ILNews

Refusal to give jury instruction not harmless error

Back to TopCommentsE-mailPrintBookmark and Share

A trial court’s error in refusing to give a defendant’s tendered self-defense and resistance of unlawful force instructions during his trial was not harmless and requires the man’s conviction of Class D felony resisting law enforcement be overturned, the Indiana Court of Appeals held Wednesday.

Police responded to a 911 call of a possible car accident on the morning of Dec. 25, 2010, in South Bend. The officers saw a silver car had pushed up another parked vehicle and was running. Mitchell Burton was inside sleeping and originally not responsive to the officers’ requests to turn off the car and open the door. He apparently had been pushing his car’s accelerator while asleep. Eventually an officer broke a window, and police grabbed Burton and wrestled him to the ground. A DVD recording of the event from an officer’s car shows a struggle between the three officers and Burton, with Burton shouting that he was not resisting.

At least one officer punched him. Burton was handcuffed and taken to the hospital for multiple injuries, including facial fractures. He was charged with battery on the officers and resisting law enforcement, but only convicted of the resisting charge.

Burton claimed the trial court abused its discretion in refusing to give tendered jury instructions that addressed his right to defend himself and/or use force under the circumstances of this case. The trial court refused to give the instructions because the evidence didn’t support giving the instructions.

The Court of Appeals found the DVD provides a strong evidentiary foundation that warrants the giving of the self-defense instruction. Burton also was entitled to the jury instructions on excessive force by police officers because the DVD provides evidence from which a jury could decide that Burton was not an immediate threat to the officers or anyone else, and that he offered no resistance prior to being pulled from the car.

The appellate judges ordered Burton’s conviction vacated in Mitchell Burton v. State of Indiana, 71A03-1203-CR-129.
.
 

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. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

ADVERTISEMENT