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Tuesday, June 03, 2014

Ind. Decisions - Supreme Court decides prosecutorial misconduct case [Updated]

Yesterday the Court of Appeals decided the case of Brandon Brummett v. State of Indiana. The opinion included this footnote:

[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]
Today the Supreme Court has handed down its opinion in Bruce Ryan v. State of Indiana. Chief Justice Dickson authors the 11-page, 5-0 opinion, in which J. Rucker "concurs in result." From the opinion:
Following a jury trial, Bruce Ryan was convicted on two of three counts of Class C felo-ny Sexual Misconduct with a Minor. Appealing his convictions, the defendant argues that sev-eral statements made by the State during closing argument — statements to which he raised no objection at trial — constitute prosecutorial misconduct and that the cumulative effect of such misconduct rises to the level of fundamental error, warranting reversal of his convictions. The Court of Appeals agreed and reversed his convictions. Ryan v. State, 992 N.E.2d 776, 791 (Ind. Ct. App. 2013). We granted transfer, thereby vacating the opinion of the Court of Appeals, and we now affirm the trial court, concluding that some of the prosecutor's conduct was improper, but because of the absence of any timely objection by the defendant, reversal is not warranted. * * *

The defendant contends that the prosecutor improperly commented on his constitutional rights to a jury trial, improperly demeaned defense counsel, improperly commented on the truth-fulness of the victim, and improperly urged the jury to convict him for reasons other than his guilt. * * *

We recognize only a single instance of prosecutorial misconduct, namely that the prose-cutor improperly urged the jury to convict the defendant for reasons other than his own guilt. But we decline to conclude that the trial court erred by not correcting the prosecutor's misstatements.

With regard to the impact of the "send the message" remark, we recognize that the prose-cutor began her closing argument reminding the jury "it's about what this defendant did in this case and how you are in a unique position to be able to now hold him accountable for that," Tr. at 133–34. Such correct statement so distanced from an improper one cannot qualify its sub-stance, but it may counteract its harm. Thus, while we find the "send the message" remark im-proper, we decline to hold that such error had such an undeniable and substantial effect on the jury's decision that a fair trial was impossible. * * *

Conclusion. The prosecutor improperly urged the jury to convict the defendant for reasons other than his guilt, but the defendant's failure to contemporaneously object and enable the trial court to take corrective action results in procedural default of the defendant's appellate claim. The effect of this prosecutorial misconduct did not make a fair trial for the defendant impossible. Thus, the doctrine of fundamental error does not overcome procedural default. While we do not endorse the prosecutor’s trial tactics in this case, we affirm the judgment of the trial court.

[Updated at 3:06 PM] Notice that the name of the Marion County Deputy Prosecutor involved, Gillian D. Keiffner, appears on the list of the attorneys for the appellee at the top right of the opinion's first page. In addition, Ms. Keiffner sat with the AG’s counsel at the table during oral argument before the Supreme Court. The Court's video lists her as a Counsel for the Appellee.

Posted by Marcia Oddi on June 3, 2014 02:33 PM
Posted to Ind. Sup.Ct. Decisions