ILNews

COA rules on stipulation requirement

Michael W. Hoskins
January 1, 2008
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Prosecutors must be allowed to present their cases as they see fit and not be forced into agreements, the Indiana Court of Appeals confirmed today.

In State of Indiana v. Harold Lewis, No. 72A05-0610-CR-564, the three-judge panel unanimously reversed and remanded the case to Scott Superior Judge Nicholas South. The trial judge had determined in 2006 to grant the defendant's motion prohibiting prosecutors from mentioning the death of the man who Lewis had shot. He was being tried on a felony charge of criminal recklessness that Lewis had "knowingly or intentionally inflicted serious bodily injury" onto Dennis Hensley by shooting him in the right leg with a shotgun. Hensley died a day later.

Lewis argued that mentioning Hensley's death would be prejudicial because the state already planned to present photos showing Hensley's wound and him lying in a pool of blood. Lewis agreed to a stipulation allowing prosecutors to tell the jury he'd caused "serious bodily injury," but the state refused. Judge South granted the motion preventing a mention of Hensley's death and allowing the stipulation.

On interlocutory appeal, the state contended it should be able to present its case how it wishes and not be forced into a stipulation, while Lewis argued that "serious bodily injury" was abundantly clear from the photos not being challenged at trial and that mentioning death wouldn't be relevant but would be unfairly inflammatory.

The appellate court disagreed. Judge Terry Crone wrote that caselaw has already determined death falls into the category of serious bodily injury; he cited Nelson v. State, 664 N.E.2d 386, 388 (Ind. Ct. App. 1996) as authority. In deciding that the state couldn't be forced into the stipulation, the court relied on Perigo v. State, 541 N.E.2d 936, 940 (Ind. 1989) that held a party can refuse to stipulate to any facts; and Hines v. State, 801 N.E. 2d 634, 635 (Ind. 2004), that held the state is entitled to prove its case by evidence of its own choice and criminal defendants can't stipulate their way out of full evidentiary forces of a case being presented.

"Applying the aforementioned law to the present dispute, we must conclude that while Lewis was free to request a stipulation regarding serious bodily injury, the State was not required to agree," Judge Crone wrote, noting that all gory photos and the fact that Hensley died are "fair game" as long as they adhere to the Indiana Rules of Evidence.

In today's opinion, Judge Crone also wrote a footnote on Page 6 of the opinion pointing out an eight-month delay in this case being transferred from the appellate clerk's office to the court - despite it being an interlocutory appeal that gets expedited according to the state's appellate rules. This is the fifth such delay pointed out in opinions since late last year, although the appellate clerk has told Indiana Lawyer that the internal office backlog causing delays was resolved in late February. None of the opinions to date have described delays occurring since then.
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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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