The insurance lawyer in my civil case told me that the photo evidence wouldn’t matter, that the court
would find my guilty simply because the woman died (whether it was my fault or not!)
So far, he’s been right. I also noticed the prosecutor went out of his way to keep the pictures from being considered. I’m beginning to think I should follow his strategy (but in reverse). The transecript contains references to the woman’s death, so I want to omit the transcript except the judge’s ruling comments.
This is consistent with advice given me by another expert. An acclaimed appellant attorney referenced by that expert recommends only putting the strongest argument into the appeal. Because putting weak arguments next to strong arguments dilutes the court’s focus. What I’ve decided to do is limit my appeal to my motion to dismiss & motion for summary judgment.
Since neither of these were discussed while the court reporter was recording, I think I should be able include only the judge’s ruling where he puts his foot in his mouth by saying: a motion to quash was not filed (when in fact) a motion to dismissed was filed.
The below paragraphs are the basic points I want to make in my appeal. If I can get by with only that part of the transcript that contains the judge’s error, I think its to my advantage. I’m going to re-word the SECOND ISSUE so it makes no reference to the trial
court’s proceeding. Comments? Thoughts?
First Issue: The trial court trounced Defendant’s due process rights when it forgot and then omitted Defendant’s (motion to dismiss) from Defendant’s trial.
In its comments before ruling on January 10, 2013; the trial court indicated that a certain “Motion to Quash” probably would have been treated favorably by the trial court, but no such motion type was filed. However, online case history found at:
shows that on 6/22/2012, the trial court received Defendant’s motion to quash (aka: “Motion to Dismiss).” Said history shows on 6/28/2012, the trial court ordered a hearing in response to said motion. Said history further shows a hearing occurred on 7/19/2012. However, subsequent entries indicate said motion received no ruling. Given that the trial court apparently forgot that said motion was filed, and given that the trial court indicated said motion probably would have made a difference in its ruling - in the interest of justice
– the Defendant should receive due process rights by being granted a new trial so the trial court can incorporate said motion into the Court’s decision. OR, per RULE 320; judgment should be set aside, and the Defendant be granted a new trial on matters in controversy.
[R](See print-out of online docket history, attached as Exhibit R.)
[F] (See transcript of oral explanation of judgment, attached as Exhibit F.)
XXXXX Okay. Let me go ahead and
6 give a verdict in this particular case. It comes down
7 to a couple things. I guess the first thing is a
8 pretrial matter that was decided initially and that --
9 well, it wasn't raised. What could have been raised was
10 a motion to quash that the complaint
was not specific
11 enough. I'm going to say that was waived because no
12 one -- you didn't bring it up. And that was -- it says
13 in the complaint that the defendant did operate a motor
14 vehicle on Jollyville Road and its intersection with
15 West Braker Lane, the intersection of two public streets
16 when a pedestrian -- a pedestrian control signal
17 indicating walk was the place for pedestrian traffic
18 crossing Jollyville Road, and did fail to yield the
19 right-of-way to a pedestrian crossing the roadway within
20 a crosswalk -- here's the kicker -- when said pedestrian
21 was proceeding across said roadway in the direction of
22 the pedestrian signal.
23 If you want to be specific, I think what
24 State could have -- should have pled was the pedestrian
25 is one-half -- is one -- on the half of the roadway in
1 which the vehicle is traveling or approaching so closely
2 from the opposite side -- opposite half of the roadway
3 as to be in danger. That could have been a motion to
4 quash. I would have granted that. And since the State
5 had to be more specific, that wasn't raised. So we go
6 forward. We go forward with the testimony that was --
7 I'm saying that should have been a motion to quash,
8 maybe I would have granted that, had that been objected
9 to. It was not. And I look in the file. I don't see
11 But to the facts of the case from the
12 evidence that has been presented, I am going to find the
13 defendant guilty of the offense charged and impose a
14 fine of $300. Let me go ahead and write that judgment
15 up. And as soon as I do, you will have that -- a