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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. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  5. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

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