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Opinions May 30, 2013

May 30, 2013
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7th Circuit Court of Appeals
United States of America v. Daniel L. Delaney
12-2849
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Jane Magnus-Stinson.
Criminal. Delaney’s argument that no reasonable juror could have failed to find that he acted in the heat of passion when he killed his cellmate fails because there was considerable evidence of forethought, much of it emanating from the defendant’s own statements. Judge Bauer concurs.

Indiana Court of Appeals
In the Matter of the Parent-Child Rel. of: B.H. & B.H., and T.H. v. The Indiana Dept. of Child Services
52A02-1210-JT-849
Juvenile. Affirms termination of parental rights. Holds the social worker who testified about a parenting assessment called Child Abuse Potential Inventory was able to testify as an expert witness in this case based on Ind. Evidence Rule 702. Concludes that CAPI is based on reliable principles and therefore the trial court did not err by allowing testimony about mother T.H.’s CAPI results.

Jeffrey Embrey v. State of Indiana
82A01-1211-CR-494
Criminal. Affirms conviction of Class C felony neglect of a dependent. The trial court acted within its discretion in admitting certain evidence under the business records exception to the hearsay rule, and the evidence is sufficient to sustain Embrey’s conviction.

Dean Eric Blanck v. State of Indiana
47A01-1209-CR-424
Criminal. Affirms denial of petitions for permission to file a belated notice of appeal and for appointment of appellate counsel. Because Blanck is ineligible to bring a belated appeal under Post-Conviction Rule 2, the trial court properly denied his petition to appoint counsel for that purpose.

Joshua Lindsey v. Adam Neher
08A04-1211-MI-575
Miscellaneous. Reverses denial of Lindsey’s motion to rescind a tax deed issued to Neher. The tax deed at issue was invalid and the judgment void as a matter of law, so Lindsey is entitled to be allowed to tender his redemption payment. Remands for an order that the Carroll County auditor accept redemption funds from Lindsey.

United Farm Family Mutual Insurance Co. v. Indiana Insurance Co. and Royal Crown Bottling Corp. (NFP)
49A02-1211-PL-914
Civil plenary. Affirms summary judgment in favor of Indiana Insurance Co. and Royal Crown Bottling Corp. on whose auto insurance should cover damage from an accident a spouse was involved in with a company car.

Michael Toney v. State of Indiana (NFP)
79A04-1209-CR-471
Criminal. Affirms convictions of Class A felony dealing in methamphetamine and Class B felony possession of a firearm by a serious violent felon, but reverses sentence because the trial court abused its discretion in ordering the habitual offender enhancement be served consecutive to the two counts. Remands for resentencing.

Aaron Wiegand v. State of Indiana (NFP)
02A04-1210-CR-502
Criminal. Affirms denial of petition to withdraw guilty pleas for unlawful possession of a firearm by a serious violent felon as a Class B felony and criminal recklessness as a Class C felony.

Kristi Gates v. State of Indiana (NFP)
87A01-1210-CR-484
Criminal. Affirms denial of motion to suppress evidence obtained upon the execution of two search warrants.

Brian T. Martin v. State of Indiana (NFP)
71A03-1210-CR-446
Criminal. Affirms conviction of Class C misdemeanor operating while intoxicated, which was the underlying conviction for Martin’s Class D felony OWI conviction.

In Re: The Marriage of Kenneth G. Haynie, Jr. v. Teresa H. Haynie (NFP)
82A01-1206-DR-265
Domestic relation. Affirms court’s decision to set aside to wife assets that she had inherited. Reverses in part dissolution decree because it and an order on motion to correct error do not correspond with a substantially equal division of the remaining assets. The husband is entitled to an order for the transfer of assets actually allocated to him by the dissolution court in its division of marital assets.

James King v. State of Indiana (NFP)
49A02-1210-CR-858
Criminal. Affirms denial of petition for permission to file a belated notice of appeal.

Michael and Brenda Gralia v. Butler Garden Center (NFP)
67A01-1301-CT-26
Civil tort. Reverses trial court order granting Butler’s motion to dismiss a breach of contract claim and remands for further proceedings.

Russell Grady v. State of Indiana (NFP)

49A02-1210-CR-854
Criminal. Affirms conviction of Class A misdemeanor battery.

The Indiana Supreme Court and Tax Court posted no decisions by 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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