ILNews

Court: stipulation can be in preliminary jury instructions

Back to TopE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. For many years this young man was "family" being my cousin's son. Then he decided to ignore my existence and that of my daughter who was very hurt by his actions after growing up admiring, Jason. Glad he is doing well, as for his opinion, if you care so much you wouldn't ignore the feelings of those who cared so much about you for years, Jason.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

ADVERTISEMENT