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COA declines to reverse conviction after co-defendant’s conviction overturned

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A panel on the Indiana Court of Appeals Wednesday did not agree with a defendant that his conviction of attempted aggravated battery should be reversed based on the reasoning of a separate appeals panel that overturned the same conviction of his co-defendant.

Chief Judge Nancy Vaidik and Judges Edward Najam and Elaine Brown granted Marquise Lee’s request for rehearing, in which he sought to have the affirmation of his Class B felony conviction of attempted aggravated battery overturned. Lee, his mother, Latoya Lee, and Billy Young were each charged with the murder of Ramon Gude after they went to his home to beat him up. An unidentified man with the three shot Gude, which resulted in his death. The three were tried jointly to the bench, and the court involuntarily dismissed murder charges. The court then found each of them guilty of attempted aggravated battery as a lesser-included offense. Lee’s mother’s conviction was affirmed as well, but Young’s conviction was reversed.

Lee never argued on appeal that attempted aggravated battery was not a lesser included offense to murder nor did he argue the state’s evidence at trial was an impermissible variance from the charging information. In Young, the appeals panel concluded that the trial court found the alleged facts underlying the murder charge were not proved beyond a reasonable doubt, and Young’s conviction for attempted aggravated battery was based on other evidence presented at trial. As such, his conviction is not a lesser-included offense of the murder charge.

In Marquise Lee v. State of Indiana, 49A02-1310-CR-869, the judges noted that Lee did not preserve this issue for appellate review and disagreed with the Young panel that the trial court did not present the defendants with a clear opportunity for a timely objection. When dismissing the murder charge, the judge explicitly told the defendants he would consider lesser-included offenses.

“As the Young panel recognized, ‘[a]t first blush, it would seem attempted aggravated battery’ is an inherently included lesser offense to murder. This fact alone demonstrates that the trial court did not commit an ‘egregious’ and ‘blatant” error,” he wrote.  

Najam then pointed to cases in which the COA has long held that attempted aggravated battery is an inherently lesser-included offense to attempted murder.

“And it should go without saying that attempted murder is an inherently lesser included offense to murder,” he continued. “Thus, the trial court did not commit fundamental error when it entered judgment against Marquise for attempted aggravated battery as an inherently lesser included offense to the charge of murder.”

A separate appeals panel also granted Latoya Lee’s request for rehearing but denied reversing its earlier decision, Latoya C. Lee v. State of Indiana (NFP)

 
 

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  1. I will be filing a lawsuit in Tippecanoe County for so many violations in a case we became involved in, including failure to contact through mail, Violation of 4th Amendment rights, Violation of Civil Rights, and so on. Even the Indiana Ombudsmen Bureau found violations and I have now received the report and they are demanding further training in Tippecanoe County. I am going to make sure they follow through!!!

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  3. I thought the purpose of the criminal justice center was to consolidate all the criminal services and get them out of downtown to clean up the place. Why in the HELL are the civil courts moving? What a burden to all the downtown law firms. Now we all get to work downtown, but then have to get in a car and COMMUTE to court? Who approved this idiocy?

  4. I drive through the neighborhood whenever I go to the City-County Building or the Federal Courthouse. The surrounding streets are all two way with only two lanes of traffic, and traffic is very slow during rush hour. I hope that enough money has been allocated to allow for improvement of the surrounding streets.

  5. I have had an ongoing custody case for 6 yrs. I should have been the sole legal custodial parent but was a victim of a vindictive ex and the system biasedly supported him. He is an alcoholic and doesn't even have a license for two yrs now after his 2nd DUI. Fast frwd 6 yrs later my kids are suffering poor nutritional health, psychological issues, failing in school, have NO MD and the GAL could care less, DCS doesn't care. The child isn't getting his ADHD med he needs and will not succeed in life living this way. NO one will HELP our family.I tried for over 6 yrs. The judge called me an idiot for not knowing how to enter evidence and the last hearing was 8 mths ago. That in itself is unjust! The kids want to be with their Mother! They are being alienated from her and fed lies by their Father! I was hit in a car accident 3 yrs ago and am declared handicapped myself. Poor poor way to treat the indigent in Indiana!

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