*1 the matter confuse could “facts” for resolution. them
before circumstance, I am unable light of this totally and the verdict was conclude that remaining evidence. upon the properly based investigated while Blinn who the officer That that Blinn slurred hospital stated at the alcohol is speech and had an odor of that, dispel my conclusion insufficient not, the BAC evidence probably than more to the verdict. contributed and remand with instruc- I would reverse discharge the defendant. tions TAYLOR, Appellant- Charles E. Defendant, Indiana, Appellee-Plaintiff. STATE of No. 52A04-9601-CR-2. Appeals of Indiana. Court of Feb. 1997. May Opinion Rehearing July Transfer Denied
ISSUES
Taylor presents following re-stated consolidated issues for our review: prosecutorial 1. Whether misconduct during closing argument. occurred 2. Whether constitutional rights were violated the trial court’s jury during communications with the delib- eration.
3. Whether improperly evidence was excluded the trial court.
4. Whether the trial court erred al- lowing the information amended day of trial. FACTS AND PROCEDURAL HISTORY most facts favorable to the verdict Peru, prior follow. At a downtown bar Taylor’s arrest, Taylor inwas communication (Walker) police informant about the cost marijuana. Taylor indicated that Walker could come residence when needed marijuana. telephoned more Tay- Walker February 22, 1994, lor’s residence on and set up appointment awith woman also who (Gilliland) pick up marijuana lived there later that afternoon. When Walker arrived Taylor he talked with in the front room about marijuana. Taylor later indicated that Walker was to follow Gilliland into the bed- provided marijuana room. Gilliland then money Taylor and collected the while Flora, Briggs, Appellants Caroline B. left, gave watched. Walker and Gilliland Defendant. money Taylor. Carter, General, Attorney Cynthia Pamela charged with conspiracy General, Deputy Attorney Ploughe, L. India- marijuana dealing May commit napolis, Appellee-Plaintiff. 22, 1994, arising from February 9,May transaction. trial was held on
OPINION in, Taylor 1995. After the was sworn conspiracy charge, moved to dismiss the al- RILEY, Judge leging it was defective. Rather than dismiss- THE STATEMENT OF CASE ing charge, the trial court ordered Defendant-Appellant Charles E. аmended, Taylor’ the information be over s (Taylor) appeals conspiracy his conviction of deliberation, objection. After found marijuana, dealing to commit D Class Taylor guilty charged. This offense felony.1 provid- appeal followed. Additional facts are necessary. We affirm. below as ed 35-4&wkey;-10(a)(2); Ind.Code 35-41-5-2. rights. ment Comment on the lack of evi- AND DECISION DISCUSSION concerning dence the defense otherwise I. Misconduct Prosecutorial incriminating against proper him is evidence First, Taylor challenges the verdict long “as the State focuses on the absence prosecutorial misconduct. re by alleging any evi- evidence to contradict the State’s misconduct, prosecutorial viewing a claim not on the failure to dence and accused’s part analysis. through two We go we must testify.” Martinez (1) prosecutor whether the must determine: (Ind.1990); Channell, 658 at 932 (2) misconduct, and whether committed (holding arguments which focus on the circumstances, misconduct, placed given the do uncontradicted nature State’s case grave position peril which he in a right not to testi- violate defendant’s subjected. Turnbow v. been should have fy)- (Ind.Ct.App. 1994),trans. denied. two comments made were There prosecutor which are at issue here. The is a comment The conduct at issue here (1) “the two comments were: evidence argu- closing made uncontroverted, there’s no evidence before closing argument Dining mеnt. ...;” (2) you contrary they “when sit “uncon- prosecutor twice called *5 couch, they on then talk about the there troverted,” Taylor’s attorney object- to which quarter-pound, according testimony to grounds a mistrial ed and moved [Walker], nothing is Kicker and there to impermissibly referred to that the comment whatsoever, contrary is uncontrovert- testify. Taylor’s failure to The trial court ed_” Although they need to be ad (R. 782). objections. overruled both separately, neither comment re dressed privilege “The Fifth Amendment quires in this ease. reversal against compulsory self-incrimination is vio brief, Taylor reply argues In that be- a a prosecutor lated makes statement only he is the one who could have cause subject interpretation to that is reasonable testimony, prosecutor’s controverted the to by jury a as an invitation draw an adverse comment on uneontroverted evidence is a inference from defendant’s silence.” necessarily improper. precedent given The (Ind. 669 N.E.2d Moore v. by Taylor uphold argument to this is the 1996). However, Supreme Indiana “[t]he supreme Dooley in court decision totality that if in its Court has indicated (1979).2 271 Ind. is prosecutor’s comment addressed to other distinguish are There several factors which than evidence rather the defendant’s failure Dooley. Dooley, the this case from defen- testify, grounds it to is for reversal.” testify presented dant did not no evi- (Ind. Channell v. prosеcutor dence whatsoever. there The denied, reh’g Ct.App.1995), trans. denied. said evidence was “uncontroverted challenged any way by Id. language is not other evidence.” When very on the at 155. This is similar a direct comment defendant’s failure N.E.2d prosecutor’s challenged decide whether the com first comment in this testify, we must summary evidence, Although Dooley case.3 the trial court ment amounts attempt to comment on comments made rather than an reversed case based on previously by prosecutor, We held it not this comment silence. have defendant’s by made the State as to the but later ones which necessitated reversal. that statements directly nature of The first comment referred to the uncontradicted State’s evidence privilege testify, a defendant’s Fifth Amend- defendant’s not to do not violate rights testify." Dooley statutory constitutional and 2. The test relied follows: "un- Dooley, at appears 155. less that there are witnesses other than it the defendant who have denied or contradicted him, any against direct or indirect was: “the evidence 3. comment at issue here uncontroverted, testify you evidence before reference the defendant’s failure has there’s no contrary.” strictly regarded impingement been as an of his to the R. there, nobody got comment given. although second included: else Gilliland was she Dooley, up you_” told momentarily N.E.2d at have left the room. Further- mоre, Those two were much comments more the State discusses several different here, stages obviously direct than the ones at issue the transaction: conversation bar, referring testimony to the lack of rather than telephone call to up set conflicting appointment, lack of evidence. the conversation before the sale, and exchange of cash for the mari- by here, first comment made State juana, just the conversation on the couch that the evidence before the is uncontro- prosecutor. referred to Regardless of verted, clearly a comment on the evidence circumstances, the factual the comment here enough It generаl as a whole. not to presented, is focused on the evidence impermissible Tay- constitute reference to on the defendant’s silence. testify. lor’s failure to necessary It is to note that the stan The second comment made by Taylor, determining dard relied on requires analysis. further prosecutor improperly whether the referred prosecutor said pertaining that the evidence testify, to the defendant’s failure to has been room the discussion the front before the recently modified. relies on the Taylor argues sale was uncontroverted. Rowley set standard forth in “a is: only one is the who could have controvert attorney, comment prosecuting made presented against ed the evidence him as to directly indirectly, subject which is to in step process, in the because he and terpretation by as a upon comment only present were the Walker ones in the testify of a failure defendant has been argues saying room. He it is uncontro strictly regarded impingement as an on the verted, when he is the other one who right substantial defendant.” there, impermissible is an comment on (quoting N.E.2d at 648 Williams v. Wain *6 testify. his failure (5th Cir.1969)) wright, 416 F.2d 1043 Again, Dooley support relies on added). (emphasis This test has been modi However, proposition. this that ease is not by following fied Moore which uses the stan about the inferences from imper drawn the “The privilege dard: Fifth Amendment situation, in specific missible comment a faсt against compulsory self-incrimination is vio but focuses on the of the court failure prosecutor when a lated makes a statement properly jury. admonish 393 N.E.2d at subject interpretation that to reasonable , Rowley also cites v. 259 by jury a as an invitation draw an ad (Ind.1972). 285 Ind. N.E.2d 646 In that verse inference from a defendant’s silence.” case, prosecutor’s improper comment was (Ind.1996) (emphasis N.E.2d at 739 add much more direct dealing that the one we are ed). This new test inserts a reasonableness acknowledges That here. case that measure that was existent in not the strict situation, unique a there is factual when “no Rowley Although test. the comment here appellant one but could have contrаdicted the possibly by could have been misconstrued witnesses,” government makes a com jury, it is not reasonable that it would contradicting ment on the lack of evidence jury a lead to make adverse inferences. inappropriate. Rowley, N.E.2d at totality The of the comment addresses the States, (quoting Desmond United 345 F.2d presented, not the evidence miss (1st Cir.1965)). 226-227 ing. prosecutor The comment case, Taylor only person improper In this is not the prose and does constitute who have testimony could contradicted the cutorial misconduct!4 persuasive precedents, 4. Because of even if the reference to the decision not defendant's to testi improper, fy proseсutor statements at issue were it would did not still dwell on the mat (Ind. supreme Splunge not be reversible error. In a 1994 court ter. case, 1994). Here, prosecutor made a reference a blatant the comment not n silent; however, silence, choice to defendant’s remain direct reference to nor dwelled upon, nearly held that Court it did not rise to reversible it was also not blatant as the Splunge. error because the comment was not a comment made direct responses claiming weak- that the Court’s Jury Deliberations
II. proof and violated ened State’s burden by Taylor address- issue raised second right and have his to consult with counsel during delibera- place es events that took argument Part оf assistance of this counsel. deliberating, jury began tions. After the to an judge’s comments amounted message a from the bailiff court received instruction. additional or modified regard- question for jury had charge. Although conspiracy ing the given the trial Great deference jury’s ques- requested that repeatedly not to of whether or court’s determination down so that he could tions be written first best grant a it is in the mistrial because they were an- before confer with client its im position the situation and to evaluate swered, judge request refused this jury. court is pact on the Because trial open brought jury court. back deference, Taylor must dem given great First, jury about the difference asked question so onstrate thаt conduct charges different between the three inflammatory he was prejudicial and they all or noth- must convict whether peril placed position grave in a to which replied ing judge that he could basis. subjected. should not have been Lawson the differences between the not discuss (Ind.Ct.App.1996), they charges and informed them that could trans. denied. guidance. the instructions for re-read procedure answering ques- The correct for judge part answered the of their then second jury delibera- tions law raised after by saying question that the court would sort begun tion has is set forth Ind.Code 34-1- any duplicity in verdicts at the time of out 21-6: sentencing, they look at each and that should jury After retired delibera- have individually charge and determine whether tion, disagreement if between there the State has met its burden. The any part testimony, or if them as to clarification, again judge asked and the they any point desire to be informed as to they guilty eould or told them enter case, arising they may re- of law guilty verdict on each of the counts inde- quest officer conduct into them any pendently. Then the asked if court, required the information shall where charges weighed heavily more than the oth- of, given presence or notice after instructions, ers because of the order of the to, attorneys. parties their to which the informed them that there *7 jury exactly procedure the the fol- priority. was no Next asked if This is which was enough jury “a hard fact.” After the lowed in this case. The wanted to be “deliver” judge expressed point judge that he was not sure of the law. informed about The question, the stated that “Deliver open into he an- called them court where (R. 852). not Final- separately presence defined.” questions in the of the swered their ly, juiy asked if the instructions were to attorneys. defendant and both by be line line or item item. considered trial position Given the of the judge they stated that need to be consid- him, judge granted we will and the deference ered a whole. He then as clarified earlier answering challenge not used for method sorting duplici- statement about the court out jury’s judge questions in this case. The affirming jury ties that what the doеs is questions open received and answered court, charges binding that the three on parties, required by stat court beforé all as they and are noth- separate, are that to infer go merits of ute. His answers did (R. 850-854). ing else from what he said. potentially danger up the case cleared but Judge with a. Communication misunderstanding jury that their ous nothing nature. argues response that the court in han- must be an all or erred dling jury’s manner, attorneys present entire questions were Therefore, precedent following the ible
Id. set forth in error. Splunge, the comment did not amount revers- transaction, (2) objections Code; and were the Indiana the communications jury place in the preserved record. Once left that toоk here did not amount to addi- tional, deliberations, judge explained instructions; supplemental to continue modified or (3) questions his decision to answer the as he and the communications here did not did, relying given addressing on he had the fact that come close to the merits of the (R. 854). charge.5 they an Allen Under Ind.Code case as did in Wallace. The trial court 34-1-21-6, judge responsibility judge has a error in responding committed no points requested jury’s up questions clear of law to do did. State, jury. so In Kiner judge Even if court the trial should (Ind.Ct.App.1994), reh’g de jury’s questions not have addressed as he
nied, this court
the trial court
stated that
did,
only
would
communications
result
respond
requests
jury’s
seeking
to a
should
error,
requiring
harmless
reversal. Al
issues,
lеgal
clarification on
but should also
though
special
it is true that
instructions are
determining
use discretion
which ones
emphasize
to improperly
any given
held
in
should be answered.6
struction, a communication between the
judge
jury
if
is harmless error
it does
Two of
on
the cases
go
to the
merits
case or the
relies, strictly holding
no
additional in
manner in which
merits
are determined.
explanations
given
structions
can
with
State,
Faceson v.
986-987
whole,
re-reading
out
deal
with a
(Ind.Ct.App.1994) (citing Stanley v.
jury
deadlocked
and a variation of an Allen
(Ind.1987)
In instances presented during communications delibera- N.E.2d facts here do improper If, however, tions, presumed. Taylor’s allegation there prejudice support inappropriate communication be explanation for the communication is was some *9 Lawsоn, harm and the bailiff. See given, and we are satisfied that no tween the resulted, (holding 776 that fact that judgment then the will be allowed 664 N.E.2d at stand_ a deciding pre- juror wrote and sent note to the to In whether the alternate rebutted, tape judge requesting and recorder on behalf sumption of has been we harm deliberating jury support does not the nature of the communication of evaluate jury’s judge tor the information that "deliver” is did understand the offered When "deliver,” question prosecu- defined in the statute. about the word
65
juror
participated
presumptively
[A]
claim
alternate
de-
defendant
entitled
to
liberations).
a
concerning
cross-examine witness
such
sup-
Likewise
facts do not
address_
matters as the witnеss’s
jurors’
allegation
port the
actions
right to
concerning
cross-examine
the wit-
allowing
room
to
the court
amounted
ness’s address is not absolute. There
during
present
parties
be
deliberations.
good
prevent
reason
the court
for
Taylor’s claims on
are without
these issues
addresses,
questioning about the witness’s
merit.
such as a
fear
reasonable
that the witness
placed
danger.
will be
III.
Evidence
Admission of
Turnbow,
(citing
637
at 1331
v.
Pigg
N.E.2d
State,
(Ind.1992)).
Taylor
154, 157
603
next issue raised
deals with
N.E.2d
exclusion of
where
evidence as
Walker
attempt
When the defendant’s
currently
Taylor
previously
and
lived.
be-
key
cross-examine the state’s
witness
toas
this
is crucial to a
lieves
information
objected
grounds
residencé is
to on the
cross-examination,
meaningful
relevancy
potential danger
and the exclu-
and
to the wit
ness, several cases have made it clear that an
Taylor’s right
sion of
evidence diminished
hearing
required
in camera
to determine
of cross examination.
admissibility
Pigg,
of the evidence.
603
Rulings
evidentiary
157;
State,
matters N.E.2d at
Morrison v.
609
1155,
(Ind.Ct.App.1993);
N.E.2d
1158
Turn
are within the discretion of the trial court
bow,
occurs when
to
safety
give
the
was not
able
physical
the
where
witness
even
endanger
of
sought would
he
family”);
employer or the state in which
lived.
Pierce v.
his
or his
the witness
Taylor
1197.
issue of
was
(Ind.Ct.App.1994),
Id. аt
whether
trans.
an
is con-
regarding
ad-
denied
effective cross-examination
(“questions
a witness’s
denied
given
suffi-
there are
trolled
whether
had been
prohibited where
dress
opportunity
place
witness in his
prejudice,
the
cient
to
the
of
wit-
legitimate concerns
the
ongoing proper setting, not whether or not
ad-
safety,
interference with
ness’s
Johnson,
divulged.
at
dress was
518 N.E.2d
investigations”);
Crull
(Ind.1989) (threat
Here,
the
was there sufficient
to
witness
evidence,
Taylor
conjec-
to
the
was
not a
of
basis
exclude
but
actual and
result
must be
ture).
able to
a vision of Walker’s environ-
There
the record
create
is evidence
issue,
jury regardless
speak
the
ment for the
of the exclusion.
able to
both sides were
althоugh may
it
not have been to
extent
complains
Taylor
the trial
Additionally, the
by Taylor.
desired
court relied on a statement which was inad
hearings on
camera
two different in
held
making
its
missable
determination.
issue,
point
at
in the trial when
one
an earlier
danger
of
recognized
some indication
to
a motion in limine
the court discussed
presented
before
Walker from
evidence
parties began presenting
before the
issue
at issue
offered and ad
the statement
was
evidence,
prior
the second
their
and
485).
(R.
hearing
then
dressed.
went
Therefore,
of Walker.
cross-examination
on to
inadmissable statement
parties
opportunities for the
there were two
plenty
nature of that statеment. There was
with the court. There is
the issue
to discuss
hearings
presented
of evidence
the two
in the record that
sufficient evidence
also
ruling
support
that would
the court’s
without
legitimately
reasonably and
lead the
could
considering the inadmissable statement. Er
put in
judge to find that Walker would be
roneously admitted evidence will be consid
by revealing his
jeopardy
addresses. As
guilty
ered harmless error when a
verdict is
above,
great
trial court has
stated
discre-
independent
supported by overwhelming
evi
determining the
admission and
tion
Spires
dence.
evidence,
of
and we will not over-
exclusion
(Ind.Ct.App.1996); Hackney
1314-1315
abuse
its
absent
clear
of
rule
decision
(Ind.Ct.App.1995),
Reaves,
67 improper of an not an purpose information is or amendment was are the defenses, availability of the defendant’s guarantee to the crimi protections certain jeopardy, danger risk of double and the of First, charging nally document accused. misleading preparation in the defendant of of the offense must set forth the elements Robertson, trial. See N.E.2d at 650 1181 charged in the defendant apprise order to variance, (holding that “[a] material which certainty of the accusation reasonable reversal, requires must mislead the defen Second, against charged the offense him. of preparation dant his defense or particulari sufficient must be described with subject him pros to the likelihood of another ty permit jeopardy double a defense of offense”); Hart, ecution the same 671 prosecution. subsequent event of a Wine (holding N.E.2d at 427 “[i]f defense State, (Ind.App. v. 1374 637 N.E.2d original under information would be State, 1994); 439 see also N.E.2d Griffin equally applicable to the information in one 160, 162 (Ind.1982).8 other, form as the then the amendment An and information can indictment substance”); one of form and of not one be are amended. Amendments controlled (Ind.Ct. Gordon N.E.2d 35-34-1-5, Indiana which Code states: (hold denied, denied, App.1995), reh’g trans. ing that “[e]rrors in the information are fatal (a) An indictment or information which only if they mislead the defendant or fail to charges may of an offense commission him give charge against of notice filed may not be dismissed be amended on but him”). attorney prosecuting any motion defect, any time because of immaterial in- charge in the information is list cluding: “conspiracy dealing ed to commit mari
juana.” The information cites the correct
provisions
dealing marijuana
(9)
statute
any
prej-
which does not
other defect
for conspiracy.
Ind.Code 35-48-4-
rights
udice
of the
the substantial
defen-
(R. 9).
10(a)(2), 35-41-5-2.
One cannot
dant.
knowingly
conspiracy; conspiracy
commit
re-
35-34-l-5(a).
Ind.Code
quires
felony.”
“intent
to commit
Ind.
However,
may
information
35-41-5-2(a). Although
Code
the informa-
theory
change
of the
amended
case
incorrect,
properly
tion was
it was
corrected.
identity
but,
charged;
or the
it
the offense
charged
The information did make the crime
any
be amended at
time to cure a defect
clear, merely
it
the intent.
misstated
There-
rights
if the
substantial
defendant are
fore, Taylor
prepare
had sufficient notice to
prejudiced.
Hart v.
Gordon,
his defense. See
mation ROBERTSON, J., concurs. Affirmed. J., CHEZEM, concurs in result. ROBERTSON, JJ., concur. CHEZEM ON REHEARING
OPINION 1997) (May RILEY, Judge. Taylor E.
Defendant-Appellant Charles
rehearing
of our
(Taylor)
petitioned
has
State,
v.
We found that amendment case, change theory mation did not change identity charged, of the offense rights. prejudice substantial information; was not mislead and, jeopardy; not at risk of double he was Therefore, any possible not denied defenses. allowing the trial court did not err in amendment of the information. Hart v. See (Ind.Ct.App.1996); (Ind.Ct.App.
Gordon