Crosson v. State

• Decision Date: 02 October 1980
• Docket Number: No. 480S100,480S100
• Citation: 410 N.E.2d 1194,274 Ind. 247
• Parties: Craig R. CROSSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1194

410 N.E.2d 1194

274 Ind. 247

Craig R. CROSSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 480S100.

Supreme Court of Indiana.

Oct. 2, 1980.

Harriette Bailey Conn, Public Defender, Robert H. Hendren, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The petitioner, Craig R. Crosson, is before this Court appealing from the denial of his petition for relief under Post-Conviction Relief, Rule 1. He was convicted by a jury of inflicting injury in the commission of a robbery and was sentenced to life imprisonment. His conviction was affirmed by this Court in Crosson v. State, (1978) 268 Ind. 511, 376 N.E.2d 1136. He now raises the issue of a comment by the prosecutor which was allegedly a direct reference to his failure to testify and which allegedly denied him due process of law.

The facts relevant to this issue may be summarized as follows. The state in its final argument reviewed the evidence and requested conviction. The victim, Joe Reust, had identified petitioner as the one who shot him, but none of the other witnesses had seen the incident and could not of their own knowledge say what occurred. An accomplice was involved in the robbery but never testified. Petitioner chose not to testify and did not put on any evidence.

In his closing argument, petitioner's attorney emphasized the seriousness of the offense and hinted that the state had failed to prove the element of identity. He then continued:

"Not one of the above witnesses can testify who shot Joe Reust.... Not a single one of these fourteen (14) witnesses, as far as the central question in this case of who put Joe Reust in fear, who robbed Joe Reust and who shot him, there's only one witness. And that's Joe Reust."

On rebuttal, the state responded:

"The hint was made that Morris Pierson shot Reust. But you heard no testimony from the witness stand that Morris Pierson shot Joe Reust. You heard none whatsoever. There is nothing that has been said in this room to that effect (inaudible). The question of identity is raised in argument (inaudible)."

There was no objection by petitioner after this comment. The court later gave the proper instruction to the jury that defendant's failure to testify could raise no presumption of guilt against him. Petitioner now contends that the statement "You heard no testimony from the witness stand that Morris Pierson shot Joe Reust" is a direct reference to his failure to testify and denies him his constitutional and statutory rights.

It is true that unless it appears that there are witnesses other than defendant who have denied or contradicted the evidence against him, any direct or indirect reference to the defendant's failure to testify has been strictly regarded as an impingement of his constitutional and statutory rights not to testify. Ross v. State, (1978) 268 Ind. 471, 376 N.E.2d 1117. However, it is also axiomatic that failure to object at trial results in a waiver of the issue as error for review. Pavone v. State, (1980) Ind., 402 N.E.2d 976; Womack v. State, (1978) Ind., 382 N.E.2d 939. Any alleged error presented to us without a specific objection at trial may be considered only if it was so fundamental that it denied petitioner a fair trial. Malo v. State, (1977) 266 Ind. 157, 361 N.E.2d 1201. That the error complained of relates to the violation of a right guaranteed by the...