Misconduct not inappropriate enough to alter trial outcome

Michael W. Hoskins
January 1, 2007
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A prosecutor ;s request to call opposing defense counsel to the stand during a Pike County trial may have been inappropriate, but the Indiana Court of Appeals has determined it didn ;t rise to the level of misconduct that would have impacted the outcome.

The appellate panel issued its decision today in Joshua J. Nolan v. State, which stems from a 2005 case leading to Nolan ;s conviction for criminal deviate conduct and residential entry. He raised three issues on appeal, but the court restated them as five and discounted them all in their affirmation of his conviction.

During trial, the prosecutor, Boyd A. Toler, asked to call Nolan ;s defense counsel, Douglas S. Walton, to testify in response to cross-examination of a state trooper regarding DNA evidence. Court records show that questioning called for speculation on the trooper ;s part, and the prosecutor decided to call the opposing attorney to clarify what had been said on the issue. The judge called for a sidebar, and the two attorneys reached a stipulation that resulted in the testimony not being needed.

"While we agree with Nolan that the prosecutor ;s conduct before the jury was highly inappropriate, we cannot agree that the inappropriate conduct placed Nolan ‘in a position of grave peril, ;" the court wrote, continuing later in the opinion that "the prosecutor ;s subsequent statement to the jury that opposing counsel ;s testimony was unnecessary overcame any misconduct."

The full opinion can be read at Joshua J. Nolan v. State of Indiana.

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