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
Indiana Supreme Court
Appellant (Defendant below),
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
In this direct criminal appeal, LeVohn Brown appeals his conviction for murder and
requests a new trial on the basis that the prosecutors closing arguments included
what he contends was improper reference to Indianas 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,
MicKenzies 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 MicKenzies 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 Indianas 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 prosecutions 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).
See footnote 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 fu
ndamental 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 prosecutors 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 prosecutors 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 thats not the situation for a reckless
homicide (inaudible). Well, lets put reckless homicide in perspective. Under the
law thats 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 persons name to a
check and then tries to cash it. Thats how serious reckless homicide
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 isnt
justified with this evidence. Its not like loan-sharking. Its not like
any of the crimes I have described. This was a murder.
This wasnt driving without you [sic] license (inaudible) for the rest of your
Brown contends that these statements to the jury impliedly discussed Indianas possible punis
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 jurys 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 jurys 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)
See footnote (citations omitted). To constitute fund
amental 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 prosecutors 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 defenses 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
defendants 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 prosecutors comparison to other specified crimes was not appropriate, but neither was
the defendants argument that sought to inject an additional element of heinousness into
the murder charge.
In context, viewed as a response to the defenses 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
See footnote or where the prosecutor materially misled the jury as to its role.See footnote
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 prosecutors stat
ements may have been the basis for an admonishment,
they did not rise to the level of fundamental error.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
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 jurys decision and whether there were r
epeated 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).
Defense counsel objected to these statements on grounds that the prosecutor argued
penalty when she should not have. The judge ruled on the matter
ting: Im going to uh, rule that I dont believe there was any
argument of penalty, that it was simply an attempt to put into perspective.
You may continue.
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 prosecutors
conduct subjected the defendant to grave peril and had a probable persuasive effect
on the jurys 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.).
See, e.g., Hopkins v. State, 759 N.E.2d 633, 638 (Ind. 2001).
See, e.g., Foster v. State, 436 N.E.2d 783, 786 (Ind. 1982).