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Refusal to give jury instruction not harmless error

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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.
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  1. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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