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Case Clips

Published by the Indiana Office of Court Services

Brummett v. State, No. 49A02-1304-CR-378, __ N.E.2d __ (Ind., June 2, 2014).

June 6, 2014 Filed Under: Criminal Tagged With: Appeals, J. Baker

Baker, J.
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 [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.  [Note the opinion on transfer in Ryan was issued June 3 and is reported below in this issue of CaseClips.]]           
Brummett argues that, during its closing argument, the State made three statements that were disparaging of Brummett’s defense counsel and the role of defense counsel in general. First, Brummett contends the State promoted a “good guy/bad guy” theme throughout its closing argument when it stated:

First, I’d like to start as I typically always have to do ah, at this point in a trial and apologize for any rude um, facial expressions I might have made or um, If you thought I got to [sic] angry or to [sic] upset at times I do apologize it’s just in my um, nature and I trust that if it was a child that any of you loved having to come into this courtroom you would appreciate um, that same conviction or anger, call it whatever you want, coming out of the State if it was your kid coming on the stand.

* * *

. . . when [the defense attorney] says that it’s, it’s an empty case or it’s a hollow case or it falls short, that’s frustrating because we do tell our kids to come forward and tell. And then time and time and time again they do and this is what happens. We tell them to tell us if you’re touched, tell us immediately. Come and tell us, we’ll keep you safe. We’ll protect you. The prosecutors, the police will do things for you but we don’t explain to them that all of this will happen. That they’ll come and have to speak to you strangers. That there will be people in the back of the courtroom. That they’ll have to answer questions for a defense attorney. We don’t teach them that what that all entails and then when they’re strong enough to do it, when they have the courage or what have you, whatever you want to call it, to do it, then we do this and we say it’s not enough. It’s not good enough. You coming in and telling the truth when you couldn’t possibly give us anymore isn’t enough and that’s empty and that’s hollow and that falls short. And if that’s the case and if that’s what we’re gonna [sic] say in this county then we should start telling our kids not to come forward anymore.

* * *

If it was [sic] my job to pull the wool over you guy’s [sic] eyes I wouldn’t be here number one and number two, the State wouldn’t have been honest about bad facts like Dad being in prison.

Tr. p. 207-8, 208-9, 211.
Additionally, Brummett contends the State’s comment below, also made during closing argument, “impl[ies] that because of what defense counsel did in this case, and in child molest cases generally, child molesters ‘get away with’ their crimes[.]” Appellant’s Br. p. 13.
We see these cases on the news and I think all of us think how do these guys get away with that. Or we see them on a Dateline or a whatever and think how do they get away with this. Again, this is how they get away with it. Because this process is hard. It’s hard for kids. But this is what they do and it comes down to little things. Little things like I don’t know if any of you noticed when [defense attorney] was questioning the girls he stayed at his table. Why, so that they would have to look at him. They have to look right at him. But he questioned his client he was right over there. Why, so that Mr. Brummett is looking at you guys. That’s why. How do you make a fourteen or sixteen year old girl even more uncomfortable to talk about her vagina, well you make her look at the guy who touched it.
Tr. at 209-10. Finally, Brummett claims the State attacked defense counsel’s integrity when it stated, during closing argument:

[Brummett] knew in March they were accusing him. And in those months he couldn’t come up with anything. But once he hired an attorney and they were able to kind of talk things through all of a sudden it’s this money issue which doesn’t make any since [sic] anyways and is frankly insulting to that that [sic] is what this would all be about.

Id. at 213.
. . . .
We conclude that the prosecutor’s comments impugned the integrity of defense counsel and demeaned the role of defense counsel in this case. Therefore, we determine that the prosecutor’s improper comments concerning defense counsel constituted prosecutorial misconduct.
. . . .
Brummett asserts prosecutorial misconduct occurred when the prosecutor vouched for the State’s witnesses during closing argument by stating, “yes some kids do lie but these kids do not . . . they do not lie about the Defendant.” Tr. p. 198. Brummett also contends the deputy prosecutor vouched for the credibility of K.A.’s boyfriend Clem when she said he “had nothing to gain by, by being here today. He just had to do the right thing.” Id. at 199. Brummett argues the comments were “particularly egregious” because “[t]here was no other evidence against Mr. Brummett except the testimony of K.A. and A.A.” Appellant’s Br. p. 16.
. . . .
Here, as in Gaby, the credibility of the girls is the central issue in the case. Id. We find that the prosecutor’s statement that “these kids do not . . . they do not lie about the Defendant,” was not based on any evidence outside of the girls’ testimony and conclude that the statement constituted improper vouching. Tr. p. 198.
. . . .
Here, while the prosecutor’s comment that Clem, “had nothing to gain,” was permissible, she went too far when she stated that Clem, “just had to do the right thing,” as it suggested that the prosecutor knew Clem was telling the truth and constituted improper commentary on the justness of the cause in general. Tr. p. 199. We agree with Brummett that the prosecutor’s remarks constituted improper vouching and commentary on the justness of the cause.
Next, Brummett argues that the State asked argumentative and inflammatory questions during its cross-examination of Brummett. During direct examination, Brummett made a comment about the victims’ possible dislike of him because he held the keys to the enclosure where their father’s motorcycles and vehicles were kept while he was incarcerated. Brummett contends that the following exchange that occurred on cross-examination contained argumentative and inflammatory questions:
[State]: At no point, at any time in your interview with Detective Shafer, did you try to elude [sic] to anything about anybody being worried about Harley Davidson’s [sic] or cars or what have you[?] You never mentioned any of that did you?

[Brummett]: Not to my knowledge.

[State]: Okay. That’s because it’s not true, right? And that’s what you’ve just come up with today conveniently, correct?

[Brummett]: No, it is true.

[State]: Okay. How long did it take you to think up that one?

[Brummett]: What do you mean?

[State]: I think you’re clear on what I mean but I’ll withdraw the question. You told the detective that you understood that people just don’t kind of make this stuff up out of the no where, [sic] right?

[Brummett]: Correct.

[State]: And you have absolutely no reason that you could think of that these two young girls would lie about you, right?

[Brummett]: Yes.

[State]: Okay. Which girl do you like better?

[Brummett]: I didn’t have a special.

[State]: You didn’t have a preference?

[Brummett]: Uh-huh.

[State]: Did you enjoy touching both of their vagina’s [sic] or was there one you like[d] better . . .

[Brummett]: I never did that.

[State]: . . . than the other?

[Brummett]: I never did that.

Tr. p. 175-76.
The attitude displayed by the prosecutor in the above exchange amounts to belligerence toward the defendant. We agree with Brummett that the questions were argumentative and inflammatory and amounted to prosecutorial misconduct.
. . . .
Here, we find that the prosecutor improperly distinguished the roles of the prosecution and defense, vouched for the credibility of the witnesses and the justness of the cause, and asked argumentative and inflammatory questions. This case, like Lainhart, hinges largely on the credibility of the witnesses. Therefore, we conclude that the prosecutor’s misconduct placed Brummett in grave peril and, cumulatively, amounted to fundamental error.
VAIDIK, C.J., concurs, and BAILEY, J., concurs in result.

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