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Prosecutor's conduct leads to child-molesting conviction reversal

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The Indiana Court of Appeals said a Tippecanoe County man has the right to a retrial on a child molestation charge because the prosecutor inappropriately vouched for the victim’s credibility and had offered to show the victim a transcript of past statements without the teenager asking for that recollection.

In a unanimous ruling Tuesday in Michael J. Gaby v. State of Indiana, No. 79A02-1006-CR-804, the three-judge appellate panel reversed the Class A felony child molesting conviction and remanded for retrial before Tippecanoe Superior Judge Thomas Bush.

The case involves a girl known as M.C., born in 1993, who lived in the same apartment complex as Michael Gaby in the mid-90s. He watched her along with other children when M.C.’s mother went to work. One time, he was alone with the girl and told her to try on some clothes that his young daughter of the same age had outgrown. She undressed, and the court record says that Gaby put a blanket over her and used his fingers to molest her while she was sitting on the bed. The girl didn’t go to Gaby’s apartment alone after this incident, and Gaby and his daughter later moved out of the apartment. She never reported the incident until April 2009, when she was 15 years old and told a teacher what Gaby had done to her. That teacher contacted police and the investigation began, with Gaby denying he’d molested the girl.

Police charged him with felony child molesting in June 2009 and amended the charges in March 2010 based on dates of the incident. After a two-day trial, a jury found Gaby guilty. The trial court sentenced him to 20 years in prison and ordered that he serve that as a credit-restricted felon, based on a 2008 state statute, meaning that a convict only earns one day of credit for every six served.

But what led to this appellate reversal is the prosecutor’s conduct at trial. Gaby argued that the trial court abused its discretion in allowing the prosecutor to refresh M.C.’s recollection using a transcript from a previous interview. The girl testified at trial that Gaby hadn’t spoken or touched her anywhere else, but the prosecutor then showed her a past statement contradicting that. Gaby’s counsel objected and the trial court allowed it, saying attorneys are able to impeach their own witnesses on the stand. But the appellate panel disagreed, citing Indiana Rules of Evidence and past precedent stating that a witness must first state that he or she does not recall information sought by the questioner in order for the attorney to refresh that individual.

“We agree with Gaby that the transcript clearly shows that M.C. did not testify as to any lack of recollection regarding the events before the prosecutor showed her the transcript of previous statement,” Judge Paul Mathias wrote. “M.C. simply gave answers the prosecutor neither expected nor desired. The prosecutor attempted to rectify this by having M.C. read the transcript of her previous statement, after which M.C. still struggled to give the prosecutor the desired answers.”

The appeals court also found the prosecutor erred by saying she was “confident” that the jury would find M.C. credible, and that resulted in improper vouching on an issue central in this case.

Sending the case back for retrial, the appellate panel found the recollection and vouching issues to be non-harmless errors. A retrial is possible and double jeopardy doesn’t apply, said the appellate judges. They also determined that if Gaby is found guilty, he can’t be sentenced as a credit-restricted felon because the court in Upton v. State, 904 N.E. 2d 700, 704 (Ind. Ct. App. 2009), found that restriction unconstitutional when applied retroactively.







 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. 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

  4. 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

  5. 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

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