Alfred J. Pivarnik

Kevin Lee Hough was charged with the knowing or intentional murders of two men in Allen County, Indiana; a jury convicted him on both counts and recommended the death penalty, which the trial court imposed after finding that aggravating factors outweighed any mitigating circumstances. On direct appeal, Hough raised six issues, including the introduction of victim-family statements and letters at sentencing, denial of expert assistance, chain-of-custody problems with evidence, inclusion of a robbery allegation in the death-penalty application, use of statutory aggravators, and allegedly erroneous jury instructions. The Indiana Supreme Court affirmed the convictions and death sentence, holding that any unpreserved claims did not rise to fundamental error, that the evidence was properly admitted, and that the sentencing process complied with constitutional requirements; on rehearing the court corrected only the premature setting of an execution date under Criminal Rule 24(G). The core reasoning rested on waiver doctrines, harmless-error analysis, and deference to the trial court's weighing of aggravators and mitigators.

criminal lawprocedure

In Peck v. State, appellant Bobby Luis Peck was convicted of murder after shooting victim Wayne Mack during an early-morning encounter in South Bend and appealed on grounds that the trial court improperly consolidated his trial with his brother's, allowed certain witness testimony about fear and distances, and required closing arguments and jury deliberations after 9 p.m. The Indiana Supreme Court affirmed the conviction, holding that consolidation was within the trial court's discretion absent a showing of actual prejudice from shared peremptory challenges or other evidence, that evidentiary rulings did not constitute reversible error, and that the late-hour proceedings reflected no abuse of discretion or compromise verdict given the evidence supporting Peck's guilt. The court further noted that the jury's acquittal of the co-defendant on an assisting-a-criminal charge did not undermine the murder conviction, as Indiana juries determine both law and facts.

criminal lawprocedure

This case involved a class of Gary, Indiana citizens who sued the city, its mayor, police officials, and the state police superintendent after the city stopped providing state handgun permit application forms starting in 1980, allegedly violating their rights under 42 U.S.C. § 1983 and the Indiana Firearms Act. A jury found in favor of the plaintiffs against the city and local officials, awarding damages and leading to a permanent injunction and attorney fees; the state superintendent was exonerated. The Court of Appeals reversed on procedural grounds, holding that the plaintiffs failed to comply with the Indiana Tort Claims Act's requirement to wait for claim denial before suing. The Indiana Supreme Court granted transfer and vacated the appeals court decision, ruling that the Tort Claims Act's notice and exhaustion rules do not apply to federal § 1983 claims under U.S. Supreme Court precedent in Felder v. Casey. The court also addressed attorney fee calculations but remanded for further proceedings consistent with its opinion.

civil rightsgunsprocedurefederal power

The case involved Jessie Ray Brewer, who was convicted of two counts of child molesting (one Class C felony and one Class B felony) based on multiple incidents with a ten-year-old victim and his own daughter in the victim's grandmother's home. Brewer appealed, challenging the sufficiency of the evidence, the admission of uncharged acts under the depraved sexual instinct rule, and the length of his concurrent sentences totaling twenty years. The Indiana Supreme Court affirmed the convictions and sentence, finding the children's testimony competent and not incredibly dubious, the uncharged acts properly admitted, and the sentence justified by the defendant's position of trust and repeated conduct. A concurring and dissenting opinion argued for remand due to insufficient consideration of mitigating factors in imposing the maximum sentence.

criminal law

This case involved Michael White, who pleaded guilty to battery and received a suspended sentence conditioned on completing ten days of alternative service, paying fines and restitution, and complying with supervised probation for six months. After a probation officer petitioned for revocation due to multiple failures including non-completion of the service, the trial court revoked probation before the term expired, citing the missed alternative service. The Court of Appeals reversed, finding error because no completion deadline had been specified. The Indiana Supreme Court vacated that decision and affirmed the trial court, reasoning that probation serves as a rehabilitative tool allowing judicial oversight during the term, and that courts lose jurisdiction to enforce conditions once probation expires.

criminal lawprocedure

The case concerned a divorced husband's petition to modify maintenance payments under a dissolution decree incorporating a separation agreement, based on the wife's cohabitation with another man, and to reclassify his military retirement pay as modifiable maintenance rather than property. The trial court terminated maintenance due to the wife's subsequent remarriage but denied modification of the retirement payments, finding no substantial change warranting alteration of the original orders. The Indiana Supreme Court affirmed, holding that the agreement's provisions in paragraph 3 addressed modifiable maintenance while paragraph 4 created a final, non-modifiable property division of retirement benefits, which courts cannot revise regardless of later circumstances.

family lawproperty

The case concerned a challenge by the Fraternal Order of Police and Evansville police officers to Standard Operating Procedure 313.00, which barred off-duty employment at establishments serving alcohol. The trial court upheld the rule as rationally related to legitimate public interests, the Court of Appeals reversed, and the Indiana Supreme Court granted transfer and affirmed the trial court's judgment in favor of the City. The Court held that tenured police officers challenging such employment regulations bear the burden of proving no rational connection to the promotion of safety of persons and property, found the City's concerns about conflicts of interest and potential liability sufficient under that standard, and vacated the appellate decision.

labor & employment

This case involved a dispute over a commercial parking lot lease at a shopping center, where the lease prohibited assignment or subletting without the landlord's consent but did not specify that consent could not be unreasonably withheld. After Key Markets sought to assign its interest in the lease to another grocer, First Federal (the successor landlord) refused consent and attempted to cancel the lease under its terms. The trial court and Court of Appeals held that the landlord had a duty not to unreasonably withhold consent and enjoined cancellation, applying a reasonableness standard to the consent provision. The Indiana Supreme Court reversed on that issue, holding that the lease terms were clear and unambiguous, so the parties were bound by the contract as written without adding an implied reasonableness requirement, while affirming the lower courts' ruling against cancellation. The court emphasized that experienced business parties did not require judicial imposition of additional terms like good faith or commercial reasonableness.

propertybusiness & regulatory

This case concerned whether an easement appurtenant granted 'for the purpose of access to Eagle Lake' in a 1975 warranty deed allowed the dominant estate owners (the Klotzes) to construct, maintain, and use a pier at the lake end of the six-foot-wide easement on the servient estate owned by the Horns. The trial court granted summary judgment to the Horns, finding no such right existed because riparian rights had not been expressly conveyed, and the Court of Appeals affirmed. The Indiana Supreme Court reversed, holding that the proper inquiry is not whether riparian rights were transferred but what the original parties intended when creating the easement, which requires examining the surrounding facts and circumstances to determine if a pier is reasonably necessary for lake access. The court remanded for further proceedings to balance the interests of the parties based on that intent and the easement's purpose.

property

This case involved a dispute over whether plaintiff George Buchonok timely filed a complaint for tortious conversion after defendant Emerick removed tools, parts, and equipment from a building that Buchonok had used for his truck repair business. The trial court awarded Buchonok $16,739 in compensatory damages, finding that the removal occurred as a continuous act on December 29 and 30, 1982, making the December 28, 1984 filing fall within the two-year statute of limitations. The Court of Appeals reversed, holding that the limitations period had expired. On transfer, the Indiana Supreme Court vacated the appellate decision and reinstated the trial court's judgment, concluding that the trial court's factual findings on the timing of the conversion were supported by the evidence and should not have been reweighed on appeal.

torts & liabilityprocedure

In Drake v. State, the defendant was convicted of Class A felony child molesting and Class B felony criminal confinement after evidence showed he abducted and sexually assaulted a 15-year-old girl at gunpoint. On direct appeal, Drake raised six claims of trial court error, including failure to promptly release him on recognizance under Criminal Rule 4(A), admission of certain testimony, issuance of a search warrant, striking a defense witness's testimony after invocation of the Fifth Amendment, inadequate time to review the presentence report, and improper sentence enhancement based on his criminal history and attempt to flee during trial. The Indiana Supreme Court rejected each claim, holding that any procedural delays or evidentiary rulings did not require reversal, that the witness-striking decision was proper, and that the trial court permissibly considered the defendant's prior felonies and flight attempt when enhancing the sentence from the presumptive term to fifty years. The court therefore affirmed the convictions and concurrent fifty-year sentence.

criminal lawprocedure

In Ford v. State, defendant Norman Ford appealed his convictions for rape and criminal deviate conduct, both Class A felonies, along with his habitual offender finding and resulting 70-year sentence, raising three issues: error in giving a jury instruction on flight, denial of a mistrial motion based on the trial court's remarks before the habitual offender phase, and sufficiency of the evidence supporting the convictions. The court determined that the challenge to the flight instruction was waived because the defendant failed to preserve his objection in the record. On the sufficiency claim, the court concluded that the victim's testimony provided substantial probative evidence of the crimes, and it was the jury's role to resolve conflicts with the defendant's testimony, leading to affirmance of the trial court's judgment.

criminal lawprocedure

The case involved Donald Ray Wallace's appeal from the denial of post-conviction relief after his jury convictions on four counts of murder and imposition of the death penalty, which had been affirmed on direct appeal. Wallace raised eighteen consolidated claims in post-conviction proceedings, including ineffective assistance of trial and appellate counsel, denial of a fair hearing due to hybrid representation and judicial conduct, improper jury instructions on the death penalty's advisory role, use of non-statutory aggravating factors, and challenges to the sentencing process. The Indiana Supreme Court affirmed the post-conviction court's denial of relief, applying the standard that the petitioner bears the burden of proof by a preponderance of the evidence and that review of a negative judgment is limited to cases where the evidence leads to only one conclusion. The court reviewed the issues on the merits because the State had not properly preserved waiver arguments and noted that post-conviction relief is not a substitute for direct appeal.

criminal lawprocedure

James Campbell was convicted following a jury trial of two counts of child molesting, a Class C felony, and sentenced to consecutive terms. On direct appeal, he challenged the trial court's refusal to strike for cause a prospective juror who expressed strong, unyielding views that criminals should be isolated from society and who had previously petitioned to expel criminals from his city, as well as the subsequent denial of an extra peremptory challenge after Campbell exhausted his allotted challenges. The Indiana Supreme Court reversed the convictions and ordered a new trial, reasoning that the juror's expressed biases against persons charged with crimes like those at issue created a risk that he would not decide guilt or innocence impartially based on the evidence, thereby denying Campbell his due process right to a fair and impartial jury. The court noted that although the juror stated he could be fair, his philosophical views on punishment were sufficiently strong to warrant removal for cause under Indiana law.

criminal lawprocedure

The case involved Doyle Dowler, who was charged with murder and neglect of a dependent resulting in serious bodily injury after a 15-month-old child in his shared household died from blunt force abdominal injuries, dehydration, and malnutrition following repeated acts of abuse and neglect by Dowler and another adult. A jury acquitted Dowler of murder but convicted him of the neglect charge, leading to a 20-year sentence. On appeal, Dowler raised issues including the trial court's decision to send certain exhibits to the jury room, the sufficiency of the charging information, the adequacy of the evidence, a motion for new trial based on newly discovered evidence regarding possible CPR-related injuries, and the sentencing enhancement. The Indiana Supreme Court affirmed the conviction and sentence, holding that Dowler had waived several claims by failing to raise specific objections at trial, that the evidence supported the verdict, that the new evidence did not meet the standard for granting a new trial, and that the trial court properly considered aggravating factors such as the victim's age and vulnerability.

criminal lawprocedure

In Resnover v. State, the Indiana Supreme Court reviewed the denial of a second post-conviction relief petition filed by a death-row inmate after his conviction and sentence had been affirmed on direct appeal and his first PCR petition had also been denied. The petition raised claims of ineffective assistance by prior counsel that had not been asserted in the first PCR proceeding, plus an allegation of newly discovered evidence in the form of a witness statement. The trial court dismissed the petition without a hearing, finding most claims barred by res judicata or waiver and the new evidence insufficient. The Supreme Court affirmed, holding that successive petitions may not relitigate ineffective-assistance issues already decided or use new counsel's different theories to evade the limits of Ind.R.P.C. 1 § 8, and that the witness statement was cumulative and unlikely to change the result. The Court rejected the dissent's call for an evidentiary hearing on whether the first PCR counsel had inadequately raised the claims.

criminal lawprocedure

In Boger v. Lake County Commissioners, plaintiff Alice Boger sued Lake County officials after suffering severe injuries when a decayed tree on the county's right-of-way fell onto her car while she drove on Elm Street in 1983. The trial court granted summary judgment for the defendants, finding that notice under the Indiana Tort Claims Act was untimely and that the county was immune from suit. The Indiana Supreme Court held that notice was timely because the filing deadline fell on a holiday weekend, and it reversed the immunity ruling, finding that questions remained about the county's duty regarding a known hazardous condition on its right-of-way. The court distinguished prior precedent on weed removal and referenced case law indicating potential liability where a county has actual or constructive knowledge of dangers in highways it maintains. The case was remanded for further proceedings.

torts & liabilityprocedure

This case involved Luis Frias, who was convicted after a jury trial of conspiracy to commit dealing in cocaine and dealing in cocaine based on a drug transaction involving undercover police officers and informants. Frias appealed, challenging the jury instruction on conspiracy, the denial of his motion for independent chemical analysis, and the sufficiency of the evidence. The Indiana Supreme Court reversed the conspiracy conviction, finding the instruction erroneous because it allowed the jury to imply an agreement without requiring proof that the parties came together in some way, but affirmed the dealing conviction as supported by sufficient evidence of the transaction.

criminal law

The case involved Dennis Pitman’s direct appeal from his convictions after a jury trial for robbery and conspiracy to commit robbery, both Class B felonies, arising from the December 1987 theft of approximately $8,000 from a pharmacy employee at a bank. Pitman challenged the trial court’s denial of his motion in limine to exclude evidence of a prior robbery, its denial of a mistrial after a witness referenced that prior act, and the sufficiency of the evidence supporting the conspiracy conviction. The Indiana Supreme Court affirmed the convictions, holding that the prior-act evidence was admissible, that the trial court’s admonishment cured any prejudice from the witness statement so that no grave peril existed, and that the jury was entitled to credit the testimony of Pitman’s accomplices despite their drug use, which supplied ample evidence of an agreement and overt acts. The court therefore upheld the twenty-year concurrent sentences.

criminal lawprocedure

This case concerned a dispute over title to commercial real estate at 325 North Illinois Street in Indianapolis. Martin Mark purchased the property in 1956 and held title until his death in 1983, after which his estate claimed ownership; his brother Jeffrey Mark, who had operated a partnership business on the premises, asserted he had acquired sole title through adverse possession. The trial court ruled for Jeffrey, finding the statutory elements satisfied, and the Court of Appeals affirmed. On transfer, the Indiana Supreme Court reversed, holding that the evidence failed to establish the required element of hostile or adverse possession because Jeffrey never communicated a claim of ownership to Martin, the lock change was not shown to be intended to exclude Martin, and other conduct was consistent with permissive use under the partnership arrangement. The court directed entry of judgment for the estate.

property