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Wednesday, July 30, 2014

Ind. Decision - Petition for rehearing filed by State in recent COA prosecutorial misconduct decision

On June 2nd the Court of Appeals issued an opinion in Brummett v. State, concluding:

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.
Here is footnote 5 from the opinion:
[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.
The following day, June 3rd, the Supreme Court issued an opinion in Ryan v. State:
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.
A check of the docket in Brummett shows that the State of Indiana filed a petition for rehearing (available here via the ILB) on July 1st. Here is the summary:
This Court did not apply the appropriately high standard for fundamental error when it reversed Defendant's convictions for child molesting on the basis of an unpreserved claim of prosecutorial misconduct. The day following this Court's decision in this case, the Supreme Court of Indiana issued an opinion in Ryan v. State reinstating convictions this Court had vacated on the basis of fundamental error prosecutorial misconduct. Ryan v. State, cause no. 49S02-1311-CR-734, slip op. 7 (Ind. June 3, 2014). This Court should grant rehearing in the present case and apply the same fundamental error standard that was re-stated in Ryan, and like the Court in Ryan, reinstate the child molesting convictions here.
The ILB has also obtained a copy of Brummett's brief in response [large file] to the petition for rehearing. It begins:
This case can be distinguished from Ryan v. State. There was prosecutorial misconduct in this case that amounted to fundamental error. This Court should not change its opinion. * * *

This Court found three types of prosecutorial misconduct in this case that, cumulatively amounted to fundamental error, reversed Mr. Brummett's convictions and ordered a new trial. Brummett v. State, 10 N.E.3d 78 (Ind.Ct.App.2014). In light of the reversal of this Court's decision in Ryan v. State, 9 N.E.3d 663 (Ind. 2014), which involved the same deputy prosecutor, the State requests that this Court revisit its decision to reverse Mr. Brummett's conviction. Because the misconduct in this case is more egregious than that in Ryan, this Court need not revisit its decision here. Mr. Brummett is entitled to a new trial.

Posted by Marcia Oddi on July 30, 2014 03:36 PM
Posted to Ind. App.Ct. Decisions