Christopher Schmidt v. State of Indiana (10/28/04 IndCtApp) [Criminal Law & Procedure]
Najam, Judge
* * * Although the trial court erred when it instructed the jury that it could consider Schmidt’s refusal to submit to a chemical breath test as evidence of intoxication, we conclude that that error was harmless. We further conclude that the Pirtle doctrine does not apply to chemical breath tests. The prosecutor’s statement during closing argument was not improper, and the trial court did not abuse its discretion regarding any of the evidentiary rulings at issue on appeal. Affirmed.Eagledale Enterprises, LLC, d/b/a Club Mecca v. Danielle Cox & Martine Spencer (10/28/04 IndCtApp) [Torts]BARNES, J., concurs with separate opinion.
I concur in the majority opinion in full, and write to acknowledge that I voted to concur in the Luckhart decision and its approval of an instruction similar to the one disapproved of in this case. At the time Luckhart was issued, our supreme court had not yet decided Ludy. Whatever the sequence, I am convinced that Dill and Ludy compel the result reached here and that my vote in Luckhart would not be the same today, given the logic of the majority opinion and the combined effect of the Ludy and Dill decisions.SULLIVAN, J., dissents with separate opinion.
Although I concur with respect to the majority opinion’s treatment of Issues One, Three, Four, and Five, I respectfully dissent with respect to Issue Two and would reverse the judgment and remand for a new trial. * * *
In my view, the trial court’s exclusionary ruling as to Dr. McCoy was extended beyond what the trial court had actually said in its ruling upon the State’s Motion in Limine. The in-trial exclusionary ruling clearly indicated that it would have been futile for defense counsel to attempt to lay a foundation for admission of Dr. Pascuzzi’s report and to call Dr. McCoy as a witness.Had Dr. McCoy been permitted to testify, it is quite possible that the jury would have virtually discredited the validity of the field sobriety balancing tests and perhaps reached a different result in its verdict. For this reason I would reverse the judgment and remand for a new trial.
Eagledale Enterprises, LLC, doing business as Club Mecca (“the Club”), appeals the trial court’s judgment in favor of Martine Spencer and Danielle Cox that awarded them damages for injuries they suffered as a result of an altercation that occurred inside the Club. We affirm. * * *Kristin Hill v. Ebbets Partners Ltd. (10/28/04 IndCtApp) [Petition for Rehearing]Accordingly, we hold the trial court did not err in denying the Club’s motion to dismiss. Furthermore, sufficient evidence existed to support the trial court’s findings that the Club breached its duty to protect its patrons and that such breach proximately caused Spencer and Cox’s injuries. For these reasons, we affirm the judgment of the trial court. Affirmed.
KIRSCH, C.J., concurs.BAKER, J., dissents with opinion.
I respectfully dissent. In my view, the trial court should have granted the Club’s motion to dismiss Spencer’s complaint for lack of subject matter jurisdiction in light of the Exclusivity Clause of the Indiana Worker’s Compensation Act (the Act). * * *I must conclude—for all these reasons—that the evidence was insufficient to establish a causal relationship between the Club’s alleged breach of duty and the injuries that were sustained in the altercation. Hence, I vote to reverse the judgment of the trial court.
[Here the Court denies the petition because the petition and a request for an extension of time were filed one day after the deadline had passed.] "Thus, we are without legal authority to grant her request for rehearing, and the opinion is certified by operation of the Rules of Appellate Procedure." [However, the Court continues] "Nevertheless, we do have authority to sua sponte modify our opinions." [The Court then proceeds to clarify dicta in the opinion.]Ronald C. Howard, Jr. v. State of Indiana (10/28/04 IndCtApp) [Criminal Law & Procedure]
The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
Appellant-Defendant, Ronald C. Howard Jr. (Howard), appeals his conviction for Count I, child molesting, a Class A felony, Ind. Code § 35-42-4-3(a)(1). * * *Posted by Marcia Oddi at October 28, 2004 02:04 PMBased on the foregoing, we conclude that (1) no fundamental error occurred when C.C., a minor victim of child molestation, was allowed to testify prior to the trial court determining her competency to testify; (2) the State did not violate Howard’s right of confrontation by presenting C.C.’s deposition testimony to the jury after the trial court declared her to be unavailable; (3) the trial court did not abuse its discretion in admitting hearsay evidence; (4) the trial court did not abuse its discretion by denying Howard’s request to introduce evidence which would violate his own motion in limine; (5) the trial court did not err in denying Howard’s motion for mistrial; (6) the trial court properly instructed the jury regarding deposition testimony; and (7) the jury’s verdicts were not impermissibly inconsistent. Affirmed.
CRONE, J., and VAIDIK, J., concur.