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Monday, June 02, 2014

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)

For publication opinions today (1):

In Brandon Brummett v. State of Indiana, a 20-page opinion, Judge Baker writes:

Appellant-defendant Brandon Brummett asks this Court to reverse his convictions for Child Molesting as a class B felony, Child Molesting as a class C felony, and three counts of Sexual Misconduct with a Minor, class D felonies. More particularly, Brummett argues that prosecutorial misconduct placed him in grave peril and amounted to fundamental error. Additionally, Brummett argues that the testimony of K.A. was incredibly dubious and, therefore, there was insufficient evidence to support one of his convictions for sexual misconduct with a minor. Finally, Brummett contends that the trial court committed fundamental error when it admitted evidence that Brummett touched A.A. in other states on family vacations. We conclude that the prosecutor’s continued misconduct did constitute fundamental error that placed Brummett in grave peril. Therefore, we reverse and remand for a new trial. * * *

Brummett contends that the prosecutor engaged in misconduct that placed him in grave peril and rendered a fair trial impossible. Although Brummett did not object to the misconduct at trial, he argues that the repeated instances of misconduct resulted in fundamental error.[5]

We conclude that the prosecutor engaged in prosecutorial misconduct by improperly distinguishing between the role of the defense and the prosecution, by improperly vouching for the State’s witnesses, and by asking argumentative and inflammatory questions. The cumulative effect of this misconduct amounted to fundamental error, as it placed the defendant in grave peril and made a fair trial impossible. Consequently, the defendant is entitled to a new trial.
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[5] We note that the circumstances in this case in regard to prosecutorial misconduct are similar to those in Ryan v. State. 992 N.E.2d 776 (Ind. Ct. App. 2013), trans. granted. The prosecutor in this case also prosecuted the defendant in Ryan. [ILB emphasis]

ILB: The case of Bruce Ryan v. State was argued before the Supreme Court on Jan. 16th. (Watch it here.) No opinion has yet been handed down.

Although the COA opinion of July 31, 2013 in Ryan was vacated with the grant of transfer, the ILB summary is of interest, particulary the end of footnote 6, which states, in referring to another case, Spiegel:

In his concurring opinion, Judge Friedlander observed that despite admonishment from this Court, “instances of condemnable prosecutorial behavior continue to come before us on appeal. It would seem that our admonishments are falling on deaf ears on an all-too-regular basis.” Id., slip op at * 7. This case demonstrates the unfortunate result of the failure to heed our admonishments; namely, prosecutorial misconduct that requires reversal. [ILB: Note, however, that Spiegel was NFP.]

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on June 2, 2014 10:44 AM
Posted to Ind. App.Ct. Decisions