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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. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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