ILNews

Judges affirm jury instruction was not permitted under Barnes

Back to TopCommentsE-mailPrintBookmark and Share

The Howard Superior Court was correct in refusing a defendant’s instruction that provided a defense to his resisting arrest charges. The 2011 Supreme Court ruling in Barnes v. State did not permit his proposed instruction, the Indiana Court of Appeals held.

Napoleon Gracia Sr. appealed his convictions of Class C felony disarming of a law enforcement officer, Class A misdemeanor battery, and Class A misdemeanor resisting law enforcement following an arrest in 2010. Officers came to his Kokomo home to serve a search warrant because of possible drug activity. Gracia waited in the garage as the warrant was being executed. After police found a leafy plant substance and items associated with smoking and sale of marijuana, officers attempted to arrest Gracia. He refused to put his hands behind his back, pulled away, and was tased. He then charged at officers, who sprayed him in the face with mace. Gracia punched one officer and tried to remove that officer’s gun from his holster.

At his trial in Howard Superior Court I, Gracia wanted the court to give a jury instruction stating Garcia could resist the officer’s use of excessive force by the use of reasonable force to protect himself. The trial court refused the instruction, citing Barnes, 946 N.E.2d 572 (Ind. 2011).

In Napoleon Gracia, Sr. v. State of Indiana, 34A04-1112-CR-667, the appellate court affirmed that the instruction was not a “good statement of the law” in light of Barnes, which held “there is no right to reasonably resist unlawful entry by police officers.” Judge Nancy Vaidik noted that the Legislature has since amended Indiana law to restore a citizen’s right to use reasonable force to protect himself against unlawful entry by police officers.

Gracia also claimed the state engaged in impermissible forum shopping when it filed the charges in Howard Superior Court I. Local rules dictate a weekly rotation among certain Howard County courts, and for the most part, a prosecutor should file a felony criminal charge in the court designated by the weekly rotation. Court I is not included in the rotating system.

The judges agreed that Court I was not the proper forum for Gracia’s case, but he didn’t object to the filing of charges in that court. The COA analyzed his appeal using fundamental error and found that he couldn’t show he was prejudiced or denied a fair trial. His argument that the prosecutor disregarded local rules is no substitute for this showing, Vaidik wrote.

The appellate court also upheld his eight-year sentence, pointing to Gracia’s history of resisting law enforcement and the seriousness of this latest incident.

 

ADVERTISEMENT

  • Reason
    If there is no right to resist unlawful entry by a police officer why did Indiana pass a law that allows residents to use deadly force against thug cops that use the I heard something then break the door down. The answer is because to many cops went too far too many times!

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

ADVERTISEMENT