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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. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  2. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  3. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

  4. His brother was a former prosecuting attorney for Crawford County, disiplined for stealing law books after his term, and embezzeling funds from family and clients. Highly functional family great morals and values...

  5. Wondering if the father was a Lodge member?

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