Bardonner v. State
1992 WL 45445, 587 N.E.2d 1353, 1992 Ind. App. LEXIS 279 (1992)
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Rule of Law:
A prosecutor's comments during voir dire that mischaracterize the role of defense counsel as an obstructor of truth, while glorifying the prosecutor's role as the sole truth-seeker, constitute misconduct that places a defendant in 'grave peril' and denies them a fair trial. Such prejudicial statements at the outset of a trial may taint the jury's perception of all subsequent evidence and cannot be easily cured by later instructions.
Facts:
- On November 27, 1989, the home of Theresa Zimmerman in Hamilton County was burglarized, and various items including electronics, a jar of loose change, and a magnum of champagne were stolen.
- A truck driver observed a dark hatchback car in Zimmerman's driveway and saw a man enter the car and speed away.
- Corbin Bardonner borrowed a friend's Mercury Lynx, a black hatchback car, to move items to his apartment.
- Bardonner was subsequently seen bringing items into his apartment that matched the descriptions of the stolen property.
- Several witnesses, including Bardonner's roommate, testified that Bardonner told them he had stolen the items.
- Bardonner sold some of the items to his neighbor, Shayne Marcum.
- Police, acting on a tip, recovered items from Marcum's apartment with serial numbers matching those of the property stolen from Zimmerman.
Procedural Posture:
- Corbin Bardonner was charged in a state trial court with burglary and theft.
- During voir dire, Bardonner's counsel moved for a mistrial based on the prosecutor's comments, but the trial court denied the motion.
- A jury acquitted Bardonner of burglary but convicted him of theft, a Class D felony.
- Bardonner's counsel renewed the motion for a mistrial at the close of the State's case-in-chief.
- The trial court sentenced Bardonner to three years imprisonment.
- Bardonner appealed his conviction to the Court of Appeals of Indiana, arguing that the prosecutor's misconduct during voir dire denied him a fair trial.
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Issue:
Does a prosecutor's reading of a judicial opinion during voir dire, which characterizes the defense counsel's role as obstructing the search for truth, constitute misconduct that places the defendant in 'grave peril' and denies them the right to a fair trial?
Opinions:
Majority - Miller, Judge.
Yes. The prosecutor's comments during voir dire constituted misconduct that placed the defendant in a position of grave peril, thereby denying him a fair trial. The prosecutor improperly read excerpts from a Supreme Court opinion suggesting that the defense counsel's role is to confuse witnesses and obstruct the truth, while the prosecutor's role is to seek justice. Distinguishing from cases where similar comments were made in closing arguments, the court found that making these statements during voir dire taints the jury's perception of the evidence from the very beginning. This initial prejudice, which places the defendant in a 'dying condition,' cannot be cured by later jury instructions. The comments undermined the presumption of innocence and interfered with the defendant's right to effective assistance of counsel by forcing the defense attorney to defend his own integrity in addition to his client's innocence.
Dissenting - Chezem, Judge.
No. The prosecutor's conduct, while reflecting poor judgment, did not rise to the level of reversible or fundamental error. The dissent argues that the defendant failed to properly preserve the error for appeal, as the correct motion during voir dire would have been to strike the jury panel, not to move for a mistrial. Furthermore, the conduct was an isolated remark, not a repeated pattern of misconduct. The dissent contends there is no legal basis for treating comments during voir dire as more prejudicial than those during closing arguments and notes that defense counsel failed to take available curative measures, such as requesting an admonishment, which suggests the harm was not as severe as claimed.
Analysis:
This case establishes a critical distinction in the analysis of prosecutorial misconduct based on the timing of the improper comments. It holds that denigrating the role of defense counsel during voir dire is uniquely prejudicial because it taints the jury's perception before any evidence is presented, making it nearly impossible to cure. This decision reinforces the importance of voir dire in securing an impartial jury and serves as a strong precedent against using jury selection to 'condition' jurors against the defense. The ruling also highlights how prosecutorial tactics can violate a defendant's Sixth Amendment right to effective counsel by unfairly undermining the defense attorney's credibility and ability to advocate.
