ILNews

Judges split on whether jury instruction erroneous

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

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. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

ADVERTISEMENT