Instruction on second trial stage in gun case not prejudicial

The Indiana Court of Appeals affirmed a man’s serious violent felon conviction when it found the trial court did not commit fundamental error by instructing a jury that there might be a second phase to his case.

In September 2017, Malcolm DePriest was arrested after an Evansville police officer witnessed him take a handgun from his waistband and throw it while fleeing law enforcement on a bicycle.

The handgun was later recovered, and DePriest was sentenced to 14 years for conviction of Level 4 felony unlawful possession of a firearm by a serious violent felon and Class A misdemeanor resisting law enforcement, with a habitual offender enhancement.

At trial, the trial court provided the jury with a preliminary instruction that if it found DePriest had beyond a reasonable doubt “knowingly or intentionally possessed the firearm as charged in Count 1,” there would be a second stage of the trial. The second stage of the trial would question whether DePriest committed a crime by possessing a firearm. Neither party objected to the instructions.

On appeal, DePriest asserted that the preliminary instruction on bifurcation constituted fundamental error because “any reference to the second stage is prejudicial and improperly alludes to the automatic requirement of a second stage and defendant’s prior criminal history or the possibility that he or she has one.”

The appellate court disagreed with DePriest’s assertion, and affirmed his convictions in Malcolm R. DePriest v. State of Indiana, 18A-CR-1176.

“In Williams v. State, 834 N.E.2d 225 (Ind. Ct. App. 2005), another panel of this Court upheld a substantively identical instruction,” Judge Terry Crone wrote for the panel. “To the extent DePriest argues that mentioning a second phase of the trial suggests it is automatic, we reach the same conclusion as the Williams court. Here, the instruction clearly states that there would be a second phase of the trial only if the jury first concluded beyond a reasonable doubt that DePriest knowingly or intentionally possessed a firearm.”

Additionally, the appellate court was unpersuaded that the instruction was prejudicial because there was “no mention of any facts or circumstances or law as to what makes possessing a firearm a crime.”

It also noted that the Indiana Supreme Court previously rejected a similar argument in Russell v. State, 997 N.E.2d 352, 354 (Ind. 2013) on the grounds that “where the Court of Appeals held that by bifurcating the defendant’s SVF trial so that the jury would consider knowing possession of a firearm and the defendant’s SVF status separately, the trial court ‘avoid[ed] identifying [the defendant] as a ‘serious violent felon’ from the outset of trial.’”

“Based on the foregoing, we conclude that the trial court did not commit error, let alone fundamental error, in giving the challenged instruction,” Crone concluded. “Therefore, we affirm.”

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