# Brown v. State

> Indiana Supreme Court · December 3, 1998 · 703 N.E.2d 1010

URL: https://www.frixlaw.com/law-library/cases/9505706

## Case

- **Full name:** Thomas BROWN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below)
- **Court:** Indiana Supreme Court
- **Decided:** December 3, 1998
- **Citations:** 703 N.E.2d 1010; 1998 Ind. LEXIS 601; 1999 WL 2662
- **Precedential status:** Published
- **Opinion:** Concurrence by Shepard
- **Judges:** Boehm, Dickson, Selby, Shepard, Sullivan
- **Cited by:** 70 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9505706

## How later opinions describe it (automated extraction)

- observing that the record need not include an "explicit finding" of manifest necessity, that it need only "adequately disclose" the basis for the trial court's decision, and that extensive argument by counsel may be used to inform the reviewing court of the trial court's decision
- establishing an “abuse of discretion” standard of review if the trial court performed a factual analysis and a “de novo” standard of review if the trial court performed a legal analysis

## Opinion text

SHEPARD, Chief Justice,
concurring in result.
I join the majority in affirming the judgment and I agree with all of Justice Boehm’s opinion save his outline of shifting standards of appellate review for trial court decisions about whether to instruct on lesser included offenses.
To put it simply, I think the majority has “over-lawyered” the matter.
The call a trial judge makes under Wright v. State when deciding whether a “serious evidentiary dispute” exists largely involves an assessment of the evidence on that element of the greater offense which differentiates it from the lesser offense. Is there conflicting evidence or has the defendant merely stood on his presumption of innocence? Is the differentiating element a matter earnestly joined at trial or does the defense really seem to be some unrelated claim, like identity or self-defense?
To be sure, an appellate court is always better off if trial counsel and the trial judge have spelled out in detail the nature of the claim and the reasons for the ruling. Still, these “serious evidentiary dispute” calls rest on the state of the evidence, something readily available to us on appeal.
I see today’s system of shifting standards as unlikely to be very effective in accomplishing the announced objectives — “to encourage the defendant to educate the trial court” and “to encourage the trial court to make [Wright *1022 findings].” Op. at 1019-20. The pressures that participants in a criminal trial experience as the matter accelerates towards a conclusion are such that we are unlikely to get much more than we already receive. Moreover, the likelihood that today’s rules will “reduce the need for appeals”, Op. at 1019, is very low.
At the end of the day, this new regime requires lawyers to declare, “I believe there is a serious evidentiary dispute” and identify its nature in the hope of gaining de novo .review on appeal. Op. at 1019. On the other hand, a defendant’s chance for de novo review can be blocked by a judge’s mere reply that “the court has determined that no serious evidentiary dispute exists.” Slip. op. at 1019. This seems to me like a good deal of running in place, and it is difficult to see that there will be much reward for the effort.
I regard plain old “abuse of discretion” as adequate to this modest challenge and I would stick by it.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9505706. Public record. Not legal advice.