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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. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  2. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  3. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  4. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  5. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

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