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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 just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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