COA admonishes prosecutor’s misconduct, doesn’t reverse conviction

A prosecutor’s suggestion to the jury during an attempted rape trial that a defense attorney influenced a witness was misconduct, but not sufficient to warrant reversal of the defendant’s conviction, the Indiana Court of Appeals ruled Friday. But the court also called out the prosecutor and warned him.

The court affirmed the Class B felony attempted rape and Class C felony criminal confinement convictions after a jury trial of Santiago Valdez of Muncie. Santiago also argued evidence of his mental illness from a prior criminal case was wrongly excluded as evidence.

During closing arguments in Santiago’s trial, Delaware County deputy prosecutor Eric Hoffman told jurors that an expert who testified about Valdez’s mental state had last told him in a phone call that he didn’t have an opinion. “So he went from ‘I don’t have an opinion’ to he’s legally insane. And what’s the common — what changed from Friday to Wednesday? He talked to the defense,” the prosecutor said.  

Valdez’s counsel immediately moved for a mistrial, which the court denied, but it sustained the objection. The court immediately admonished the jury not to take the statements as evidence and informed jurors that prior testimony outside the presence of the jury had established that the defense had not told the witness what to say.

“We find that these statements constituted prosecutorial misconduct, but that a prompt admonishment from the trial court prevented Valdez from being placed into grave peril,” Judge John Baker wrote for the panel in Santiago Valdez v. State of Indiana, 18A02-1509-CR-1514. “We also find that the trial court did not make evidentiary errors. Consequently, we affirm.”

Despite upholding Valdez’s convictions, Baker wrote the court agreed with Valdez’s argument that Hoffman’s statement appears to violate Professional Conduct Rule 3.4.

“Not only did Deputy Prosecutor Hoffman not have evidence that the defense coached the witness, he heard explicit testimony denying that this was the case,” Baker wrote. “Our Supreme Court has detailed the inquiry surrounding prosecutorial misconduct: we inquire (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 should not have been subjected.

“Although the State argues that Deputy Prosecutor Hoffman was simply recounting a series of events, the trial court found that these statements impugned defense counsel’s character. … We agree. As to the second element of our review, Valdez argues that he was placed in grave peril by this statement.  Although the trial court admonished the jury, Valdez contends that ‘an admonishment could never adequately cure the peril inflicted by the State’s improper argument.’

“Our case law makes clear that we cannot reverse Valdez’s conviction because the State’s conduct did not place him in grave peril. The trial court immediately gave an admonishment to the jury, and we are obliged to presume ‘that the jury are [people] of sense, and that they will obey the admonition of the court,’” Baker wrote, citing Thomas v. State, 9 N.E.3d 737, 743-44 (Ind. Ct. App. 2014).

“Of course, Deputy Prosecutor Hoffman was perfectly entitled to argue against [the expert's] conclusions, or attempt to convince the jury that [the expert] ‘came in here and tried to dazzle everybody with his big words. …’ But to insinuate that defense counsel improperly influenced his testimony, particularly where the trial court heard evidence on the issue and the only evidence on the issue showed that defense counsel did not do so, was extremely inappropriate. Our adversarial system of justice can only function when based on a certain level of respect and decorum, and will quickly break down if attorneys hurl wild, baseless accusations of misconduct at each other. To engage in such conduct is to enter a race to the bottom, where the attorneys who are willing to make such accusations against other attorneys will sound authentic and honest (Deputy Prosecutor Hoffman made sure to preface his misconduct with, ‘I’ll just tell you I’ll call it as I see it,’ … while more circumspect and honorable attorneys who are not willing to make such accusations will sound like they are hiding something.

“We cannot countenance a trial environment in which respectful attorneys have an inherent disadvantage. We admonish Mr. Hoffman to refrain from such conduct in the future,” Baker wrote.

The court also noted the difficult position defense counsel was in during this case, with a client who wished to represent himself and refused to acknowledge he was mentally ill. Baker wrote Valdez, under questioning from his defender, “continually wandered off topic, expounding on the conspiracy he believed was attempting to put him in jail, and drew an admonishment from the trial court to provide responsive answers.  Once, Valdez even objected to his own counsel’s question.”