COA reverses confinement conviction, cautions prosecution on future statements

February 5, 2015

The Indiana Court of Appeals reversed a Lake County man’s Class B felony criminal confinement conviction because the trial court erred in admitting out-of-court statements by an alleged accomplice.

Anthony Thornton faced several charges in connection with the rape and confinement of K.W., whom he and two other men picked up at a gas station. She asked for a ride home, but they took her to Thornton’s apartment, where she was forced to have sex or oral sex with the men. Thornton admitted that the men gave K.W. a ride but said he did not have sex with her and was giving her a ride home when she fled from his vehicle.

The jury only convicted Thornton of felony criminal confinement.

In Anthony J. Thornton v. State of Indiana, 45A03-1405-CR-156, Thornton challenged testimony from a detective who took a statement from Thornton’s co-defendant, Kevin Dillard. The detective said that Dillard’s version of what happened and Thornton’s version did not match. He said there were a few similarities in their statements, but also some major differences. He did not go into detail, and Dillard was not available for testimony or cross-examination.

The state argued that because the detective didn’t describe the substance of Dillard’s statements, his testimony wasn’t prohibited under the Confrontation Clause.

“If anything, the testimony in question here is worse than specific facts. The testimony was pure innuendo, necessitating that the detective make his own determination and interpretation of the content of Dillard’s statement as well as Dillard’s and Thornton’s reliability and credibility. The purpose of this testimony was to imply to the jury that Thornton was being dishonest, based solely on pure speculation regarding the nature and extent of the alleged inconsistencies,” Judge John Baker wrote.

“We agree with Thornton that to permit the State to hint at the substance of a conversation so long as specific details are not mentioned would violate both the United States and Indiana Constitutions, inasmuch as it would permit the State to bootstrap in evidence that is otherwise inadmissible and permit a witness to make his own determination of a declarant’s reliability.”

They reversed the conviction because it’s not a harmless error, pointing to the jury’s inability to reach a verdict on all but one of the charges against Thornton.

The judges also warned the prosecution against making certain statements at retrial during closing arguments as it did during the first trial.

“To blame a shortcoming in the State’s evidence on a defendant’s invocation of a fundamental constitutional right surely constitutes prosecutorial misconduct, and likely also constitutes fundamental error,” Baker wrote. Also, a prosecutor may not request that a jury convict a defendant for any reason other than his guilt. It is improper to invoke sympathy for a victim as a basis for conviction.

“Should the State decide to retry Thornton, we admonish the prosecutor to avoid making similar comments the next time around,” he wrote.



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