ILNews

COA divided on whether 'bully' comments require new trial

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals split in affirming a man’s drunk-driving conviction, with the dissenting judge finding the prosecutor’s questions to the jury and repeated reference to the defendant as a bully at trial made a fair trial impossible.

In Martin Roy Emerson v. State of Indiana, No. 07A01-1009-CR-486, Martin Emerson appealed his convictions of Class C misdemeanor operating a vehicle while intoxicated and Class C felony operating a vehicle while driving privileges are forfeited for life. A Nashville police officer clocked a van going more than 40 mph over the speed limit. She saw a man driving the van, and when she tried to pull the car over, the driver pulled into a driveway. As she came upon the vehicle, she saw the man sitting in the passenger seat and a woman getting into the car through the driver’s side door. That woman, Sophia Morgan, told the officer that the man, Emerson, was driving and made her switch seats. Emerson screamed at the officer and wasn’t compliant with her commands, so he was eventually handcuffed. Emerson smelled of alcohol. He later admitted at jail he had been drinking.

The Court of Appeals affirmed his felony conviction of operating a vehicle while driving privileges are forfeited for life. But the judges disagreed as to whether the prosecutor’s comments during voir dire and opening and closing statements regarding bullies was a fundamental error requiring a new trial. Emerson didn’t object to the statements during trial.

During voir dire, the prosecutor asked prospective jurors questions such as if they would do something just because a bully told them to, and if they would believe a statement was true just because a bully said it. During opening and closing arguments, the prosecutor made comments like Emerson “tried to bully his way out of it” and the jurors should “stand up to this bully and tell him that he committed a crime with a verdict of guilty.”

Judges Cale Bradford and Nancy Vaidik didn’t believe the prosecutor’s improper, but fleeting, request that the jury stand up to the defendant made it impossible for Emerson to receive a fair trial. They also found the prosecutor’s comments were relevant to the case and were clear that the statements amounted to nothing more than his opinion.

Senior Judge Betty Barteau disagreed, finding the statements taken as a whole conditioned the jury to conclude that Emerson was a person of poor character and encouraged the jury to stand up to him and find him guilty because of perceived character flaws rather than because he committed the offense at issue.

She would reverse his OWI conviction and recommend he be retried. She would allow his conviction for operating a vehicle while driving privileges are forfeited for life to stand because the trial court provided new preliminary and final jury instructions for that phase of the trial and the state did not characterize Emerson as a bully during that portion of the trial.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

ADVERTISEMENT