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Opinions Sept. 18, 2013

September 18, 2013
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Indiana Supreme Court

The following opinion was issued after IL deadline Tuesday.


Kevin M. Clark v. State of Indiana
20S05-1301-CR-10
Criminal. Reverses conviction and 45-year sentence for Class A felony attempted dealing in methamphetamine, holding that police violated the Fourth Amendment protections of Kevin Clark when a late-night call regarding someone allegedly living improperly at a 24-hour self-storage unit instead became a “fishing expedition” for narcotics based on an officer’s hunch. Officers saw nothing illegal or appearing to constitute narcotics use, and evidence gathered from resulting search must be suppressed as fruit of the poison tree, a 4-1 majority ruled. Justice Mark Massa dissented, holding that when Clark dropped a bag as police approached, it provided reasonable suspicion, as did Clark’s subsequent admission that the bag contained marijuana.

Indiana Court of Appeals

Mario A. Allen v. State of Indiana
46A04-1203-CR-143
Criminal. Affirms conviction for attempted robbery, a Class B felony, attempted robbery, a Class B felony, and adjudication as a habitual offender. Finds the trial court did not abuse its discretion by admitting into evidence Allen’s arrest report and a co-defendant’s handwritten statement to police. Also rules the trial court properly excluded Allen’s proffered exhibit of an undated taxi cab receipt. Concludes the evidence was sufficient to sustain Allen’s conviction and that Allen abandoned his request for an early trial.

Anonymous, M.D. and Life Care Centers of America, Inc., d/b/a Lane House v. Evelyn Hendricks
79A04-1304-CT-185        
Civil tort. Reverses and remands the denial of Lane House’s motion to stay the proceedings and compel arbitration. Rules although Hendricks did not sign the arbitration agreement herself, she expressly authorized her health care representative to sign and she is now bound by that signing. Also finds that language in the agreement clearly indicates while the National Arbitration Forum is the preferred arbitrator, another arbitration service or method can be used.  

Lifeline Youth & Family Services v. Installed Building Products, Inc. d/b/a Momper Insulation
02A03-1211-CT-502
Civil tort. Affirms trial court denial of motion to correct error over a jury’s award of damages resulting from a fire. Lifeline sought an order to increase the jury’s award of damages from 55 percent of the loss to 100 percent, but the panel ruled that evidence Lifeline relied on to make its argument was not properly before the court because no transcript had been provided.

Brenda Hall v. Dallman Contractors, LLC, Shook, LLC and AT&T Services, Inc.
49A02-1210-CT-806
Civil tort. Reverses and remands a trial court grant of summary judgment in favor of AT&T Services Inc. The court found there are issues of material fact concerning whether AT&T Services was Hall’s employer or a joint employer, and that the company has not established that Hall’s negligence claim against it was barred by the exclusive remedy provision of the Worker’s Compensation Act.

Anthony Michael Davis v. State of Indiana (NFP)
45A05-1302-CR-57
Criminal. Affirms six-year sentence for conviction of Class C felony operating a vehicle after a lifetime suspension.

David Barbee v. State of Indiana (NFP)
49A04-0907-CR-370
Criminal. Affirms denial of motion to correct error challenging his convictions of murder and Class C felony carrying a handgun without a license.

Billye D. Gaulden v. State of Indiana (NFP)
02A04-1212-CR-651
Criminal. Affirms conviction and 50-year sentence for conviction of Class B felony robbery and two counts of Class D felony resisting law enforcement.

Carlos Lamonte Minor v. State of Indiana (NFP)
45A05-1302-CR-85
Criminal. Affirms 12-year sentence for conviction of Class B felony voluntary manslaughter.

Jennifer Barber v. State of Indiana (NFP)
49A04-1208-CR-395
Criminal. Affirms convictions of Class A misdemeanor operating a vehicle while intoxicated and Class C misdemeanor failure to stop and remain at the scene of an accident.

Sanders Johnson v. State of Indiana (NFP)
49A02-1211-CR-904
Criminal. Affirms conviction of murder and being a habitual offender.

Ryan Schonabaum v. State of Indiana (NFP)
82A04-1302-CR-44
Criminal. Affirms 50-year sentence for conviction of two counts of Class A felony child molesting.

Certain Properties Being Sold for Delinquent Taxes; Tax Sale Certificate #3910192 Parcel #39-0-17-114-024.000-007; Norman Eggers v. MLP Services, LLP and Jefferson County, IN. Auditor, et al. (NFP)
39A01-1211-MI-527
Miscellaneous. Affirms issuance of a tax deed to MLP Services and remands to the trial court to determine damages for an appeal brought in bad faith.

The Indiana Supreme Court and Tax Court issued no opinions prior to IL deadline. The 7th Circuit Court of Appeals issued no Indiana decisions prior to IL deadline.

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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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