Prosecutorial misconduct claim rejected in meth conviction

A woman’s conviction for dealing meth were upheld after the Indiana Court of Appeals found no issue with comments made by the Franklin County prosecutor in response to allegations raised by defense counsel.

Lola Sells was convicted of Level 3 felony dealing methamphetamine after one of her clients was found dead in a parking lot due to an overdose. The client, Felicia Craig, had purchased 7 grams of meth from Sells and ate all of it just before being pulled over by a law enforcement officer for a traffic violation.

Before Sells’ first jury trial began, a mistrial was declared, and the jury was discharged after the trial court concluded that the disclosure of issues in media coverage “of matters resolved on the record out of the presence of the jury before the production of evidence” so tainted the jury that no limiting instructions could cure the defect.

In the second jury trial, Sells argued that the state had failed to prove she dealt or conspired to deal meth in Franklin County. Sells’ counsel then argued that the state was “turned down everywhere else” resulting in the Franklin County prosecutor’s decision to take the case. The defense attorney then accused the state of “forum shop[ping]” and accused the prosecutor of finding facts “[t]o make [the prosecution in Franklin County] work” and to “fit the narrative … [b]ecause” otherwise “there’s no crime here … .”

At the prosecutor’s objection to Sells’ suggestion that the state suborned perjury from two witnesses, the trial court stated Sells’ attorney was “permitted to characterize the evidence.” On rebuttal, the prosecutor argued the evidence of Sells’ guilt was overwhelming and added that her attorney should not try to tell him that he is “unethical” or that he “conspired.”

The trial court then overruled an objection from Sells that the prosecutor’s use of the word “unethical” was a means to allegedly attack the defense, finding that the prosecutor was “characteriz[ing] what he heard” during Sells’ closing argument. Nonetheless, the trial court admonished the jury that the attorneys’ arguments were not evidence. Sells was ultimately found guilty.

The Indiana Court of Appeals affirmed Sells’ conviction in Lola M Sells v. State of Indiana, 18A-CR-02691, first finding that Sells did not preserve her double jeopardy argument regarding her second trial.

It further concluded there was no issue with the Franklin County prosecutor’s comments on rebuttal, which “were wholly in response to the allegations and inferences raised by Sells during her closing argument and did not go beyond such a response.” The appellate court thus found Sells opened the door for comments to be made and rejected her prosecutorial misconduct arguments.

The appellate court additionally found Sells’ argument under Article 1, Section 14 must fail and that the state met its burden to establish venue in Franklin County.

“The charges of dealing and conspiracy to deal were integrally related charges. Sells’ delivery of methamphetamine to Craig was part of a single chain of events intended to culminate in the delivery of the methamphetamine to (Adam) Wagner, and in performing those acts Craig drove through Franklin County,” Judge Edward Najam wrote for the court.

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