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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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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