ILNews

Supreme Court grants 2 transfers

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The state's highest court has agreed to hear a case dealing with Indiana's habitual offender statute and another case involving the requirements for a cheek-swab DNA test.

In Andre Syval Peoples v. State of Indiana, No. 79S02-0912-CR-549, the Indiana Court of Appeals concluded a trial court was correct in interpreting the habitual offender statute to include Andre People's instant conviction of Class B felony dealing in cocaine as one of the "unrelated" convictions referred to in the statute. Peoples pleaded guilty to the dealing charge and had two prior felony convictions in Illinois - forgery and possession of cocaine with intent to deliver.

Peoples argued the habitual offender enhancement can't be attached to his instant conviction under Indiana Code Section 35-50-2-8(b)(3) of the habitual offender statute because his instant conviction is a drug offense, satisfying subsection (b)(3)(A). Also, he argued his number of priors for dealing doesn't exceed one, which satisfies subsection (b)(3)(C)(i)-(v) of the statute.

The judges agreed with the state's argument that the statute isn't limited to only prior convictions but requires the summation of the total number of unrelated convictions a defendant has gotten for dealing drugs. The absence of the word "prior" from those two subsections reflects legislative intent to include the instant conviction as one of the "unrelated" convictions referred to in those subsections, the appellate court ruled.

In Arturo Garcia-Torres v. State of Indiana, No. 64S03-0912-CR-550, the Court of Appeals split in its ruling that taking a cheek swab for DNA testing requires only reasonable suspicion, not probable cause, under the federal and state constitutions. The majority determined police didn't need a warrant before obtaining the cheek swab for Arturo Garcia-Torres, who was later convicted of rape, burglary, and attempted rape in the attacks of two college students, because they had reasonable suspicion he committed them.

The majority also reasoned that getting the cheek swab involves much less impact on the subject than some other searches that may be conducted on mere reasonable suspicion.

Judge Terry Crone argued in his dissent that taking the swab from a custodial suspect requires probable cause under the Fourth Amendment and is subject to the advice-of-counsel requirements of Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975).

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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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