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Judges affirm jury instruction was not permitted under Barnes

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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.

 

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  • 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!

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  1. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  2. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  3. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

  4. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

  5. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

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