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
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 35S00-0107-CR-324
levohn brown,
Appellant (Defendant below),
v.
state of indiana
Appellee (Plaintiff below).
_________________________________
Appeal from the Huntington Circuit Court, No. 35C01-0002-CF-8
The Honorable Mark A. McIntosh, Judge
_________________________________
On Direct Appeal
_________________________________
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.
-----------------------
[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).