Brown v. State

Attorneys for Appellant Attorneys for Appellee

Susan K. Carpenter Steve Carter

Public Defender of Indiana Attorney General of

Indiana

Gregory L. Lewis Arthur Thaddeus Perry

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

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In the

Indiana Supreme Court

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No. 35S00-0107-CR-324

levohn brown,

Appellant (Defendant below),

v.

state of indiana

Appellee (Plaintiff below).

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Appeal from the Huntington Circuit Court, No. 35C01-0002-CF-8

The Honorable Mark A. McIntosh, Judge

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On Direct Appeal

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December 10, 2003

Boehm, Justice.

In this direct criminal appeal, LeVohn Brown appeals his conviction

for murder and requests a new trial on the basis that the prosecutor’s

closing arguments included what he contends was improper reference to

Indiana’s statutory penalty scheme. Because there was no request for an

admonishment or motion for mistrial, the issue is foreclosed on direct

appeal. Therefore, Brown contends this incident constituted fundamental

error. We hold that it did not, and affirm the conviction.

Factual and Procedural Background

Throughout the day on Friday, February 4, 2000, LeVohn Brown

disciplined his three-year-old daughter, MicKenzie by striking her

repeatedly with a wooden paddle. Blows were administered to the middle of

her back, her lower back and her bottom. Brown also struck MicKenzie

across the face with his hand and knocked on her head as one would knock on

a door. When MicKenzie did not respond in any way to this punishment,

Brown became increasingly upset. That evening, when Brown struck MicKenzie

on the back of the head with the paddle, she fell to the floor and Brown

yelled at her to get up and stop crying. The next day, after another blow,

MicKenzie’s eyes failed to focus, her left side became numb, and she could

neither walk nor control her bodily functions. Brown continued to beat

MicKenzie throughout the weekend, but left town on Monday, February 7th.

When Brown returned on Thursday, February 10th, the violence resumed.

Brown repeatedly struck MicKenzie and let her fall when she was unable to

stand. Throughout these events, Brown did not contact anyone regarding

MicKenzie’s medical condition, but during the investigation told Detective

Ron Hoschstetler, from the Huntington City Police Department, that he

thought she seemed “fine.”

MicKenzie died on Friday, February 11, 2000. Brown was charged with

murder and the prosecutor requested life without parole based on the fact

that MicKenzie was under twelve years old. Ind. Code. § 35-50-2-9(b)(12)

(1998). The jury convicted Brown of murder and recommended a sentence of

life without parole, which the trial court imposed.

Brown requested and received an instruction on reckless homicide as a

lesser included offense of murder. Brown alleges reversible error occurred

when the prosecutor, in closing argument, made statements Brown contends

minimized reckless homicide, a Class C felony, by comparing it to loan

sharking, driving while a license is suspended, and forging a signature on

a blank check, all also Class C felonies. Brown argues that these remarks

constituted improper comments disclosing Indiana’s sentencing and

punishment scheme. At trial, Brown objected unsuccessfully, but did not

request an admonishment or move for a mistrial. Because he recognizes that

under governing authority the issue is procedurally foreclosed on appeal,

Brown contends in this direct appeal that the prosecution’s conduct

constituted fundamental error.

If an appellant properly preserves the issue of prosecutorial

misconduct for appeal the reviewing court first determines whether

prosecutorial misconduct existed, and if so whether the statements had a

probable persuasive effect on the jury. Cox v. State, 696 N.E.2d 853, 859

(Ind. 1998).[1] Because Brown failed to request an admonishment or move

for a mistrial when the trial court overruled his objection, his claim of

prosecutorial misconduct is procedurally foreclosed and reversal on appeal

requires a showing of fundamental error. Zenthofer v. State, 613 N.E.2d

31, 34 (Ind. 1993); Isaacs v. State, 673 N.E.2d 757, 763 (Ind. 1996) (“The

correct procedure to be employed when an improper argument is alleged is to

request an admonishment, and if further relief is desired, to move for a

mistrial. Failure to request an admonishment or move for a mistrial

results in waiver of the issue.”) (citations omitted). Etienne v. State,

716 N.E.2d 457, 461 (Ind. 1999). Accordingly, Brown contends that the

prosecutor’s comments during closing argument not only constituted

prosecutorial misconduct, but prevented him from receiving a fair trial and

thereby rose to the level of fundamental error. Willey v. State, 712

N.E.2d 434, 444-45 (Ind. 1999).

We agree that if Brown had requested an admonishment, it would have

been appropriate for the trial court to instruct the jury that the

prosecutor’s comments should be disregarded or that the penalty imposed for

crimes may vary widely and the appropriate remedy is a matter for the

court, not the jury, to consider. However this incident falls far short of

fundamental error. The prosecutor made the following statements during

closing argument:

[Prosecutor:] Mr. Swanson again said, this case needs to be reserved

for the most heinous of crimes. And that’s not the situation for a

reckless homicide (inaudible). Well, let’s put reckless homicide in

perspective. Under the law that’s just as serious as driving a

vehicle when your license has been suspended for the rest of your

life. Under the law, reckless homicide is just as serious as loan-

sharking. Under the law, reckless homicide is just as serious as

someone who signs another person’s name to a check and then tries to

cash it. That’s how serious reckless homicide (inaudible).

After subsequent exchanges with the judge and defense counsel, the

prosecutor also stated:

[Prosecutor:] Ladies and Gentlemen, under the law in this State

reckless homicide isn’t justified with this evidence. It’s not like

loan-sharking. It’s not like any of the crimes I have described.

This was a murder. This wasn’t driving without you [sic] license

(inaudible) for the rest of your life.[2]

Brown contends that these statements to the jury impliedly discussed

Indiana’s possible punishment scheme. He also raises a similar, but

slightly different, contention that these comments minimized a conviction

of reckless homicide, which was one alternative before the jury, and

therefore biased them in favor of a murder verdict. It is error for the

prosecutor to disclose statutory penalties for the crimes under

consideration. Foster v. State, 436 N.E.2d 783, 786-88 (Ind. 1982). The

statements made by the prosecutor did not do that, but they did raise the

same problem that is presented by a discussion of statutory penalties. The

jury’s role is to determine guilt and innocence. It is not to act as a

legislature for a single event by prescribing the penalties the jury deems

appropriate for the defendant appearing before them. Comparison of one

crime to another in the same statutory classification invites the same

skewing of the jury’s findings as to guilt. However, to qualify as

fundamental error, “an error must be so prejudicial to the rights of the

defendant as to make a fair trial impossible.” Mitchell v. State, 726

N.E.2d 1228, 1236 (Ind. 2000)[3] (citations omitted). To constitute

fundamental error, “the error must constitute a blatant violation of basic

principles, the harm or potential for harm must be substantial, and the

resulting error must deny the defendant fundamental due process.” Id.

(citations omitted).

Although the prosecutor’s actions, if viewed in isolation, may have

been the basis for an instruction, if requested, they did not rise to the

level of fundamental error for a second reason. The state argues, with

some justification, that the prosecution merely attempted to put different

crimes into perspective in light of the defense’s argument. The defendant,

not the prosecution, presented the claim that a conviction for murder

should be saved for the most heinous of offenses. The prosecutor viewed

this as opening the door for discussion of the various crimes, and the

trial court agreed. In response to the defendant’s statements, the

prosecution did not discuss the penalties for the various crimes, but did

claim that the punishment for reckless homicide was the same as that for

the lesser identified crimes, driving with a suspended license, loan

sharking, or forgery which a jury would assume to be less than severe. The

prosecutor’s comparison to other specified crimes was not appropriate, but

neither was the defendant’s argument that sought to inject an additional

element of heinousness into the murder charge.

In context, viewed as a response to the defense’s argument that only

the most heinous of crimes warranted a murder conviction, these uncontested

statements do not constitute fundamental error, if error at all. This is

not a situation where the jury was instructed to convict without finding an

element of the crime[4] or where the prosecutor materially misled the jury

as to its role.[5] The doctrine of fundamental error is available only in

egregious circumstances. The cases the defendant cites do not involve

factual circumstances analogous to this case, and we find no case holding a

similar error to constitute fundamental error. Although the prosecutor’s

statements may have been the basis for an admonishment, they did not rise

to the level of fundamental error.

Conclusion

The judgment of the trial court is affirmed.

SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.

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[1] Although often phrased in terms of “grave peril,” a claim of improper

argument to the jury “is measured by the probable persuasive effect of any

misconduct on the jury’s decision and whether there were repeated instances

of misconduct which would evidence a deliberate attempt to improperly

prejudice the defendant.” Lopez v. State, 527 N.E.2d 1119, 1125 (Ind.

1988). See also, Rodriguez v. State, 795 N.E.2d 1054, 1059 (Ind. Ct. App.

2003) (trans. denied) (citations omitted).

[2] Defense counsel objected to these statements on grounds that the

prosecutor argued penalty when she should not have. The judge ruled on the

matter stating: “I’m going to uh, rule that I don’t believe there was any

argument of penalty, that it was simply an attempt to put into perspective.

You may continue.”

[3] Isaacs v. State, 673 N.E.2d 757, 763 (Ind. 1996) (noting that “[f]or

prosecutorial conduct to be fundamental error, it must be demonstrated that

the prosecutor’s conduct subjected the defendant to grave peril and had a

probable persuasive effect on the jury’s decision”); Barany v. State, 658

N.E.2d 60, 64 (Ind. 1995); Cf., Guy v. Indiana, 755 N.E.2d 248, 258 (Ind.

Ct. App. 2001) (trans. denied) (“Fundamental error must be of such

magnitude to persuade the reviewing court that the defendant could not

possibly have received a fair trial or that the verdict is clearly wrong or

of such dubious validity that justice cannot permit it to stand.”).

[4] See, e.g., Hopkins v. State, 759 N.E.2d 633, 638 (Ind. 2001).

[5] See, e.g., Foster v. State, 436 N.E.2d 783, 786 (Ind. 1982).