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Prosecutor’s comments on defendant not testifying don’t require reversal

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The Indiana Court of Appeals, in addressing a defendant’s claims of prosecutorial misconduct, found that any misconduct committed was a harmless error and does not require criminal deviate conduct and sexual battery convictions to be overturned.

Craig Bakari Thomas sexually assaulted his classmate K.B. while the two were sitting in a car at a park. Thomas chose not to testify at his trial and was convicted of two counts of Class B felony criminal deviate conduct and one count of Class D felony sexual battery.

In Craig Bakari Thomas v. State of Indiana, 71A04-1305-CR-256, Thomas argued that two comments by a deputy prosecutor resulted in prosecutorial misconduct. Both referred to Thomas not testifying at the trial. The trial court issued an admonishment to the jury regarding the first comment made by the deputy prosecutor that said there is no other story, to disregard the fact that Thomas wasn’t sworn and didn’t testify. The judge did not issue an admonishment regarding the second comment, in which the deputy prosecutor said, “That’s not what the defendant is saying. The defendant is not saying ….” The judge required the deputy prosecutor to clarify that those statements referred to statements Thomas gave to police officers.

With respect to the first comment, the Court of Appeals agreed that the deputy prosecutor’s comments reasonably could be interpreted as an invitation to draw an adverse inference from Thomas’ silence. In fact, the deputy was suggesting that the jury draw an inference of guilt from Thomas’ decision to not be sworn in and tell his story. But the error was harmless, because the state could prove that the comment did not contribute to the verdict. The judge’s curative instruction defused the impact of the state’s improper remark, Judge Patricia Riley wrote.

The COA noted that the second comment did not amount to an indirect reference to Thomas’ decision to not testify.
 

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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