Bland v. State

Decision Date07 November 1973
Docket NumberNo. 1--573A95,1--573A95
Citation158 Ind.App. 441,303 N.E.2d 61,39 Ind.Dec. 489
PartiesDennis BLAND and Jackie Flynn, Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

David J. Colman, Bloomington, for defendants-appellants.

Theodore L. Sendak, Atty. Gen., John H. Meyers, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

ROBERTSON, Presiding Judge.

The defendants-appellants (Bland and Flynn) were convicted by a jury of possession of a narcotic drug and the sale of a narcotic drug. We are of the opinion that their overruled motion to correct errors presents an issue which requires reversal of the cause.

Bland and Flynn complain about remarks made by the prosecuting attorney during closing argument which indirectly or directly relate to both defendants' failure to testify. These remarks, made in the State's initial closing argument, were:

'The law is, and it is a good law, that defendants don't have to produce anything. And, that's a good law. I ask you though, that may be the law, but as practical people wouldn't something be presented if something was there?

'If there was a grudge, would there have been something that would have substantiated that or is it only going to be based upon your suspicion and imagination. Wouldn't you put something in if you had something to put in?

'There is no collaberation (sic) by every other State's witness of Mr. Goodman's testimony. There is not any evidence of any conflict to that testimony. Nary a word. Wouldn't it be imperative to try to put something into evidence in conflict?'

The prosecutor continued in his rebuttal argument:

'You can rely upon the law that you don't have to say a thing. No defense needs to be put forth. I ask you if that meets with your common sense? If you've got something to say through witnesses to sum up this innuendo, wouldn't you bring somebody forward to say something or does it all boil down to there is really nothing to say. I've just got nothing to say.

'I've got to go back to some of the earlier comments. All parties admit that this is a major case. Well, most of the major parties do. That's why I emphasize again if a party has something to say they are going to say it. And, they're not going to rest on their laurels.'

We believe that there can be no serious arguments that the foregoing remarks are proscribed by Indiana law. (IC 1971 35--1--31--3, Ind.Ann.Stat. § 9--1603 (Burns 1956); Long v. State (1877), 56 Ind. 182; Rowley v. State (1972), Ind., 285 N.E.2d 646. Neither do we believe the foregoing can be characterized as 'isolated elements' in a closing statement. See Bradburn v. State (1971), 256 Ind. 453, 269 N.E.2d 539.

The State takes the position that Bland and Flynn could have dispelled the error by requesting an admonishment of the jury as permitted by Rowley v. State, supra, and Keifer v. State (1932), 204 Ind. 454, 184 N.E. 557. The following discourse course took place in the absence of the jury:

'MR. COLMAN: Your Honor, on behalf of defendant, Bland, I feel it is compelling that I object to the prosecutor's continuing referral to defendants having not taken the stand. Comments like sitting on their laurels and other such cheap shots and attempting to do what he knows he cannot do under the law . . ..

'JUDGE: Let the record show that the court suggest that counsel that he make no conduct with reference . . . make any reference to the fact that one or either of the defendants have not taken the stand during the trial of this cause.'

The State is correct in that had the approved method been followed the prosecutor's error would have been cured. However, in the absence of an admonishment to the jury we fail to see how mischief is corrected. As was held in Keifer, supra,

'Where a prosecuting attorney, In his argument, comments, in violation of the statute (citations omitted) upon the failure of the accused to testify, harmful error will be presumed unless the contrary is made to appear, but where it appears...

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6 cases
  • Dooley v. State
    • United States
    • Indiana Supreme Court
    • August 24, 1979
    ...Pulliam v. State, (1976) 264 Ind. 381, 345 N.E.2d 229. However, we agree with the opinion of the Court of Appeals in Bland v. State, (1973) 158 Ind.App. 441, 303 N.E.2d 61. In a caveat added to a reversal on this issue, Judge Robertson "The action of this court, in deciding this issue as pr......
  • Phillips v. State
    • United States
    • Indiana Appellate Court
    • November 16, 1977
    ...evidence have you heard from the stand with regard to any explanation of the evidence you have heard from the State." Bland v. State (1973), 158 Ind.App. 441, 303 N.E.2d 61; Edwards v. State (1975), Ind.App., 328 N.E.2d 470. No Indiana cases have gone so far as to find that a responsive com......
  • Reynolds v. State
    • United States
    • Indiana Appellate Court
    • October 27, 2003
    ...self-incrimination. As discussed above, such comment amounts to fundamental error. The reasoning employed in Bland v. State, 158 Ind.App. 441, 444-45, 303 N.E.2d 61, 63 (1973) is equally applicable Griffin v. California, leaves no doubt that the Fifth Amendment, via the Fourteenth Amendment......
  • Moore v. State, 1276S444
    • United States
    • Indiana Supreme Court
    • November 30, 1977
    ...N.E.2d 646; Ind.Code § 35-1-31-3 (Burns 1975). However, a prompt admonishment will cure this error. Rowley, supra; Bland v. State, (1973) 158 Ind.App. 441, 303 N.E.2d 61. The impermissible comment of the prosecutor in this instance was thus cured by the trial court's action, and no error is......
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