Emerson v. State
2011 Ind. App. LEXIS 1432
| Ind. Ct. App. | 2011Background
- On January 5, 2008, a Nashville, Indiana deputy stopped a van speeding 82–85 mph in a 45 mph zone.
- Emerson sat in the front passenger seat; Morgan, initially driving, later testified Emerson drove and switched seats.
- Emerson had a strong odor of alcohol, slurred speech, unsteadiness, and admitted drinking at the jail.
- State charged Emerson with operating a vehicle while intoxicated (OVI) and with driving privileges forfeited for life; first trial ended in a hung jury.
- Second trial was bifurcated: phase one on OVI (Class C misdemeanor) and phase two on life-forfeiture (Class C felony); verdicts were guilty on both counts.
- Trial court sentenced Emerson; Emerson appeals challenging prosecutorial conduct, jury instructions, and phase-two arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did prosecutorial misconduct require reversal for phase one? | Emerson argues repeated 'bully' references tainted voir dire and opening/closing. | State contends misconduct was isolated, not fundamental error, and waivable without admonition failure. | No fundamental error; misconduct not pervasive enough to require reversal. |
| Was voir dire misconduct during bullying questioning improper? | Bullying-focused questions biased jurors against Emerson. | Questions relevant to potential bias; not inherently improper. | Questions not amounting to fundamental error; did not render trial unfair. |
| Did opening/closing arguments amount to prosecutorial misconduct requiring reversal? | Prosecutor described Emerson as a bully and urged conviction on character. | Arguments were grounded in evidence and permissible opinion; court instructed not to treat as evidence. | No fundamental error; fleeting improper remark did not deny fair trial. |
| Was the jury instruction on lesser-included offenses or phase-two law properly handled? | Instruction failed to clarify when to convict of lesser included offense; improper handling of law vs. fact in phase two. | Instructions were adequate as a whole; waiver due to lack of objection; phase-two distinct from habitual-offender context. | Not fundamental error; instructions sufficiently informed; no reverse on this point. |
Key Cases Cited
- Williams v. State, 724 N.E.2d 1070 (Ind.2000) (standard for assessing prosecutorial misconduct and grave peril)
- Hollowell v. State, 707 N.E.2d 1014 (Ind.Ct.App.1999) (contextual review of prosecutorial remarks)
- Dumas v. State, 808 N.E.2d 1113 (Ind.2004) (admonishment requirement to preserve misconduct claims)
- Hand v. State, 863 N.E.2d 386 (Ind.Ct.App.2007) (prosecutor's remarks must be examined in light of trial record)
- Wright v. State, 690 N.E.2d 1098 (Ind.1997) (fleeting improper remarks and cure by instruction)
- Johnson v. State, 901 N.E.2d 1168 (Ind.Ct.App.2009) (presumed cure when trial court admonishes jurors)
- Oldham v. State, 779 N.E.2d 1162 (Ind.Ct.App.2000) (assessment of prosecutorial misconduct in light of cumulative effect)
- Lainhart v. State, 916 N.E.2d 924 (Ind.Ct.App.2009) (fundamental error due to indoctrination and vouching)
- Walden v. State, 895 N.E.2d 1182 (Ind.2008) (habitual offender status allows jury latitude distinct from guilt)
- Womack v. State, 738 N.E.2d 320 (Ind.Ct.App.2000) (distinguishes jury latitude in law-determination proceedings)