Tactical Decisions for Trial Counsel

Feyka v. State (Ind. Ct. App. Aug. 13, 2012)

In this case, the Court of Appeals affirmed the conviction of Class A child molesting, rejecting the defendant’s argument that the prosecutor’s closing argument constituted fundamental error and that the victim’s testimony was incredibly dubious and therefore insufficient to sustain his conviction.

In closing argument, the prosecutor alluded to the fact that the defendant did not testify. The defendant’s trial counsel did not object to the statements. Therefore, to warrant a reversal, the comments had to amount to fundamental error, which occurs when misconduct makes a fair trial impossible or when misconduct blatantly violates due process and presents substantial potential for harm. The Court examined several cases involving fundamental error analysis of a prosecutor’s comment on a defendant’s failure to testify and concluded that the prosecutor’s comments in this case did not amount to fundamental error.

This case brings up a tricky tactical decision that trial counsel must make. On the one hand, objecting to a statement in closing argument preserves the issue for appeal. On the other, objecting brings attention to the statement. Therefore, it is often in a party’s interest not to object to a statement and hope the jury pays it little heed. No blanket answer exists as to whether objecting or remaining silent is the best tactical decision.

The Court of Appeals then rejected the defendants’ sufficiency of the evidence argument. Arguing on appeal that evidence at trial was incredibly dubious is rarely successful. Although it is probably worth making the argument when a defendant was convicted based on the testimony of a single witness, the argument basically asks the Court of Appeals to second-guess a jury’s credibility determination.