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Prior misconduct negates self-defense claim

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Evidence of a defendant's prior alleged domestic violence incidents against his ex-wife shouldn't have been admitted to explain the ex-wife's animosity toward him, the Indiana Court of Appeals concluded today. However, the evidence was admissible because it was relevant to prove the ex-husband's motive to commit the domestic violence he was charged with in the instant case.

In Christopher R. Embry v. State of Indiana, No. 30A04-0906-CR-346, Christopher Embry challenged the admittance of five prior incidents of domestic violence he allegedly committed against his ex-wife, Miki. Embry was charged with Class D felony domestic battery in the instant case after he and Miki got into a physical altercation at her house in which he pushed her to the ground and hit her. Embry claimed he was acting in self-defense. The trial court initially granted Embry's motion that the previous incidents were inadmissible under Indiana Evidence Rules 404(b) and 403.

While on the stand, the defense counsel asked Miki about derogatory comments she had written about Embry on her blog. Based on her testimony, the trial court found Embry had opened the door to allow evidence of the prior incidents and allowed the state to question Miki about them. Embry was found guilty.

The state claimed the evidence of his prior acts of violence was admissible either to rehabilitate Miki's credibility or to prove Embry's motive for committing the crime. The appellate court rejected the state's first argument. Some jurisdictions have held that if the defense elicits a bias on the part of a state's witness, the state can respond by introducing the defendant's prior uncharged misconduct to explain the witness' antipathy. The judges decided not to adopt that view. Instead, they believed the use of uncharged misconduct in this manner belies the rules and purposes of witness rehabilitation.

"Offering the defendant's prior bad acts to explain a witness's animosity only reinforces - rather than disproves - the witness's disposition. Introduction of the defendant's uncharged misconduct thus violates the rule of logical refutation and has no rehabilitative value," wrote Judge Nancy Vaidik.

However, that evidence was relevant to show Embry's motive to commit the domestic battery charge. If a defendant claims self-defense and he advances a claim of particular contrary intent, it allows the state to be able to use his prior misconduct to disprove the victim was the first aggressor, the judge wrote.

"Embry's prior acts of violence against Miki evidenced his hostility toward her, which in turn was admissible to demonstrate his motive for a violent attack, which made more probable the conclusion that he assaulted her and instigated the entire physical confrontation," she wrote.

Although there was a danger of prejudice given the number of prior bad acts mentioned, the trial court gave a limiting instruction and admonished the jury that the evidence wasn't admitted to demonstrate character or prove action in conformity therewith, so there was no error in admitting the evidence.

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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