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COA divided on whether 'bully' comments require new trial

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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.

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  1. by the time anybody gets to such files they will probably have been totally vacuumed anyways. they're pros at this at universities. anything to protect their incomes. Still, a laudable attempt. Let's go for throat though: how about the idea of unionizing football college football players so they can get a fair shake for their work? then if one of the players is a pain in the neck cut them loose instead of protecting them. if that kills the big programs, great, what do they have to do with learning anyways? nada. just another way for universities to rake in the billions even as they skate from paying taxes with their bogus "nonprofit" status.

  2. Um the affidavit from the lawyer is admissible, competent evidence of reasonableness itself. And anybody who had done law work in small claims court would not have blinked at that modest fee. Where do judges come up with this stuff? Somebody is showing a lack of experience and it wasn't the lawyers

  3. My children were taken away a year ago due to drugs, and u struggled to get things on track, and now that I have been passing drug screens for almost 6 months now and not missing visits they have already filed to take my rights away. I need help.....I can't loose my babies. Plz feel free to call if u can help. Sarah at 765-865-7589

  4. Females now rule over every appellate court in Indiana, and from the federal southern district, as well as at the head of many judicial agencies. Give me a break, ladies! Can we men organize guy-only clubs to tell our sob stories about being too sexy for our shirts and not being picked for appellate court openings? Nope, that would be sexist! Ah modernity, such a ball of confusion. https://www.youtube.com/watch?v=QmRsWdK0PRI

  5. LOL thanks Jennifer, thanks to me for reading, but not reading closely enough! I thought about it after posting and realized such is just what was reported. My bad. NOW ... how about reporting who the attorneys were raking in the Purdue alum dollars?

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