COA: No request for jury waived that right at misdemeanor trial
Olivia Covington for www.theindianalawyer.com
The Indiana Court of Appeals has affirmed a man’s conviction of operating a vehicle while intoxicated after finding that his failure to request a jury trial for his misdemeanor charge constituted a waiver of his right to a jury.
In Evaristo Martinez v. State of Indiana, 49A02-1609-CR-2155, Martinez was initially pulled over for speeding and failing to use a turn signal, but was then taken to the police station after exhibiting signs of intoxication and failing a field sobriety test. A chemical breath test conducted at the station revealed an alcohol concentration equivalent of 0.129 grams of alcohol per 210 liters of breath.
As a result, Martinez was charged with two counts of operating a vehicle while intoxicated, one as a Class A misdemeanor and one as a Class C misdemeanor. He was also charged with Class C misdemeanor driving without ever receiving a license.
Martinez spoke limited English, so at his initial hearing he received a Spanish-language written advisements of rights, which informed him he had the right to a jury trial, but that he would have to request a jury at least 10 days before trial. The form went on to say that if Martinez did not make such a request, he would waive that right.
Martinez signed the form and retained counsel, and the Marion Superior Court set his trial for June 9, 2016. After Martinez failed to file a request for a jury, he was convicted of the OWI offenses at a bench trial. The judge vacated the Class C misdemeanor OWI charge and sentenced him on the Class A count.
On appeal, Martinez argued he did not validly waive his right to a jury trial. But in a Tuesday opinion, Judge Robert Altice wrote Martinez waived such an argument because he did not provide transcripts of any pretrial hearings, which would be “integral†to the appellate court’s review.
Waiver notwithstanding, Martinez argued that requiring a person charged with a misdemeanor to request a jury trial under Indiana Criminal Rule 22 is a violation of the Sixth Amendment. In order for his waiver to have been valid under the Sixth Amendment, Martinez said he was required to personally waive his right either in writing or verbally. But Altice pointed to Horton v. State, 51 N.E.3d at 1158, n.1., in which the Indiana Supreme Court noted that personal waiver is required only in felony prosecution.
Martinez, however, directed the court to the case of Jean-Baptiste v. State, 71 N.E.3d 406 (Ind. Ct. App. 2017), in which the Court of Appeals reversed a misdemeanor conviction based partly on the fact that the defendant had requested a jury trial, even though he didn’t comply with Rule 22. But in the instant case, the appellate panel declined to follow Jean-Baptiste because it “represents a departure from a long line of case law.â€
“In Horton, our Supreme Court recognized a personal waiver requirement in felony cases emanating from state statute,†Altice wrote. “Moreover, Indiana courts have routinely noted that misdemeanor defendants waive their right to a jury trial by failing to make a timely jury demand – no affirmative waiver is required.â€
TSA Celebrity Dinner Will Be Held This Sunday
The 10th Annual Celebrity Dinner, the region’s largest and most successful HIV charity benefit, will be held on Sunday, Aug. 13 at 6pm at the Evansville Airport Holiday Inn, 7101 Highway 41 North. Cost to attend is $40 a person. Proceeds from the event benefit the Tri-State Alliance AIDS Holiday Project, which serves over 400 low-income families impacted by HIV / AIDs in our Tri-State region. Checks can be sent to the TSA Celebrity Dinner, PO Box 2901, Evansville, IN 47728 OR can be purchased online at Eventbrite.com and search for TSA Celebrity Dinner. Donations of live and silent auction items are also being sought. For more information please contact TSA President Wally Paynter at 812-480-0204 or wallypaynter@aol.com.Â
EDITOR’S FOOTNOTE:  Pictured are Vanderburgh County Commissioner Ben Shoulders and Evansville Mayor Lloyd Winnecke are pictured from last year’s dinner. They will be serving again this year.
ELVIS: HAS HE REALLY BEEN GONE 40 YEARS?
ELVIS: HAS HE REALLY BEEN GONE 40 YEARS?
Tyrades! by Danny Tyree
When I think about the 40th anniversary of the death of Elvis Presley (August 16), it seems we were living in a completely different world in 1977.
News of his passing was relayed by television, radio, word of mouth or the next morning’s newspaper. Tweets, blogs and podcasts were far in the future. Grief over his demise was expressed with hugs, tears and wreaths, not emojis.
Later in the year, when one of my high school classmates (hi, Tavye!) protested the sparsity of coverage of the plane crash that killed three members of the Lynyrd Skynyrd band compared to the hoopla over Elvis, she had to do it via a snail mail Letter To The Editor designed for publication in a paper-and-ink periodical.
Distraught fans would talk about “that movie Elvis did with what’s-her-name,†since (in that pre-Wikipedia world) they didn’t have his biography and discography at their fingertips.
One of my customers at the convenience market where I worked after school implored me to save him a copy of the next “Photoplay†magazine, because he heard they were going to do an Elvis tribute, and this might be the last chance he would ever have to own a memento of “The Kingâ€!!!
Elvis fans resigned themselves to a future of scouring second-hand stores for vinyl records and bugging local DJs to play the occasional Elvis oldie. Little did they know that eBay, Craigslist, YouTube, Amazon, satellite radio and streaming services would eventually make Elvis more available than ever.
We knew our troops in Vietnam had listened to rock music, but who would have thought our soldiers would someday be listening to Elvis in Iraq and Afghanistan?
My parents’ generation clucked their tongues over how the infamous “Dr. Nick†(George Nichopoulos) could keep a nice boy like Elvis hooked on prescription drugs. Of course, the opioid crisis of 2017 dwarfs any excesses by Seventies rock stars.
Only a prophetic futurist would have thought that “apps†could someday perform most of the functions handled by Elvis’s “Memphis Mafia†entourage.
Elvis died at a time when there was no MTV or rap music, dramatic TV shows didn’t use hit songs in their soundtracks and the Super Bowl didn’t court pop stars to perform at halftime. We would have laughed if someone had suggested that DISNEY would use an Elvis song in an animated movie. (But along came “Burning Love†in “Lilo & Stitch.â€)
Elvis (who was filmed from the waist up on “The Ed Sullivan Show†and whose bordello scene was censored from his 1968 comeback special) died as standards were loosening, but few of us anticipated the language, substance abuse and sexual situations on network primetime TV in 2017.
We might have suspected that Graceland would become a tourist shrine, but we had no idea we would someday get there guided by “GPS†and driving electric cars or cars fueled by gasoline from “fracking.†Take pictures with something other than Kodachrome? And what’s a “selfie�
Yes, it’s a different world. But some of our most basic needs remain. We still need a MIXTURE of songs about love, heartbreak, fun, reverence and patriotism.
I hope that the works of Elvis will remain available for many generations —- and that other artists will try their best to stir all the emotions that Elvis stirred.
If they do, I’ll say, “Thank you. Thankyouverymuch.â€
Victory Theater by Pat Sides
The Victory Theater was not the first in Evansville, but it is approaching the centennial of its opening, which occurred on July 16, 1921, shortly after this photo was shot. A survivor of the urban renewal movement that ravaged downtown a few decades ago, the theater is now a landmark at Sixth and Main streets, along with the old Sonntag Hotel (now Signature School) in which the Victory occupied a corner. The city was proud of the theater when it opened, with its 2,500-seat auditorium and lavishly decorated interior, and in 1928 it offered Evansville’s first “talking movie.†Renamed Loew’s Victory in the 1920s, the theater continued to show movies until 1979. Now refurbished, the venue functions as a multi-purpose events center.
VANDERBURGH COUNTY FELONY CHARGES
Below are the felony cases to be filed by the Vanderburgh County Prosecutor’s Office today.
Clark D. Johnson: Dealing in cocaine (Level 2 Felony), Dealing in cocaine (Level 2 Felony), Operating a vehicle as an habitual traffic violator (Level 6 Felony), Theft of a firearm (Level 6 Felony), Theft of a firearm (Level 6 Felony), Possession of marijuana (Class A misdemeanor)
Charles Waverly Herron: Murder, Unlawful possession of a firearm by a domestic batterer (Class A misdemeanor)
Logan Anthony Will: Possession of methamphetamine (Level 5 Felony), Possession of a narcotic drug (Level 5 Felony), Carrying a handgun without a license (Level 5 Felony), Possession of paraphernalia (Class A misdemeanor), Possession of marijuana (Class B misdemeanor)
Anthony Demarco Hale Jr.: Operating a vehicle as an habitual traffic violator (Level 6 Felony), Operating a vehicle with an ACE of 0.15 or more (Class A misdemeanor)
Joseph A. Copeland: Intimidation (Level 6 Felony), Possession of a synthetic drug or synthetic drug lookalike substance (Level 6 Felony), Invasion of privacy (Class A misdemeanor), Criminal mischief (Class B misdemeanor)
Gabriel Issac Appel: Possession of a synthetic drug or synthetic drug lookalike substance (Level 6 Felony), Maintaining a common nuisance – controlled substances (Level 6 Felony)
Air Quality Forecast
Air quality forecasts for Evansville and Vanderburgh County are provided as a public service. They are best estimates of predicted pollution levels that can be used as a guide so people can modify their activities and reduce their exposure to air quality conditions that may affect their health. The forecasts are routinely made available at least a day in advance, and are posted by 10:30 AM Evansville time on Monday (for Tuesday through Thursday) and Thursday (for Friday through Monday). When atmospheric conditions are uncertain or favor pollution levels above the National Ambient Air Quality Standards, forecasts are made on a daily basis.
Ozone forecasts are available from mid-April through September 30th. Fine particulate (PM2.5) forecasts are available year round.
Tuesday
August 8 |
Wednesday August 9 |
Thursday August 10 |
Friday August 11 |
Saturday August 12 |
|
Fine Particulate (0-23Â CST avg) Air Quality Index |
Good | Good | NA* | NA* | NA* |
Ozone Air Quality Index |
Moderate | Moderate | NA* | NA* | NA* |
Ozone (peak 8-hr avg) (expected) |
NA* | NA* | NA* | NA* | NA* |
* Not Available and/or Conditions Uncertain.
Air Quality Action Days
Ozone Alerts are issued by the Evansville EPA when maximum ozone readings averaged over a period of eight hours are forecasted to reach 71 parts per billion (ppb), or unhealthy for sensitive groups on the USEPA Air Quality Index scale.
Particulate Alerts are issued by the Evansville EPA when PM2.5 readings averaged over the period of midnight to midnight are forecasted to reach 35 micrograms per meter cubed (µg/m3).
Current conditions of OZONE and FINE PARTICULATE MATTER are available in near real-time on the Indiana Department of Environment Management’s website.
National and regional maps of current conditions are available through USEPA AIRNow.
Sunday is Groupie Doll Day! Saturday – more wiener dogs!
Attorney General Curtis Hill to make announcement Wednesday morning
  Attorney General Curtis Hill will make an announcement at 10 a.m. on Wednesday. Please notify Press Secretary Corey Elliot via email if you plan to attend the press conference. There will be a brief opportunity for follow-up questions at the conclusion of AG Hill’s announcement. Media should arrive by 9:45 a.m. to set up. Members of the communications staff will be on hand to assist media.
north atrium of the Indiana Statehouse.