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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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