Pursuant to Ind. Appellate Rule 65(D), this

Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res j udicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : YVETTE M. LAPLANTE GREGORY F. ZOELLER Keating & LaPlante, LLP Attorney General of Indiana Evansville, Indiana ANDREW R. FALK Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF A PPEALS OF INDIANA

GODFREY IKECHUKWU EGWU, JR. , ) ) Appellant

- Defendant, ) ) vs. ) No. 82A01

- 1311

- CR

- 510 ) STATE OF INDIANA , ) ) Appellee

- Plaintiff

. )

APPEAL FROM THE VANDERBURGH SUPERIOR COURT

The Honorable Robert J. Pigman , Judge Cause No. 82D0 2

- 1303

- FA

- 371

June 23, 2014 MEMORANDUM DECISION

– NOT FOR PUBLICATION BAKER, Judge2

During closing argument at a ppellant

- defendant Godfrey Ikechukwu Egwu, Jr. ’s trial for Dealing in Methamphetamine, 1 a class B felony , the deputy prosecutor made vari ous comments about a particular witness’s credibility

. Although Egwu contends that the deputy prosecutor improperly vouched for the witness and, therefore, engaged in
p rosecutorial misconduct, Egwu did not object to the arguments, request an admonishment, or move for a mistrial. Thus, Eg wu has waived his argument of prosecutorial misconduct. In fact, the comments that the deputy prosecutor made about the witness were supported by the evidence. Thus, Egwu’s claims under the funda mental error doctrine fail, and we con clude that the d eputy prosecutor’s comments did not constitute prosecutorial misconduct . As a result, we affirm the judgment of the trial court

. F ACTS Milligan and Egwu met sometime in 2011 , while Egwu was manufact ur ing methamphetamine in Vanderburgh County. At some point, Egwu p aid Milligan $40 for a box of pseudoephedrine , an ingredient that is used to make methamphetamine. Sometime in January 2013, Milligan and Egwu moved in together. Milligan began purchasi ng boxes of pseudoephedrine from others so Egwu could continue manufacturing methamphetamine. Milligan would typically text the individual and inquire whether he or she would obtain a b ox of pseudoephedrine for her. Milligan

1 I nd. Cod e § 35

- 48

- 4

- 1.1

.3

would then pass her purchases on to Egwu. He took the pills and crushed them, making them usable in the manufactur ing process. Milligan continued purchasing some of the boxes with her own money, and Egwu paid for the rest. Egwu and Milligan frequently texted each other about purc hasing other precursors for methamphetamine production. O n at least one occasion after Egwu bought the pseudoephedrine from Milligan and produced the methamphetamine, Milligan smoked some of the drug and sold the rest. Eventually, Milligan was smoking

me thamphetamine on a daily basis. Egwu use d several boxes of pseudoephedrine to p roduce methamphetamine, and would then give Milligan the remaining amount. Egwu repeated this process, and both times the amount of methamphetamine that Egwu gave to M ill igan was between two and
two

- and

- one - half grams. Milligan watched Egwu cook methamphetamine many times and s h e eventually learned how to manufacture the drug herself. After producing the methamphetamine, M illigan typically delivered the drug to other ind ividuals and “ waited around” to be paid in cash or in methamphetamine. Tr. p. 50

- 51. On March 7, 2013, Egwu sent Milligan into a Walgreen pharmacy to purchase pseudoephedrine for him, but Milligan knew that she was over her “purchase limit” from
that particular store. Tr. p. 53. However, Egwu attempted to have another acquaintance, Michael Norman, purchase the drug for him. When Norman entered the store, Patrick McDonald, an Evansville detective assigned to the Meth amphetamine Suppression Unit, was standing inside. Other officers4

were present, as well, monitoring sales , and others were watching what was occurring in the parking lot. Norman completed the purchase, exited the store, and handed the pseudoephedrine to Egwu. After Egwu let Norman out of his vehicle, he saw an individual that he knew by the name of William Young “flag him down. ” Tr. p. 56, 187

- 88. Young said that he notice d what Egwu and Norman had done and offered to sell him an additional box of pseudoephedrine that he had purchase d for $50. The exchange occurred and one of the
detectives who was stationed near the Walgreen’s witnessed the transaction. The police stopped Egwu’s vehicle, and all of the occupants in the car were
Mirandized . Milligan admitted to one of the detect ives that she had gone to the pharmacy to purchase the pseudoephedrine, and that she had given Norman cash to purchase the drugs. Egwu offered differing explanations as to how he had come to possess the drug.
A s part of the investigation, the officers wh o stopped the vehicle confiscated several cell phones f rom Egwu and Milligan. The police also found a box of pseudoephedrine, a receipt for that drug, and the box of Walgreen

- brand pseudoephedrine that Detective McDonald saw Young purchase. Some marijuan a paraphernalia and a small quantity of that drug w ere also seized. Thereafter, the police obtained search warrants for Milligan ’s and Egwu’s cell phones, which indicated whether the numerous texts involved regarding the sale of meth a mphetamine were inco ming or outgoing. During an interview, Milligan admitted5

to Detective McDonald that the quantity of methamphetamine that she received from Egwu exceeded three grams. On March 30 , 2013, the State charged Egwu with two counts of dealing in methamphetamin e, a class A felony, conspiracy to commit dealing in methamphetamine, a class B felony, and several other drug charges. The State ultimately dismissed most of the char ges , and only one count of dealing in methamphetamine and a single cou nt of conspiracy to commit dealing in methamphetamine remained to be tried. Prior to the commencement of Egwu’s jury trial on September 4, 2013, the trial court gave the following preliminary instruction: The trial of this case will proceed as follows: F irst, the attorneys will have an opportunity to make opening statements. These statements are not evidence and should be considered only as a preview of what the attorneys expect the evidence will be.

. . . When the evidence is completed, the attorneys m ay make final arguments. The final arguments are not evidence. The attorneys are permitted to characterize the evidence, discuss the law and attempt to persuade you to a particular verdict. You may accept or reject those arguments as you see fit. Appe llant’s App. p. 148.
At the close of the evidence and after the defendant’s o ral motion for a judgment on the evidence, the trial court reduced the count of dealing in methamphetamine from a class A felony to a class B felony. Prior to final arguments, the trial court instructed the jury as follows: The unsworn statements or comment of counsel on either side of the case should not be considered as evidence in this case. It is your duty to determine the facts6

from the testimony and evidence admitted b y the Court and given in your presence, and you should disregard any and all information that you may derive from any other source. Tr. p. 273. During the State’s closing argument, the deputy prosecutor stated without objection from Egwu that What [M illigan] did was brave, took a lot of heart, and she didn’t lie even though it w ould have helped her out more according to defense counsel. Defense counsel thinks well if she would have gotten us the A everything would have been fine for Rikki Milligan. She wouldn’t give it to us because she was telling the truth. . . .

. . . She came a nd testified in open court and that’s not easy. It’s not easy for anyone to do let alone a co

- defendant, who k now s that co

- defendant right there. It’s difficult. She’s twenty

- one and the interesting thing is that it’s a seedy world in the drug world. I have the unfortunate opportunity to know it pretty well because I work with the State and I’m a prosecutor and what she did here today effetely [sic] removed her from th at world. No one is ever going to buy a box from Rikki Milligan again. She will testify. She can’t go back. It’s called crossing the line and that is why a lot of people don’t want to testify. Because eventually they are going to get out. But if you cross that line, you can’t go back. That is a reason you should believe her, it’s a big deal, it’s a true step away from that life. She’s the reason she is currently charged with the A felony we talked about that and she is also honestly the reason we do n’t have an A Felony against Mr. Egwu. And there was no better way I could have learned that than to have her be honest. My job is to get the truth out and thankfully a mistake that could have been made was remedy [sic] by Rikki Milligan when she testifi ed today. Tr. p. 320

- 21. The deputy prosecutor also stated that “ [Milligan] admitted to lying. She admitted to lying to me and I didn’t take it to heart. Instead, I asked her to tell the truth today, and she did to a fault and it was a very very goo d fault to have, because our job is to get the truth out.” Tr. p. 321.7

The jury convicted Egwu of dealing in methamphetamine, a clas s B felony, and he now appeals.
DISCUSSION AND DECISION I. Standard of Review and Waiver In addressing Egwu’s contentio n that he is entitled to a new trial because the deputy prosecutor made several comments that amounted to misconduct during final argument , we engage in a two

- step process . We first determine whether the prosecutor engaged in misconduct, and if so, w hethe r that misconduct, under the circumstances, placed the defendant in a position of grave danger or peril to which he would not have otherwise been subjected. Coleman v. State , 750 N.E.2d 370, 374 (Ind. 2001). The gravity of peril turns on the probable per suasive effect of the misconduct on the jury’s decision, not on the degree of impropriety of the conduct. Wisehart v. State , 693 N.E.2d 23, 57 (Ind. 1998). To preserve a claim of prosecutorial misconduct, the proper procedure is for the complaining pa rty to ask the trial court for an admonishment to the jury. Dumas v. State , 803 N.E.2d 1113, 1117 (Ind. 2004). If, after an admonishment is given, the complaining party still believes that the admonishment has not cure d the problem, he or she should
requ est a mistrial. Id.
We also note that the failure to object at trial results in waiver of an issue for appeal. Boatright v. State , 759 N.E.2d 1038, 1043 (Ind. 2001). In this case, Egwu did not object to the prosecutor’s closing statement , request an a dmonishment, or ask for a8

mistrial . Thus, the issue is waived. Poling v. State , 938 N.E.2d 1212, 1217 (Ind. Ct. App. 2010)

. When a claim of prosecutorial misconduct has not been properly preserved, a defendant must establish not only the grounds for the misconduct but also additional grounds that amount to fundamental error. Cooper v. State , 854 N.E.2d 831, 835 (Ind. 2006). Fundamental error is an extremely narrow exception that permits a defendant to avoid waiver of an issue. Sobolewski v. State , 889 N.E.2d 849, 856 (Ind. Ct. App. 2008). Under th is standard, we will not reverse an instance of prosecutorial misconduct unless

we are convinced that the error made a fair trial impossible or constituted blatant violations of basic and element ary princi ples of due process. Booher v. State , 773 N.E.2d 814, 817 (Ind. 2002). II. Egwu’s Claims
A. Prosecutorial Misconduct First, we note that while a prosecutor may not vouch for a witness, he or she may “comment on the credibility of the witnesses as long as the assertions are based on reasons which arise from the evidence.” Cooper , 854 N.E.2d at 836. Accordingly, the prosecutor ’s remark s about Milligan’s credibility were based on reasons that the evidence supported

. When examining the deputy prosecut or’s comments quoted above, his statement that Milligan had not lied about the amount o f the drug that was sold was established by her trial testimony an d the various text messages that were admitted into evidence . More9

particularly, Milligan testified th at Egwu made two methamphetamine sales to her, bo th of which weighed between two and two

- and

- one - half grams. Tr. p. 93

- 97. The arguments about Milligan ’s testimony regarding the w eight of the methamphetamine that was sold to her was supported by the evid ence in the record. Hence, Egwu has not established that the above statements amounted to prosecutorial misconduct. On the other hand, Egwu claims that the deputy prosecutor went “a step further”
and allegedly and improperly informed the jury about his “knowledge and understanding of the social intricacies of [Milligan’s] circle of friends.” Appellant’s Br. p. 8. However, in construing the deputy prosecutor’s statement, it is apparent that he was not stating that he knew anything about Milligan’s soci al circle, the support from her family and friends, her addiction status, whether she planned to use drugs again, or any of the other improper things that Egwu asserts were s t ated. Appellant’s Br. p. 8

- 9. Instead, the deputy prosecutor was stating that , as the jury knew, Milligan was charged with a class A felony and a class B felony and that she expected to receive between twenty

- three and sixty

- eight years of incarceration. T r. p. 149, 151. And because Milligan wa s twenty

- one, it was reasonable to in fer that she would eventually be released from prison. Id. at 149, 151. I t was also reasonable for the deputy prosecutor to infer

— based on common knowledge regarding society and human nature

— that because Milligan t estified a gainst another individual who was charged with dealing in methamphetamine, she would not be able to return to her previous lifestyle

.10

That said, it is apparent to us that the deputy prosecutor was merely drawing reasonable inferences based on the evidence that was presented at trial. In other words, there is no indication that the deputy prosecutor was requesting the jury to convict Egwu on any grounds other than what the evidence presented. Thus, we cannot say that the prosecutor’s comments regarding Milligan’s credibility and trut hfulness constitute d improper vouching that amounted to prosecutorial misconduct

. B. Fundamental Error Even if we assumed solely for argument’s sake that the deputy prosecutor’s
remarks amounted to misconduct , the finding that the misconduct amounted t o fundamental error is demanding. See Etienne v. State , 716 N.E.2d 457, 462 n.4 (Ind. 1999) (holding that the prosecutor’s comment that “[i]f people like the defendant are allowed to use excessive force and get by with it, those are the cases that they us e against us to take guns away from law abiding people because he killed somebody for no reason,” was misconduct but not fundamental error). It is also well established that improper arguments made in closing argument may be cured by the trial court’s pr eliminary and final instructions. Flowers v. State , 738 N.E.2d 1051, 1059 (Ind. 2000). As noted above, the trial court informed the jury in its preliminary instructions that although “the attorneys will have an opportunity to make opening statements,” th e parties’ statements “are not evidence and should be considered only as a preview of what the attorneys expect the evidence will be.” Appellant’s App. p.
148. The trial court’s instruction also informed the jurors that after the close of the11

evidence, t he attorneys for the parties could make final arguments, but again made it clear that “[t]he final arguments are not evidence. The attorneys are permitted to characterize the evidence, discuss the law and attempt to persuade you to a particular verdict. You may accept or reject those arguments as you see fit.” Id. Also, just before the parties made their final arguments, the trial court gave the jury s everal final instructions, which included the one set forth above, stating in part that “the unsworn statements or comments of counsel on either side . . . should not be considered as evidence in this case.” Id. at 116. In light of this instruction, it was apparent that the jury was properly instructed to arrive at a decision based on the evidence, and not the closing arguments.
I t is readily apparent that t he p rosecutor based his arguments on Milligan’s testimony, the text messages between Milligan and Egwu, the history of pseudoephedrine purchases that Milligan and Eg w u made, and the detectives’ tes timony who observed Norman and Young making purchases of pseudoephedrine and then selling them to Milligan and Egwu. Tr. p. 31

- 38, 43

- 44, 59

- 64, 77

- 78. In light of this evidence, the deputy prosecutor’s comments did not satisfy the requirements of fundam ental error.
See Coleman v. State , 750 N.E.2d 370, 374

- 75 (Ind. 2001) ( observing that even if prosecutorial misconduct occurred, the misconduct was harmless because there was overwhelming independent evidence of the defendant’s guilt)

. In sum, the deputy prosecutor did not “personally vouch” for M i lligan’s credibility. Rather, it is apparent that he presented a reasoned argument to the jury in12

light of the evidence presented to demonstrate why Milligan was a credible witness

. Moreover, Egwu has failed t o show that the deputy prosecutor’s statements made a fair trial impossible

. The prosecutor’s statements did not amount to bl atant violations of basic and elementary principles of due process. Thus, Egwu’s fundamental error argument fails . For all of the se reasons, Egwu does not prevail on his claim of prosecutorial misconduct. The judgment of the trial court is affirmed. CRONE, J., concurs, and BARNES, J., concurs with opinion.13 

## IN THE COURT OF APPEALS OF INDIANA

GODFREY IKECHUKWU EGWU , JR., ) ) Appellant

- Defendant, ) ) vs. ) No. 82A01

- 1311

- CR

- 510 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

BARNES, Judge, concurring I concur here, but I write separately to once again voice my concerns regarding what seems to me t o be an avalanche of prosecutor ethical tightrope walking. In view of our supreme court’s recent decision in Ryan v. State , No. 49S02

- 1311

- CR

- 734 (Ind. June 3, 2014), I recognize that prosecutorial vouching for witnesses must be especially egregious to wa rrant a finding of fundamental error where, as here, there was no objection to a prosecutor’s closing argument. That standard was not met in this case. However, ethical, professional, and prosecutorial standards demand that prosecutors, as gatekeepers an d guardians of our criminal justice system, do not merely “see what we can get away with” or say to themselves, “I will get as close as possible to14

the ethical line as I possibly can.” That approach flies in the face of what has been
understood to be the duty and responsibility of prosecutors for literally hundreds of years. In particular, p rosecutors are duty bound to seek justice, not just convictions. In keeping with that responsibility, it is misconduct for a prosecutor to ask a jury to convict
a defe ndant for any reason other than his or her guilt or to attempt to inflame the passions or prejudices of the jury. Wisehart v. State , 693 N.E.2d 23, 59 (Ind. 1998). Also, “[i] t is improper for the prosecutor to make an argument which takes the form of per sonally vouching for the witness. ” Schlomer v. State , 580 N.E.2d 950, 957 (Ind. 1991)

. A prosecutor’s duties with respect to closing arguments have been outlined by both the American Bar Association (“ABA”) and National District Attorneys Association (“ NDAA”). The ABA’s Standards for Criminal Justice state in part:

(a) In closing argument to the jury, the prosecutor may argue all reasonable inferences from evidence in the record. The prosecutor should not intentionally misstate the evidence or mislead t he jury as to the inferences it may draw. (b) The prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant. (c) The prosecutor should not make arguments calc ulated to appeal to the prejudices of the jury. (d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence. ABA, Standards for Criminal Justice , Standard 3

- 5.8. Similarly, the NDAA has is sued standards for prosecutors that state in part:15 In closing argument, a prosecutor should be fair and accurate in the discussion of the law, the facts, and the reasonable inferences that may be drawn from the facts. In closing argument, a prosecutor sh ould not express personal opinion regarding the justness of the cause, the credibility of a witness or the guilt of the accused, assert personal knowledge of facts in issue, or allude to any matter not admitted into evidence during the trial. NDAA, Natio nal Prosecution Standards (3 rd ed.) , Sections 6

- 8.1 and 6

- 8.2. More and more, and not just in this case, I have seen numerous examples of prosecutors coming close to and crossing the lines established by these standards. I understand from personal experi ence that seeking convictions, representing victims, and representing the State of Indiana are all important and sacred trusts. It cannot be done without regard to the principal duty of a prosecutor

— to seek justice.