A prosecutor improperly presented facts that were not in evidence and inflamed the passions and prejudices of jurors in a murder trial, but his improper conduct didn’t rise to the level of reversible error, the Indiana Court of Appeals ruled Friday.

Alton Neville was convicted after a Marion Superior Court jury trial in December 2011 and sentenced to 55 years in prison on a count of murder and a charge of carrying a handgun without a license.

Neville shot and killed Jamal Hood near the intersection of West 31st and Clifton streets in Indianapolis on March 23, 2011, the jury found. On appeal Neville’s attorney raised several allegations of prosecutorial misconduct, including vouching for a witness, mischaracterizing evidence, arguing inconsistent facts, presenting facts not in evidence and inflaming the passions and prejudices of the jury.

The court in a unanimous opinion ruled that the prosecutor had committed the latter two transgressions and also that evidence was improperly admitted. But none of those missteps rise to the level of fundamental error, Judge Terry Crone wrote in Alton Neville v. State of Indiana, 49A05-1201-CR-9.

The prosecutor suggested that Neville stood over Hood’s body and gloated, a fact the court ruled was not in evidence.

The prosecutor also inflamed jurors’ passions and prejudices during final arguments, the judges ruled. “Based on the lies you’ve heard from him [Neville], but mostly based on the evidence that we presented before you, convict him. Do it for Jamal,” according to court records.
   
“Neville’s defense counsel forcefully countered the prosecutor’s arguments,” Crone wrote. “[T]he prosecutor’s improper comments, either singularly or collectively, were not so detrimental to the opportunities for the ascertainment of truth so as to make a fair trial impossible.”

The panel also found Neville’s sentence was not inappropriate. “Balancing the letters on behalf of Neville against his criminal history, we cannot say that Neville’s character warrants a sentence below the advisory,” the opinion says.