ILNews

Judges order new trial based on prosecutor’s comments

Back to TopCommentsE-mailPrintBookmark and Share

Comments made by a prosecutor during a Harrison County man’s trial for charges stemming from a break-in at a convenience store improperly suggested that the man chose not to testify so he would not incriminate himself, the Indiana Court of Appeals ruled.

In Patrick Nichols v. State of Indiana, 31A01-1112-CR-599, the state charged Patrick Nichols with Class C felony burglary, Class D felony theft and Class A misdemeanor criminal mischief, believing he broke into the Wilson General Store and gas station in Elizabeth and stole cigarettes and an air conditioner unit. Store owner Emmett Wilson and a police officer went to the store after the burglar alarm went off around 3 a.m. on April 14, 2011. No one was found in the store, but items were missing and in disarray.

According to court records, Nichols made several calls from inside the store between 6 and 7 a.m., including to his mother and ex-girlfriend. He told his ex-girlfriend that he was at a gas station in Elizabeth and needed picked up, but she did not get him. A passerby saw a PT Cruiser in the alley near the store and saw some of the metal siding from the store was pried off. The passerby wrote down the license plate number, which was only one “alpha character” different than the license plate number of Nichols’ mother, who also had a PT Cruiser.

The prosecution acknowledged that its evidence against Nichols was “not a lot.” The prosecutor went on to say, “I usually don’t comment on a person’s [F]ifth [A]mendment right …” and told a story about another case in which the evidence was extremely thin but the defendant was convicted because he chose to testify and, in testifying, provided the jury with evidence of his guilt.

Nichols did not object to the prosecutor’s comments and was convicted of the three charges.

The Court of Appeals decided the prosecutor’s comments rose to the level of fundamental error. The jury could have reasonably inferred that the prosecutor was suggesting that Nichols didn’t testify so as to avoid self-incrimination, Judge Terry Crone wrote.

“In fact, we think it is obvious that the prosecutor was suggesting that the jury draw an inference of guilt from Nichols’s decision not to testify. Given the obviousness of the prosecutor’s comments and the fact that the evidence of guilt was not overwhelming in this case, we conclude that the comments placed Nichols in a position of grave peril and constituted clearly blatant violations of basic and elementary principles of due process that presented an undeniable and substantial potential for harm,” he wrote.

The judges ordered the trial court conduct a new trial.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

ADVERTISEMENT