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Women who dodged orders to appear at trial properly declared unavailable

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The Indiana Court of Appeals affirmed a teen’s conviction of felony robbery, finding the trial court did not abuse its discretion in declaring two women unavailable for his trial and admitting their depositions at his trial.

Kevin Davis was charged with Class A felony robbery resulting in serious bodily injury after prosecutors alleged he and another man stopped Kevin Taylor on his bike, attempted to sell him marijuana, and then beat him with a brick when he refused. Taylor’s shoes, money, drugs and bicycle were stolen during the robbery.

Dorothy Davis, Kevin Davis’ biological aunt and adoptive mother, called police the day of the robbery and said a robbery had occurred in front of her house the night before. L.H., a cousin to Kevin Davis, told police that she was home at the time of the incident and identified Davis to the officer as one of the people who beat and robbed Taylor. Dorothy Davis allowed police to search her home, where police found Taylor’s shoes and a bottle of alcohol in the trash. A.D., Dorothy Davis’ daughter, had taken photos of the bloody scene on the cell phone, which she gave to police.

But when it came time for Kevin Davis’ trial, his mother and adopted sister refused to show up in court to testify, despite multiple requests and orders from the court. L.H. took the stand, but said she didn’t remember witnessing the robbery and didn’t remember anything associated with it. She denied identifying Kevin Davis as being involved.

The prosecution moved to admit Dorothy Davis and her daughter’s depositions because they made themselves unavailable for trial. The trial court admitted them over Kevin Davis’ objections and he was convicted as charged.

On appeal, the Court of Appeals agreed that the two women made themselves unavailable for trial so there was no abuse by the trial court to admit their depositions. Dorothy was held in contempt for not appearing, and still did not show up at trial when ordered. When police went to her home, the people inside refused to open the door.

The judges also affirmed the admittance of L.H.’s prior statements to police. As she testified at trial, she was subject to cross-examination concerning her out-of-court statements, and the trial court was free to believe or disbelieve her testimony and assess her credibility.

Kevin Davis also argued there wasn’t sufficient evidence to support his conviction because the testimony admitted of his mother, adopted sister and cousin should not have been admitted, as well as the photos A.D. gave to police.  But L.H.’s statements to police were properly admitted, Taylor made an in-court identification of Davis as the person who started the robbery, and Davis had Taylor’s blood on his shoes and clothing.

The case is Kevin Davis v. State of Indiana, 49A05-1310-CR-523.

 

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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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