*1 already which he was not exceed the amount did Kizer’s services to these is inconsistent with court’s reference factors Yet the paid. to prevail Kizer would be entitled earlier that specific finding its might we draw favor Any inference which meruit. quantum on precluded by is therefore this general finding trial court’s to reverse and remand finding. recourse special Our with our opinion. consistent proceedings case for further and remanded. Reversed White, concur. JJ.
Buchanan
[No.
1977.]
may
given
quality
things,
general
of the
ex
other
be
effort
consideration
attorney.
pended by the
Frith v.
263 Ind.
Theodore L. Attorney Lesly Ann General, Attorney for Deputy appellee. SUMMARY
CASE Defendant-Appellant Henry Phillips (Phillips) ap Buchanan, J. peals from the convictions of the crimes of to Attempt Commit a Felony While Armed (Rape)1 Battery and Assault & with Intent Kill,2 evidence, claiming insufficiency to of the prosecutorial misconduct, and that improper remarks were made past about his criminal record.
We affirm.
FACTS The evidence most favorable to the State is: 20, 1975, Wilkins,3 July On years Barbara a woman sixteen age, awakened at 4:00 A.M. to find an in her intruder bedroom holding to, a knife to the back of her neck. Although he threatened clothes, kill her if she did not off take her began she screaming. The intruder panicked and flight tried flee down a of stairs where he parents. encountered Wilkins’ A scuffle ensued and Wil kins’ father was stabbed in the stomach. The assailant then fled. (Mrs. Wilkins)
Her mother was taken to police headquarters where, after viewing a bulletin board filled with she imr pictures, mediately identified Phillips, neighbor, visitor of a frequent the assailant.
At the following trial took exchanges place: 1. Ind. Code 35-12-1-1. § Ind. Code 35-1-54-3. §
3. Wilkins is not the victim’s true name. you then after came happened And what PROSECUTOR: downtown? us, downtown, I, Well, I she told when came WILKINS:
MRS. my and Barbara and all she said husband I, us, I a state- get all three was want words, your happened ment in own what hap- of us to tell what began and so we each my my daughter but husband and pened, they identify Henry Lee said that could well, you she said would look at Phillips and well, shots, everybody went in mug some look, and I was the one that there straight picture. went mistrial, denied, proceeded which was and moved for a Phillips in this further area: probe on cross-examination DEFENSE stated, you then kinda stop- You also and COUNSEL: back, you something went said like ped you of Mr.
you picture saw a him, is identify were asked if could *3 that— No, I him out before Alice picked no. had
MRS. WILKINS: anything
Parnell even said about his record anything. or his name Alice Parnell was called and Officer Subsequently following to the question: respones say pic- What she when she saw the did PROSECUTOR: ture?
OFFICER said, him, I just that’s and so looked She PARNELL: and, you his name got gallery, got and know, seen who he was. claiming for a mistrial Phillips moved point, At that evidentiary were Parnell of Mrs. Wilkins Officer statements one of Subsequently, motion was denied. That harpoons. for Phillips’ sentencing an earlier testified about own witnesses crime. of Phillips’ the State’s rebuttal final which
During evidence, on the fact no knife was the Pro- presented dwelt responded saying: secutor The Defense seems to have an issue
PROSECUTOR:
out of the no fact that we have knife today. show here I believe it’s been through shown Barbara that she could feel neck, it at through the back of her Mr. [Wilkins], who was twice in the stabbed stomach, who him [Wilkins], Mrs. saw bleeding profusely, the fact he went to that the hospital and was treated for stab wounds, togo all would the fact that there knife, deadly was a that there was a weapon used during commission these crimes. Henry Just because Lee (the knife) decided to take it with him or throw it in a corner or something do else it is not the issue here. We don’t knife, know what to the happened would know what happened defendant charges we have these proven knife if beyond a reasonable doubt. The knife is evidence, an element to be into presented the facts that we have shown our through testimony there was a knife held at the back of Barbara’s neck through her this, testimony, she stated Mr. through testimony the knife was used [Wilkins] that, stomach, to stab him in the he told us (emphasis supplied) mistrial, Again, Phillips moved for a which was denied trial judge.
ISSUE three Phillips raises issues:
1. Was there sufficient evidence to sustain the conviction? *4 2. the comments of the Did victim’s mother and Officer evidentiary
Parnell harpoons? constitute the Prosecutor make an comment improper Did the Phillips’ failure take stand?
574 there is insufficient evidence initially contends that
Phillips victim or stab the victim’s the rape that he intended prove Prosecutor introduced “eviden- Secondly, argues he father. witnesses remarks the State’s about tiary through harpoons”, “record”, “mug alleges shots”. He these “gallery”, and the fact he had been con- jury before the placed references crime, inadmissible at trial. prior of a a fact victed improperly the Prosecutor referred His final contention is that the witness stand in his own fact that he had not taken to the thereby violating in his constitu- closing argument, defense self incrimination. right against tional
DECISION Issue One sufficient evidence sustain —There was
CONCLUSION conviction. may kill rape jury
In
intent to
con
determining Phillips’
establishing
sider direct and indirect evidence
the existence
of such intent.
reasonable
doubt
Ind.
Phillips was an uninvited intruder Wilkins’ bedroom 4:00 ordered her to morning, knife-point undress at threatened to kill her if she screamed.
The rape facts this case are similar to those of other convic- tions which the from perpetrator prevented consum- mating variety the act for a Curry reasons. See 30; Jester v. 163 Ind. App. 762; 321 N.E.2d Charles v. State N.E.2d 455.
Similarly, we find there was sufficient evidence to sustain the Battery conviction of Assault and Intent to Kill.
575
escape
with knife in
to
and
attempting
assaulted Wilkins’ father
a
in the stomach. These facts are somewhat
inflicted a knife wound
App.
to
in
v.
304
analogous
those Green
845, in which
while
to avoid
trying
apprehen-
N.E.2d
a defendant
of
by
duty
off
tried to run over one
the officers
policeman
sion
an
for the
said:
Judge'Sullivan,
majority,
with his automobile.
in other
meager authority
It thus
available
appears
battery with
jurisdictions supports conviction for assault and
act,
by
though
exemplified
intent to kill even
the intent
here,
of
intent
and
escape apprehension
is indicative
an
ar-
actually
person
a
intent to
kill the
specific
rest rather than
obstructing
escape path.
CONCLUSION shots, record, regarding Phillips’ gallery, mug Wilkins and did evidentiary of harpoons constitute under the circumstances this case. 531, 303 678,683,
In Bayer 158 Ind. N.E.2d evidentiary with “one harpoons observing this dealt Court from a careful of White v. State emerges reading 64,272 312, with the firm conviction that in determin prejudice prime intent to a consideration ing given proper whether a and statement constitutes reversible case, of to pre error.” In that we noted there was a lack intent of And so it is here. strong guilt. evidence judice in to the mug response Mrs. Wilkins’ reference shots was deliberately appear asked and does not have been questions by the reference prejudice Phillips. Nor would Of- calculated term “gallery” Phillips, ficer Parnell to the word a prejudice intimately in the In- procedures familiar to those acquainted Police dianapolis Department.
Eyewitnesses Phillips’ guilt. testified Further, she had own witnesses testified that Phillips’ one in the mind of sentencing Phillips put and thus prior attended a previous record. the fact that he had a jurors Thus, fair it cannot be concluded that was denied a trial.
Issue Three —Any reference the Prosecutor his rebuttal
CONCLUSION failure to take the stand is too remote to justify reversal. Prosecutor was prohibition against
The
comments
given constitutional dimension
California
Griffin
14 L.Ed.2d
a similar prohibition
U.S.
S.Ct.
*6
adopted
through
long
Indiana
35-1-31-3and a
Code §
Ind.
(1954),
435, 120
line of Indiana cases.
v. State
233 Ind.
Knopp
See
268;
(1972),
Ind.
Rowley
N.E.2d
We are of the statement Rowley aware that: supra, attorney,
A comment or im prosecuting directly a directly, subject which is to a as a com- interpretation by jury ment the the to has been failure of defendant strictly regarded impingement upon right as an the substantial defendant, of the (emphasis supplied) indirectly to But does mean we must strain find such an allusion when none apparent? is
The decided
requiring
Indiana cases
reversal have been found
ed on such statements as “there had not been one bit of evidence
from the witness stand that
the
guil
indicated
defendant was not
ty.”
Rowley, supra-,
See
or “would have been
to
from
pleased
hear
side”,
other
or
the
“. . . if a
has
party
something
say they
are
and,
going
say
“they’re
it”
not
going
rest on their laurels”.
you
“But
any
—any testimony
haven’t had
evidence
from the
why why
somebody
stand about
not
might not have had this
property
you
. .. What
evidence have
heard from the stand
any
regard
explanation
of the evidence
from
have heard
441, 303
61;
the State.” Bland v. State
158 Ind. App.
Edwards v.
App.
State
Furthermore, the statement was made in the context of a to defense counsel’s the response attempt discredit State’s knife, produce failure to and is somewhat comparable in Maldonado v. situation 355 N.E.2d 843, in which the observed that: Court
However, in this appellant injected case himself subject his own silence prosecutor merely under trial. The the remark which defense repeated counsel had made .... 355 N.E.2d at 849.
We affirm.
White, dissents with opinion. J.
Lybrook, (by designation) J. concurs.
DISSENTING *7 agree do not with part majority J. I III of the opinion White, by which that a remark the in prosecutor holds his rebuttal reversal,” “too justify remote to nor I agree do that the remark was invited. in prosecutor,
When the his final the argument, jurors told that “only the happened defendant would know what to that knife” he certainly them the reminded that defendant had not testified. They may even have it as implication understood a broader that testify defendant did not take the stand not because he could rate, any without himself. At his incriminating statement as an comment on impermissible failure to qualified testify in his own behalf under the test the laid down Indiana 209, 213, v.
Supreme Rowley State Court 646, 648: attorney, “A comment made a prosecuting directly indirectly, which is subject interpretation by jury a testify as a comment failure of a defendant has been strictly regarded as an on impingement rights the substantial (My the defendant.” emphasis.)
The Indiana Supreme adopted the from Rowley Court test (CA 5, 1969), Williams Wainwright preferring F.2d it to a “strict test” laid down in United States ex rel. Leak v. (CA 2, 1969), 1266, 1269, Follette saying, F.2d “We prefer the test which does not in such an obvious place fashion the burden on the accused to jury show that the necessarily took the comment to be related to his failure to take the stand.” The Rowley court made this choice even it though held that the com ment then before it was impermissible “[ujnder either of these majority tests.” Thus the opinion errs in suggesting that because the prosecutor’s remark here was not as direct a reference as Rowley defendant’s failure to it does meet the Rowley test. Rowley says itself the prosecutor’s remark need not be that direct. It need be direct enough that it “is subject to interpretation by jury as a comment upon failure of a to testify.” Certainly defendant this comment subject that interpretation regardless of whether one guesses jury did or did not so interpret it.
To suggest, as does the majority opinion, if the prosecutor’s remark is error it is nevertheless excusable because invited, it was say is to that whenever a defendant’s attorney tells jury that the State has offered no evidence on some facet of the case he considers significant to the question of whether the case, proved has thereby its he invites the prosecutor reply that the defendant could have supplied the answer. Were that true attorney for who had not defendant testified could never argue that the State had to prove failed some material ele- ment of its case a reasonable doubt without subjecting client’s silence to prosecutorial comment. I am aware of no authority for attaching such a condition to legitimate argu- final ment. *8 of Maldonado
The case at- no condition. There defendant’s such attaches went that the arguing torney, closing argument, an attemp- its case and embarked prove failed to State had testify. to a Referring failure defendant’s justification ted witness, he said: State’s
“ against to take his word Abel they want ‘And says to testify. didn’t The law Abel Maldonado Maldonado’s. go do it. You can’t back your out of mind. You can’t that keep testify. not Abel Maldonado did forget room and that jury that do it. What does he have you try, you can’t As hard prove anything He doesn’t have to for? It’s not his burden. ” 848.) (355 you.’ N.E.2d at Thus, injected subject himself “appellant as the court noted (Ibid.) bar, In the case at how- silence into the trial”. of his own ever, attorney’s that the State had failed Phillips’ pro- silence. The the knife was a reference produce he injected subject charged when secutor where the knife was. knew a new grant reverse remand instructions
I would trial. at 369 N.E.2d Reported
NOTE— Mylcraine Leen,
Kleen Inc. v. Ervin E. 16, 1977.] 1-477A78. Filed November
[No.