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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. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  2. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  3. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  4. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  5. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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