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Opinions June 22, 2011

June 22, 2011
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7th Circuit Court of Appeals
United States of America v. Michael Lee Mokol Jr.
10-2334
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph Van Bokkelen.
Criminal. Affirms two convictions of being a felon in possession of a firearm. The District Court did not abuse its discretion in admitting bad acts testimony through Lori Miller’s testimony as to Mokol’s statement that he would put anyone who told on him “in the ground;” or in admitting bad acts evidence involving his daughter’s testimony about the gun “prank” in the Rising Sun parking lot. The District Court did not err in restricting cross-examination of his daughter and the District Court didn’t abuse its discretion by instructing the jury as to constructive possession.

Indiana Supreme Court
D.M. v. State of Indiana
49S02-1101-JV-11
Juvenile. Affirms admission of D.M.’s confession in a delinquency proceeding, in which D.M. claims he wasn’t afforded an opportunity for meaningful consultation with his mother and the waiver of his rights wasn’t knowing and voluntary. There was substantial evidence of probative value to support the decision to admit the confession. Also concludes the juvenile waiver form used by police in this case should be clarified.

Indiana Court of Appeals
Jerrme Cartwright v. State of Indiana
82A01-1005-CR-214
Criminal. Reverses Cartwright’s convictions of two counts of Class C felony attempted battery with a deadly weapon, two counts of Class B felony attempted aggravated battery, and one count of Class B felony possession of a handgun by a serious violent felon because the state’s proffered explanations for striking the only African-American juror from the jury panel were pretextual and the result of purposeful discrimination. Remands for a new trial. There is sufficient evidence to retry him on the attempted battery with a deadly weapon convictions. Judge Vaidik dissents.

Perry O. Jones v. State of Indiana (NFP)

34A02-1010-CR-1104
Criminal. Affirms calculation of pretrial and credit time.

Carl Andre Coleman v. State of Indiana (NFP)
20A05-1008-CR-553
Criminal. Grants petition for rehearing and remands with instructions that the trial court reinstate Coleman’s conviction of attempted rape and for sentencing on that offense. Affirms in all other respects.

Latoyia Tuggles v. State of Indiana (NFP)
49A02-1012-CR-1366
Criminal. Affirms convictions of Class C felony forgery and Class D felony theft.

D.H. v. State of Indiana (NFP)
49A02-1010-JV-1257
Juvenile. Dismisses appeal of order requiring D.H. to pay restitution.

Zachard D.A. Edwards v. State of Indiana (NFP)
48A02-1010-CR-1222
Criminal. Affirms order revoking home detention and probation.

Commitment of A.R. (NFP)
49A05-1011-MH-665
Mental health. Affirms order for temporary involuntary commitment.

Arden Balmer, Jr. v. State of Indiana (NFP)
71A05-1007-CR-570
Criminal. Affirms convictions of and sentence for felony murder and Class B felony criminal confinement.

Pete Burgmeier v. Robert Akin (NFP)
36A01-1009-SC-480
Small claim. Affirms award of $2,348.09 to Akin and denial of Burgmeier’s counterclaim seeking $5,020 in damages.

David B. Tyra v. State of Indiana (NFP)
05A04-1012-CR-762
Criminal. Affirms conviction of Class C felony operating a motor vehicle while privileges are forfeited for life.

Todd A. Harmon v. State of Indiana (NFP)
03A01-1011-CR-630
Criminal. Affirms conviction of Class D felony operating a vehicle while intoxicated.

Michael O. Branch v. State of Indiana (NFP)
84A01-1008-CR-458
Criminal. Affirms conviction of and sentence for Class D felony operating a vehicle as a habitual traffic violator.

Indiana Tax Court had posted no opinions at IL deadline.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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