*1 residuary the farm —a clause is not a question respect of fact with to the intent as to specific devise. Interestingly, majority Funk. of Cleo “[sjummary judgment notes that must be why summary judgment This is is so upon hinges if the resolution thereof denied inappropriate legal where the issues often Op. state of mind ...” at 129. How- intent. I involve a determination of find no ever, prop- that under majority asserts expression clear of Funk’s intent with Cleo circumstances, will, the construction of a er respect family farm on the face of including a determination of the testator’s the will. intent, may disposed by way sum- be partial summary I reverse the would mary judgment. Op. majority at 131. The by the trial court and judgment entered to be a be- finds this circumstance a trial on the merits. remand for cause the “obvious” intent of Cleo was to Op. family farm to the children. leave
at 132.
This conclusion stretches bounds light of the fact that the “obvi-
reason specific
ous” intent to make a devise residuary general
extracted from a clause. Indiana, Appellant no majority concedes that there was STATE (Plaintiff Below), family farm in the specific mention of the Nonetheless, majori- Op. will. ty finds: German, Sean Sean ROMERO a/k/a residuary use of the clause was [T]he Below). (Defendant Appellee ' devising cut” method of merely a “short No. 45A04-9002-CR-82. By way family farm to the children. cut, attorneys were this short Cleo’s Indiana, Appeals testamentary manifest Cleo’s in- able to District. Fourth devising children tent of the farm to the Nov. setting going to the trouble of without long, complex legal description of out the family Funk farm the will. join majori- at 131. I am unable to
Op.
ty drawing such an inference from the
residuary Clearly, possible it was clause. acquired to have other
for the decedent Thus, the property
real before his death.
residuary clause was not tailored exclusive- contrary farm. At least one
ly for the from may be drawn the omission
inference from the will—-the decedent
of the farm death, in order to sell it before
intended personalty. it
to convert the intention of the testator agree
I that ascertained, possible, if and carried
is to be every will. in the construction of
into effect
However, to be collected this intention is in the will. The is contained
from what the will to obtain
Majority gone outside equitable rather than it considers an
what farm.
testamentary distribution obviously since the will is silent true
This
1. whether the trial court erred allowing a former deputy prosecutor to represent Romero; and 2. whether the trial court erred permitting testify witness to concerning reconstructive memory. April, charged Romero was with murder and attempted murder in Lake County. trial, After a jury the jury was unable to reach a verdict and a mistrial was declared. The by agree cause was reset parties. Shortly thereafter, original Romero’s attorney withdrew his appearance and attorney Thomas Vanes (Vanes), a former Lake County prosecutor, appearance entered his on Romero’s behalf. A jury held, second trial was after which Romero was guilty found not of both charges. The State appellate now seeks questions review on reserved pursu of law ant 38—4—2(4).1 to IND.CODE 35— The State first contends the trial Vanes, court erred in permitting attorney deputy prosecutor during Romero’s first trial, objection Romero over by the State. The State maintains Vanes’s representation presented, least, ap pearance impropriety, if not a violation of the Rules of Professional Conduct. The record demonstrates Vanes was a deputy prosecutor in County during Lake retrial, Romero’s first trial. Upon Vanes appearance entered his on Romero’s behalf. concerning par- Vanes filed an affidavit Pearson, Linley Atty. Gen., ticipation E. pro- the case. The affidavit Michael Worden, Gen., Deputy Atty. dep- vides Vanes was consulted another Gene India- uty napolis, appellant. prosecutor concerning admissibility case;
of certain items Romero’s how- ever, Vanes was not informed of the name CONOVER, Judge. any of the accused and did not obtain confi- Plaintiff-Appellant the State of Indiana regarding dential information the case. In (State) appeals acquittal of Defendant- affidavit, prior par- concludes his Appellant Sean Romero a/k/a Sean Ger- ticipation the cause was not substantial (Romero). man contemplated by Rule 1.11 of the Rules affirm. Thereafter, of Professional Conduct. dur- presents following trial, The State ing object- two is- Romero’s second the State sues for our review: representation ed to Vanes’s of Romero on acquitted frequently permit appeals 1. When a defendant has been and the our courts such as a law, appeals question only way furnishing guidance a reserved courts in questions of law are considered this Court. future cases. State v. Goodrich moot, Though questions these are sometimes occasions, however, give appearance improprie- objections such would several were ty Respondent overruled. ... has violated Disci- 9-101(B) plinary Rule of the Code Conduct, Ind. Rules of Professional Rule Responsibility Attor- Professional provides, pertinent part: 1.11 neys at Law.2 and Private Em- *3 Successive Government Id., Moreover, commonly it ac- is ployment: knowledged attorney an contravenes our (a) may permit, Except as law otherwise Rules Professional Conduct when he lawyer private a shall not a represents party controversy a in a which in in with a matter client connection substantially a in which is related to matter lawyer participated personally which the attorney previously represented anoth- public a officer or substantially and as (1983), Ind., client. Matter appropriate govern- er Zinman employee unless the 1000, agency consents after consulta- N.E.2d 1002. 450 tion .... Therefore, readily it is the crux apparent Rule, (d) “mat- As used in this the term participated is whether of the issue ter” includes: substantially” “personally and in Romero’s (1) any judicial proceeding, ap- or other prosecution. This is often termed the first plication, request ruling for a or other relationship” gene- “substantial test. claim, determination, contro- contract relationship of the substantial test is sis versy, investigation, charge, accusa- Tippecanoe County found State v. tion, particular matter arrest or other 1377, 1378, party parties; involving specific or [a] supreme in which our court stated: and ... It is axiomatic that the conduct of all (2) by the any other matter covered state, attorneys employed in this whether appro- conflict of interest rules sector, private gov- public or priate government agency. by the Re- erned Code Professional Rule, (e) the term “confi- As used this test, sponsibility_3 stated alter- government dential information” means natively many jurisdictions, is that a has been obtained un- information which disqualified if it is shown lawyer must be which, governmental authority and der controversy that involved applied, the at the time this Rule is substantially related to a pending case is government prohibited law from lawyer previously in which the matter public legal has a disclosing to the client. This test represented another disclose, and which is not privilege not to each case applied to the facts of must be (Em- public. available to the otherwise the issues determine whether phasis supplied). essentially are present cases prior and interpreted applied Our case law has and closely interwoven there- or are the same (1985), In Brodeur this rule. Matter of omitted). (Citations with. Ind., 57, supreme N.E.2d our Id., at 1378. observed: relationship test has The substantial lawyer public employ-
After a leaves applied in interpreted and sever- since been ment, accept employment he should not (1984), v. al cases. Shuttleworth State any matter in which in connection with 1210, 1217, Ind.App., we de- responsibility prior to he had substantial “being by rea- “related” as connected accept employment fined leaving, since to 101(B) Responsibili- repeal of Professional preceded of the Code Disciplinary Prof. 2. Rule 9— 101(B)provided: ty. the new rules was accom- Cond.R. 1.11. Dr transition to 9— through employment to Admission lawyer accept private plished an amendment shall not A Through re- Discipline which he had substantial 2. this § in a matter in Rule and amendment, public employee. sponsibility was a while he of Professional Conduct the Rules grounds discipline Jan- effective became the Conduct cover the 3. The Rules of Professional uary 1987. subject the former Code of Pro- same matter as specific Responsibility. There was no fessional best, discoverable rela- at thus the trial court not established or minimal did son Id., tionship.” prosecut- we conceded a at While err. 184.
ing attorney’s prosecution of a defendant directly Because no cases are Indiana nonsupport of his children was related case, point we facts this look attorney prior proceeding in which the further to other sources for the definition wife in represented defendant’s the dissolu- “substantially related”. The definition action, marriage we the two tion of held section our Rules of Professional Con- “substantially” related. eases were duct defines term follows: found in time and lack of remoteness “Substantial” when used in reference to dissipated any in the record other evidence degree or extent denotes material mat- Id., impropriety. appearance of weighty ter clear importance. Thereafter, (1985), Ind. Banton *4 The American Bar Association also 1160, we held the trial App., Comm, ABA commented the term. In refusing disqualify in to court erred Responsibility, on Ethics & Professional attorney represented a in who codefendant (1975), Op. 342 ABA defined Formal the prosecuted criminal matter and later the a responsibility” “substantial as used in DR held the controver- other codefendant. We 9-101(B), predecessor the to our current exactly sy in both cases was the same and rule. ABA stated: prejudicial readily apparent. effect was the envisages responsibility’ a ‘substantial Id., at 1164. relationship more much closer and direct (1990), recently, v. Most Jaske perfunctory approval of a mere than that 181, denied, Ind.App., 553 N.E.2d trans. question. disapproval of the matter based, part, on granted rehearing we responsibility requiring contemplates It a opinion, original issue. In our cited at this personally the to involved official become (1989), the N.E.2d we held 539 degree, important, to an material in the by denying abused its discretion the court re- investigative processes or deliberative special prosecu petition for a defendant’s garding ques- the transactions or facts facts demonstrate Jaske was tor. The tion. serving a life sentence for murder when he policy considerations The ABA stated the escape plan involving the aid devised an (1) treachery the underlying the rule are: plan After discover mercenaries. the was sides; (2) safeguarding the switching ed, conspiracy was convicted to Jaske governmental information confidential escape. conspiracy to his tri commit Prior against government; use the from future al, appoint petitioned Jaske the for (3) discourage law- government to the need prosecutor special the because assignments particular yers handling from Prosecuting Attorney previously represent encourage their way own in such a as to petition post-conviction ed Jaske in a regard par- employment in those future original on the murder conviction. relief government leaving ticular matters after disqual held the trial court should have We service; (4) professional benefit the proof prosecutor the because ified avoiding appearance the derived from was an lawful detention for murder Jaske’s evil. case, conspiracy of the State’s thus element framework, we must Working within this relationship test. satisfying the substantial its court did not abuse conclude the trial however, the record rehearing, we held On refusing disqualify Vanes discretion attorney facts did demonstrate Clearly, person- counsel. defense during prior repre might acquired have when he ally participated in matter post-conviction sentation of Jaske deputy prosecutor other conferred with the closely were interwoven proceeding admissibility of certain evidence. on the conspir subsequent prosecution of the However, participation did limited Id., Vanes’s the rela acy charge. held partic- of substantial repre not reach the level attorney’s prior tionship between contemplated by Prof.Cond.R. 1.11. ipation his subse defense counsel and sentation as respon- no “substantial escape Clearly, Vanes bore prosecution of quent Jaske sibility” in prosecution. Brodeur, su- scientific field so as to be admissible pra. While it is true court. Romero’s first and second trials were certainly most related Generally, before the results of scientific they since prosecu- constituted the same admissible, tests are proponent of the tion, we cannot conclude these matters lay evidence must foundation es- were substantially purposes related for tablishing the reliability procedure disqualifying Vanes. He was not involved (1986), used. Smith v. State Ind.App., 502 any important, Romero’s first trial to 122, 124, denied, reh. trans. de- Comm, degree. material on Ethics & Pro- nied. (1983),Ind., Cornett v. State fessional Responsibility, Op. Formal 498, 503, 342. N.E.2d our supreme court policy underlying adopted considerations the standard to be used for the rule were not admission of violated Vanes’s novel techniques, actions scientific which was nor was earlier prejudicial there enunciated in impact Frye (1923,D.C.Cir.), United States State as we F. view the facts. Frye, court, 1014. In dealing with the We find no error here. of polygraph evidence, admission held “that while courts are willing to admit ex- argues State next the trial pert about a principle scientific *5 court admitting erred in the procedure, or thing ‘the from which the expert regarding witness reconstructive deduction is made must be sufficiently es- memory.4 Jody Dr. Esper (Esper), an as gained tablished to have general accept- professor sistant psychology Valpa particular ance the field in which it be- University raiso with Masters and Doctor ” Cornett, longs.’ supra, Thus, degrees ate in psychology, permitted the new technique scientific procedure or testify to over objection. the State’s gained general must have acceptance in the State asserts memory reconstructive scientific community because the trial court gained general acceptance in the scien jury not, and should on a case case tific community to belongs, which it thus basis, upon be called to resolve a conflict in any introduction of such evidence consti community the scientific concerning the va- tutes error. lidity process. of new scientific Id. only testimony presented in the It is well settled the determination Thus, Esper. record is that Dr. we must of whether a qualified witness is testify judge validity of reconstructive memo- as an is within the sound discretion ry as an accepted principle scientific based court, of the trial ruling whose will not be on testimony standing her During alone. disturbed absent an abuse of discretion. her testimony, Esper retrograde described Wissman v. State amnesia. process She then described 1209, 1212. qualify To expert, as an memory as a reconstructive means of subject matter must be related to some recovering the lost memories and the use beyond scientific field the knowledge of the leading aid the questions to victim in this average lay person, and the witness must process. She cited reconstruction several skill, have sufficient knowledge experi her support testimony. studies as ence in the field to it appear make that the Moreover, testified she reconstructive opinion witness’s or inference will aid the and memory was first studied named in the trier of fact. Id. extensively 1930’s and has been studied Here, dispute the State does not the sub- approximately since 1973. She testified it ject beyond matter is knowledge widely accepted supported now as a average lay person. Moreover, it does not memory phenomenon. There is no evi- dispute Esper’s expertise area, in the but contradicting dence in the record these subject claims the accepted matter is not an statements. memory (R. process 250). 4. Reconstructive is the of fill- occurred. ing gaps memory left after amnesia has circumstances, we find the Under requirements were foundational at trial Evidence was adduced dem-
met. mem-
onstrating the area of reconstructive gained general acceptance in the
ory has community. scientific
relevant permit- did not abuse its discretion Esper testify.
ting
Affirmed. J.,
GARRARD, concurs.
CHEZEM, J., concurs result opinion.
separate
CHEZEM, concurring. Judge, pre- have
I concur result. I would finding make
ferred that trial court degree participated Mr. Vanes
as to the There a con- first trial.
the defendant's version and prosecutor’s
flict between Certainly, description Vanes. Mr. to be appears
the whole situation we do not re-
edge impropriety. Since there is evidence to
weigh the evidence and to allow
support the trial court’s decision *6 defendant, I Mr. Vanes in result.
feel constrained to concur
I also concur in result as second In the case at hand the evidence
issue. regarding reconstruc- witness memory properly admitted. How-
tive
ever, mem- reliability of reconstructive admissibility of
ory is still unsettled. adequately chal- when
such today.
lenged is not settled ESTEB, Appellant
Charles Below), (Respondent ENRIGHT, By the STATE of
Sandra Below). (Petitioner Indiana, Appellee
No. 55A01-9007-CV-00277. Indiana, Appeals
First District.
Nov.