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COA: Defense lawyer’s ‘questionable’ conduct not reversible error

May 6, 2016

A defense attorney who provided evidence to the state of her client’s involvement in a separate case where he was one of six people charged with brutalizing and sexually assaulting members of an Indianapolis family in their home did not commit reversible error, the Indiana Court of Appeals ruled Friday.

Demetre Brown was among a group of men who targeted a home on East 79th Street in Indianapolis after seeing an open garage door in the early morning hours of Oct. 28, 2013. A disabled man and his wife lived in the home with their 24-year-old daughter, and all were home at the time the armed men entered the house.

The men broke into the house and over the hours that followed raped and sexually assaulted both women and brutally attacked the man. They ransacked the house, stole jewelry, a laptop and cars. They forced the women to withdraw cash from nearby ATMs.

A jury convicted Brown of four counts of Class A felony rape, two counts of Class A felony attempted criminal deviate conduct, two counts of Class B felony robbery, three counts of Class B felony carjacking, three counts of Class B felony criminal confinement, two counts of Class C felony intimidation, Class B felony aggravated battery, Class A felony robbery, Class C felony battery, and Class A felony burglary. The court sentenced on just 10 counts to avoid double jeopardy, giving Brown 248 years in prison.

In Demetre Brown v. State of Indiana, 49A02-1505-CR-391, the panel affirmed Brown’s convictions but found double jeopardy concerns warranted the reduction of a Class A felony robbery conviction to a Class B conviction. This reduced his sentence to 218 years.

But the panel expressed concern about the role attorney Heather Barton played in this case. Barton represented Brown in another criminal matter but provided police with the laptop that had been stolen from the home after retrieving it from Brown’s mother’s house. Barton also testified about the source of the laptop, which contained Brown’s fingerprint. Brown argued the trial court should have suppressed the evidence and that Barton violated attorney-client privilege.

“We have significant concerns and deep reservations about the events that occurred here and Barton’s questionable conduct. Brown correctly points out that there are attorney professional conduct rules implicated,” Judge Michael Barnes wrote, referencing Professional Conduct Rule 1.6(a). “However, Brown cites no authority for the proposition that an ethical violation should result in the exclusion of evidence in a criminal trial unless it violates the attorney-client privilege statute.

“Despite our concerns about Barton’s conduct, we need not and do not address whether the trial court erred by admitting the evidence at issue because any error was harmless,” Barnes wrote, finding there was ample other evidence at trial pointing to Brown’s guilt.

Brown also failed to persuade the court that convictions should be vacated due to the single larceny rule or that his sentence was inappropriate.  

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