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Justices split in granting transfer

February 4, 2009

The Indiana Supreme Court was split in its decision to deny transfer in a case in which a defendant claimed misconduct by the prosecutor when he read a poem about drugs during voir dire.

The justices were split 3-2 in favor of denying transfer in the case Robert R. Gregory v. State of Indiana, No. 15A01-0708-CR-348. Justice Robert Rucker dissented, and Justice Brent Dickson concurred with him, finding certain tactics used by the prosecutor during jury selection were improper and amounted to misconduct.

Robert Gregory was convicted of manufacturing methamphetamine and conspiracy to manufacture methamphetamine. Gregory appealed his convictions on four claims, including whether the prosecutor committed misconduct by reading a poem during voir dire about the dangers of methamphetamine. The Indiana Court of Appeals affirmed Gregory's manufacturing conviction, but ordered his conspiracy conviction to be vacated on double jeopardy grounds. The appellate court ruled the prosecutor didn't commit misconduct by reading the poem.

Justice Rucker wrote that although Gregory did not raise the misconduct issue in his transfer petition, the matter is sufficiently important to warrant the Supreme Court's attention. Justice Rucker agreed with Court of Appeals Judge James Kirsch's dissent that the trial court abused its discretion in allowing the reading.

Referencing Perryman v. State, 830 N.E.2d 1005 (Ind. Ct. App. 2005), in which the court reversed a defendant's drug conviction because of improper voir dire tactics, Justice Rucker wrote, "I see little daylight between the prosecutor's conduct in Perryman and the prosecutor's conduct here. Although I agree that in this case the defendant is not entitled to a new trial, the conduct exhibited by the prosecutor nonetheless should be disapproved."

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