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Justices address judicial-temperance presumption

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The Indiana Supreme Court used an opinion Thursday to reaffirm the limitation described in Fletcher v. State on the judicial-temperance presumption.

Joshua Konopasek appealed his Class C felony conviction of battery causing serious bodily injury. At his trial, Konopasek claimed he pushed the victim in self defense, but he didn’t cause the victim’s broken jaw. On direct examination, Konopasek’s attorney elicited testimony from Konopasek regarding his probationary status; on cross-examination, the state asked Konopasek “And you’ve got quite a bit of time hanging over your head?” Konopasek objected, but the judge allowed the question.

On appeal, Konopasek argued, among other things, that the trial court abused its discretion when admitting evidence elicited by the state regarding his probation. The Indiana Court of Appeals found the court shouldn’t have admitted the evidence, but it was a harmless error. The judges concluded that Konopasek didn’t overcome the judicial-temperance presumption – the presumption that in a bench trial, the judge will disregard inadmissible and irrelevant evidence.

The Indiana Supreme Court granted transfer to address the admissibility of the evidence in question and to reaffirm Fletcher v. State, 264 Ind. 132, 340 N.E.2d 771 (1976), as it relates to the judicial-temperance presumption. The justices affirmed the Court of Appeals on the remaining issues and affirmed Konopasek’s conviction and sentence.

In Joshua Konopasek v. State of Indiana, No. 25S03-1012-CR-669, the Supreme Court reviewed the admission of Konopasek’s testimony on the length of his suspended sentence only, and only considered the relevancy of the testimony in question. The justices found the testimony was a classic “he said-he said” case, wrote Justice Steven David, and evidence impeaching Konopasek was significantly relevant. They also held the probative value of the evidence wasn’t outweighed by unfair prejudice.

Turning to Fletcher, Justice David explained that the Supreme Court set parameters on the judicial-temperance presumption in cases where a defendant makes a specific objection to the admission of evidence. The justices decided not to apply the judicial-temperance presumption to the instant case because the evidence in question was relevant and admissible.

The justices then went on to reaffirm the limits on the presumption as explained in Fletcher and clarified the interplay between the presumption and harmless-error analysis.

“On appeal, when a defendant challenges the admissibility of evidence at a bench trial and the evidence in fact was inadmissible, the judicial-temperance presumption comes into play. One way a defendant can overcome the presumption is by showing the trial court admitted the evidence over a specific objection, as in Fletcher,” wrote the justice. “If a defendant does overcome the presumption, the reviewing court then engages in full harmless-error analysis: the error is harmless if the ‘reviewing court is satisfied that the conviction is supported by substantial independent evidence of guilt so that there is no substantial likelihood that the challenged evidence contributed to the conviction.’ Meadows v. State, 785 N.E.2d 1112, 1122 (Ind. Ct. App. 2003). If a defendant cannot overcome the presumption, a reviewing court presumes the trial court disregarded the improper evidence and accordingly finds the error harmless.”
 

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  1. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

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