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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

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