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Prosecutor’s ‘continual misconduct’ warrants new molestation trial

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A man’s child molesting convictions were vacated and he was granted a new trial by the Indiana Court of Appeals, which found prosecutorial misconduct amounting to fundamental error. It’s the second reversal and remand attributable to the same prosecutor, the court noted.

Brandon Brummett was 23 when he was convicted of molesting two cousins who were 16 and 12 years old at the time of the alleged incidents, some of which took place in West Virginia, where the girls’ father – Brummett’s uncle – was imprisoned. The girls’ mother encouraged them to spend time with relatives on their father’s side, the opinions states.

Brummett was arrested after one of the girls told a friend that he had molested her, and that friend and the girl told the girl’s mother.

In Brandon Brummett v. State of Indiana, 49A02-1304-CR-378, Judge John Baker wrote that a Marion County prosecutor was belligerent toward Brummett as he testified on the stand, that the prosecutor offered improper vouching and commentary on the justness of the cause, and that the proseuctor impugned the integrity of defense counsel and demeaned its role.

Brummett preserved none of the issues for appeal, but he succeeded in proving both prosecutorial misconduct and fundamental error, Baker wrote.

“The cumulative effect of this misconduct amounted to fundamental error, as it placed the defendant in grave peril and made a fair trial impossible. Consequently, the defendant is entitled to a new trial,” Baker wrote for the panel.

Reversing the conviction on those grounds, the panel waded into Brummett’s other objections regarding the evidence against him. He objected to the admission of evidence of uncharged acts and also asked the court to find the testimony of one of the girls incredibly dubious. She alleged he fondled her vagina as the family played a game at a table during a visit to West Virginia.

“While we agree with Brummett that (the) testimony might stretch the limits of credulity, this is not the test for incredible dubiosity. K.A.’s testimony does not run so counter to human experience that no reasonable person could believe it,” Baker wrote. “Therefore, this Court will not invade the province of the jury by reweighing the evidence. Thus, this argument must fail.”

While evidence of an uncharged act was improperly admitted, Baker wrote, it didn’t rise to fundamental error. In offering guidance for retrial, the court noted that because Brummett didn’t object contemporaneously to the admission of evidence regarding alleged uncharged out-of-state incidents, there was no fundamental error, though the evidence may have been improperly admitted.

“We note that the circumstances in this case in regard to prosecutorial misconduct are similar to those in Ryan v. State. 992 N.E.2d 776 (Ind. Ct. App. 2013), trans. granted. The prosecutor in this case also prosecuted the defendant in Ryan,” the panel observed in a footnote.

In that case, similar prosecutorial misconduct resulted in reversal and remand for new trial on Bruce Ryan’s convictions of two counts of Class C felony sexual misconduct with a minor. Justices granted transfer in that case last November, but the docket shows no further activity.


 
 

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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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