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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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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