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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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