Brown v. State
| Decision Date | 10 December 2003 |
| Docket Number | No. 35S00-0107-CR-324.,35S00-0107-CR-324. |
| Citation | 799 N.E.2d 1064 |
| Parties | LeVohn BROWN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender of Indiana, Gregory L. Lewis, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
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.
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) ( ) (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 ...
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...court first determines whether misconduct occurred, and if so whether it had a probable persuasive effect on the jury. Brown v. State, 799 N.E.2d 1064 (Ind.2003); Cox v. State, 696 N.E.2d 853, 859 (Ind.1998). "Although often phrased in terms of `grave peril,' a claim of improper argument to......
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