Pursuant to Ind.Appellate Rule 65(D),                                      Sep 13 2013, 5:22 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                                  ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                            GREGORY F. ZOELLER
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                    JODI KATHRYN STEIN
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

CHARLES GRIECO,                                     )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )   No. 49A04-1301-CR-32
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                       APPEAL FROM THE MARION SUPERIOR COURT
                               The Honorable Linda E. Brown, Judge
                     The Honorable Christina R. Klineman, Master Commissioner
                                Cause No. 49F10-1106-CM-38685


                                       September 13, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                          Case Summary

          Pursuant to Indiana Post-Conviction Rule 2, Charles Grieco (“Grieco”) belatedly

appeals his conviction for Operating a Vehicle While Intoxicated, as a Class C

misdemeanor.1 He presents the sole issue of whether prosecutorial misconduct denied him a

fair trial. We affirm.

                              Facts and Procedural History

          During the early morning hours of June 1, 2011, John Phelps (“Phelps”) was on duty

at Gas America near Franklin Road and East 21st Street in Indianapolis when he observed

Grieco, a regular customer, walk in and select snack items. Based upon his perceptions of

Grieco’s gait, speech, and demeanor, Phelps formed the opinion that Grieco was intoxicated.

    After Grieco purchased his items, he was unable to locate the keys for his vehicle parked at a

gas pump. He told Phelps that he would walk home to get his spare keys and then retrieve

his vehicle.

          When Grieco left, Phelps called police to report a suspected drunk driver.

Indianapolis Metropolitan Police Officer Gary Smith (“Officer Smith”) responded to the call.

He examined Grieco’s vehicle, observing that it had a flat tire and “pretty severe” damage to

the passenger side. (Tr. 87.) The key was in the passenger side door. At some point,

Grieco’s mother arrived to retrieve the vehicle.

          Officer Smith and Sergeant Michael Duke (“Sergeant Duke”) proceeded to the home

of Grieco’s mother and she permitted them entrance. The officers found Grieco sitting down


1
    Ind. Code § 9-30-5-2.

                                                  2
in the shower. He complied with a request that he get out and dress. Grieco told Sergeant

Duke that he had been drinking at a friend’s house and “had hit something but he didn’t

know what he hit.” (Tr. 117.) Grieco denied drinking anything after leaving the gas station,

and a search of the trash and refrigerator yielded no alcohol. A preliminary breath test

revealed the presence of alcohol and Grieco was arrested on suspicion of drunk driving.

           On November 26, 2012, Grieco was tried before a jury on charges of Driving While

Intoxicated and Operating a Vehicle with a Blood Alcohol Content of 0.08 to 0.14.2 He was

convicted of the first count and acquitted of the second. The trial court sentenced Grieco to

sixty days imprisonment, with fifty-two days suspended. Grieco was also placed on

supervised probation for 180 days. This appeal ensued.

                                   Discussion and Decision

           Grieco contends that the prosecutor committed misconduct during closing argument

by twice “suggesti[ng] that an acquittal in this case would be tantamount to a finding that an

experienced police officer committed perjury.” (Appellant’s Br. at 8.) Grieco objected to

one of the comments and requested a jury admonishment. However, he did not request a

mistrial. He thus frames his argument with respect to alleged improper comments in terms of

fundamental error.

           A party’s failure to present a contemporaneous trial objection contending

prosecutorial misconduct precludes appellate review of the claim. Booher v. State, 773

N.E.2d 814, 817 (Ind. 2002). However, such default may be avoided if the alleged


2
    I.C. § 9-30-5-1(a).

                                               3
misconduct amounts to fundamental error. Id. To prevail on his claim, the defendant must

establish not only the grounds for prosecutorial misconduct but also the additional grounds

for fundamental error. Id. at 818.

       In reviewing a claim of prosecutorial misconduct, we determine (1) whether there was

misconduct by the prosecutor; and (2) whether that misconduct, under the circumstances,

placed the defendant in a position of grave peril to which the defendant should not have been

subjected. Kent v. State, 675 N.E.2d 332, 335 (Ind. 1996). Although normally referred to as

“grave peril,” a claim of improper argument to the jury is measured by the probable

persuasive effect of any misconduct on the jury’s decision and whether there were repeated

occurrences of misconduct, which would evidence a deliberate attempt to improperly

prejudice the defendant. Ritchie v. State, 809 N.E.2d 258, 269 (Ind. 2004), cert. denied, 546

U.S. 828 (2005). For a claim of prosecutorial misconduct to rise to the level of fundamental

error, the defendant must also demonstrate that the misconduct made a fair trial impossible or

constitutes a clearly blatant violation of basic and elementary principles of due process and

presents an undeniable and substantial potential for harm. Booher, 773 N.E.2d at 817.

       The prosecutor’s remarks are to be considered in the context of the argument as a

whole. Hand v. State, 863 N.E.2d 386, 394 (Ind. Ct. App. 2007). It is proper for a

prosecutor to argue both law and fact during final argument and to propound conclusions

based upon his or her analysis of the evidence. Id. Additionally, a prosecutor is entitled to

respond to allegations and inferences raised by the defense even if the prosecutor’s response

otherwise would be objectionable. Id.


                                              4
       At Grieco’s trial, Sergeant Duke testified that Grieco had made the following

admission: “that he was invited to a friend’s house … that he doesn’t normally drink but he

had drank that night and that he had hit something but he didn’t know what he hit.” (Tr.

117.) According to Sergeant Duke, Grieco had denied drinking since leaving his vehicle at

Gas America. On the other hand, Grieco testified that he had become intoxicated only after

going home from the gas station and rapidly drinking tequila. In closing argument, the State

urged the jury to believe the State’s witnesses and the defense urged the jury to closely

examine the convenience store video and believe Grieco’s version of events. During the

rebuttal portion of closing argument, the Prosecutor stated:

       So in order to believe the story that he’s told you today, you would absolutely
       have to discredit the testimony from John Phelps and Sgt. Duke. John Phelps,
       what iron does he have in the fire? What does he have to lose? Sgt. Duke he’s
       been an officer since 1986. You would have to believe that he got up on the
       stand and perjured himself in order to believe the defendant’s testimony.

(Tr. 178-79.) Later, the Prosecutor added:

       It’s unreasonable to believe that it didn’t happen like Mr. Phelps testified to,
       and it’s unreasonable to believe that Sgt. Duke came in and lied on the stand.

(Tr. 182.) At this point, Grieco objected and a bench discussion ensued. Defense counsel

asked “that the Jury be admonished that they can believe or disbelieve testimony as they wish

to. They do not have to believe someone is committing a felony or perjuring – in the midst of

perjuring themselves.” (Tr. 183.) The trial court addressed the jury:

       I just need to remind you that you’re the triers of the fact, and that you are the
       ones to determine the credibility of the witnesses, and that’s all a part of your
       instructions, okay.

(Tr. 183.)

                                               5
       We agree with Grieco that the jury need not have concluded that an officer committed

perjury in order to find Grieco’s testimony credible. A panel of this Court explained in Gantt

v. State, 825 N.E.2d 874 (Ind. Ct. App. 2005):

       When two witnesses give contradictory accounts, it is not true that the jury
       must believe one or the other. The jury may choose to believe neither witness,
       believe aspects of the testimony of each, or believe the testimony but also
       believe in a different interpretation of the facts than that espoused by the
       witnesses, among other possibilities. The trial court’s instructions may have
       led the jury to believe that it was required to adopt wholesale one witness’s
       account over another’s. This is an incorrect statement of the law.

Id. (emphasis in original.)

       To the extent that the prosecutor here suggested – by the perjury reference – that the

jury must wholly reject the testimony of one witness and wholly credit the testimony of

another, the argument misstated the law. Too, the contemporaneous admonition did not

mirror defense counsel’s request, as the trial court did not explicitly advise the jury of the

inaccuracy of the prosecutor’s claim that the jury would have to find that Sergeant Duke

committed perjury in order to believe Grieco’s testimony. Although a more explicit

admonition may well have been advisable at that juncture, the reasoning of Gantt had been

conveyed by Preliminary Instruction 8, providing in relevant part:

       If you find conflicting testimony, you may have to decide what testimony you
       believe and what testimony you do not believe. You may believe all of what a
       witness said, or only part of it, or none of it.

(App. 143.) The trial court’s admonition then reinforced to the jury that it was their role to

determine witness credibility. A contemporaneous admonition is presumed to have cured

error. See Gamble v. State, 831 N.E.2d 178, 184 (Ind. Ct. App. 2005), trans. denied.


                                              6
       Moreover, we are not persuaded that the prosecutor’s misstatement subjected Grieco

to grave peril. Although Grieco suggests that the case distilled to a credibility contest

between himself and Sergeant Duke, this does not accurately reflect the quantum of evidence.

Apart from the testimony of two police officers, the State elicited evidence from Phelps, who

had made first-hand observations of Grieco just after he had parked his vehicle at the

convenience store gas pump. Phelps described in detail his personal observations that had

led him to conclude that Grieco was intoxicated. Moreover, he testified that Grieco had

admitted to being drunk and asked “if I was going to call the police on him.” (Tr. 42.)

       In light of the prompt admonition, relevant jury instruction, and evidence of Grieco’s

guilt independent of Sergeant Duke’s testimony, the misstatement in closing argument did

not rise to the level of fundamental error.

                                        Conclusion

       Grieco has demonstrated no fundamental error in the prosecutor’s closing argument.

       Affirmed.

MAY, J., and BRADFORD, J., concur.




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