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Opinions Nov. 17, 2010

November 17, 2010
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7th Circuit Court of Appeals
United States of America v. Rosalio Cruz-Rea and Zoyla Garcia-Rea
09-3591, 10-1355
U.S. District Court, Southern District of Indiana, Evansville Division, Chief Judge Richard L. Young.
Criminal. Affirms convictions of and sentences of Cruz-Rea for conspiracy to possess with intent to distribute more than five kilograms of cocaine and possession with intent to distribute 500 grams or more of cocaine, and convictions of and sentences for Garcia-Rea for conspiracy to possess with intent to distribute more than five kilograms of cocaine. The government didn’t abuse its discretion in determining that the government laid sufficient foundation for an officer’s voice identification testimony under Fed. Evid. Rule 901(b)(5). Affirms in all other respects.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Randy Horton v. State of Indiana
48A04-1001-CR-89
Criminal. Affirms convictions of and sentences for six counts of Class A felony child molesting and three counts of Class C felony child molesting. The trial court did not abuse its discretion in admitting a videotaped interview of a child-witness under the recorded recollection exception to the hearsay rule, and his sentence is not inappropriate considering the nature of the offenses and Horton’s character.

Darrian Bunch v. State of Indiana
49A04-1002-CR-120
Criminal. Reverses two of the three convictions of and sentences for criminal confinement against the same victim because they constituted only one distinct confinement and the convictions violate the Indiana Double Jeopardy clause. Remands with instructions that those two convictions and sentences be vacated. Affirms his other convictions and sentences for robbery, burglary, intimidation, criminal confinement pertaining to other victims, and carrying a handgun without a license.

R.A. v. State of Indiana
71A04-1005-JV-340
Juvenile. Reverses order that R.A. be committed to the Indiana Department of Correction given the facts of the case and the statutory policy favoring the least-harsh disposition. Remands with instructions for the juvenile court to vacate its dispositional decree and order his placement in an appropriate rehabilitative setting.

The Village Pines at the Pines of Greenwood Homeowners' Assn. Inc. v. The Pines of Greenwood Homeowners' Assn. Inc.
41A01-0912-CV-568
Civil. Reverses trial court ruling as it erred when it concluded that the controlling ordinances did not require the creation of a master homeowners’ association and for the shared use of amenities located in The Pines development. Remands for the trial court to order the parties to engage in mediation.

Gregory M. Small v. Frank A. Rogers

29A02-1001-PL-30
Civil plenary. Reverses summary judgment in favor of Rogers in his complaint for contribution against Small for the payments of interest under his guaranties that Rogers made to banks. The evidence shows that Rogers paid only a portion of the amounts due under the promissory notes and far less than his proportionate share of the debts owed to the banks, so the right to contribution does not apply in this case.

Marty McConnell v. State of Indiana (NFP)
18A02-1004-CR-400
Criminal. Affirms sentence following guilty plea to five counts of Class C felony robbery and one count of Class C felony possession of cocaine.

Anthony J. Woods v. State of Indiana (NFP)
49A04-1003-CR-158
Criminal. Affirms conviction of Class B felony possession of cocaine within 1,000 feet of a family housing complex.

Curtis E. Cash v. State of Indiana (NFP)
67A05-1005-CR-288
Criminal. Affirms convictions of and sentence for Class B felony attempted burglary, Class C felony attempted burglary, and being a habitual offender.

Kyle E. Beals v. State of Indiana (NFP)
49A02-1004-CR-453
Criminal. Affirms probation revocation and order Beals serve his previously suspended sentence.

Lisa Burress v. Brad Wells (NFP)
82A01-1003-DR-128
Domestic relation. Affirms modification of primary physical custody in favor of Wells and holding Burress in contempt.

Robert Burch, et al. v. Vern Penner (NFP)
85A04-1003-PL-169
Civil plenary. Affirms denial of the Burches’ motion for relief from judgment.

Tracy Trimble v. State of Indiana (NFP)
49A04-1003-CR-163
Criminal. Affirms convictions of Class D felony domestic battery and Class D felony strangulation. Remands with instructions to amend the abstract of judgment.

K.W. v. L.W. (NFP)
54A05-1003-DR-181
Domestic relation. Affirms order awarding L.W. primary physical custody of the parties’ minor child.

Michele Michaylo and Paul Michaylo v. Event Experts (NFP)
02A04-1007-SC-432
Small claims. Affirms judgment against Michaylo and in favor of Event Express for $5,800 in a dispute over a corporate sponsorship agreement.

Steve D. Eller v. State of Indiana (NFP)

14A05-0912-PC-690
Post conviction. Affirms denial of petition for post-conviction relief.

Hirman Jackson v. State of Indiana (NFP)
79A02-1001-CR-85
Criminal. Vacates conviction of and sentence for possession of a schedule I controlled substance as a Class D felony and affirms conviction of and sentence for dealing in a schedule I controlled substance as a Class B felony. Remands for a determination of Jackson’s ability to reimburse the county in part for the costs of his representation.

Jared Beeler v. State of Indiana (NFP)

02A05-1002-CR-153
Criminal. Affirms sentence following guilty plea to Class C felony child molesting, Class C felony vicarious sexual gratification, and Class A felony attempted child molesting.

Indiana Tax Court had posted no opinions at IL deadline.

The Indiana Supreme Court granted one transfer and denied 11 for the week ending Nov. 12.
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. 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)

  4. "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.

  5. 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.

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