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Prosecutor’s comments on defendant not testifying don’t require reversal

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The Indiana Court of Appeals, in addressing a defendant’s claims of prosecutorial misconduct, found that any misconduct committed was a harmless error and does not require criminal deviate conduct and sexual battery convictions to be overturned.

Craig Bakari Thomas sexually assaulted his classmate K.B. while the two were sitting in a car at a park. Thomas chose not to testify at his trial and was convicted of two counts of Class B felony criminal deviate conduct and one count of Class D felony sexual battery.

In Craig Bakari Thomas v. State of Indiana, 71A04-1305-CR-256, Thomas argued that two comments by a deputy prosecutor resulted in prosecutorial misconduct. Both referred to Thomas not testifying at the trial. The trial court issued an admonishment to the jury regarding the first comment made by the deputy prosecutor that said there is no other story, to disregard the fact that Thomas wasn’t sworn and didn’t testify. The judge did not issue an admonishment regarding the second comment, in which the deputy prosecutor said, “That’s not what the defendant is saying. The defendant is not saying ….” The judge required the deputy prosecutor to clarify that those statements referred to statements Thomas gave to police officers.

With respect to the first comment, the Court of Appeals agreed that the deputy prosecutor’s comments reasonably could be interpreted as an invitation to draw an adverse inference from Thomas’ silence. In fact, the deputy was suggesting that the jury draw an inference of guilt from Thomas’ decision to not be sworn in and tell his story. But the error was harmless, because the state could prove that the comment did not contribute to the verdict. The judge’s curative instruction defused the impact of the state’s improper remark, Judge Patricia Riley wrote.

The COA noted that the second comment did not amount to an indirect reference to Thomas’ decision to not testify.
 

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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