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Justices rule on ‘exhaustion rule’ issue

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Jennifer Nelson for www.theindianalawyer.com

The Indiana Supreme Court tackled issues of first impression Wednesday involving peremptory challenges and removing jurors for cause. The justices held that parties satisfy the “exhaustion rule” the moment they use their final peremptory challenge – regardless of whom they strike.

Gary Wayne Oswalt was on trial for multiple counts of child molesting, child solicitation and possession of child pornography. During voir dire, he moved to strike jurors 7 and 13 for cause. The trial court denied his motions, so he used two of his peremptory challenges to remove him.

Then he sought to strike Juror 28 for cause and use his final peremptory challenge to remove Juror 25 because he was the brother-in-law of another prospective juror, which is not grounds to remove someone for cause.

He presented his motions simultaneously; the trial court denied the motion to remove Juror 28 for cause, but allowed Oswalt to switch his final peremptory challenge to 28 instead. He decided to leave Juror 28 and strike Juror 25 after stating,”I’ve got a record that says … I’m out of preempts and I’m not getting who I want.”

The Court of Appeals found Oswalt waived appellate review of Juror 28 for failure to exhaust his peremptory challenges.

“We hold that complying with the exhaustion rule neither comes at the cost of a party’s final peremptory challenge nor precludes review of earlier for-cause challenges. Instead, parties satisfy the exhaustion rule the moment they use their final challenge, regardless of whom they strike. We also hold that the parties who satisfy the exhaustion rule should not lose appellate review for doing so. Instead, appellate courts may review jurors whom parties were forced to remove peremptorily when they show that (1) they satisfied the exhaustion rule, and that (2) an incompetent or objectionable juror served on the jury. These conclusions fulfill the purpose of the exhaustion rule, while honoring the parties’ time-honored discretion to use their peremptories as they see fit.

“We conclude that Oswalt’s use of his last peremptory strike satisfied the exhaustion rule, and that we may review his for-cause challenges – not just to Juror 28, but also to Jurors 7 and 13 who did not serve because he struck them peremptorily,” Chief Justice Loretta Rush wrote in Gary Wayne Oswalt v. State of Indiana, 35S02-1401-CR-10. “But we find that the court did not abuse its discretion in denying all three challenges, and we therefore affirm Oswalt’s convictions and sentence. In all other respects, we summarily affirm the Court of Appeals.”

Juror 28 had expressed discomfort at the thought of trying a child molestation case, but never told the court that he could not be fair toward Oswalt. Thus, the trial court’s denial of Oswalt’s motion was within its discretion.

Oswalt did not establish that Juror 7, who said she recognized someone during voir dire and believed the person was related to Oswalt, could not render a fair and impartial decision. Her explanation that she would “rather not have to … be involved in a family problem” falls short of bias or prejudice. Oswalt sought to strike Juror 13 for cause because that juror indicated he assumed that defendants were guilty until proven innocent. But the juror later said he could make a decision after hearing all of the evidence.

Justice Mark Massa concurred in result.

IS IT TRUE October 23, 2014

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IS IT TRUE the Evansville City Council is expected to vote on the 2015 proposed budget next Monday night?…should the budget pass in its current form, the city could face more than 2.8 million dollars in spending cuts?…according to some of the more analytical members of the Evansville City Council there need to be at least $7 Million more in cuts to assure a balanced budget?…the reason for this chasm is the allegation that the Office of the Mayor has assumed a revenue level that is $11 Million into fantasy land?…Councilman Jonathan Weaver is indignant about the proposed $2.8 Million in cuts and has accused the conservative council members of micro management?…the CCO tends to agree with Councilman Weaver that it is not the place of the City Council to dictate small levels of spending?…the place where we disagree with Councilman Weaver is with respect to the revenue assumptions?…it is not micromanaging to demand accurate revenue projections from the Mayor who submits the budget?…the City Council is right to question the top line revenue number and failing to have done so for the past 3 years has depleted the reserves far too much?…step one has still not been made so what the council including Mr. Weaver should be concentrating on is a revenue number they can believe?…then and only then should the details of any cuts be on the table?…the first things cut should be anything that adds to the fun and games inventory?

IS IT TRUE that plans for a Meijer’s store to be built on North Green River Rd may have been cancelled or temporary postponed …according to a representative of the Meijer Corporate Offices who was recently contacted by CCO, presently there are no current plans to build a store in Evansville, IN in the near future?…no reason was given for the possible cancellation or delay of plans to expand in Evansville?…the planned “Hyper-store” was to have carried name-brand groceries, clothes, housewares, and a full “superstore” array of merchandise?

IS IT TRUE the City of Evansville could had lost approximately 150 full time and part time jobs if Meijer’s decides not to build in Evansville? …we wonder if any incentives were offered to this company by the City of Evansville, as is the case with the much-hyped 18 Mead Johnson jobs we heard about yesterday?…there seems to be a distinct geography that is associated with local government handouts in Evansville and that distinct “MOOCHER ZONE” is anything within a half mile of downtown Evansville?…the CCO understands the handout process and really has no problem with competitive incentives that do not practice geographic discrimination when they make economic sense?…paying incentives of $208,333 per job is never going to make sense but that is what was announced for the Mead Johnson 18 yesterday?…the federal stimulus even after accounting for total busts like Solyndra was better than that?

IS IT TRUE in the game of paying bribes to companies for jobs it is true that the higher the wage the more incentives can be justified?…this is the case because of the progressive nature of taxation?…for example one job that pays $1 Million will generate a substantially higher level of taxation than say 40 jobs that pay $25,000 each even though the income total to the community will be the same?…one person who makes a million bucks will most likely pay between $400,000 and $500,000 in total taxes while a group of 40 individuals making $25,000 each will pay less than 15% of their income in taxes with over half of that going to FICA?…given that taxing authorities are responsible for delivering service if faced with the choice of paying a bribe for a single job that pays $1 Million per year as opposed to paying a like amount for 40 jobs that pay $25,000 each the choice is crystal clear?…the better financial choice would be to provide one person with services as opposed to 40 if all things are equal?…of course doing the smartest financial thing would be held from the headlines because it would not play well to the crowd that is quantity focused with little care for quality?…in good economies the idea of buying jobs is considered absurd?

Councilman John Friend Provides Documentation On Mayor Winneckes Spending Deficits

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Lloyd, per your request:

I have attached the audited financial statements reported by the State Board of Accounts concerning the four operational fund balances as of Dec 31, 2011 (the balance left over by the Weinzapfel Administration) Dec 31, 2012, and Dec 31, 2013.

In addition, I have attached the operating fund balances as of August 31, 2013 and August 31, 2014 which will demonstrate that during the most recent reporting of the operational period, i.e; Sept 1, 2013 to Aug 31, 2014.

Please notice the attachment that relates to Dec 31, 2011, the combined operational funds (General, Parks, LIT, and Hospitalization) totaled $22,730,324…please notice the attachment Dec 31, 2012, those funds previously mentioned totaled $15,667,010…please notice the combined operational funds, the same as mentioned above, for Dec 31, 2013 totaled $9,676,276. So, from January 1, 2012 to December 31, 2013, the operational funds declined by $13,054,048…as such, this 24 month period of time demonstrates that you were spending more than you are receiving in revenues by $543,919 per month [$13,054,048/24=$543,919]

In review of the previous twelve months ended August 31, 2014, the combined operating funds were upside down by $2,641,098 compared to the same period one year ago of a positive $2,389,957, or a decline of $5,031,055 or $419,255 per month over the past twelve months….

Lloyd, you can NOT sustained these declines in your operational funds. Russ, says that this is a timing issue…I strongly disagree. Over the 24 month period of time, from Jan 1, 2012 to December 2013, any timing issues would be resolved, then consider what has occurred from Sept 1, 2013 to Aug 31, 2014, plainly illustrates that you are paying the electric billing with your other funds, i.e. police and fire pensions, grants funds, the rainy day fund, roads and streets, and of course, the riverboat funds which were never intended to be used directly or indirectly for operations,

So, here’s the numbers: (SEE ATTACHMENTS) RE: THESE ARE YOUR NUMBERS as published by the Controller’s Office
(A) (B) (C)
Operational Funds Deficit Spending Operational Funds Balance Operational Funds Balance
@ Beg of Yr @ End of Yr

2012 $7,063,314 $22,730,324 $15,667,010

2013 $5,990,734 $15,667,010 $ 9,676,276

Fiscal Year Sept 1, 2013 to
August 31, 2014 $5,031,055 $ 2,389,957 $-2,641,098

So, as the reader can see, you have been averaging over the 24 months ending Dec 31, 2013 deficit spending of $543.919 ($7,063,314 + $5,990,734 = $13,054,048 divided by 24 months = $543,919 concerning your combined General, Parks & Recreation, Hospitalization, and Local
Option Income Tax. Actually, I did not divide the ending balances of the Local Option between what is used for Capital Expenditures and Operations. As you know, the LIT is also used for those sort of expenses for Capital Improvements, as well. Generally, spilt 60% operational and 40% Capital which understates the deficit spending in operations by more than I have calculated.

As such, your proposed reductions in the 2015 General Fund Budget of approximately 1,350,000, in the Local Option Income Tax of approximately 960,000, and a meager 35,000 in the Parks Fund covers only 35.9%% of your average deficit spending ($543,919 x 12 = $$6,527,028)… $1,350,000 + $960,000 + $35,000 = $2,345,000 divided by $6,527,028 = 35.9%…of course, I have not touched the hospitalization fund which, under the current conditions, is of suspect. By the way, Column A is determined by subtracting column B from column C.

So, it is very probably that if your budget is passed with your reductions as presented, other fund balances will erode by approximately 4.2 million. ($6.5 million less the reductions of $2.3 million) As you are aware, you are commingling other funds into ONE checking account in order to sustain this deficit spending which is not wise knowing that you have the hotel and IU Med school payments in the near future.

Please let me know if you have any questions.

Thanks,

John

ATTACHED ARE THE LINKS OF THE AUDITED OPERATIONAL FUNDS FOR THE CITY OF EVANSVILLE FOR YOUR REVIEW.  WE URGE OUR READERS TO SHARE THIS INFORMATION WITH THEIR CPA”S,  BOOKKEEPERS,  FISCAL OFFICERS, INVESTMENT BANKERS OR ANY OTHER INDIVIDUALS  THAT HAVE KNOWLEDGE OF  FINANCIAL  MATTERS.  WE LOOK FORWARD TO YOUR COMMENTS CONCERNING THIS ISSUE.

Evansville Audited Operational Funds – Dec 31, 2011

Evansville Audited Operational Funds Dec 31, 2012

Evansville Audited Operational Funds -Dec 31,2013

Evv Operating Funds – Aug 2013

Evv Operating Funds – Aug 2014

THIS ARTICLE WAS POSTED BY THE CITY COUNTY OBSERVER WITHOUT OPINON,  BIAS OR EDITING.

Unemployment rate ticks down in September but job numbers drop

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Courtesy of the Indiana Department of Workforce Development

By Lesley Weidenbener
TheStatehouseFile.com

INDIANAPOLIS – Indiana’s unemployment rate dropped slightly in September, even as the state lost jobs overall.

Courtesy of the Indiana Department of Workforce Development

The seasonally adjusted rate stood at 5.7 percent last month, down 0.1 percentage points from August. The rate is significantly lower than one year ago when it stood at 7.3 percent.

The drop comes even as the private sector suffered a decline of 1,900 jobs in the state, led primarily by losses in the leisure and hospitality and the trade, transportation and utilities sectors.

Still, Indiana employers added 6,000 manufacturing jobs, a 1.2 percent increase over the previous month.

The Indiana Department of Workforce Development says that’s the largest one-month increase in manufacturing jobs in a decade and one of the highest in the nation. Since July 200, the low point of employment, the state has added 90,000 manufacturing jobs, which ranks Indiana among the top five in the nation.

Feds extend pre-K funding deadline but Pence still says no

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By Lesley Weidenbener
TheStatehouseFile.com

INDIANAPOLIS – Gov. Mike Pence said Tuesday he still won’t apply for up to $80 million in preschool funding – despite an extended federal deadline and calls from several education officials.

Gov. Mike Pence signed a bill earlier this year to create a pre-K pilot program as 5-year-old Rosie Chavez and 4-year-old Tre Embry help with the pens that were later given to lawmakers who helped pass the bill. Photo by Lesley Weidenbener, TheStatehouseFile.com
Gov. Mike Pence signed a bill earlier this year to create a pre-K pilot program as 5-year-old Rosie Chavez and 4-year-old Tre Embry help with the pens that were later given to lawmakers who helped pass the bill. Photo by Lesley Weidenbener, TheStatehouseFile.com
Pence said he stands by a decision he made last week not to seek the grant funding, which could have tripled the annual funding for a pre-kindergarten program set to roll out next year in five counties.

The governor’s announcement came after State Board of Education members Gordon Hendry and Tony Walker and state Superintendent of Public Instruction Glenda Ritz issued public pleas for Pence to apply for the money.

“Gov. Pence has repeatedly stated his support for creating a high-quality system for early childhood education for Indiana,” Ritz said. “Now, Indiana needs his actions to back up his words.”

Ritz, Walker and Hendry are all Democrats but the latter two were appointed by Pence to serve on the State Board of Education.

The education reform group Stand for Children Indiana weighed in Tuesday as well. The group’s executive director, Justin Ohlemiller, said the grant “could set the stage for Indiana to potentially become a national leader in early childhood education.”

But Pence issued a statement Tuesday afternoon saying that “federal funding does not guarantee success.”

“This is not about the money,” Pence said. “It’s about our children and we have an obligation to get it right. Our administration will remain focused on the successful launch of the five county pre-k pilot program approved by the Indiana General Assembly earlier this year.”

Pence received criticism last week from some pre-kindergarten supporters for opting against the federal funds but some conservatives – particularly those who dislike federal intervention in schools – are supporting him. On Tuesday, federal officials extended the deadline to Wednesday.

Ritz called the three-year grant “a once in a decade opportunity.” And she said the Indiana Department of Education has spent hundreds of hours working with the Indiana Family and Social Services Administration to get the grant application ready.

“The work is done,” Ritz said. “All the application needs now is Gov. Pence’s signature. I am calling on Gov. Pence to do the right thing for Indiana’s students and families and submit this grant application.”

Indiana is in line to receive as much as $20 million annually from the preschool development grant, according to a notice filed in the Federal Register. The document lists Indiana as one of two states eligible for category one funding.

The state program will be funded with $10 million that Pence found in unused FSSA appropriations and does not have funding secured for future years. The five counties participating in the program were required to come up with matching funds, including some from private donations.

Business and education leaders have asked legislators to pay for an expansion of the program in the two-year budget they’ll write in 2015.

Ohlemiller said Pence needs to “continue his leadership on this critical issue.”

“Early indications are that Indiana has a great shot at success if it does apply,” Ohlemiller said. “That’s why we need to take advantage of this rare second chance to do right by our most vulnerable kids across the state.”

Vanderburgh County Recent Booking Report

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SPONSORED BY DEFENSE ATTORNEY IVAN ARNAEZ.
DON’T GO TO COURT ALONE. CALL IVAN ARNAEZ @ 812-424-6671.

http://www.vanderburghsheriff.com/recent-booking-records.aspx

EPD Activity Report October 22, 2014

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SPONSORED BY DEFENSE ATTORNEY IVAN ARNAEZ.
DON’T GO TO COURT ALONE. CALL IVAN ARNAEZ @ 812-424-6671.

EPD Activity Report

Split COA reverses denial of post-conviction relief

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Dave Stafford for www.theindianalawyer.com

A defense attorney’s failure to raise the consecutive sentencing limitation prejudiced his client, the majority of a Court of Appeals panel ruled, reversing denial of post-conviction relief for a man convicted of multiple burglaries. The court remanded for resentencing to trim six years off a 28-year prison term.

In April 2007, Gary A. Gallien and two accomplices drove a stolen vehicle to a Floyds Knobs Goodwill store. They broke in, stealing $71 and a handcart. Minutes later, they drove to nearby Galena, smashing the vehicle into Sammy-O’s Tavern and hauling away an automatic teller machine. Gallien was arrested a short time later.

A Floyd Circuit jury convicted Gallien of two counts of Class C felony burglary, two counts of Class D felony theft and one count of Class D felony receiving stolen property. Gallien was sentenced to an aggregate 28 years in prison – eight years each served consecutively on the burglary counts, enhanced by 12 years for his habitual offender status. He also received a concurrent sentence of three years for receiving stolen property.

Judge Michael Barnes wrote for the majority joined by Judge Elaine Brown that an analysis of whether the burglaries could be described without referring to each other, as the post-conviction court did, was not dispositive of whether the crimes constituted a single episode of criminal conduct, nor was the fact that two businesses were burglarized.

“Instead, we focus on the small distance between the two burglaries, the short amount of time between them, and the apparent scheme that tied them together. Based on that analysis, we conclude that the two burglaries were ‘closely related in time, place, and circumstance,’” Barnes wrote in Gary A. Gallien v. State of Indiana, 22A01-1402-PC-50.

“As a result, the consecutive sentencing limitation of Indiana Code Section 35-50-1-2 is applicable, and the maximum consecutive sentence possible for the two burglaries was ten years rather than the sixteen years imposed by the trial court. Gallien was prejudiced by his appellate counsel’s failure to raise the issue.”

Judge Cale Bradford wrote in dissent he would affirm the post-conviction court.

“It is of note that this court has issued a large number of seemingly inconsistent opinions regarding what constitutes a single episode of criminal conduct, some of which would tend to indicate that Gallien’s actions might be found to constitute a single episode of criminal conduct on appeal. As such, I must agree with the majority that the question of whether Gallien’s actions constituted a single episode of criminal conduct, which would limit his potential sentence to ten years rather than the sixteen imposed by the trial court, was significant and obvious from the face of the record,” Bradford wrote.

“However, even if appellate counsel’s failure to raise this issue on direct appeal amounted to deficient performance, I do not believe that the post-conviction record demonstrates that Gallien established that he was prejudiced by the allegedly deficient performance.”

Movie Premiere – “Forever Honor”

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Evansville, IN October 22, 2014, Wednesday, from 7:00 – 8:00 pm the Freedom Heritage Museum is sponsoring the original short film “Forever Honor” to be shown for the first time. The public is invited to attend at the Showplace Cinemas East on Morgan Center Dr. (use the IMAX entrance). The suggested entrance/donation fee is $5 (all proceeds will go to the Freedom Heritage Museum). Reservations can be made at 812-759-8186. The theater holds 250 people. A second showing will follow immediately after the first to accommodate an overflow crowd.
The purpose of the Movie Premier is to thank all those that collaborated in making the 70th Anniversary D-Day Reenactment on 14 June 2014 at Dress Plaza. The D-Day Reenactment was the most talked about and successful program of the 2014 ShrinersFest Air Show. This one time event recreated D-Day by having 1.) Naval support: LST-325 and their Higgins boat, 2.) Air support: two P-47 Thunderbolts strafing (all made in Evansville!), and 3.) Ground support: American GIs landing on Dress Plaza to capture the Nazi positions. Reenactors from IN, KY, TN, MO, IL, and OH participated. The 70th Anniversary D-Day Reenactment was dedicated to the Greatest Generation who pulled together, endured rationing, and made the personal sacrifices to win WWII and protect our freedoms. Professional videographers and photographers were imbedded in the action to produce this short film. The “Forever Honor” Producer/Editor/Director is Steve Oglesby of Oglesby Digital.
In the same spirit of 70 years ago with the D-Day Normandy invasion being a collaboration of various Allies, our D-Day Reenactment on June 14, 2014 was a collaboration of the Freedom Heritage Museum, LST-325 (USS LST Ship Memorial), Hadi Shiners of Evansville, and City of Evansville. Representatives of these organizations will be on hand to meet the public, in addition to Allen Sanderson (P-47 combat pilot who flew on D-Day June 6th 1944), Brad Byrd (narrator of the event), members of the Greatest Generation, and notable local politicians.
All are invited to attend this Movie Premier to see what happens when we work together for our community and promote the mission of the Freedom Heritage Museum.
About the Freedom Heritage Museum
The Freedom Heritage Museum (FHM) is a not-for-profit museum located in Evansville, IN that is dedicated to providing all generations a glimpse into the role of Evansville’s manufacturing support during World War II. This is done through the preservation of artifacts produced in Evansville and the Tri-State and by the telling of the veterans’ and home front heroes’ stories. It is important to DISCOVER, LEARN, REMEMBER, HONOR the deeds of the Greatest Generation and how it impacted today’s world. To learn more about the Freedom Heritage Museum or to donate, visit www.FreedomHeritageMuseum.org.

Former Daycare Teacher’s Aide Arrested for Battering a 3-Year-Old Child

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SPONSORED BY DEFENSE ATTORNEY IVAN ARNAEZ.
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Indiana State Police initiated a criminal investigation in September after receiving information a three-year-old female was allegedly battered while attending Children’s Learning Center, 2100 West Fourth Street, Mt. Vernon.

During the investigation, Detective Alan Sherretz determined that Meghann Stevens, 25, of Evansville, was the teacher’s aide for the three-year-old girl. On September 5th, three children were crying in a classroom when Stevens’ allegedly picked up the three-year-old girl and sat down on a nearby chair. Stevens was holding the three-year-old on her lap when she allegedly squeezed her rib cage, causing pain and red marks.

After reviewing this investigation, the Posey County Prosecutor issued an arrest warrant for Stevens. Last night at approximately 7:00, Stevens was arrested at her residence without incident. She was taken to the Posey County Jail where she posted a $1,000 cash bond and was released.

Stevens is no longer employed at Children’s Learning Center.

ARRESTED AND CHARGE:
• Meghann Chelsey Stevens, 25, 109 Adams Street, Evansville, IN
1. Battery on a Person less than 14 years old, Level 6 Felony