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Rule of lenity doesn’t apply on man’s escape conviction

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The rule of lenity doesn’t apply to the case of a Marion County man who tried to break into a home while serving home detention as a condition of probation, the Indiana Court of Appeals concluded. The judges upheld Diano Gordon’s convictions of Class D felonies escape and attempted residential entry.

Around noon on Dec. 28, 2011, Jodi Pearce heard loud noises coming from her next-door neighbor’s home. She saw two men try to kick in the back door. She called 911, watched the men leave and ran outside to see what direction they headed. An hour later, Pearce rode with a police officer to Gordon’s home, where she identified the man standing outside as the shorter of the two men trying to break into the home.

Gordon had an electronic monitoring bracelet on his ankle as a condition of home detention at the time of the attempted break-in.

At the bench trial, Pearce testified that Gordon was one of the men she saw; Gordon didn’t object to Pearce’s identification testimony.

Because he failed to object at trial, Gordon argued on appeal that the fundamental error doctrine should prevent admittance of evidence regarding the show-up identification by Pearce on the day of the attempted break-in.

“Pearce observed Gordon for several minutes in the middle of the day at a fairly close distance. Furthermore, her attention was focused solely on Gordon and his companion for that length of time. And Pearce was absolutely certain that Gordon was the man kicking her neighbor’s door. Under these facts and circumstances, we cannot conclude that the show-up identification was unduly suggestive,” Judge Paul Mathias wrote in Diano L. Gordon v. State of Indiana, 49A05-1205-CR-242.

Even if the judges concluded the trial court erred by admitting evidence of the show-up identification, Gordon’s fundamental error argument would fail because Pearce watched him try to break into the neighbor’s home and saw him leave the scene, Mathias continued. Therefore, there was an independent basis for the in-court identification.

The COA rejected Gordon’s claim that the rule of lenity should apply to his escape conviction and be reduced to Class A misdemeanor unauthorized absence from home detention. But both statutes at issue here put the offender on notice that the conduct would result either in Class D felony escape or Class A misdemeanor unauthorized absence from home detention.

“It was within the prosecutor’s discretion to determine which charge was warranted by Gordon’s conduct,” Mathias wrote.

 

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  1. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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