ILNews

Court agrees on ID standard, split on 'injury'

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Requiring police identifications to be recorded isn't a standard the Indiana Court of Appeals is willing to adopt at the moment.

A three-judge appellate panel agrees on that issue, but in a ruling today those judges disagree on a separate appeal claim about a victim's punch to the face.

In Henry Lewis v. State,  No. 49A04-0804-CR-218, the judges found that Marion Superior Special Judge Mark Renner didn't abuse his discretion in admitting photo array evidence during Lewis' jury trial on burglary and robbery charges in February 2008. A witness Lewis was accused of punching in the face identified Lewis and testified about the injury he'd suffered during the incident.

Along with claims that the trial court wrongly refused to tender jury instructions about eyewitness credibility and that the evidence was sufficient to prove a Class B felony robbery that involved "bodily injury," Lewis urged the appellate court to find inadmissible the out-of-court photo arrays used to identify him because they weren't recorded in some manner - written, videotaped, or audio recorded. He cited a New Jersey Supreme Court case of State v. Delgado, 902 A.2d 888, 897 (N.J. 2006), where that court exercised its supervisory powers to require a written record of any out-of-court identification procedure.

"He believes that Indiana courts should adopt this procedure because if the identifications had been recorded, there could be more confidence in the accuracy and integrity of the witnesses' identifications of him," Judge Nancy Vaidik wrote. "We decline Lewis's request to adopt such a procedure."

The court wrote that Lewis offered no Indiana statutory or constitutional provision requiring a recording, and it's not bound by New Jersey law.

While all three judges on the appellate panel agreed with that aspect of the ruling, Judges James Kirsch and Terry Crone wrote separate opinions dissenting with the parts involving the evidence sufficiency as it relates to "bodily injury."

State law defines that phrase as "any impairment of physical condition, including physical pain."

Judge Crone concurred in result and noted that the witness's testimony at trial that he was punched in the face pretty hard was sufficient to establish "bodily injury," but the judge disagreed with the lead opinion's analysis in interpreting state statute defining that phrase. He wrote that it suggests "any degree of pain, no matter how slight, is sufficient to constitute an 'impairment of physical conditions' and therefore constitute 'bodily injury' for purposes of Indiana Code 35-41-1-4. I believe that something more than the mere sensation of pain is required; to hold otherwise is to read 'impairment' out of the statute."

Judge Kirsch took on the same issue, but found the evidence was insufficient.

"The trier of fact could only speculate as to whether the punch amounted to pain," he wrote. "Such speculation is not a reasonable inference drawn from the evidence presented and does not constitute proof beyond a reasonable doubt that the touching by Lewis resulted in bodily injury... in the form of pain. It is reasonable to speculate that (his) adrenaline rush blocked any sensation of pain and this is what he testified."

He would have opted to vacate Lewis's conviction for Class B felony robbery and remand with instructions to enter it as a lesser felony, with the necessary resentencing after that.

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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