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Judges order new trial based on prosecutor’s comments

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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.

 

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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