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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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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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