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Greer v. State

Court of Appeals of Indiana

December 13, 2018

Matthew Edward Greer, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Madison Circuit Court Trial Court Cause No. 48C03-1706-F1-1581 The Hon. Thomas Newman, Judge.

          Attorney for Appellant Clifford M. Davenport Davenport Law Offices Anderson, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

          Bradford, Judge.

         Case Summary

         [¶1] In 2016, Matthew Greer convinced his wife Christina to teach their minor son D.G. about sex. To that end, Christina fellated D.G. in the bathroom as Greer watched and masturbated. Several months later, Greer notified the Indiana Department of Child Services ("DCS") that Christina had molested D.G. After DCS interviewed D.G. and police interviewed Christina, the State arrested Greer and charged him with several crimes.

         [¶2] Two weeks before Greer's trial, D.G. testified at a deposition that Greer had not participated in his molestation, merely walking in, witnessing what Christina was doing, and leaving. The prosecutor told D.G. that he thought he was lying and reminded him that he could get in "trouble" if he did not tell the truth at trial. D.G. then testified in a way consistent with his statements during his DCS interview and ultimately testified against Greer at trial, as did Christina. A jury found Greer guilty as charged, and the trial court sentenced him to forty-three and one-half years of incarceration. Greer alleges that the prosecutor's remarks during D.G.'s deposition amounted to prosecutorial misconduct that rises to the level of fundamental error. Because the prosecutor's conduct was reasonable and non-threatening, we disagree and affirm.

         Facts and Procedural History

         [¶3] In the fall of 2016, Greer, after asking many times, finally convinced his wife Christina to teach their son D.G. about sex so that his "first time wouldn't be awkward." Tr. Vol. I p. 68-69. In October of 2016, approximately one week after D.G.'s thirteenth birthday and after doing methamphetamine with Greer, Christina woke D.G. up early in the morning and performed oral sex on him in the bathroom while Greer stood nearby, watched, masturbated, looked at pornography on his mobile telephone, and showed the pornography to D.G. Greer told D.G. that "this [was] the best b*** j** [he was] ever going to get." Tr. Vol. I p. 80. After fellating D.G., Christina fellated Greer in the bathroom in front of D.G.

         [¶4] By June of 2017, Greer and Christina had separated and frequently argued. Around this time, Greer contacted DCS and reported that Christina had molested D.G. On June 16, 2017, D.G. was interviewed by DCS. Based on the results of D.G.'s interview, Christina was arrested later that day and confessed six days later when interviewed by police. Despite not having spoken with D.G. about his interview, Christina told a police detective before her interview that her statement would "mirror" D.G.'s. Tr. Vol. I p. 176. Later, when police tried to arrest Greer, he forcibly resisted. On June 23, 2017, the State charged Greer with Level 1 felony child molesting, Level 3 felony vicarious sexual conduct, Level 4 felony incest, Level 6 felony performing sexual conduct in the presence of a minor, and Class A misdemeanor resisting law enforcement.

         [¶5] Approximately two weeks before trial, D.G. was deposed. At first, D.G. testified that Greer had "walked in to the bathroom[, ] was shocked at what he observed[, ] and went back to bed." Tr. Vol. I p. 107. The prosecutor told D.G. that he did not think that he was telling the truth and that he could get into trouble for lying under oath. D.G. then admitted that he had lied and asked "to restart[.]" Tr. Vol. I p. 107. D.G.'s subsequent deposition testimony incriminated Greer, as did his trial testimony. On January 19, 2018, the jury found Greer guilty as charged, and the trial court sentenced him to forty-three and one-half years of incarceration.

         Discussion and Decision

         [¶6] Greer claims that the prosecutor's alleged misconduct during D.G.'s deposition denied him his right to present witnesses in his own defense at trial.

A fundamental element of due process of law is the right of an accused to present witnesses in his own defense. United States v. Hooks, 848 F.2d 785, 799 (7th Cir. 1988). Those witnesses must be "free to testify without fear of governmental retaliation." Id. (quoting United States v. Blackwell, 694 F.2d 1325, 1334 (D.C. Cir. 1982)). […] A prosecutor's warning of criminal charges during a personal interview with a witness improperly denies the defendant the use of that witness's testimony regardless of the prosecutor's good intentions. [Diggs v. State, 531 N.E.2d 461, 464 (Ind. 1988)]. A prosecutor may not prevent nor discourage a defense witness from testifying. Id.

Collins v. State, 822 N.E.2d 214, 220 (Ind.Ct.App. 2005), trans. denied.

         [¶7] Greer acknowledges that he failed to raise this issue in the trial court but attempts to avoid the effect of his waiver by claiming that the error was fundamental. "The fundamental error exception is 'extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.'" Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010) (quoting Matthews v. State, 849 N.E.2d 578, 587 (Ind. 2006)). To be fundamental, the error "must either 'make a fair trial impossible' or constitute 'clearly blatant violations of basic and elementary principles of due process.'" Id. (quoting Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009)). The exception applies "only in 'egregious circumstances.'" Id. at 694-95 (quoting Brown v. State, 799 ...


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