Ryan v. State

Decision Date26 August 2014
Docket NumberNo. 49S02–1311–CR–734.,49S02–1311–CR–734.
PartiesBruce RYAN, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Deborah B. Markisohn, Ruth A. Johnson, Marion County Public Defender Agency, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Andrew R. Falk, Andrew A. Kobe, Deputy Attorneys General, Gillian D. Keiffner, Marion County Deputy Prosecutor, Indianapolis, IN, Attorneys for Appellee.

On Transfer from the Indiana Court of Appeals, No. 49A02–121–CR–932

DICKSON, Chief Justice.

Following a jury trial, Bruce Ryan was convicted on two of three counts of Class C felony Sexual Misconduct with a Minor.1 Appealing his convictions, the defendant argues that several statements made by the State during closing argument—statements to which he raised no objection at trial—constitute prosecutorial misconduct and that the cumulative effect of such misconduct rises to the level of fundamental error, warranting reversal of his convictions. The Court of Appeals agreed and reversed his convictions. Ryan v. State, 992 N.E.2d 776, 791 (Ind.Ct.App.2013). We granted transfer, thereby vacating the opinion of the Court of Appeals, and we now affirm the trial court, concluding that some of the prosecutor's conduct was improper, but because of the absence of any timely objection by the defendant, reversal is not warranted.

During the summer and fall of 2011, forty-three year old Bruce Ryan, an eighth-grade science teacher, engaged in a relationship with a fifteen year old freshman student (“FS”) at the school where the defendant taught. FS had known the defendant since she was eleven years old, had a “crush” on the defendant for several years, and had recently completed the defendant's eighth-grade physics class. Duringthe summer of 2011, FS attended a science club with the defendant at the school—often the only student in attendance. At some point, the defendant and FS began sending private messages to each other every night using Google Plus, a social networking site. Initially, the purpose of their chats was to discuss the science club, but the content became more personal and intimate. By the end of the summer, the defendant and FS were hugging and kissing open-mouthed with their tongues in a storeroom in the back of the defendant's classroom. During this time period, they both told each other that they loved and missed each other, and the defendant also gave FS presents. Late October 2001, FS's parents discovered her online communications with the defendant and notified the school principal and subsequently the police. The State charged the defendant with three counts of Class C felony Sexual Misconduct with a Minor, alleging misconduct on various dates.2

On appeal, the defendant challenges his convictions on grounds of prosecutorial misconduct, pointing to various remarks made by the deputy prosecutor during closing arguments. The defendant did not raise any objection to nor seek relief from the prosecutor's remarks during trial, but to avoid procedural default he contends these remarks constituted fundamental error. On transfer, the State argues that fundamental error did not occur.

In reviewing a claim of prosecutorial misconduct properly raised in the trial court, we determine (1) whether misconduct occurred, and if so, (2) “whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected” otherwise. Cooper v. State, 854 N.E.2d 831, 835 (Ind.2006), quoted in Castillo v. State, 974 N.E.2d 458, 468 (Ind.2012). A prosecutor has the duty to present a persuasive final argument and thus placing a defendant in grave peril, by itself, is not misconduct. Mahla v. State, 496 N.E.2d 568, 572 (Ind.1986). “Whether a prosecutor's argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct. The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury's decision rather than the degree of impropriety of the conduct.” Cooper, 854 N.E.2d at 835 (emphasis added) (citations omitted). To preserve a claim of prosecutorial misconduct, the defendant must—at the time the alleged misconduct occurs—request an admonishment to the jury, and if further relief is desired, move for a mistrial. Id.; see also Maldonado v. State, 265 Ind. 492, 498, 355 N.E.2d 843, 848 (1976).

Our standard of review is different where a claim of prosecutorial misconduct has been procedurally defaulted for failure to properly raise the claim in the trial court, that is, waived for failure to preserve the claim of error. Booher v. State, 773 N.E.2d 814, 817–18 (Ind.2002).3 The defendant must establish not only the grounds for prosecutorial misconduct but must also establish that the prosecutorial misconduct constituted fundamental error. Id. at 818. Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant's rights as to “make a fair trial impossible.” Benson v. State, 762 N.E.2d 748, 756 (Ind.2002), quoted in Castillo, 974 N.E.2d at 468 and Cooper, 854 N.E.2d at 835. In other words, to establish fundamental error, the defendant must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue because alleged errors (a) “constitute clearly blatant violations of basic and elementary principles of due process” and (b) “present an undeniable and substantial potential for harm.” Id. The element of such harm is not established by the fact of ultimate conviction but rather “depends upon whether [the defendant's] right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he otherwise would have been entitled.” Townsend v. State, 632 N.E.2d 727, 730 (Ind.1994) (quoting Hart v. State, 578 N.E.2d 336, 338 (Ind.1991)). In evaluating the issue of fundamental error, our task in this case is to look at the alleged misconduct in the context of all that happened and all relevant information given to the jury—including evidence admitted at trial, closing argument, and jury instructions—to determine whether the misconduct had such an undeniable and substantial effect on the jury's decision that a fair trial was impossible. See Boesch v. State, 778 N.E.2d 1276, 1279 (Ind.2002); Townsend, 632 N.E.2d at 730; see, e.g., Castillo, 974 N.E.2d at 469 n. 11 (noting closing arguments are perceived as partisan advocacy).

We stress that [a] finding of fundamental error essentially means that the trial judge erred ... by not acting when he or she should have....” Whiting v. State, 969 N.E.2d 24, 34 (Ind.2012). Fundamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error. 4See Baer v. State, 942 N.E.2d 80, 99 (Ind.2011) (noting it is “highly unlikely” to prevail on a claim of fundamental error relating to prosecutorial misconduct); Stevens v. State, 691 N.E.2d 412, 420 n. 2 (Ind.1997); Wilson v. State, 222 Ind. 63, 83, 51 N.E.2d 848, 856 (1943).

The defendant contends that the prosecutor improperly commented on his constitutional rights to a jury trial, improperly demeaned defense counsel, improperly commented on the truthfulness of the victim, and improperly urged the jury to convict him for reasons other than his guilt.

First, the defendant argues that the prosecutor impermissibly penalized his constitutional right to a jury trial when she asserted, “I want to be really clear, we are here because everyone has a right to have a jury trial. We're not here because he didn't do it, we're here because he wants to get away with it. So don't let him, thank you.” Appellant's Br. at 8 (quoting Tr. at 141) (emphasis deleted). The State argues that the prosecutor's statement was not misconduct because it invited the jury to make an inference of guilt from the evidence at trial.

We acknowledge that a prosecutor may not present argument that penalizes or impinges upon a defendant's exercise of the privilege against self-incrimination. Boatright v. State, 759 N.E.2d 1038, 1043 (Ind.2001) ( “The Fifth Amendment privilege against compulsory self-incrimination is violated when a prosecutor makes a statement that is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant's silence.”) (emphasis added) (quotation omitted); see also Crosson v. State, 274 Ind. 247, 249, 410 N.E.2d 1194, 1195 (1980) (“It is true that ... any direct or indirect reference to the defendant's failure to testify has been strictly regarded as an impingement of his constitutional and statutory rights not to testify.”) (emphasis added). We note, however, that a reasonable jury may often perceive a defendant's exercise of the privilege against self-incrimination as implying guilt, whereas if a jury is informed that a jury trial was upon the request of the defendant, such knowledge is substantially less likely to convey this implication.

The first sentence of the challenged passage, declaring that everyone has a right to have a jury trial, clearly is not problematic. The concern is whether the comments that followed, beginning with the same we are here because” phrase, are subject to a reasonable interpretation that penalizes or impinges upon the defendant's exercise of his right to jury trial. We think not. The “right to a jury trial” sentence does not convey the idea that the trial in this case is anything other than an inherent part of every criminal proceeding. The sentence does not imply that it was at the defendant's request, or...

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