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. Great observation Smith. By my lights, speaking personally, they already have. They counted my religious perspective in a pro-life context as a symptom of mental illness and then violated all semblance of due process to banish me for life from the Indiana bar. The headline reveals the truth of the Hoosier elite's animus. Details here: Denied 2016 petition for cert (this time around): (“2016Pet”) Amicus brief 2016: (“2016Amici”) As many may recall, I was banned for five years for failing to "repent" of my religious views on life and the law when a bar examiner demanded it of me, resulting in a time out to reconsider my "clinging." The time out did not work, so now I am banned for life. Here is the five year time out order: Denied 2010 petition for cert (from the 2009 denial and five year banishment): (“2010Pet”) Read this quickly if you are going to read it, the elites will likely demand it be pulled down or pile comments on to bury it. (As they have buried me.)

  2. if the proabortion zealots and intolerant secularist anti-religious bigots keep on shutting down every hint of religious observance in american society, or attacking every ounce of respect that the state may have left for it, they may just break off their teeth.

  3. "drug dealers and traffickers need to be locked up". "we cannot afford just to continue to build prisons". "drug abuse is strangling many families and communities". "establishing more treatment and prevention programs will also be priorities". Seems to be what politicians have been saying for at least three decades now. If these are the most original thoughts these two have on the issues of drug trafficking and drug abuse, then we're no closer to solving the problem than we were back in the 90s when crack cocaine was the epidemic. We really need to begin demanding more original thought from those we elect to office. We also need to begin to accept that each of us is part of the solution to a problem that government cannot solve.

  4. What is with the bias exclusion of the only candidate that made sense, Rex Bell? The Democrat and Republican Party have created this problem, why on earth would anyone believe they are able to fix it without pushing government into matters it doesn't belong?

  5. This is what happens when daddy hands over a business to his moron son and thinks that everything will be ok. this bankruptcy is nothing more than Gary pulling the strings to never pay the creditors that he and his son have ripped off. they are scum and they know it.