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Monday, March 24, 2008
Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP) [Corrected]
For publication opinions today (4):
Andrew Joseph Scott v. State of Indiana - "We conclude that the probable cause affidavit was properly filed and that the associated search warrant was supported by sufficient probable cause. Moreover, we conclude that information that ether had been detected within the prior two months at Scott’s residence and that he had been convicted four years previously of manufacturing methamphetamine at the same address was not stale. The judgment of the trial court is affirmed."
Johnson County Rural Electric Membership Corp. and American Meter Reading, LLC. v. South Central Indiana Rural Electric Memebership Corp. - "Johnson County REMC timely filed its motion for automatic change of judge and the trial court was required to grant it; Johnson County REMC did not waive its right to challenge the denial of that motion. We reverse and remand for further proceedings consistent with this opinion, including selection of a special judge in accordance with Indiana Trial Rule 79. Reversed and remanded."
In Nassirou Gado v. State of Indiana , a 9-page opinion, Judge Barnes writes:
We do not believe a trial court has to accept at face value a defendant’s professed lack of understanding of English, anymore than it must accept an assertion of incompetency to stand trial, or must accept in-court disruptiveness as indicative of incompetency. See Bramley v. State, 543 N.E.2d 629, 633-34 (Ind. 1989) (holding, with respect to competency findings, that a trial court has a duty to ensure “that causes are tried and final determinations made” and that “[i]t would be impossible to accomplish this if a defendant is permitted to purposely frustrate the procedures by disruptive behavior.”). The trial court here essentially found that Gado intentionally was attempting to frustrate his prosecution by faking inability to communicate in any language other than Djerma, a rare language for which it is very difficult to find interpreters. There is evidence in the record to support that conclusion and that Gado adequately understood English, and possibly French, so as to proceed with his trial without the aid of a Djerma interpreter. The trial court was in the best position to judge witness credibility firsthand and decide whether Gado required an interpreter. It did not abuse its discretion in concluding that he did not. * * *State of Indiana v. Christopher L.Rager - "We conclude that Deputy Feller mistakenly believed that Rager violated the statute. State Road 9 was not a four-lane highway at the site of Deputy Feller’s traffic stop, and therefore Rager was not required by statute to change lanes as he approached Deputy Feller’s vehicle.4 Moreover, Deputy Feller had no idea whether Rager reduced the speed of his vehicle as he approached the site of the traffic stop, and there is no indication that Rager was maintaining an unsafe speed for the existing road conditions. After viewing the videotape of the traffic stop recorded from Deputy Feller’s vehicle, the trial court remarked that it did not “see much difference” in the speed of Rager’s truck compared with the speed of the other passing vehicles. Tr. at 17. Under these circumstances, we conclude that Deputy Feller, and by extension Marshal Fennell, did not have an objectively justifiable reason to stop Rager’s vehicle. Therefore, we affirm the trial court’s granting of Rager’s motion to suppress. Affirmed.The trial court did not abuse its discretion in proceeding to trial without obtaining a Djerma interpreter and in admitting items found in Felemban’s apartment into evidence. We affirm.
NFP civil opinions today (3):
The City of East Chicago, Indiana v. Herbert and Alma Lasser (NFP) - "Here, the termination agreement did not embrace the entire substance of the former contract. At the most, it included a settlement provision and terms for the removal of fixtures. Further, the termination agreement contains no express indication that either party intended to repudiate the original lease agreement. We cannot conclude that the original lease agreement was merged into the termination agreement. The trial court properly awarded the Lassers property damages and attorney fees pursuant to the original lease agreement.
"Conclusion The security system and wire cages were fixtures, and East Chicago improperly removed them when it vacated the property. The original lease agreement did not merge into the termination agreement. We affirm."
Shavaughn Carlos Wilson-El v. Indiana Dept. of Correction (NFP)
NFP criminal opinions today (3):
Preston Woods v. State of Indiana (NFP)
Daniel Carmichael v. State of Indiana (NFP)
Misty Dawn Boyer v. State of Indiana (NFP)
Posted by Marcia Oddi on March 24, 2008 01:02 PM
Posted to Ind. App.Ct. Decisions