Darald Carew v. State of Indiana (11/9/04 IndCtApp) [Criminal Law & Procedure]
Vaidik, Judge
Darald W. Carew appeals the denial of his petition for post-conviction relief. Specifically, Carew contends that his appellate counsel was ineffective for failing to challenge on direct appeal the trial court’s exclusion of his expert’s opinion testimony. In particular, if allowed by the trial court, the expert would have opined that the detective used techniques during Carew’s interview that would increase the likelihood of a false confession from someone with an IQ in the range of Carew. We conclude that Carew’s appellate counsel was deficient because his decision to forego this issue was not reasonable given the extraordinary efforts of trial counsel to place this very issue before the appellate courts, including coordinating the challenge of this issue with Miller v. State—which was a case being tried around the same time as Carew’s case that involved a similar issue—and because this issue was supported by precedent available at the time of Carew’s direct appeal. We also find that Carew’s appellate counsel’s deficient performance prejudiced him because the appellate attorney in Miller v. State raised this issue on direct appeal, and the Indiana Supreme Court reversed Miller’s convictions and awarded him a new trial. Under these circumstances, we reverse the denial of Carew’s petition for post-conviction relief and remand this case for a new trial. * * *Teresa Teeters v. State of Indiana (11/9/04 IndCtApp) [Criminal Law & Procedure]Although this case and Miller are not identical, the issue is substantially the same, which is not surprising considering that Casanova chose to coordinate Carew’s defense with that of Miller: whether the trial court erred in excluding expert opinion testimony regarding coercive police tactics used in the interrogation of an individual with diminished intellectual functioning. The Miller court, relying extensively on Callis, concluded that the exclusion of such testimony deprived the defendant of the opportunity to present a defense and ordered a new trial. In light of the result in Miller, had O’Connor challenged the trial court’s exclusion of Dr. Olvera’s opinion testimony on direct appeal, there is a reasonable probability that Carew’s convictions would have been reversed. Accordingly, we conclude that O’Connor’s deficient performance prejudiced Carew. Although we rarely find that appellate counsel is ineffective, based on the circumstances present here, we are convinced that this is one such case. We therefore reverse the denial of Carew’s petition for post-conviction relief and remand this case for a new trial. Reversed.
MAY, J., concurs.SULLIVAN, J., dissents with separate opinion.
The offer to prove as to Olvera’s testimony related principally to police interrogation techniques as such techniques “would increase the likelihood of a false confession.” This is a different issue than whether such techniques would so coerce or intimidate as to make a confession involuntary. To this extent the offer was directed to an opinion of Dr. Olvera which would be inadmissible in evidence. * * *The matter of the police interrogation tactics and technique were before the court and the jury, as was Carew’s IQ as testified to by Dr. Olvera. O’Connor was justified in concluding that those factors would “carry the day” as to the permissible inference which could be drawn by the jury as to voluntariness. He also made a reasonable strategic decision not to cloud up the voluntariness issue by Olvera’s proffered testimony which focused upon whether the confession was likely to be false rather than whether it was involuntary. He very specifically noted the distinction between an involuntary and a false confession.
I would affirm the denial of post-conviction relief.
Teresa Teeters appeals her conviction for battery while armed with a deadly weapon. She contends that the evidence is insufficient to support her conviction and that her sentence is inappropriate. Because the evidence in support of her conviction is sufficient and the sentence is appropriate and not in violation of the United States Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), reh’g denied, we affirm. * * *Mae Belle Lane v. St. Joseph's Regional Medical Center (11/9/04 IndCtApp) [Torts]Thus, the only problematic aggravator—problematic only in the sense that it was neither proven beyond a reasonable doubt nor admitted by the defendant—is that Teeters was on probation at the time of the offense. Ultimately we do not need to resolve this because a single aggravating circumstance is adequate to justify a sentence enhancement. Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002), reh’g denied. In the end, even if our supreme court did find that Indiana’s sentencing scheme violates the Sixth Amendment as interpreted in Blakely, such finding would have no effect on Teeters’ sentence. * * *
Affirmed.
SULLIVAN, J., and MAY, J., concur.
[Here the plaintiff was attacked while sitting in the waiting room by another person in the waiting room of St. Joseph’s Regional Medical Center.] * * * To recover under the tort of negligence, a plaintiff must establish three elements: (1) a duty on the part of the defendant owed to the plaintiff, (2) a breach of that duty, and (3) an injury to the plaintiff proximately caused by the breach.Dante Adams v. State of Indiana, Indiana Dept. of Revenue (11/8/04 IndTaxCt) -NFP [Controlled substance excise tax (CSET)]Much of the argument presented to the trial court during the summary judgment proceedings focused upon whether the Center owed a duty to Lane to protect her from the criminal acts of a third party. Specifically, the parties focused upon whether the actions of D.G. were foreseeable, so that a duty arose on the part of the Center. The trial court concluded that the criminal actions of D.G. were not foreseeable, and thus, the Center owed no duty to Lane to protect her from D.G.
Since the time that the trial court granted summary judgment, our Supreme Court addressed the question of under what circumstances a business owes a duty to an invitee to protect her from the criminal acts of a third person. * * *
Turning now to the facts before us, we must decide whether a well-settled duty exists such that the hospital was required to maintain security for the protection of its patients, or whether we must look to the totality of the circumstances to determine whether a duty should exist. As noted earlier, it is not clear how our Supreme Court reached the conclusion that the existence of a duty was well-settled in Bartolini. However, as noted above, our reading of Bartolini leads to the conclusion that the existence of a duty is well-settled when one would expect that a criminal act of a third party is likely to occur upon the premises.
There can be little dispute that a hospital’s emergency room can be the scene of violent and criminal behavior. * * *Thus, the Center had the duty to implement and maintain reasonable measures to protect emergency room patients from criminal acts of third parties. See footnote Consequently, the trial court’s conclusion that no duty existed and that summary judgment was proper upon that ground is erroneous.
We thus turn our attention to the issue presented by the Center. Specifically, were the Center’s actions or inactions the proximate cause of Lane’s injury? * * *
The evidence which was designated to the trial court reveals that Lane testified in her deposition that she was “surprised” when D.G. began to hit her. Her son-in-law testified that he too was surprised and that they did not know what set off the attack. Given that the designated evidence in this case depicts a situation in which the attack upon Lane by D.G. was unexpected and that no other evidence was designated to the trial court from which it could have concluded that the specific actions of D.G. on the day in question were foreseeable, we are bound to conclude that the attack and injury was not foreseeable, that the Center’s actions were not the proximate cause of Lane’s injuries, and that the Center is entitled to judgment as a matter of law.
Summary judgment in favor of the Center is affirmed.
MAY, J., concurs.VAIDIK, J., concurs in part and dissents in part with separate opinion.
I concur that the Center owes a duty of care to Lane but disagree with the reasoning the majority uses to reach this conclusion. I, however, respectfully disagree that the acts of the Center as a matter of law were not the proximate cause of Lane’s injuries. * * *While evidence was presented that both Lane and her son-in-law were “surprised” by the attack, this does not establish conclusively that the attack was foreseeable or that it was not. Many acts of violence happen suddenly, and many victims are undoubtedly surprised when they are victimized. Furthermore, it is conceivable that a trained security officer stationed in or near the emergency room would have been able to prevent the attack by picking up on warning signs of an imminent attack or an unstable individual, by springing to action more quickly than a lay bystander, or by deterring potential assailants. The fact that the victim in this case was surprised does not necessarily mean that the attack was unforeseeable to the Center. On the other hand, the fact that the assailant was stopped only by Lane’s son-in-law, not a security officer from the Center, does not necessarily mean that the attack was a natural and probable consequence of the failure of the Center to provide security in Lane’s proximity. It may be that no security officer or system would have been able to prevent the attack on Lane. In any event, whether the Center’s acts proximately caused Lane’s injuries—that is, whether the injury was foreseeable under the circumstances—is a question of fact for the jury. Therefore, I dissent from the majority’s conclusion that summary judgment was appropriate.
* * * Under the CSET’s statutory framework, Adams became liable for the CSET when he took possession of cocaine. On March 23, 1998, when the Department discovered that Adams was in possession of cocaine and had not paid the CSET, it issued an assessment and demand notice for payment of the CSET. It was only after Adams failed to remit payment to the Department, and after the prosecutor’s office notified the Department that it would not be pursuing criminal charges, that the Department commenced collection proceedings by filing a “warrant for collection of tax” pursuant to [IC] 6-8.1-5-3. Therefore, until March 31, 1998, when the jeopardy tax warrant was filed, Adams was free to pay the CSET and avoid action to collect the liability by the Department. Thus, the Court concludes that the Department followed the statutory procedures for imposing and collecting the CSET.Posted by Marcia Oddi at November 9, 2004 02:05 PMConclusion. For the aforementioned reasons, the Court AFFIRMS the final determination of the Department.