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Court: stipulation can be in preliminary jury instructions

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Even though a defendant waived his argument for appeal that a stipulation may not be placed before a jury via preliminary jury instructions, the Indiana Court of Appeals held the opposite today in a case involving a conviction of unlawful possession of a firearm by a serious violent felon.

Fabian Morgan was convicted of the Class B felony and sentenced to 15 years. He argued there wasn’t enough evidence to prove he qualified as a serious violent felon. The state had to prove that he had been convicted of an offense listed in Indiana Code Ann. Section 35-47-4-5. Before trial, it appears based on the record that the parties had stipulated to the element of I.C. Section 35-47-4-5 that Morgan was previously convicted of a felony at the time he possessed the gun in the instant case, wrote Judge Ezra Friedlander.

The stipulation wasn’t introduced at trial and not included in the materials submitted in conjunction with the appeal, so Morgan claimed there was insufficient evidence to prove he was a serious violent felon. He waived this argument by not objecting to the jury instructions.

In Fabian Morgan v. State of Indiana, No. 49A04-1001-CR-43, the appellate court couldn’t find any authority for Morgan’s argument that a stipulation can’t be placed before a jury through preliminary jury instructions. The judges relied on Hardister v. State, 849 N.E.2d 563 (Ind. 2006), in which the Indiana Supreme Court ruled otherwise, to conclude that a stipulation may be presented before a jury in the form of a preliminary instruction. It may be challenged by a defendant who preserves the issue for appellate review, noted Judge Friedlander.

The judges also found the trial court didn’t commit fundamental error when it admonished the jury to disregard remarks made by Morgan’s attorney during final arguments that the court characterized as “misleading” and “not the evidence presented.” Morgan didn’t object to any of the trial court’s comments, and couldn’t show fundamental error occurred. The record shows the attorney did misstate the evidence.

The judges also upheld the 15-year sentence.
 

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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