All posts by Chris Buckley

Criminal Defense Attorneys Beware: Prosecutorial Misconduct Does Not Require Reversal

The Indiana Court of Appeals wrote one (1) and the Indiana Supreme Court wrote two (2) criminal decisions for publication this week:  (See also, Indiana Lawyer articles here: Justices Question Prosecutor’s Tactics, but Decline to Award New Trial, Prosecutor’s ‘Continual Misconduct’ Warrants New Molestation Trial, Prosecutor’s Lack of Objection Allows Judge to Modify Sentence)

Bruce Ryan v. State of Indiana, 49S02-1311-CR-734 (Ind. 2014).

In this recent case issued by the Indiana Supreme Court, justices considered four (4) allegations of prosecutorial misconduct, only finding that the prosecutor had committed misconduct when he stated,

“[Y]ou wonder at night what you can say to a jury to get them to get the bigger picture here. And no case is easy for your guys, I get that. No one want[s] to judge someone else or somebody else’s actions. But we keep hearing about this happening, whether it’s a teacher, or a coach, or a pastor, or whoever. And we all want to be really angry and post online and have strong opinions about it. And we never think that we’ll be the ones that are here that get to stop it. And you actually do get to stop it. And as much as I know you probably did not want to be here on Monday morning, I would submit to you that you are in an incredible position to stop it and send the message that we’re not going to allow people to do this.”

The Indiana Supreme Court did find that this comment amounted to “prosecutorial misconduct.”  However, the court refused to find that it amounted to reversible error for two (2) reasons.  First, the criminal defense attorney failed to object at the time the statement was made, which forces a criminal defendant on appeal to demonstrate “fundamental error“.  “Fundamental error” is an extremely difficult burden for criminal defendants to meet, and very few cases are reversed once this standard has been triggered.  Secondly, the Indiana Supreme Court reasoned that because the Prosecutor later in his closing argument invoked the jury to convict based on the evidence presented, that it mitigated the potential harm of his earlier comments.

Brandon Brummett v. State of Indiana, 49A02-1304-CR-378 (Ind. App. 2014)

In this case, the Indiana Court of Appeals found that the Prosecutor committed prosecutorial misconduct on three (3) occasions.  First, the Prosecutor disparaged the criminal defense attorney on several occasions, implying that he “allowed guilty men to go free”, and employed “tricks”.  Second, the Indiana Court of Appeals found that the Prosecutor committed prosecutorial misconduct when he “vouched” for the state’s witnesses.  Improper “vouching” is when a party, here the State of Indiana, implies personal knowledge of a witness telling the truth.  Third, the Indiana Court of Appeals found that the Prosecutor committed prosecutorial misconduct when, during cross examination of the Criminal Defendant, asked inflammatory questions and argued with the Criminal Defendant on the witness stand.

The Court here determined that in the three (3) instances of prosecutorial misconduct, they had the “cumulative effect” of placing the Criminal Defendant in “grave peril” and “making a fair trial impossible.”

State of Indiana v. Tammy Sue Harper, 79S02-1405-CR-334 (Ind. 2014).

In this case, the Prosecutor was given an opportunity to object to a sentence modification at the modification hearing, but failed to exercise its right to do so within a reasonable time.  The Trial Court expressed its intent to grant the modification without the State’s objection “in the near future” or “within a week or so”, and granted the Criminal Defendant’s request approximately five (5) weeks after the modification hearing was held, with no objection by the State.  The Criminal Defendant was therefore released from incarceration into a rehabilitative program.

What deeply concerns me here is that the statement made in the first case did not constitute “fundamental error“.  Asking a jury to convict a person based on the heinous nature of the allegations alleged against the defendant is clearly intended to invite the jury to convict for reasons other than the guilt of the defendant, and without a doubt puts the defendant in great peril and makes a fair trial impossible.  Our criminal system is built upon John Adams’ sacred democratic principle:

“‘Tis better that a hundred guilty men go free, than a single innocent man be imprisoned.”

If you have been accused of committing a crime in Indiana, and need a Lake County criminal defense attorney or a Porter County criminal defense attorney, SFT Lawyers can help!  We have extensive experience defending Lake County and Porter County residents accused of a variety of criminal offenses.  CALL TODAY for a FREE CONSULTATION.  (219) 841-5683.

Negligence in Personal Injury Cases – ‘Do I Have a Case?’

In law school, lawyers are all taught the concept of negligence.  In fact, in most law schools, law students might spend an entire semester learning about what negligence is.  Negligence is a technical term of art that has a very specific meaning within the law, and may not mean what the common person might perceive it to be.

In order to sustain a cause of action in a personal injury case, the lawyer needs to know a few things about how your personal injury happened.  First, the lawyer needs to know that you were actually harmed by the event.  Simply because someone made an error doesn’t mean that you have a personal injury lawsuit against the person or entity.  A “near miss” is also a “near miss” of having a personal injury case. Unfortunately, to have a good personal injury case, you must have endured some rather serious injury, and suffered harm as a result.

Second, the lawyer needs to find out what it is precisely that caused the accident.  There are instances in which personal injuries arise, and no one did anything wrong, e.g. someone is struck by lightning, injured as a result of an earthquake, or falls over from a heart attack.  You cannot recover damages for an injury that isn’t the direct result of someone else’s mistake, omission, or error.  The personal injury lawyer will eventually have to determine what precisely the allegedly negligent persons were supposed to do or not do, and then what the persons did or did not do that resulted in a personal injury.  Many of these distinctions require the advanced education, training and experience of a Lake County personal injury attorney or Porter County personal injury attorney.

If you have been injured as a result of an accident, you need to contact a Lake County personal injury attorney or a Porter County personal injury attorney right away.  We at SFT Lawyers are experienced in personal injury cases, and we have Porter County personal injury lawyers and Lake County personal injury lawyers who can assist you.  Call (219) 841-5683 for a FREE CONSULTATION with a Lake County personal injury lawyer or a Porter County personal injury lawyer TODAY!

Criminal Defendant’s Fifth Amendment Right Violated – Does Not Require Reversal?

In a shocking decision by the Indiana Court of Appeals last week, Judge Riley wrote a decision for the three (3) member panel:

State of Indiana v. Thomas (Ind. App. 2014)

In the above Case, the Criminal Defendant was charged with four (4) counts of Criminal Deviate Conduct as a Class B Felony, and one (1) count of Sexual Battery as a Class D Felony.  At trial the Prosecutor commented that the only story the jury should believe was that of the state because the Criminal Defendant did not testify.

The statement in question made by the prosecutor was,

“What does your instruction say about a witness? It says you should not disregard any witness without a reason and without careful consideration. The testimony is not – it’s been challenged but the testimony, there’s not another story that’s going on here. You’ve not heard the testimony of another story. You heard what [Thomas] told Officer Hinton, but he wasn’t raising his right hand swearing to tell the truth. He’s not a witness in this case. If you find –…”

The Trial court, upon the request of the Defendant’s criminal defense attorney on two (2) occasions reprimanded the Prosecutor and admonished the jury to not consider the Prosecutor’s remarks.

The Indiana Court of Appeals found that the State sufficiently proved that the above statement was “harmless” in that its case was strong absent the statement, and that the Criminal Defense Attorney failed to demonstrate the statement’s precise effect on the jury, and the ineffectiveness of the admonishment that the trial court gave, and therefore ruled in favor of the State and affirmed the criminal defendant’s convictions.

This statement is abhorrent to Thomas’ Fifth Amendment Right not to testify at his criminal trial. No mention can be made of a criminal defendant’s refusal to testify in any way whatsoever, by inference or otherwise.  The practical implication of the court’s action here is that if an admonishment is given to the jury, then the criminal defense attorney must prove that the jury acted on the statement(s).  I’m not really sure here how even the best criminal defense attorney could prove such a fact; the criminal defense attorney would have to be in the room while the jury is deliberating, which is expressly prohibited.

The moral of this story here is, your criminal rights can be violated so long as you can’t prove it.  I could not more strongly disagree with the court on this issue, and I surely hope the Indiana Supreme Court weighs in on this criminal defense issue.

If your criminal rights have been violated, contact a criminal defense attorney at SFT Lawyers for a FREE CONSULTATION today! (219) 841-5683.

SFT Lawyers is Now Online!

After more than two years in the works, Schwerd, Fryman & Torrenga, LLP has finally launched its new Website, www.sftlawyers.com.  The Site has several pages and subpages, concentrating on the many areas that SFT Lawyers already offers its clients, in the areas of business and corporations, criminal defense, personal injury, medical malpractice, real estate, municipal services, estate planning, and more!

Several pages are still under construction.  Please stay tuned to SFT Lawyers for updates!

Thanks!

–SFT Attorneys and Staff

Indiana Courts Throw Out Conviction Due to Officer’s Unlawful Entry

In a recent decision,  Harper v. State of Indiana, 49A04-1305-CR-222 (Ind. App. 2014), the Indiana Court of Appeals reversed Harper’s conviction for Resisting Law Enforcement as a Class A Misdemeanor.

The facts were as follows: Mrs. Harper was inside her home when officers arrived after being called to a domestic dispute.  Mrs. Harper, at that time, told the officers that she was not injured and did not wish to press charges against her husband, Mr. Harper.  After being called to the scene a couple of blocks away, officers learned that Mr. Harper had been severely injured, and Mr. Harper claimed that Mrs. Harper had caused the injuries.  Upon returning to the Harper residence, Mrs. Harper answered the door, opening the inside door, while leaving the screen door to the residence secured.  The officers then “rused” Mrs. Harper outside by claiming that they needed her signature on a protective order against Mr. Harper, and attempted to arrest her.  She fled into her residence, and she was forcibly arrested and detained.  Without warning, one of the officers attempted to remove Mrs. Harper’s wedding ring to avoid injury to one of the officers.  Mrs. Harper fought back, and was charged with resisting law enforcement.  She appealed her bench conviction in the present appeal.

The Court first explained that leaving a screen or other temporary door closed does not express acquiescence to entry into a person’s home, and does not satisfy “consent” for the purposes of the Fourth Amendment or Article I, Section 11 of the Indiana Constitution. Likewise, the Court rejected the State’s argument that appearing in the threshold of her home was sufficiently “in public” as to diminish her expectation of privacy for analysis under the respective search and seizure provisions of the Indiana and United States constitutions.

The Court concluded that the officers unlawfully entered the Harper residence.  It reasoned that barring “exigent circumstances” as absent here, officers may not enter a residence to make an arrest–even upon probable cause–without an arrest warrant.

The implications of this case could be quite significant.  The Court was forced to wrestle with the issue of unlawful residential entry without the aid of the recent statute passed by the Indiana General Assembly, because Mrs. Harper failed to present the proper statutory argument to the trial court.  Last year, the Indiana General Assembly passed a law (I.C. 35-41-3-2) overturning Barnes v. State of Indiana, 946 N.E.2d 572 (Ind. 2011), which stated that persons do not have a right to reasonably resist law enforcement even when a residential entry is unlawful.

Instead, the Court relied upon language in the resisting law enforcement statute which reads, in pertinent part, “A person who knowingly or intentionally . . . forcibly resists, obstructs, or interferes with a law enforcement officer . . . while the officer is lawfully engaged in the execution of the officer’s duties . . .commits a Class A Misdemeanor, resisting law enforcement.”

The issue in the case was whether the officer’s conduct was “lawful” under the circumstances.  The Court determined that it was not, and reversed Mrs. Harper’s conviction for resisting law enforcement.

If your rights have been violated, the criminal defense attorneys at SFT Lawyers can help!  Call (219) 841-5683 TODAY for a FREE CONSULTATION!

Do Not Pay Traffic Tickets in Indiana Without Reading This First!

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Received a traffic ticket? SFT Lawyers CAN HELP! (219) 841-5683

I was speaking recently with litigants outside of a local courtroom while waiting for a trial, and I happened to overhear a few of them talking about just paying traffic infractions.  I could not believe that individual traffic defendants did not know that there are other options besides paying traffic tickets and incurring points on their Indiana driver’s license.

There are a few consequences to consider before paying a traffic ticket:

1. When you pay a fine for a traffic ticket, you are admitting guilt to the traffic infraction you are accused of.  Once you pay your traffic ticket, it will be made a traffic conviction, it will be reported to the Indiana Bureau of Motor Vehicles, and it will be made part of your permanent driving record.

2. When you pay a fine for a traffic ticket, you incur all of the driving record points associated with the traffic infraction as described in #1.

3. If you have received enough driving record points within a three (3) year period, your Indiana driver’s license could be suspended as a result, and/or you may be forced to take an Indiana driver improvement course in order to obtain a valid Indiana driver’s license.

4. When you pay a fine for a traffic ticket, your auto insurance carrier will find the traffic conviction in the Bureau of Motor Vehicles records, which will likely result in increased auto insurance premiums.

5. When you pay a traffic ticket, you may be subject to the harsh consequences of becoming a habitual traffic offender.  Being adjudicated a habitual traffic offender can result in a five (5) year, a ten (10) year, or a lifetime driver’s license suspension.

There are other options.  If you hire an experienced traffic ticket attorney at SFT Lawyers, we may be able to help!  A traffic ticket attorney may be able to negotiate a lower fine, negotiate your traffic infraction to a non-moving and/or non-pointable offense, and may even be able to qualify you for a traffic deferral or pretrial diversion program.  If either of these options is successful, the traffic conviction and driving record points will not appear on your permanent driving record, you will likely be able to avoid increased auto insurance premiums, and you may avoid possible adjudications and penalties of being a habitual traffic offender.  Call the experienced traffic ticket attorneys at SFT Lawyers TODAY FOR A FREE CONSULTATION!  (219) 841-5683

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Indiana Record Sealing, Felony Reduction & Expungement

As a follow up to our Firm’s previous articles regarding the Indiana Second Chance Act for the Expungement of Criminal Records, Sealing of Arrest Records, Reduction of Felony to Misdemeanor, and Expungement of Juvenile Adjudication Records; SFT Lawyers wanted to provide the basic requirements to help the public in determining whether or not they might qualify to have their past discrepancies sealed or erased.  Below is a list of some of the options available to individuals and a list of some of their basic requirements.

  • CRIMINAL RECORD EXPUNGEMENT. 

          MISDEMEANOR CONVICTIONS:

– (5) five years must have passed from date of conviction; (some exceptions)
– Successful completion of the terms of probation or sentence;
– Current Valid Driver’s License (if suspended we may be able to help)
– No pending criminal charges against you;

          D-FELONY CONVICTIONS:

– (8) eight years must have passed from date of conviction; (some exceptions)
– Successful completion of the terms of probation or sentence:
– Current Valid Driver’s License; (if suspended we may be able to help)
– No pending criminal charges against you;

          A-FELONY,  B-FELONY,  C-FELONY

– (8) eight years must have passed from date of completion of sentence, probation
or parole; (some exceptions)
– Successful completion of the terms of probation or sentence:
– Current Valid Driver’s License; (if suspended we may be able to help)
– No pending criminal charges against you;

         CRIMES of SERIOUS BODILY INJURY & PUBLIC OFFICE MISCONDUCT

– (10) ten years must have passed from date of completion of sentence, probation
or parole; (some exceptions)
– Successful completion of the terms of probation or sentence:
– Current Valid Driver’s License (if suspended we may be able to help)
– No pending criminal charges against you;
– Written consent of the prosecutor

* It is important to remember, this is not an exhaustive list of requirements and
every case will have a different set of circumstances which may have an impact
on the outcome of a petition for expungement.  Additionally, some criminal
offenses are barred from being expunged, such as sexually based convictions.

  • ARREST RECORD SEALING OR EXPUNGEMENT. 

          ARREST – NO CONVICTION or DIVERSION

– Unbeknownst to many people, a criminal background search will reveal both a
record of arrest and the record of conviction.  This information is sometimes
available to the public in many formats such as online court record searches,
public police reports, and courthouse records.  Additionally, employers doing
background checks often time see this information; even though you may not
have received a conviction, the record of your arrest may still remain.

DIVERSIONS: If you agreed to a diversion, deferral, or deferred prosecution
with or without probation and were told that the charges would be dropped after
completion of probation or a certain period of time, and no conviction would
result; the record of arrest will likely still remain on your record and available to
the public

– If you have questions regarding this type of situation it is very important to consult with an
attorney to help determine your rights.

  • FELONY REDUCTION to MISDEMEANOR
    A person may qualify to have a D-Felony reduced or converted and entered as
    an A-Misdemeanor, if certain requirements are met.  There is not an exact
    science to obtaining this type of relief but some of these requirements include:
    – Consent from the Prosecutor;
    – Successful completion of parole or probation;
    – Not a sex offender, violent offender, nor perjury,
    – Hasn’t been convicted of another felony.
    In many cases this form of relief may restore the convicted person’s right to vote, possess and/or carry a firearm, or allow the person to hold public office.
  • JUVENILE CONVICTION ADJUDICATION
    Even though juvenile conviction records are sealed, there are many reasons which a person may want to have his/her juvenile record expunged.  The state of Indiana gives Juvenile courts the ability to expunge a juvenile criminal record; however, the law does not provide a specific parameters as to the requirements for this type of expungement.  Therefore each case is handled differently by the courts and it is extremely important for people seeking for this type of expungement to seek legal advice from an attorney and at SFT Lawyers, LLP we can help with this type of expungement.Call us at (219) 841-5683 to speak with a Licensed Attorney.

By: BLAKE N. DAHL – Attorney at Law

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Indiana Courts Weigh In on Searches and Seizures

In three (3) recent cases, the Indiana Supreme Court and the Indiana Court of Appeals have added to the well established common law regarding Fourth Amendment Rights–in other words, which searches and seizures are permissible and which are not.

Most notably, in Clark v. State of Indiana, 994 N.E.2d 252 (Ind. 2013), the Indiana Supreme Court reversed a conviction of Dealing in Methamphetamine as a Class A Felony.  The Court determined that the police had no reasonable suspicion to detain Mr. Clark because the officers did not have reason to believe that an offense had been committed at the time of the detention.  Thus, searching Mr. Clark’s bag, where the police found marijuana and methamphetamine, was illegal, and therefore, should have been excluded from evidence at the trial court level when the Defendant filed his Motion to Suppress.  The State attempted to argue that a second (legal) search was conducted of the Defendant’s property which led to ultimately obtaining the evidence, but Indiana Supreme Court Justice David noted, “[W]e note that it [the same reasoning determining the search to be illegal] would also apply to the same evidence when it was re-found following execution of the search warrant.  Because none of the evidence should have been admitted at trial against him, the conviction cannot stand.”

However, the Indiana Supreme Court and Indiana Court of Appeals upheld searches in Sanders v. State of Indiana, 989 N.E.2d 332 (Ind. 2013) and Croom v. State of Indiana, 2013 WL 5630984 (Ind. App. 2013).  In Croom, the officer spotted the Defendant’s vehicle with a suspicious temporary paper license place issued from an Indiana auto dealer.  The plate turned out to be valid, but nonetheless, the Indiana Supreme Court determined that reasonable suspicion did exist for the traffic stop, even though Defendant was able to prove that no violation of law in fact occurred.  Similarly, in Sanders, the Indiana Court of Appeals determined that the officer’s belief that the driver’s window tint was in violation of Indiana statute, even though after testing the window tint was within specified limit(s), constituted reasonable suspicion for the traffic stop.

I guess the moral to the story here is that officers are given much broader discretion to make traffic stops than to search a suspect’s person or property.

If you feel your rights have been violated and that the government did not have a right to search your person or property, call SFT Lawyers for a FREE CONSULTATION TODAY!  (219) 841-5683.

Driving on a Suspended License? Hire a Porter County Traffic Ticket Lawyer Today!

Driving on a suspended driver’s license is risky business.  You are probably spending more time looking in your rear-view mirror than focusing on the road in front of you these days.  You are scouring behind you, looking for a marked police car, and hoping that none of the other cars are unmarked police vehicles.  It is probably a  nerve-racking experience for you to even drive to work or to the store on a daily basis.  The fear that a police officer may be behind you running your license place to see your driver history is a daunting thought when your driving privileges are suspended.

You are certainly justified in being nervous or scared.  Driving on a suspended license can cause further suspensions, additional traffic infractions, significant points added to your license, it could lead to a determination of habitual traffic offender (“HTV“) status, or you could even spend time in jail if you are charged with the criminal misdemeanor offense of driving while suspended.  This could be avoided if you hire an experienced Porter County, Indiana traffic lawyer from SFT Lawyers in Valparaiso, Porter County, Indiana.

Hiring a Porter County, Indiana traffic ticket lawyer is not as expensive as you might think. Not only could hiring an experienced Porter County traffic ticket lawyer save you the aggravation and fear that comes with driving on a suspended license, we can do so at a reasonable cost to you.  Our experienced Porter County traffic ticket lawyers can save your sanity and get you back on the road legally.  After an experienced Porter County traffic ticket lawyer takes a look at your Indiana driving record, he or she may be able to reduce points on your Indiana driving record, negotiate fees and costs associated with past or present traffic tickets, restore your driving privileges, and allow you to keep your auto insurance at the lowest possible cost.

We know that you need to drive, and we want to get your Indiana driver’s license back in shape as soon as possible.  Give SFT Lawyers a call for a FREE CONSULTATION TODAY!  (219) 841-5683.  If you don’t want to call us directly, please send us a message via our Contact Us Page, and one of our experienced Porter County traffic ticket lawyers will return it right away!

Indiana’s 5-year Habitual Traffic Offender Law Is Serious Business

Did you know that if you accumulate ten (10) traffic convictions in a ten (10) year period that the State of Indiana will suspend your Indiana driver’s license for a period of five (5) years?

That is in fact true.  I have represented too many clients who, simply in the course of traveling to and from work on a daily basis, accumulate ten (10) Porter County traffic convictions over a ten (10) year period and end up being classified as a Habitual Traffic Offender (“HTV”).  This is certainly a harsh result, but it can be avoided if you take the proper steps each time you receive Porter County traffic tickets.

The results only get harsher as time goes on.  Not only could you face multiple license suspensions for the individual traffic infractions, you could face a driving while a habitual traffic offender (“HTV”), which is a D Felony in the State of Indiana.  A D Felony in Indiana carries a range in punishment of up to three (3) years in the Indiana Department of Corrections!

Don’t let the Indiana Bureau of Motor Vehicles (“BMV“) play games with your Indiana driver’s license, and don’t risk being placed behind bars.  Contact a Porter County criminal defense attorney immediately after getting stopped by police for a Porter County traffic ticket.  A Porter County criminal/traffic attorney can help to avoid points accumulating on your driver’s license, and therefore avoid a possible HTV determination, as well as the potential criminal penalties that could result.

We at SFT Lawyers have experienced criminal defense traffic lawyers in Valparaiso, Porter County, Indiana.  We can help.  Please call us at (219) 841-5683 or use our Contact Us page for a FREE CONSULTATION, to ask a legal question or to secure the representation of a criminal defense traffic attorney.