In State of Indiana v. Harold Lewis, No. 72A05-0610-CR-564, the three-judge panel unanimously reversed and remanded the case to Scott Superior Judge Nicholas South. The trial judge had determined in 2006 to grant the defendant's motion prohibiting prosecutors from mentioning the death of the man who Lewis had shot. He was being tried on a felony charge of criminal recklessness that Lewis had "knowingly or intentionally inflicted serious bodily injury" onto Dennis Hensley by shooting him in the right leg with a shotgun. Hensley died a day later.
Lewis argued that mentioning Hensley's death would be prejudicial because the state already planned to present photos showing Hensley's wound and him lying in a pool of blood. Lewis agreed to a stipulation allowing prosecutors to tell the jury he'd caused "serious bodily injury," but the state refused. Judge South granted the motion preventing a mention of Hensley's death and allowing the stipulation.
On interlocutory appeal, the state contended it should be able to present its case how it wishes and not be forced into a stipulation, while Lewis argued that "serious bodily injury" was abundantly clear from the photos not being challenged at trial and that mentioning death wouldn't be relevant but would be unfairly inflammatory.
The appellate court disagreed. Judge Terry Crone wrote that caselaw has already determined death falls into the category of serious bodily injury; he cited Nelson v. State, 664 N.E.2d 386, 388 (Ind. Ct. App. 1996) as authority. In deciding that the state couldn't be forced into the stipulation, the court relied on Perigo v. State, 541 N.E.2d 936, 940 (Ind. 1989) that held a party can refuse to stipulate to any facts; and Hines v. State, 801 N.E. 2d 634, 635 (Ind. 2004), that held the state is entitled to prove its case by evidence of its own choice and criminal defendants can't stipulate their way out of full evidentiary forces of a case being presented.
"Applying the aforementioned law to the present dispute, we must conclude that while Lewis was free to request a stipulation regarding serious bodily injury, the State was not required to agree," Judge Crone wrote, noting that all gory photos and the fact that Hensley died are "fair game" as long as they adhere to the Indiana Rules of Evidence.
In today's opinion, Judge Crone also wrote a footnote on Page 6 of the opinion pointing out an eight-month delay in this case being transferred from the appellate clerk's office to the court - despite it being an interlocutory appeal that gets expedited according to the state's appellate rules. This is the fifth such delay pointed out in opinions since late last year, although the appellate clerk has told Indiana Lawyer that the internal office backlog causing delays was resolved in late February. None of the opinions to date have described delays occurring since then.