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COA: no error in admitting no contest plea

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A plea of no contest can be admitted under Indiana Evidence Rule 803(8) as a public record proving the fact of a conviction, the Indiana Court of Appeals affirmed today. The appellate court found no error in admitting a defendant's nolo contendere plea to a Florida murder as proof he was convicted of an offense qualifying him as a serious violent felon.

In Robert L. Scott v. State of Indiana, No. 79A05-0812-CR-746, Robert Scott appealed his convictions of possession of a firearm by a serious violent felon, battery with a deadly weapon, pointing a firearm, and resisting law enforcement.

Scott was asked to leave a bar, but refused. A police officer called to the bar tried to stop Scott but Scott spun around and hit the officer in the chest. Scott had a gun in his hand, which looked like a derringer. He ran away, but officers went to his house that night for a "knock and talk." Scott stepped outside to talk to the officers and consented to a search of his house for other people. In a short search, officers moved a mattress they saw on the floor and found a loaded derringer. Scott also told officers about another gun under the couch. He was arrested on an active warrant from Florida and then advised of his rights.

Scott challenged the admission of his nolo contendere plea to a Florida murder to qualify him as a serious violent felon in Indiana. He argued the plea can't be admitted under Indiana Evidence Rule 803(22), which addresses no contest pleas; or Rule 803(8), a more general hearsay exception.

There aren't any Indiana cases addressing this, so the appellate court relied on cases from federal and other state courts to conclude Rule 803(22) is intended to prevent the no contest conviction from being used in a subsequent proceeding to prove actual guilt of the prior offense. The rule doesn't prevent admission under Rule 803(8). In addition, an exhibit shows Scott was adjudicated as guilty of second-degree murder by the Florida court, wrote Senior Judge John Sharpnack.

Scott challenged the search of his home and the admittance of the two guns into evidence. Scott's counsel didn't make a continuing objection to the admission of the derringer, an officer's testimony about the gun being loaded, or where the gun was found, so the issue was waived. The Court of Appeals determined even if he hadn't waived the issue, he still wouldn't have prevailed because he consented to the search.

The Court of Appeals did reverse the trial court denial of Scott's tendered jury instruction on the pointing a firearm charge. He argued the court should have informed the jury it could find him guilty of a misdemeanor if the gun he pointed at the officer was not loaded. Although it's unlikely the jury would have found the gun was not loaded, the officer's testimony that the gun malfunctioned when Scott pulled the trigger could support a reasonable inference to the contrary, wrote the judge.

The appellate court remanded on this issue for further proceedings.

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  1. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  3. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  4. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  5. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

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