Everroad v. State

19 Citing cases

  1. Everroad v. State

    590 N.E.2d 567 (Ind. 1992)   Cited 44 times
    Holding that search warrant was fatally tainted and without probable cause and therefore not discussing, except by implication, the issue of a Leon good faith exception

    The defendants, brothers Greg and Garnet Everroad, were both convicted of Dealing in Cocaine or a Narcotic Drug, a class A felony; Dealing in Marijuana, a class D felony; Dealing in Hashish, a class D felony; and two counts of Dealing in a Schedule I Controlled Substance, a class B felony. The Court of Appeals affirmed in part, reversed in part, and remanded for resentencing. Everroad v. State (1991), Ind. App., 570 N.E.2d 38. While the Court of Appeals discussed eighteen separate issues, we address only the following: (1) denial of discharge for delay; (2) validity of warrant and resulting searches; (3) sufficiency of the evidence.

  2. Kroger Food Stores, Inc. v. Clark

    598 N.E.2d 1084 (Ind. Ct. App. 1992)   Cited 18 times
    Holding that the plaintiff, claiming malicious prosecution, rebutted a determination of probable cause in a prior criminal case by establishing that the probable cause affidavit in the criminal case was based on a “blatant misrepresentation” and a lack of corroborating circumstances

    In a criminal context, the author of the dissent would be the first to recognize that not only is this affidavit deficient but that it is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. See, generally, Everroad v. State (1991), Ind. App., 570 N.E.2d 38 (Sullivan, J. dissenting), superseded in part, (1992), 590 N.E.2d 567, 571 (Affidavit relied upon hearsay without the requisite information establishing credibility, factual basis and corroboration). In short, the dissent's entire analysis overlooks the critical fact that, whatever the evidence in Kroger's possession, that evidence was not offered to the judge in support of the affidavit.

  3. Harless v. State

    577 N.E.2d 245 (Ind. Ct. App. 1991)   Cited 29 times
    Finding police officers' warrantless search illegal under the destruction of evidence exigent circumstance in part because the officers did not "observe any persons inside the home scrambling frantically to destroy evidence of controlled substances before the officers entered"

    His presence in the home provides the necessary standing to challenge the search. The State, however, cites Everroad v. State (1991), Ind. App., 570 N.E.2d 38, 46, trans. pending, in claiming that Ray cannot assert standing under Minnesota. We see important distinctions between the facts in Everroad and those in the case at bar.

  4. United States v. Garcia

    948 F.3d 789 (7th Cir. 2020)   Cited 21 times
    Holding sentencing enhancement was plain error after concluding Indiana "marijuana" definition was broader than federal definition

    Here, decisions by Indiana’s Supreme Court and Court of Appeals show the statute is not divisible. See Duncan v. State , 274 Ind. 457, 412 N.E.2d 770, 775–76 (1980) ; Everroad v. State , 570 N.E.2d 38, 54 (Ind. Ct. App. 1991), rev’d in part but summarily aff’d in relevant part , 590 N.E.2d 567, 571 (Ind. 1992) ; Martin v. State , 176 Ind.App. 99, 374 N.E.2d 543, 545 (1978). The Indiana Court of Appeals decision in Everroad is particularly instructive.

  5. Jackson v. Duckworth, (N.D.Ind. 1994)

    844 F. Supp. 460 (N.D. Ind. 1994)   Cited 4 times

    Courts finding a prima facie due process claim under section 2254 have subjected the delay to the balancing test applied to trial delays announced in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See, e.g., Harris, 15 F.3d at 1558-59; Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir. 1990); see also Everroad v. State, 570 N.E.2d 38, 55-56 (Ind.Ct.App. 1991) (Indiana Court of Appeals recognizing that inordinate delay in appeal process may result in due process violation and applying Barker), affirmed in part, vacated in part on other grounds by Everroad v. State, 590 N.E.2d 567 (Ind. 1992). Jackson has failed to demonstrate that he is entitled to relief under Barker.Barker requires that courts facing speedy-trial challenges consider and balance: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's active assertion of the right, and (4) the prejudice the delay has engendered the defendant.

  6. Cook v. State

    810 N.E.2d 1064 (Ind. 2004)   Cited 65 times
    Holding all five of defendant's motions to continue the pre-trial conference were chargeable against the defendant, such that Criminal Rule 4(C) time limit had not expired

    Only one case,Carr, rested its holding solely on the fact that defendant's continuances were requested before a trial date had been set. 790 N.E.2d at 602-06. The first case to hold this was Everroad v. State, 570 N.E.2d 38, 43-44 (Ind.Ct.App. 1991) (finding a delay caused by defendants' motion to continue, which was made "prior to the setting of a trial date, [was] not chargeable to the [defendants]"), reversed on other grounds, 590 N.E.2d 567 (Ind. 1992). Miller was the second case.

  7. State v. Conn

    234 Conn. 97 (Conn. 1995)   Cited 9 times

    [Citation omitted.]); Everroad v. State, 570 N.E.2d 38, 46-47 (Ind.App. 1991), superseded on other grounds, 590 N.E.2d 567 (Ind. 1992) (rejecting claim that failure to test contraband for fingerprints constituted destruction of potentially exculpatory evidence); Commonwealth v. Richenburg, 401 Mass. 663, 669, 518 N.E.2d 1143 (1988) (failure to perform blood typing analysis permissible ground on which to build defense but does not constitute destruction of potentially exculpatory evidence). The state, in fact, did preserve the evidence that it had in its possession and produced it at trial.

  8. Rose v. U.S.

    629 A.2d 526 (D.C. 1993)   Cited 59 times
    Holding that defendant had standing to challenge search of close relative's house to which he had a key and was a regular visitor

    When appellant's naked assertion that he had a key is examined in the context of the record as it actually exists, without elaboration, and considering the lack of other factors pertinent to the standing inquiry as described in Robinson, supra, any claim that appellant had standing is dispelled.See also Everroad v. State, 570 N.E.2d 38, 45-46 ( Ind. App. 1991) (appellants had no standing to challenge seizure of contraband from their mother's house where one only occasionally spent the night and the other was in the process of moving out and stayed there only "off and on.") Moreover, appellant took no precautions to maintain any privacy here, which further detracts from his claim.

  9. McGowan v. State

    599 N.E.2d 589 (Ind. 1992)   Cited 16 times
    Holding that “under T.R. 7(B), the motion could have been made orally except for the fact the magistrate who was arraigning appellant instructed him that he must make his motion in writing. Thus, appellant's situation came under that portion of the rule which says ‘or otherwise ordered by the court.’ ”

    Absent a showing of bad faith on the part of the police, the failure to preserve evidence does not constitute a denial of due process of law. Everroad v. State (1991), Ind. App., 570 N.E.2d 38. In the instant case, the first photographic array did not contain appellant's photograph and no witness identified any of the photographs as those of the suspect.

  10. Popp v. State

    984 N.E.2d 259 (Ind. App. 2013)

    We find no case law to support holding the State responsible for destroyed evidence where the State was not in possession of the evidence. See Glasscock v. State, 576 N.E.2d 600, 602 (Ind.Ct.App.1991) (“Where the police and the prosecution did not possess evidence, the rule requiring reversal of a conviction based upon evidence which was negligently destroyed does not apply.”) disapproved of on other grounds by Abney v. State, 821 N.E.2d 375 (Ind.2005); Everroad v. State, 570 N.E.2d 38, 46–47 (Ind.Ct.App.1991) ( “[T]he Everroads cite no authority which extends this rule to cases involving evidence never possessed by the prosecution or police.”) aff'd in part, vacated in part on other grounds,590 N.E.2d 567 (Ind.1992) and abrogated on other grounds by Cook v. State, 810 N.E.2d 1064 (Ind.2004).