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Prosecutor's conduct leads to child-molesting conviction reversal

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The Indiana Court of Appeals said a Tippecanoe County man has the right to a retrial on a child molestation charge because the prosecutor inappropriately vouched for the victim’s credibility and had offered to show the victim a transcript of past statements without the teenager asking for that recollection.

In a unanimous ruling Tuesday in Michael J. Gaby v. State of Indiana, No. 79A02-1006-CR-804, the three-judge appellate panel reversed the Class A felony child molesting conviction and remanded for retrial before Tippecanoe Superior Judge Thomas Bush.

The case involves a girl known as M.C., born in 1993, who lived in the same apartment complex as Michael Gaby in the mid-90s. He watched her along with other children when M.C.’s mother went to work. One time, he was alone with the girl and told her to try on some clothes that his young daughter of the same age had outgrown. She undressed, and the court record says that Gaby put a blanket over her and used his fingers to molest her while she was sitting on the bed. The girl didn’t go to Gaby’s apartment alone after this incident, and Gaby and his daughter later moved out of the apartment. She never reported the incident until April 2009, when she was 15 years old and told a teacher what Gaby had done to her. That teacher contacted police and the investigation began, with Gaby denying he’d molested the girl.

Police charged him with felony child molesting in June 2009 and amended the charges in March 2010 based on dates of the incident. After a two-day trial, a jury found Gaby guilty. The trial court sentenced him to 20 years in prison and ordered that he serve that as a credit-restricted felon, based on a 2008 state statute, meaning that a convict only earns one day of credit for every six served.

But what led to this appellate reversal is the prosecutor’s conduct at trial. Gaby argued that the trial court abused its discretion in allowing the prosecutor to refresh M.C.’s recollection using a transcript from a previous interview. The girl testified at trial that Gaby hadn’t spoken or touched her anywhere else, but the prosecutor then showed her a past statement contradicting that. Gaby’s counsel objected and the trial court allowed it, saying attorneys are able to impeach their own witnesses on the stand. But the appellate panel disagreed, citing Indiana Rules of Evidence and past precedent stating that a witness must first state that he or she does not recall information sought by the questioner in order for the attorney to refresh that individual.

“We agree with Gaby that the transcript clearly shows that M.C. did not testify as to any lack of recollection regarding the events before the prosecutor showed her the transcript of previous statement,” Judge Paul Mathias wrote. “M.C. simply gave answers the prosecutor neither expected nor desired. The prosecutor attempted to rectify this by having M.C. read the transcript of her previous statement, after which M.C. still struggled to give the prosecutor the desired answers.”

The appeals court also found the prosecutor erred by saying she was “confident” that the jury would find M.C. credible, and that resulted in improper vouching on an issue central in this case.

Sending the case back for retrial, the appellate panel found the recollection and vouching issues to be non-harmless errors. A retrial is possible and double jeopardy doesn’t apply, said the appellate judges. They also determined that if Gaby is found guilty, he can’t be sentenced as a credit-restricted felon because the court in Upton v. State, 904 N.E. 2d 700, 704 (Ind. Ct. App. 2009), found that restriction unconstitutional when applied retroactively.







 

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  1. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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