We are working on filing for Post Conviction Relif for Dibo. The issue is as follows: 8. State concisely all grounds known to you for vacating, setting aside, or correcting your conviction or sentence. a. Court denied Petitioner his right to due process guaranteed under the United States Constitution, Amendments V, VI, XIV and under the Indiana Constitution Art. 1 Sections 12, 13, and Rules of Criminal Procedure 8(E) by Court allowing jury instruction No. 3 and 4 to be tendered for crimes of which Petitioner was not charged. Had these instructions not been presented to a jury, it would likely have resulted in a different verdict. 9. State concisely and in the same order the facts which support each of the grounds set forth in (8). a. 1. United States Constitution Amendments 5 and 14 in addition to Indiana Constitution Article I Section 12 provides that no person shall be deprived of life, liberty, or property, without due process of law. 2. The United States Constitution’s 6th Amendment guarantees “in all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation. 3. A person is guaranteed by the Indiana Constitution Article I Section 13. (a) In all criminal prosecutions, the accused shall have the right . . . to demand the nature and cause of the accusation against him, and to have a copy thereof. 4. Court allowed Jury instruction 3 to be given which reads as the following: Under the laws of the state of Indiana a person may be charged as a principal, yet convicted as an accomplice. Where two (2) or more persons combine to commit a crime, each is criminally responsible for the acts of his confederates. Thus, to prove the offenses charged, it is not necessary for the State to prove that the defendant participated in each element of every crime so long as the evidence convinces you beyond a reasonable doubt that the defendant combined with another person or persons to commit that crime and that between them they fulfilled all of the essential elements for the commission of the crime or crimes as charged. 5. Court also allowed Jury instruction 4 to be given which reads as the following: An accomplice may be held criminally liable for acts of his confederate which were a natural and probable consequence of their common plan. 6. Jury instructions 3 and 4 are referring to Indiana Code 35-41-2-4 which reads as follows: Aiding, inducing, or causing an offense Sec. 4. A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense 7. Petitioner was charged as the principal not as an accomplice. Court erred by allowing the jury to be instructed on law with which Petitioner was not charged. 8. Accomplice liability is not a lessor and included offence. 9. Rules Of Criminal Procedure 8(E) state the following: The Court’s action in directing or refusing to direct a verdict shall be shown by order book entry. Error may be predicated upon . . . the giving or refusing to give a written instruction directing the verdict. 10. Supreme Court of Indiana has held that it is trial court’s duty to instruct jury concerning law applicable to facts of case. Trial Court committed fundamental error by allowing jury instruction on law to which Petitioner was not charged. It is Trial Court’s duty to explain to the jury what laws need to be considered in making their decision. 11. Indiana Supreme Court has ruled that an objection to the acceptance of an erroneously tendered instruction is not required and if made need not be detailed to preserve error for appeal. 12. Trial Court committed fundamental error by violating Petitioner’s guaranteed rights under the United States and Indiana Constitutions in addition to violating Indiana Rules of Criminal Procedure Rule 8(E). Your comments are welcome.
Posted on: Mon, 01 Jul 2013 01:12:41 +0000