 910 N.E.2d 837

Attorney: Steven C. Smith

Holding: Trial court did not err in rejecting DCS’s placement recommendations and following recommendation of probation department to place Defendant in the Right of Passage program in Arizona. A court may not place a delinquent child in a non-secure detention facility outside of Indiana unless the court makes written findings, based on clear and convincing evidence, the out-of-state placement is appropriate because there is no “comparable facility with adequate services located in Indiana.” I.C. 31-37-19-3(b)(2)(A). Here, evidence supported trial court’s findings and decision to place Defendant in Right of Passage program against DCS’s recommendation. Probation officer testified: 1) that program would allow Defendant to use his leadership skills “in a very positive way” and could lead to athletic scholarship opportunities; 2) probation was unable to find comparable placement in Indiana; and 3) placement in facilities recommended by DCS would threaten safety of surrounding communities and would cause a “dramatic setback” for Defendant as it would not sever Defendant’s negative ties with his community. Right of Passage program was also recommended and approved by Madison County’s chief probation officer. Held, judgment affirmed.

See also: In re T.D., No. 71A04-0906-JV-312 (Ind.Ct.App. 08-28-09) (clear and convincing evidence supported trial court’s placement of juvenile in out-of-state shelter care facility and finding that DCS’s alternative placement recommendations were contrary to T.D.’s best interests).

Monday, September 21st, 2009 | Posted in Indiana Court of Appeals | No Comments »