# Gregory v. State

> Indiana Court of Appeals · May 5, 2008 · 885 N.E.2d 697

URL: https://www.frixlaw.com/law-library/cases/9525832

## Case

- **Full name:** Robert R. GREGORY, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
- **Court:** Indiana Court of Appeals
- **Decided:** May 5, 2008
- **Citations:** 885 N.E.2d 697; 2008 Ind. App. LEXIS 1149; 2008 WL 1960866
- **Precedential status:** Published
- **Opinion:** Concurring in part by Kirsch
- **Judges:** Bailey, Friedlander, Kirsch
- **Cited by:** 68 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9525832

## How later opinions describe it (automated extraction)

- 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
- holding prosecutor’s statements about the disastrous effects methamphetamine has on the community did not constitute misconduct

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9525832. Public record. Not legal advice.