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Opinions Feb. 22, 2012

February 22, 2012
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7th Circuit Court of Appeals had posted no Indiana opinions at IL deadline.

Indiana Supreme Court

Jerrme Cartwright v. State of Indiana
82S01-1109-CR-564
Criminal. Affirms convictions of attempted battery and unlawful possession of a firearm by a serious violent felon. Finds no evidence of pretext in the state’s strike of venireperson Bard, the only African-American.

Joey Addison v. State of Indiana
49S05-1105-CR-267
Criminal. Uses the fundamental error doctrine to examine Addison’s Batson claim on appeal. The state’s mischaracterization of Turner’s voir dire testimony, its failure to engage Turner in any meaningful voir dire examination to explore his alleged undue reliance on the testimony of professionals, and the comparative juror analysis, when taken collectively, leave the firm impression that the state’s proffered explanation for striking venireperson Turner was a mere pretext based on race, making a fair trial impossible. Remands for a new trial.

Antwon Abbott v. State of Indiana
34S02-1202-CR-110
Criminal. Remands to the trial court to revise Abbott’s sentence from the maximum 20 years to 12 years for possession of cocaine as a Class B felony. But for the police officer’s choice of location in stopping the car in which Abbott was a passenger, he would have received no more than the maximum three-year sentence for possessing less than three grams of cocaine. Justices David and Dickson dissent.

Indiana Court of Appeals
Ernesto Gutierrez v. State of Indiana
44A03-1106-CR-257
Criminal. Reverses convictions of two counts of Class A felony child molesting. The trial court erred in admitting improper vouching testimony that invaded the province of the jury and prejudiced Gutierrez’s substantial rights. Remands for a new trial.

In the Matter of the Adoption of M.S.T.; R.P.M.T. v. C.K. and J.P. (NFP)
02A03-1106-AD-258
Adoption. Affirms grant of petition for C.K. and J.P. to adopt M.S.T.

Carol Showalter v. Donald Showalter (NFP)
20A03-1107-DR-332
Domestic relation. Remands for the trial court to explain its calculation of the parenting time credit and, if necessary, to recalculate the parenting time credit and father’s child support obligation. The trial court should also address the issue of whether son Brandt’s participation in ROTC should be credited toward his share of post-secondary education expenses.

Brent Goodman v. GMH Snyder Farms, Inc. (NFP)
53A05-1110-CT-531
Civil tort. Affirms order granting a motion to transfer venue from Monroe County to Montgomery County filed by GMH Snyder Farms.

Chuck W. Adams v. Mauro Chavez, M.D., Prison Health Services, Gil Kaufman, Craig Underwood, Dean Reiger (NFP)
49A05-1104-CT-218
Civil tort. Affirms summary judgment in favor of Chavez and other defendants on a complaint for medical malpractice.

LaDawn D. Johnson v. State of Indiana (NFP)
02A04-1106-CR-271
Criminal. Affirms conviction of and sentence for Class A felony battery.

Scott W. Bishop v. State of Indiana (NFP)
48A02-1108-CR-797, 48A05-1108-CR-441
Criminal. Affirms revocation of probation.

James Ingram v. State of Indiana (NFP)
49A02-1106-CR-578
Criminal. Affirms conviction of Class A felony voluntary manslaughter.

Philip Gregory Yeary v. State of Indiana (NFP)
78A01-1108-CR-388
Criminal. Affirms denial of motion to correct erroneous sentence.

Jeremy L. Hopkins v. State of Indiana (NFP)
48A02-1104-CR-342
Criminal. Affirms conviction of and sentence for Class A felony dealing in cocaine.

Michael Dunfee v. State of Indiana (NFP)
79A03-1106-CR-279
Criminal. Affirms sentence following guilty plea to Class C felony operating a motor vehicle while driving privileges are forfeited for life, Class A misdemeanor operating while intoxicated in a manner that endangers a person, and being a habitual substance offender. Reverses order that Dunfee pay restitution.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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