Opinion

Gregory v. State

  • 885 N.E.2d 697
  • 2008 Ind. App. LEXIS 1149
  • 2008 WL 1960866
Court
Indiana Court of Appeals
Filed
May 5, 2008
Status
Published
Author
Kirsch
On the bench
Bailey, Friedlander, Kirsch
Cited by
68 cases
Authority
More cited than 4.7%

remanding with instructions to vacate conviction for conspiracy to deal in methamphetamine where trial court attempted to avoid double jeopardy violation by merging that conviction with dealing in methamphetamine conviction

How later courts described this case

  • remanding with instructions to vacate conviction for conspiracy to deal in methamphetamine where trial court attempted to avoid double jeopardy violation by merging that conviction with dealing in methamphetamine conviction
  • remanding to vacate conviction because "[a] double jeopardy violation occurs when judgments of conviction are entered and cannot be remedied by the practical effect' of concurrent sentences or by merger after conviction has been entered"
  • finding no misconduct when the prosecutor asked jurors their attitudes towards methamphetamine and the laws circumscribing its creation and use
  • holding visitor to property had no interest in the property searched and therefore could not challenge the constitutionality of the search

Written by the judges who cited it.

The opinion

KIRSCH, Judge,

concurring in part and concurring in result in part.

The poem read by the prosecutor to the jury during voir dire was not aimed at determining juror attitudes. It was not geared to determine whether the jury could render a fair and impartial verdict. Nor was it intended to determine whether any juror had an opinion, bias or belief that would affect her or his determination of the issues. As a result, I believe the trial court abused its discretion in allowing the reading.

I also think that the prosecutor’s comments during closing argument were improper. “It is misconduct for a prosecutor to request the jury to convict a defendant for any reason other than his guilt.” Wisehart v. State, 693 N.E.2d 23, 59 (Ind.1998) (quoting Maldonado v. State, 265 Ind. 492, 500 , 355 N.E.2d 843, 849 (1976)). Here, in saying that the methamphetamine was on trial, I believe the prosecutor crossed this line. The comments outlined above demonstrate that the prosecutor sought to persuade the jury that it should convict on the basis of the dangers that methamphetamine poses to the community.

A claim of prosecutorial misconduct requires a determination that the misconduct had a probable persuasive effect on the jury’s decision. Hancock v. State, 737 N.E.2d 791, 797 (Ind.Ct.App.2000). Because I agree with my colleagues that the poetry reading was not effective, I do not believe that the error in allowing the reading placed Gregory in a position of grave peril. Moreover, because there was overwhelming independent evidence of Defendant’s guilt, any error in regard to the prosecutor’s statements during closing argument was harmless.

Accordingly, I concur in result as to these issues and fully concur as to all other issues.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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