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COA: no error in admitting no contest plea

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A plea of no contest can be admitted under Indiana Evidence Rule 803(8) as a public record proving the fact of a conviction, the Indiana Court of Appeals affirmed today. The appellate court found no error in admitting a defendant's nolo contendere plea to a Florida murder as proof he was convicted of an offense qualifying him as a serious violent felon.

In Robert L. Scott v. State of Indiana, No. 79A05-0812-CR-746, Robert Scott appealed his convictions of possession of a firearm by a serious violent felon, battery with a deadly weapon, pointing a firearm, and resisting law enforcement.

Scott was asked to leave a bar, but refused. A police officer called to the bar tried to stop Scott but Scott spun around and hit the officer in the chest. Scott had a gun in his hand, which looked like a derringer. He ran away, but officers went to his house that night for a "knock and talk." Scott stepped outside to talk to the officers and consented to a search of his house for other people. In a short search, officers moved a mattress they saw on the floor and found a loaded derringer. Scott also told officers about another gun under the couch. He was arrested on an active warrant from Florida and then advised of his rights.

Scott challenged the admission of his nolo contendere plea to a Florida murder to qualify him as a serious violent felon in Indiana. He argued the plea can't be admitted under Indiana Evidence Rule 803(22), which addresses no contest pleas; or Rule 803(8), a more general hearsay exception.

There aren't any Indiana cases addressing this, so the appellate court relied on cases from federal and other state courts to conclude Rule 803(22) is intended to prevent the no contest conviction from being used in a subsequent proceeding to prove actual guilt of the prior offense. The rule doesn't prevent admission under Rule 803(8). In addition, an exhibit shows Scott was adjudicated as guilty of second-degree murder by the Florida court, wrote Senior Judge John Sharpnack.

Scott challenged the search of his home and the admittance of the two guns into evidence. Scott's counsel didn't make a continuing objection to the admission of the derringer, an officer's testimony about the gun being loaded, or where the gun was found, so the issue was waived. The Court of Appeals determined even if he hadn't waived the issue, he still wouldn't have prevailed because he consented to the search.

The Court of Appeals did reverse the trial court denial of Scott's tendered jury instruction on the pointing a firearm charge. He argued the court should have informed the jury it could find him guilty of a misdemeanor if the gun he pointed at the officer was not loaded. Although it's unlikely the jury would have found the gun was not loaded, the officer's testimony that the gun malfunctioned when Scott pulled the trigger could support a reasonable inference to the contrary, wrote the judge.

The appellate court remanded on this issue for further proceedings.

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  1. Is it possible to amend an order for child support due to false paternity?

  2. He did not have an "unlicensed handgun" in his pocket. Firearms are not licensed in Indiana. He apparently possessed a handgun without a license to carry, but it's not the handgun that is licensed (or registered).

  3. Once again, Indiana's legislature proves how friendly it is to monopolies. This latest bill by Hershman demonstrates the lengths Indiana's representatives are willing to go to put big business's (especially utilities') interests above those of everyday working people. Maassal argues that if the technology (solar) is so good, it will be able to compete on its own. Too bad he doesn't feel the same way about the industries he represents. Instead, he wants to cut the small credit consumers get for using solar in order to "add a 'level of certainty'" to his industry. I haven't heard of or seen such a blatant money-grab by an industry since the days when our federal, state, and local governments were run by the railroad. Senator Hershman's constituents should remember this bill the next time he runs for office, and they should penalize him accordingly.

  4. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  5. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

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