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Opinions Jan. 31, 2012

January 31, 2012
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7th Circuit Court of Appeals
Dale J. Atkins v. Michael Zenk
11-1891
Civil. Affirms U.S. District Court’s denial of habeas corpus petition, holding Atkins did not prove his claim that he was deprived of his Sixth Amendment right to effective assistance of trial counsel.

Indiana Supreme Court
Henry C. Bennett and Schupan & Sons, Inc. v. John Richmond and Jennifer Richmond
20S03-1105-CV-293
Civil. Finds the trial court did not abuse its discretion when it allowed a psychologist to testify on behalf of a plaintiff in a personal injury case as to the cause of a brain injury or in finding that the psychologist’s testimony was based on reliable scientific principles.  

Reginald N. Person, Jr. v. Carol A. Shipley
20S03-1110-CT-609
Civil tort. Holds the trial court did not abuse its discretion by admitting expert testimony offered by a personal injury defendant in a rear-end collision case. Dr. Turner’s opinions were based on reliable scientific principles that could be applied to the facts at issue.

Indiana Court of Appeals
William R. Wallace v. State of Indiana
26A01-1101-CR-9
Criminal. Affirms trial court’s order denying Wallace’s motion to dismiss a charge of Class D felony voyeurism for videotaping without consent a sexual encounter he had with a woman.

Nathan Anderson v. State of Indiana
49A05-1105-CR-243
Criminal. Affirms conviction of and sentence for murder, but reverses convictions of and vacates sentences for burglary and abuse of a corpse, holding Anderson had been denied his request for counsel prior to making statements in interrogation and that the admission of that testimony into evidence at trial influenced the jury’s decision.

Steven Nowling v. State of Indiana
31A01-1010-CR-552
Criminal. On petition for rehearing, the appellate court affirmed its original decision affirming the trial court, holding that during trial Nowling never objected to testimony by a forensic scientist who affirmed the presence of methamphetamine in a pen hull seized from Nowling’s home.

Christopher Stark v. State of Indiana
49A05-1104-CR-152
Criminal. On interlocutory appeal, affirms trial court’s denial of Stark’s motion to suppress evidence that he had a handgun in his possession, holding that a police officer found the gun when retrieving Starks’ coat and that any intrusion in finding the gun was minimal.

Ronald D. Tiede v. State of Indiana (NFP)
91A04-1105-CR-248
Criminal. Affirms trial court’s denial of motion to withdraw guilty pleas to two counts of Class B felony dealing in methamphetamine and affirms trial court’s modification of the sentence contained in Tiede’s plea agreement.

Jason Schapker v. State of Indiana (NFP)
55A01-1106-CR-258
Criminal. Affirms revocation of probation.

Gary Hollin v. State of Indiana (NFP)
16A01-1108-CR-389
Criminal. Affirms trial court’s sentence following determination that Hollin violated his probation.

In the Matter of M.K., I.K., and N.K.; R.K. and E.K. v. Indiana Department of Child Services and Stephen P. Griebel (NFP)
02A03-1104-JC-151
Juvenile. Reverses trial court’s determination that a couple’s three children were children in need of services, holding that the Department of Child Services was overzealous in removing the children from the parents’ care at a time when the family was intact but had suffered a series of unfortunate circumstances.

Daddys 'O Pub, LLC v. Purkey Enterprises, Inc. (NFP)
29A02-1105-PL-439
Civil plenary. Affirms trial court’s determination that an 1897 deed did not create an easement in Purkey Enterprises’ building that would enable the owners of an adjoining pub to use its stairway to access the second story of the pub’s building.

Nick Khanthamany v. State of Indiana (NFP)

49A02-1106-CR-497
Criminal. Affirms convictions of felony murder and conspiracy to commit robbery.

James Eubanks, Jr. v. State of Indiana (NFP)
45A03-1105-CR-212
Criminal. Affirms sentence for Class B felony burglary.

Samantha Bradley v. State of Indiana (NFP)
49A02-1106-CR-513
Criminal. Affirms convictions of Class A misdemeanor criminal trespass and Class A misdemeanor resisting law enforcement.

Susan Kohl v. Duane Kohl (NFP)
34A05-1105-DR-289
Domestic relation. Affirms trial court’s determination that that husband’s pension should not be included as a marital asset, but finding that the wife presented sufficient evidence to rebut the statutory presumption that an equal division of marital property is just and reasonable; remands to the trial court with instructions to award 60 percent of the marital estate to the wife and 40 percent to the husband.

Brien Clayton v. State of Indiana (NFP)
79A02-1102-CR-138
Criminal. Affirms conviction of Class A felony dealing in cocaine, finding harmless any error in the admission of opinion testimony and sufficient evidence to support the conviction.

Indiana Tax Court had issued no opinions by IL deadline.
 

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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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