ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share

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)

 
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  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.

ADVERTISEMENT