A prosecutor’s use of a YouTube video has led an appeals court to overturn a man’s armed robbery conviction.
In a 2-1 decision released this week, the Indiana Court of Appeals overturned the September 2008 conviction of 26-year-old Terrence T. Miller in a robbery at Wedge’s Liquor Store the previous November.
Miller is now serving an 18-year prison sentence handed down by Cass Superior Court II Judge Rick Maughmer.
Miller was accused of pointing a shotgun in the face of a cashier, and the appeals court ruled that then-deputy prosecutor Randy Head’s use of a YouTube video showing that a long gun could be concealed inside baggy pants “caused the jury to view Miller in a negative and highly prejudicial light,” resulting in an unfair trial.
At the time, Head, now a state senator, played the video in response to defense attorney Brad Rozzi’s claim during the first trial that a person could not walk into a small store with a concealed shotgun without being noticed by someone.
The appeals court’s opinion stated the video should not have been allowed into evidence because during the second trial the defense took a different approach and focused on misidentification of Miller as the culprit.
The dissenting judge agreed that the video was not necessary but argued that the “harmless error” by Maughmer to allow use of the video was not enough reason to reverse the conviction.
Cass County Prosecutor Kevin Enyeart said he had asked the Indiana attorney general’s office to appeal the case to the Indiana Supreme Court.
If the appeals court’s decision stands, the case would land back at the local level for a possible new trial.
“We will retry it,” Enyeart said Wednesday.
About two weeks after the robbery, Miller and 46-year-old co-defendant Carl Anthony Stafford were arrested together in a car matching the one seen leaving the scene by an eyewitness. The cashier later picked both Miller and Stafford out of a photo lineup.
Stafford’s felony case is still pending, with a hearing to suppress the photo lineup from evidence scheduled for Friday morning in Cass Superior Court II.
Miller is housed in the Westville Correctional Facility with an earliest possible release date of Dec. 3, 2016. Enyeart said that until the appeals court decision was either upheld or struck down, he would remain in prison.
If the conviction is overturned, Enyeart said, Miller will be treated as any other defendant charged with a crime — innocent until proven guilty. At that point, Miller would have the right to bond out of jail.
Miller’s appeal was prepared by Logansport attorney Matthew Barrett.
• Kevin Lilly is news editor of the Pharos-Tribune. He can be reached at 574-732-5117 or kevin.lilly@pharostribune.com.
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