Owens v. State
2010 Ind. App. LEXIS 2173
| Ind. Ct. App. | 2010Background
- Owens convicted of class A felony child molesting in Indiana.
- Jury trial held December 14–16, 2009; the State introduced evidence Owens failed to contact police during investigation.
- Court had granted in limine exclusion of prior domestic battery and uncharged misconduct; silence evidence allowed only to explain absence of interview.
- Detective McKinney testified he tried to reach Owens by phone and left a card; Owens did not respond.
- Prosecutor argued in rebuttal closing that uncorroborated victim testimony could sustain a conviction; Owens did not testify.
- Trial court admonished jury regarding a witness’s statement about not telling anyone, and denied mistrial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fifth Amendment issue: use of pre-arrest silence as evidence | Owens argues silence used as substantive evidence infringes Fifth Amendment. | State contends silence not protected; allowed as investigative context and not compelled. | Not fundamental error; silence used did not infringe Fifth Amendment under facts. |
| Prosecutor's closing: reference to Owens's failure to testify | State impermissibly commented on Owens's silence. | Comment addressed to evidence, not to Owens's silence; not reversible. | Improper but not fundamental error; isolated and not per se reversible. |
| Prior uncharged domestic abuse evidence | Testimony violated in limine order; risk of grave peril. | Admonishment cured potential prejudice; mistrial not warranted. | No mistrial abuse; admonishment cured error; no grave peril. |
Key Cases Cited
- Griffin v. California, 380 U.S. 609 (Sup. Ct. 1965) (prohibition on commenting on defendant’s failure to testify)
- Doyle v. Ohio, 426 U.S. 610 (Sup. Ct. 1976) (pre-arrest silence used against due process concerns)
- Jenkins v. Anderson, 447 U.S. 231 (Sup. Ct. 1980) (pre-arrest silence may be impeachment; issue limited by Jenkins concurrences)
- Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000) (pre-arrest silence; Fifth Amendment protections broadly construed)
- Lane v. Cahill-Masching, 832 F.2d 1017 (7th Cir. 1987) (right to silence attaches before formal proceedings; broad view of privilege)
- Coppola v. Powell, 878 F.2d 1562 (1st Cir. 1989) (broad Fifth Amendment protection; pre-arrest statements topic)