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Judges split on whether jury instruction erroneous

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The Indiana Court of Appeals upheld the conviction of a man who shot at police when they attempted to serve a search warrant. The judges were, however, divided as to whether the trial court erred in giving jury instructions on the presumption of innocence.

In Richard E. Simmons v. State of Indiana, 55A01-1209-CR-444, Richard Simmons was convicted of four counts of Class A felony attempted murder, two counts of Class D felony criminal recklessness while armed with a deadly weapon and one count each of Class D felony unlawful use of body armor and Class A misdemeanor possession of marijuana. Police announced themselves to him when trying to serve a search warrant, but he hid out behind a water heater. The officers believed he had a weapon and he began firing at them, even through drywall as they ran off. The SWAT team was able to take him into custody after several hours.

The trial court declined to give Simmons’ tendered jury instruction, which said the presumption of innocence continues throughout the trial.

“It was not an abuse of discretion to so instruct the jury only in the preliminary instructions and not again in the final instructions, as other final instructions adequately conveyed to the jury the concept that the presumption of innocence continues throughout the trial,” Judge Melissa May wrote for the majority, which included Judge Rudolph Pyle III. “In final instruction number 28, the jury was told ‘You should attempt to fit the evidence to the presumption that the defendant is innocent and the theory that every witness is telling the truth.’ As it is ‘throughout the trial’ that the jury receives evidence, the instruction that it should try to fit the evidence to the presumption of Simmons’ innocence covered, in substance, the instruction that the presumption continues throughout the trial. There was no abuse of discretion.”

Senior Judge Randall Shepard wrote a concurring opinion in which he joined in affirming the convictions, but believed the jury instructions given by the court were erroneous.

“Final instructions covered the presumption and told the jury to ‘fit the evidence,’ but did not tell them the presumption ‘prevails throughout.’ This was error, of course, under Farley and Robey, but I would say not reversible, particularly in light of the fact that the full three-part instruction was given during preliminary instructions,” he wrote.

The judges agreed that consecutive sentences were appropriate because there were multiple victims.

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  1. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  2. I agree. My husband has almost the exact same situation. Age states and all.

  3. Thanks Jim. We surprised ourselves with the first album, so we did a second one. We are releasing it 6/30/17 at the HiFi. The reviews so far are amazing! www.itsjustcraig.com Skope Mag: It’s Just Craig offers a warm intimacy with the tender folk of “Dark Corners”. Rather lovely in execution, It’s Just Craig opts for a full, rich sound. Quite ornate instrumentally, the songs unfurl with such grace and style. Everything about the album feels real and fully lived. By far the highlight of the album are the soft smooth reassuring vocals whose highly articulate lyrics have a dreamy quality to them. Stories emerge out of these small snapshots of reflective moments.... A wide variety of styles are utilized, with folk anchoring it but allowing for chamber pop, soundtrack work, and found electronics filtering their way into the mix. Without a word, It’s Just Craig sets the tone of the album with the warble of “Intro”. From there things get truly started with the hush of “Go”. Building up into a great structure, “Go” has a kindness to it. Organs glisten in the distance on the fragile textures of “Alone” whose light melody adds to the song’s gorgeousness. A wonderful bloom of color defines the spaciousness of “Captain”. Infectious grooves take hold on the otherworldly origins of “Goodnight” with precise drum work giving the song a jazzy feeling. Hazy to its very core is the tragedy of “Leaving Now”. By far the highlight of the album comes with the closing impassioned “Thirty-Nine” where many layers of sound work together possessing a poetic quality.

  4. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

  5. Journalism may just be asleep. I pray this editorial is more than just a passing toss and turn. Indiana's old boy system of ruling over attorneys is cultish. Unmask them oh guardians of democracy.

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