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Prosecutor’s ‘continual misconduct’ warrants new molestation trial

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A man’s child molesting convictions were vacated and he was granted a new trial by the Indiana Court of Appeals, which found prosecutorial misconduct amounting to fundamental error. It’s the second reversal and remand attributable to the same prosecutor, the court noted.

Brandon Brummett was 23 when he was convicted of molesting two cousins who were 16 and 12 years old at the time of the alleged incidents, some of which took place in West Virginia, where the girls’ father – Brummett’s uncle – was imprisoned. The girls’ mother encouraged them to spend time with relatives on their father’s side, the opinions states.

Brummett was arrested after one of the girls told a friend that he had molested her, and that friend and the girl told the girl’s mother.

In Brandon Brummett v. State of Indiana, 49A02-1304-CR-378, Judge John Baker wrote that a Marion County prosecutor was belligerent toward Brummett as he testified on the stand, that the prosecutor offered improper vouching and commentary on the justness of the cause, and that the proseuctor impugned the integrity of defense counsel and demeaned its role.

Brummett preserved none of the issues for appeal, but he succeeded in proving both prosecutorial misconduct and fundamental error, Baker wrote.

“The cumulative effect of this misconduct amounted to fundamental error, as it placed the defendant in grave peril and made a fair trial impossible. Consequently, the defendant is entitled to a new trial,” Baker wrote for the panel.

Reversing the conviction on those grounds, the panel waded into Brummett’s other objections regarding the evidence against him. He objected to the admission of evidence of uncharged acts and also asked the court to find the testimony of one of the girls incredibly dubious. She alleged he fondled her vagina as the family played a game at a table during a visit to West Virginia.

“While we agree with Brummett that (the) testimony might stretch the limits of credulity, this is not the test for incredible dubiosity. K.A.’s testimony does not run so counter to human experience that no reasonable person could believe it,” Baker wrote. “Therefore, this Court will not invade the province of the jury by reweighing the evidence. Thus, this argument must fail.”

While evidence of an uncharged act was improperly admitted, Baker wrote, it didn’t rise to fundamental error. In offering guidance for retrial, the court noted that because Brummett didn’t object contemporaneously to the admission of evidence regarding alleged uncharged out-of-state incidents, there was no fundamental error, though the evidence may have been improperly admitted.

“We note that the circumstances in this case in regard to prosecutorial misconduct are similar to those in Ryan v. State. 992 N.E.2d 776 (Ind. Ct. App. 2013), trans. granted. The prosecutor in this case also prosecuted the defendant in Ryan,” the panel observed in a footnote.

In that case, similar prosecutorial misconduct resulted in reversal and remand for new trial on Bruce Ryan’s convictions of two counts of Class C felony sexual misconduct with a minor. Justices granted transfer in that case last November, but the docket shows no further activity.


 
 

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  1. Joseph Buser, Montgomery County Chief Prosecutor, has been involved in both representing the State of Indiana as Prosecutor while filing as Representing Attorney on behalf of himself and the State of Indiana in Civil Proceedings for seized cash and merchandise using a Verified Complaint For Forfeiture of Motor Vehicle, Us Currency And Reimbursement Of Costs, as is evident in Montgomery County Circuit Court Case Number 54C01-1401-MI-000018, CCS below, seen before Judge Harry Siamas, and filed on 01/13/2014. Sheriff Mark Castille is also named. All three defendants named by summons have prior convictions under Mr. Buser, which as the Indiana Supreme Court, in the opinion of The Matter of Mark R. McKinney, No. 18S00-0905-DI-220, stated that McKinney created a conflict of interest by simultaneously prosecuting drug offender cases while pocketing assets seized from defendants in those cases. All moneys that come from forfeitures MUST go to the COMMON SCHOOL FUND.

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  4. Oh, and you fail to mention that you deprived the father of far FAR more time than he ever did you, even requiring officers to escort the children back into his care. Please, can you see that you had a huge part in "starting the war?" Patricia, i can't understand how painfully heartbreak ithis ordeal must have been for you. I read the appellate case and was surprised to see both sides of the story because your actions were harmful to your child; more so than the fathers. The evidence wasn't re weighed. It was properly reviewed for abuse of discretion as the trial court didn't consider whether a change of circumstance occurred or follow and define the statutes that led to their decision. Allowing a child to call a boyfriend "daddy" and the father by his first name is unacceptable. The first time custody was reversed to father was for very good reason. Self reflection in how you ultimately lost primary custody is the only way you will be able heal and move forward. Forgiveness of yourself comes after recognition and I truly hope you can get past the hurt and pain to allow your child the stability and care you recognized yourself that the father provides.

  5. Patricia, i can't understand how painfully heartbreak ithis ordeal must have been for you. I read the appellate case and was surprised to see both sides of the story because your actions were harmful to your child; more so than the fathers. The evidence wasn't re weighed. It was properly reviewed for abuse of discretion as the trial court didn't consider whether a change of circumstance occurred or follow and define the statutes that led to their decision. Allowing a child to call a boyfriend "daddy" and the father by his first name is unacceptable. The first time custody was reversed to father was for very good reason. Self reflection in how you ultimately lost primary custody is the only way you will be able heal and move forward. Forgiveness of yourself comes after recognition and I truly hope you can get past the hurt and pain to allow your child the stability and care you recognized yourself that the father provides.

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