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COA decides not to take video recording issue on interlocutory appeal

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The Indiana Court of Appeals Thursday decided that it was improper for it to accept a man’s appeal of his motion seeking to exclude video recordings of video files found on his phone. The judges accordingly dismissed David Wise’s appeal.

Wise’s wife discovered video files on his phone that showed him performing sex acts on her while unconscious. She suspected he drugged her so he could perform the acts. She was unable to download the videos from his phone directly, so she used a camcorder to record video of the files playing on her husband’s phone. The state charged Wise with rape and criminal deviate conduct. He filed a motion in limine to exclude the video evidence taken by his wife, which the trial court denied Sept. 26, 2012.

On Oct. 22, 2012, Wise asked the trial court to certify its order for interlocutory appeal, but the trial court did not grant his motion to certify until Dec. 4. The COA’s motions panel accepted jurisdiction in February.

Based on Appellate Rule 14(B)(1), the Court of Appeals should not have accepted jurisdiction over the case in the first place, Judge Paul Mathias wrote in David Wise v. State of Indiana, 49A02-1301-CR-1. The trial court did not rule on the motion or set a hearing on the motion within 30 days after Wise asked for certification. Therefore, the motion was deemed denied 30 days after it was filed – Nov. 22, 2012.

“We are unable to conclude that the trial court’s belated certification complies with Appellate Rule 14(B)’s time limitations. To hold otherwise would effectively nullify the ‘deemed denied’ provision of Appellate Rule 14(B)(1)(e), the clear purpose of which is to limit the amount of time a trial court has to rule on a motion to certify. We therefore conclude that, by operation of Appellate Rule 14(B)(1)(e), Wise’s motion to certify was deemed denied, and the trial court could not resuscitate Wise’s motion by belatedly granting it after it had been deemed denied,” Mathias wrote.
 

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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