Will You be Convicted of a Crime?

[7.62]

If the kids are 15 they should know better....so they will be convicted of stupidity. That wouldn't make it any less of a sad and unfortunate situation but that would be a very difficult decision on what to do if it went down in a matter of seconds and your heart was pumping a million beats per second!....that why I thinly stress drills with firearm situations are great. TDI and Xe provide some good ones....(or did at one time)...but its all in the hands of 12 people.....12 that may hate guns!

 

[lrahm]

If the kids are 15 they should know better....so they will be convicted of stupidity. That wouldn't make it any less of a sad and unfortunate situation but that would be a very difficult decision on what to do if it went down in a matter of seconds and your heart was pumping a million beats per second!....that why I thinly stress drills with firearm situations are great. TDI and Xe provide some good ones....(or did at one time)...but its all in the hands of 12 people.....12 that may hate guns!

They can still be waived to adult court.

 

[GuyRelford]

Like most of my scenarios, I wanted this to be a close call, and I think it is.

If you were prosecuted (which I believe would be a close call too), the jury would ultimately be asked to decide whether your use of deadly force was justified under Ind. Code 35-41-3-2(a), which states:

"Use of force to protect person or property

Sec. 2. (a) A person is justified in using reasonable force against another person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person:

(1) is justified in using deadly force; and

(2) does not have a duty to retreat;

if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony."

So then the question becomes whether you "reasonably believed" that your use of deadly force was"necessary." How is that decided?

Under this scenario, there are a number of issues. You heard someone say, "give me your f***in wallet or you're gonna die," but you couldn't see who said it, and didn't even know if those words were directed at you - the alley was "just too dark."

Then when you saw people running at you - apparently with guns in their hands - you still couldn't identify the threat - or even know whether they were the same individuals whom you had heard before.

Ultimately, they turned out to be teenagers with toy guns - who posed no real threat to you. So -"will you be convicted of a crime"? That probably will turn on an instruction that the jury will receive, which will incorporate this concept:

“A defendant’s belief of apparent danger does not require the danger to be actual danger, but the belief must be in good faith. . . . The question of the existence of such danger, the necessity or apparent necessity, and the amount of force necessary to be employed to resist the attack can only be determined from the standpoint of the defendant at the time and under all the then existing circumstances. . .. Focusing on the ‘standpoint of the defendant’ means at least two things: (1) the trier of fact must consider the circumstances only as they appeared to the defendant, and (2) the defendant’s own account of the event, although not required to be believed, is critically relevant testimony.” Brand v. State, 766 N.E.2D772 (Ind. Ct. App. 2002).

In addition, it is not just what is in your head (subjective belief) that is relevent, but that belief must be "reasonable":

"Our Supreme Court has clarified that the phrase 'reasonably believes' as used in the Indiana self-defense stature, requires both subjective belief that force was necessary to prevent serious bodily injury, and that such actual belief was one that a reasonable person would have under the circumstances." Hood v. State, 877 N.E.2d492 (Ind. Ct. App. 2007)

I think a good prosecutor could win this case and convict you. I also believe that a good defense lawyer could win a "not guilty" verdict because the circumstances - as they appeared to you at the time - reasonably called for the use of deadly force. Ultimately, I think it’s more likely that you would be acquitted.

But even then, you would have to live with the aftermath – legally, morally and financially.

Guy

 

[Fargo]

Like most of my scenarios, I wanted this to be a close call, and I think it is.

If you were prosecuted (which I believe would be a close call too), the jury would ultimately be asked to decide whether your use of deadly force was justified under Ind. Code 35-41-3-2(a), which states:

"Use of force to protect person or property

Sec. 2. (a) A person is justified in using reasonable force against another person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person:

(1) is justified in using deadly force; and

(2) does not have a duty to retreat;

if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony."

So then the question becomes whether you "reasonably believed" that your use of deadly force was"necessary." How is that decided?

Under this scenario, there are a number of issues. You heard someone say, "give me your f***in wallet or you're gonna die," but you couldn't see who said it, and didn't even know if those words were directed at you - the alley was "just too dark."

Then when you saw people running at you - apparently with guns in their hands - you still couldn't identify the threat - or even know whether they were the same individuals whom you had heard before.

Ultimately, they turned out to be teenagers with toy guns - who posed no real threat to you. So -"will you be convicted of a crime"? That probably will turn on an instruction that the jury will receive, which will incorporate this concept:

“A defendant’s belief of apparent danger does not require the danger to be actual danger, but the belief must be in good faith. . . . The question of the existence of such danger, the necessity or apparent necessity, and the amount of force necessary to be employed to resist the attack can only be determined from the standpoint of the defendant at the time and under all the then existing circumstances. . .. Focusing on the ‘standpoint of the defendant’ means at least two things: (1) the trier of fact must consider the circumstances only as they appeared to the defendant, and (2) the defendant’s own account of the event, although not required to be believed, is critically relevant testimony.” Brand v. State, 766 N.E.2D772 (Ind. Ct. App. 2002).

In addition, it is not just what is in your head (subjective belief) that is relevent, but that belief must be "reasonable":

"Our Supreme Court has clarified that the phrase 'reasonably believes' as used in the Indiana self-defense stature, requires both subjective belief that force was necessary to prevent serious bodily injury, and that such actual belief was one that a reasonable person would have under the circumstances." Hood v. State, 877 N.E.2d492 (Ind. Ct. App. 2007)

I think a good prosecutor could win this case and convict you. I also believe that a good defense lawyer could win a "not guilty" verdict because the circumstances - as they appeared to you at the time - reasonably called for the use of deadly force. Ultimately, I think it’s more likely that you would be acquitted.

But even then, you would have to live with the aftermath – legally, morally and financially.

Guy

Guy,

For my own edification, which element of the defense do you think the prosecution could most likely disprove beyond a reasonable doubt?

Thanks much,

Joe

 

[GuyRelford]

Guy,

For my own edification, which element of the defense do you think the prosecution could most likely disprove beyond a reasonable doubt?

Thanks much,

Joe

Great question, Joe! Part of my analysis is premised on the belief that the pattern jury instruction will actually start tracking 35-41-3-2 instead of the traditional 3-part jury instruction (did not provoke or instigate, was in a place where he had a right to be, and was under a reasonable fear of death or great bodily injury.")

Assuming all the pattern jury instructions remain the same, I think the last element is where the prosecution would focus - particularly on the "reaonsable fear" component.

 

[lrahm]

If I can throw something in. I have seen some nasty and scary 15 year old kids before. Waiving the survivor to adult court is what I would bet on.

 

[Fargo]

If I can throw something in. I have seen some nasty and scary 15 year old kids before. Waiving the survivor to adult court is what I would bet on.

Ah, but this is all premised in Marion County. A good female friend of mine was victim #7 of a group of juveniles working their way up Keystone on an armed robbery spree. Despite 7 attempted and actual armed robberies in an afternoon, they were not waived because of a lack of prior adjudications.

Even in a more conservative county, lack of record can be a big obstacle to waiving.

Best,

Joe

 

[lrahm]

Ah, but this is all premised in Marion County. A good female friend of mine was victim #7 of a group of juveniles working their way up Keystone on an armed robbery spree. Despite 7 attempted and actual armed robberies in an afternoon, they were not waived because of a lack of prior adjudications.

Even in a more conservative county, lack of record can be a big obstacle to waiving.

Best,

Joe

We at least have detectives who will put together the paperwork and charge the child or waive the to adult. They are pretty hard nose in the PD Juvenile. We have a pretty bad juvenile problem here. There are some laws that automatically waive a juvenile to adult court. HELP HERE PLEASE IF ANYONE HAS OTHER INFO, weapons charges is one. I don't know if the judge would waive since it was plastic. However the intent was shown, it might not be a problem.

 

[Fargo]

We at least have detectives who will put together the paperwork and charge the child or waive the to adult. They are pretty hard nose in the PD Juvenile. We have a pretty bad juvenile problem here. There are some laws that automatically waive a juvenile to adult court. HELP HERE PLEASE IF ANYONE HAS OTHER INFO, weapons charges is one. I don't know if the judge would waive since it was plastic. However the intent was shown, it might not be a problem.

There are mandatory direct adult file offenses. However all those that I know of are select A felonies and murder as well as being dependent upon age. That is why the 11 year old murder case in Morgan co was a discretionary adult file.

Ultimately, it is up to the judge on any discretionary waiver case. The prosecutor has some control insofar as choice of charges and whether he requests waiver. However, on most cases, such as B Felony Armed Robbery it is going to be up to the judge who is also constrained by a number of statutes.

Best,

Joe

 

[lrahm]

There are mandatory direct adult file offenses. However all those that I know of are select A felonies and murder as well as being dependent upon age. That is why the 11 year old murder case in Morgan co was a discretionary adult file.

Ultimately, it is up to the judge on any discretionary waiver case. The prosecutor has some control insofar as choice of charges and whether he requests waiver. However, on most cases, such as B Felony Armed Robbery it is going to be up to the judge who is also constrained by a number of statutes.

Best,

Joe

I could be wrong but I thought any type of hand gun violation during a seperate charge was automatic. I will have to get out my "handy-dandy" criminal law book. I will get back to you. Give me a little time.

Stay safe.

 

[Fargo]

I could be wrong but I thought any type of hand gun violation during a seperate charge was automatic. I will have to get out my "handy-dandy" criminal law book. I will get back to you. Give me a little time.

Stay safe.

The waiver statute is IC 31-30-3:

IC 31-30-3
Chapter 3. Waiver of Jurisdiction
IC 31-30-3-1
Waiver of jurisdiction defined
Sec. 1. Waiver of jurisdiction refers to an order of the juvenile court that waives the case to a court that would have jurisdiction had the act been committed by an adult. Waiver is for the offense charged and all included offenses.
As added by P.L.1-1997, SEC.13.

IC 31-30-3-2
Heinous or aggravated act, or act as part of repetitive pattern of delinquent acts
Sec. 2. Upon motion of the prosecuting attorney and after full investigation and hearing, the juvenile court may waive jurisdiction if it finds that:
(1) the child is charged with an act that is a felony:
(A) that is heinous or aggravated, with greater weight given to acts against the person than to acts against property; or
(B) that is a part of a repetitive pattern of delinquent acts, even though less serious;
(2) the child was at least fourteen (14) years of age when the act charged was allegedly committed;
(3) there is probable cause to believe that the child committed the act;
(4) the child is beyond rehabilitation under the juvenile justice system; and
(5) it is in the best interests of the safety and welfare of the community that the child stand trial as an adult.
As added by P.L.1-1997, SEC.13. Amended by P.L.67-2008, SEC.3.

IC 31-30-3-3
Act that would be felony relating to controlled substances
Sec. 3. Upon motion of the prosecuting attorney and after a full investigation and a hearing, the court may waive jurisdiction if it finds that:
(1) the child is charged with an act that, if committed by an adult, would be a felony under IC 35-48-4;
(2) there is probable cause to believe that the child has committed the act;
(3) the child was at least sixteen (16) years of age when the act was allegedly committed; and
(4) it is in the best interests of the safety and the welfare of the community for the child to stand trial as an adult.
As added by P.L.1-1997, SEC.13.

IC 31-30-3-4
Act that would be murder
Sec. 4. Upon motion of the prosecuting attorney and after full
investigation and hearing, the juvenile court shall waive jurisdiction if it finds that:
(1) the child is charged with an act that would be murder if committed by an adult;
(2) there is probable cause to believe that the child has committed the act; and
(3) the child was at least ten (10) years of age when the act charged was allegedly committed;
unless it would be in the best interests of the child and of the safety and welfare of the community for the child to remain within the juvenile justice system.
As added by P.L.1-1997, SEC.13.

IC 31-30-3-5
Acts that would be Class A or Class B felonies, involuntary manslaughter, or reckless homicide
Sec. 5. Except for those cases in which the juvenile court has no jurisdiction in accordance with IC 31-30-1-4, the court shall, upon motion of the prosecuting attorney and after full investigation and hearing, waive jurisdiction if it finds that:
(1) the child is charged with an act that, if committed by an adult, would be:
(A) a Class A or Class B felony, except a felony defined by IC 35-48-4;
(B) involuntary manslaughter as a Class C felony under IC 35-42-1-4; or
(C) reckless homicide as a Class C felony under IC 35-42-1-5;
(2) there is probable cause to believe that the child has committed the act; and
(3) the child was at least sixteen (16) years of age when the act charged was allegedly committed;
unless it would be in the best interests of the child and of the safety and welfare of the community for the child to remain within the juvenile justice system.
As added by P.L.1-1997, SEC.13.

IC 31-30-3-6
Act that would be felony and prior felony or nontraffic misdemeanor conviction
Sec. 6. Upon motion by the prosecuting attorney, the juvenile court shall waive jurisdiction if it finds that:
(1) the child is charged with an act which would be a felony if committed by an adult; and
(2) the child has previously been convicted of a felony or a nontraffic misdemeanor.
As added by P.L.1-1997, SEC.13.

IC 31-30-3-7
Time limit for making or granting motion to waive jurisdiction Sec. 7. A motion to waive jurisdiction may not be made or granted after:
(1) the child has admitted the allegations in the petition at the initial hearing; or
(2) the first witness has been sworn at the factfinding hearing.
As added by P.L.1-1997, SEC.13.

IC 31-30-3-8
Order to hold child for proceedings; recognizance bond
Sec. 8. If jurisdiction is waived, the juvenile court:
(1) shall order the child held for proceedings in the court to which the child is waived; and
(2) may fix a recognizance bond for the child to answer the charge in the court to which the child is waived.
As added by P.L.1-1997, SEC.13.

IC 31-30-3-9
Probable cause finding
Sec. 9. The finding of probable cause required to waive jurisdiction is sufficient to establish probable cause in the court to which the child is waived.
As added by P.L.1-1997, SEC.13.

IC 31-30-3-10
Waiver order; findings
Sec. 10. A waiver order must include specific findings of fact to support the order.
As added by P.L.1-1997, SEC.13.

IC 31-30-3-11
Waiver order; filing
Sec. 11. The prosecuting attorney shall file a copy of the waiver order with the court to which the child has been waived when the prosecuting attorney files the indictment or information.
As added by P.L.1-1997, SEC.13.

The direct file statute is:

IC 31-30-1-4
Juvenile court lacks jurisdiction over individuals at least 16 years of age committing certain felonies; retention of jurisdiction by court having adult criminal jurisdiction
Sec. 4. (a) The juvenile court does not have jurisdiction over an individual for an alleged violation of: (1) IC 35-41-5-1(a) (attempted murder);
(2) IC 35-42-1-1 (murder);
(3) IC 35-42-3-2 (kidnapping);
(4) IC 35-42-4-1 (rape);
(5) IC 35-42-4-2 (criminal deviate conduct);
(6) IC 35-42-5-1 (robbery) if:
(A) the robbery was committed while armed with a deadly weapon; or
(B) the robbery results in bodily injury or serious bodily injury;
(7) IC 35-42-5-2 (carjacking);
(8) IC 35-45-9-3 (criminal gang activity);
(9) IC 35-45-9-4 (criminal gang intimidation);
(10) IC 35-47-2-1 (carrying a handgun without a license), if charged as a felony;
(11) IC 35-47-10 (children and firearms), if charged as a felony;
(12) IC 35-47-5-4.1 (dealing in a sawed-off shotgun); or
(13) any offense that may be joined under IC 35-34-1-9(a)(2) with any crime listed in subdivisions (1) through (12);
if the individual was at least sixteen (16) years of age at the time of the alleged violation.
(b) The juvenile court does not have jurisdiction for an alleged violation of manufacturing or dealing in cocaine or a narcotic drug (IC 35-48-4-1), dealing in methamphetamine (IC 35-48-4-1.1), dealing in a schedule I, II, or III controlled substance (IC 35-48-4-2), or dealing in a schedule IV controlled substance (IC 35-48-4-3), if:
(1) the individual has a prior unrelated conviction under IC 35-48-4-1, IC 35-48-4-1.1, IC 35-48-4-2, or IC 35-48-4-3; or
(2) the individual has a prior unrelated juvenile adjudication that, if committed by an adult, would be a crime under IC 35-48-4-1, IC 35-48-4-1.1, IC 35-48-4-2, or IC 35-48-4-3;
and the individual was at least sixteen (16) years of age at the time of the alleged violation.
(c) Once an individual described in subsection (a) or (b) has been charged with any crime listed in subsection (a) or (b), the court having adult criminal jurisdiction shall retain jurisdiction over the case even if the individual pleads guilty to or is convicted of a lesser included offense. A plea of guilty to or a conviction of a lesser included offense does not vest jurisdiction in the juvenile court.
As added by P.L.1-1997, SEC.13. Amended by P.L.17-2001, SEC

In this case, direct file would not apply as the defendant is not 16.
Best,

Joe

 

[lrahm]

After reading this, I think that all they would have to prove is his involvement.

(2) the child was at least fourteen (14) years of age when the act charged was allegedly committed;
(3) there is probable cause to believe that the child committed the act;
(5) it is in the best interests of the safety and welfare of the community that the child stand trial as an adult.

Sounds to me like all they have to do now is call his parents in now for a statement. I could be 100% wrong. I checked with one of our other supervisors. Some of the charges are but not limited to : rape, criminal deviate conduct, carjacking, gang activity, murder, possession of a firearm with previous conviction, robbery with a weapon.

I was ready to post this when I was automatically logged off. It looks like you did your homework. Good job.

 

[lrahm]

My cheat sheet goes to 14 years old I will have to get back with you. We did a waiver on a rape involving a 14 year old two weeks ago which went through.

Nothing suprises me anymore. Just when you think you have seen it all.

 

[BDBHoover]

For the "defense" I propose a simple demonstration:

Take the jury on a field trip, to that same sidewalk, passed the same alley, also late at night. While the defense attorney is blabbering on, have the jury hear "THERE THEY ARE! LET'S KILL THEM ALL!" shouted from the alley, followed by three dark figures, holding guns, charging them from the shadows. Once the jury has changed their shorts, let 3 uniformed police officers step out of the shadows holding SQUIRT GUNS.

I'm sure the jury would have a firm understanding of "reasonable".

+1

 

[BDBHoover]

In that regard, for the sake of the scenario I posted, let's assume that your gun was a Glock 30, .45 ACP with an after-market 3.5 lb. trigger, loaded with Federal Hydra-Shoks.

Guy

You been peeking in my nightstand???

 

[ShooterG53]

i say no. given the way you worded it, it was reasonable to believe you were in danger.

I agree.There was a threat of bodily injury.

 

[Tombs]

I don't think you need to have gone to law school to know that an innocent person can go to jail for life, and a serial killer can get off scot-free.

If we're solely going by applying the law in a black and white manner without human emotions, or error, of course the shooting was legal and justified. When we throw an emotional jury into the mix, a possible yet unintentional slip up for the defendant, and a strong prosecution in, nearly anything could happen.
Lets not forget the reality of having killed a couple kids, and what their parents may do later.

Before you draw a gun or pull the trigger, realize that your actions will trigger a chain of legal events, and no matter how justified the shooting is your chances of doing time are nearly 50/50. Would you rather take that risk or try to get out of there? If you can get out of there, you just avoided a situation that would have been the end of life as you know it, whether you actually survived the encounter or not. That really gives you an ideal of how severe a situation needs to be before you shoot. If jail is a more favorable outcome than what might happen if you don't shoot, you've made the choice and can live with it.

I carry more so for protection against mass shootings. In an event like that, if I had neglected to carry and that many people died because I was lazy that day, I wouldn't be able to forgive myself.