Comer v. State

• Decision Date: 23 November 1981
• Docket Number: No. 3-181A27,3-181A27
• Parties: Stella COMER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 48

428 N.E.2d 48

Stella COMER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-181A27.

Court of Appeals of Indiana, Third District.

Nov. 23, 1981.

Max Cohen and David Capp, Cohen & Thiros, Merrillville, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Presiding Judge.

Stella Comer was charged with and convicted of reckless homicide. She appeals that conviction and raises the following issues:

(1) whether the trial court erred in refusing to declare a mistrial due to prosecutorial misconduct; and

(2) whether the trial court erred in failing to instruct the jury on lesser included offenses.

The record reveals that on November 4, 1979 Stella Comer and her husband Milton became involved in a heated argument. Stella asked Milton to leave the house and not return. Milton left but returned a short time later. As Milton attempted to enter the house, Stella fired a single shot from a revolver. The shot went through the door of the house, hit Milton in the chest and killed him. Stella ran to a neighbor's house to call for an ambulance and the police.

Stella asserts as prosecutorial misconduct certain statements made by the prosecutor in his rebuttal argument. The statements, objections and rulings are as follows:

"BY MR. KING (Prosecutor): The State has already demonstrated I believe, Ladies and Gentlemen, she wasn't acting in self-defense, but there is one exhibit that speaks far more eloquently than I could as far as this issue. State's Exhibit Two, photograph of Milton Comer as he lay on the porch, I direct you to look at his right hand carefully. At his right hand toward the bottom of the photograph. He's holding something. He's holding a set of keys in his right hand. This photograph came in the beginning of this case. When his body was found he was holding a set of keys in his right hand. If he's holding a set of keys, why is he knocking to get in the house? Why is he knocking and kicking to get in his house when he's holding a set of keys? He wasn't knocking and kicking and screaming. He had the keys and I submit to you that Stella Comer-

"BY MR. COHEN (Defense Counsel): Objection, Your Honor. May we approach the bench?

THE FOLLOWING DISCUSSION WAS HELD AT THE BENCH OUTSIDE THE HEARING OF THE JURY AND WAS REPORTED AS FOLLOWS:

"BY MR. COHEN: My objection is that this is new matter. It should have been brought out in State's opening statement, and it was not, and the response is entirely-it's a new matter and submits to the jury for the first time a new theory of the case.

"BY MR. COHEN: It's a new theory of prosecution which is being advanced for the first time in the final summation. And in the opening statement throughout, Counsel has stated he did intend to show or argue that there was an intention of killing. The fact that he's stating he had keys in his hand indicates that. I don't know where he's planning to go.

"BY THE COURT: I think that if you intend to go on, if I rule that you can, there should be some admonition given that there has been no proof in this trial as to what those keys were, as to what they were for.

"BY THE COURT: All right. I will overrule the defendant's motion. However, I am going to admonish the jury that there has been no proof concerning those keys and that I would state that this is argument and that arguments may be tendered.

WHEREUPON THE PROCEEDINGS WERE TAKEN ONCE AGAIN BEFORE THE JURY.

"BY THE COURT: I will admonish the Ladies and Gentlemen of the Jury that there was not any proof offered in this trial as to anything concerning those keys that are shown in the picture as to what they were or anything else. I have overruled the defendant's objection in all other respects as this is argument.

"BY MR. KING: Ladies and Gentlemen, once again State's Exhibit Two, you may pass among yourselves. You look at that piece of evidence and you draw any inference you wish from what's contained in that photograph as you look at it.

"BY MR. COHEN: Your Honor, again I will object.

THE FOLLOWING DISCUSSION WAS HELD AT THE BENCH OUTSIDE OF THE HEARING OF THE JURY, AND WAS REPORTED AS FOLLOWS:

"BY MR. COHEN: I object to the jury being displayed exhibits at this state during the course of the argument.

"BY MR. KING: It's proper.

"BY THE COURT: It's normally proper to show exhibits.

"BY MR. COHEN: I would think this is compounding the very tenuous ground that Counsel is walking upon to reemphasize those keys by passing that exhibit around to the jury, and I at this point feel that the Court should admonish the jury again that there has been no testimony concerning what those keys were, and if Counsel persists in this line of argument, I move to withdraw the submission and have the Court declare a mistrial. In fact, I will make such a motion now. I think the prejudice at this point with Counsel's reiteration at this point in passing the exhibit again to the jury is so prejudicial that a mistrial should be granted, and I so move.

"BY MR. KING: My comment prior to showing the exhibit, if we find it is proper to refer to specific exhibits was, you look at it. You draw an inference. That's the law.

"BY THE COURT: I think based upon what you said that it was proper. I will reiterate my admonition but I won't restate it and overrule the motion for mistrial.

WHEREUPON THE PROCEEDINGS WERE ONCE AGAIN BEFORE THE JURY.

"BY THE COURT: I would just at this time reiterate my admonition to the jury that I made previously a few moments ago. You may continue, Mr. Prosecutor."

Stella contends that the prosecutor was introducing a new theory of prosecution during rebuttal, the new theory being an intentional killing. This clearly is not the case as is evidenced by other statements made by the prosecutor in his closing argument.

"BY MR. KING: Mr. Cohen suggested to you that his client did not intend to kill Milton Comer. And I agree with him. She didn't intend for a minute to kill him. That's why she's charged with Reckless Homicide because if I had to prove intent to kill on her part, I would have rested before I began because I never could have for a minute. What she did intend to do was pull that trigger and aim that gun at the door where her husband stood; that was a reckless act. That's the state of mind we're talking about. Not intentional killing, but a reckless killing and that she was reckless and that what she did was a departure from what a reasonable person would do. Now, that has been proven. That has been proven by the State that she was reckless. Don't think that the State is required to prove that she intended to kill him because we couldn't...."

Contrary to Stella's assertions that the prosecutor was attempting to prove intent, the prosecutor's statements before the jury, together with his arguments with regard to Stella's objections, show that he was trying to rebut Stella's claim of self-defense.

"MR. KING: ... The State has already demonstrated I believe, Ladies and Gentlemen, she wasn't acting in self-defense, but there is one exhibit that speaks far more eloquently then (sic) I could as far as this issue. State's Exhibit Two, photograph of Milton Comer as he lay on the porch. I direct you to look at his right hand carefully. At his right hand toward the bottom of the photograph. He's holding something. He's holding a set of keys in his right hand...."

In his arguments before the judge, the prosecutor stated:

"BY MR. KING: I'm not planning to go into intentional killing. It was motivated by a-

"BY MR. KING: I intend to go into the claim of self-defense, him banging on the door. She was still upset by the argument that occurred earlier that day. When she heard the keys at the door, heard him approaching the front door, she shot blindly or whatever, and that's the shot that killed him. Why for a minute would I suggest intentional killing when it would increase my burden?"

State's Exhibit No. 2 is a photograph of Milton Comer after he had been shot. There was testimony that the photograph was a true and accurate portrayal. The photograph was admitted into evidence without objection and without any limiting instruction. The photograph could therefore be used for whatever evidentiary purposes the State desired. Stella raised the issue of self-defense. She testified that Milton was pounding on the door, demanding to be let into the house. Mr. Cohen referred to Milton's bellicose mood and his threats during closing argument. The prosecutor properly attempted to rebut this testimony and argument by referring to evidence which had been admitted and raising a possible inference about the keys. Additionally, when Stella objected, the trial court admonished the jury that there was no evidence regarding the keys. Although it is improper to comment on facts not in evidence, Adler v. State (1961), 242 Ind. 9, 175 N.E.2d 358, arguments as to inferences to be drawn from the evidence are permissible. Craig v. State (1977), 267 Ind. 359, 370 N.E.2d 880, appeal after remand (1980) Ind., 398 N.E.2d 661. This is exactly what was done by the prosecutor. No prosecutorial misconduct has been demonstrated.

Stella refers this Court to IC 1971, 35-1-35-1 (Burns 1979 Repl.) which provides in pertinent part:

"But if the case be not so submitted without argument, the prosecuting attorney shall have the opening and closing of the argument; but he shall disclose in the opening all the points relied on in the case and if in the closing he refers to any new point or fact not disclosed in the opening the defendant or his counsel shall have the right of replying thereto, which reply shall close the argument of the case."

Stella, pursuant to the statute, had a right to make a reply. This right was not exercised inasmuch as Stella did not request an opportunity to reply. The issue is therefore waived.

Stella argues that the trial court erred in failing to instruct the jury on the...