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COA: man doesn't have to testify for self-defense instruction

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The Indiana Court of Appeals ordered a new trial for a man convicted of murder because the trial court erred by refusing to instruct the jury on self-defense without the defendant’s testimony.

In Larry Ault v. State of Indiana, No. 49A04-1008-CR-492, Larry Ault got into a heated argument with Andrew Parrish when Parrish and Donna Choate arrived at Ault’s home. The two came to confront Ault about money he owed after buying a radio from Parrish’s friend. Choate had to separate the men twice. When Parrish ripped off his coat, threw it in his truck and said he was going to beat up Ault now, Ault shot Parrish in the head and killed him.

At his trial, the trial court considered the permissibility of a self-defense jury instruction in the event that Ault didn’t testify. The trial judge concluded that the subjective standard of the self-defense argument couldn’t be satisfied without Ault testifying as to his perception of what was going on the day of the shooting. Ault then took the stand and was found guilty of murder.

Ault appealed the conclusion that prior to his testimony, the record lacked evidence of self-defense to support giving a self-defense jury instruction. At trial, Ault’s attorney asked whether the trial judge’s ruling meant that self-defense instructions were never available in cases where defendants didn’t testify, and the judge couldn’t answer that.

This issue hasn’t been precisely raised in Indiana, so the appellate judges relied on Hilbert v. Commonwealth, 162 S.W.3d 921, 924 (2005), from the Kentucky Supreme Court; and People v. Hoskins, 267 N.W.2d 417, 418 (1978), from the Michigan Supreme Court, to conclude a defendant doesn’t have to testify in order to receive a self-defense instruction as long as the defense is supported by the evidence.

In the instant case, the trial court found the fact that Parrish was on Ault’s property, he was shouting and threatening Ault with bodily injury, and had indicated he would attack Ault “now” was enough to establish the objective component of self-defense, wrote Judge Cale Bradford.

“Given the broad use in Indiana of circumstantial evidence to show an individual’s state of mind, and in light of Hilbert and Hoskins, we must conclude that these facts were similarly adequate to support a reasonable inference regarding the subjective component of self-defense, namely that Ault believed deadly force was necessary to protect himself. We therefore conclude that the trial court abused its discretion in refusing to instruct the jury on self-defense without Ault’s testimony,” he wrote.

Denying the self-defense instruction on these facts was not a harmless error, so the appellate judges ordered a new trial.

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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