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. 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

  2. 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.

  3. 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.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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