Dresser v. State

• Decision Date: 12 October 1983
• Docket Number: No. 682S222,682S222
• Citation: 454 N.E.2d 406
• Parties: James DRESSER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 406

454 N.E.2d 406

James DRESSER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 682S222.

Supreme Court of Indiana.

Oct. 12, 1983.

Susan K. Carpenter, Public Defender, Kenneth M. Stroud, Sp. Asst. Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted, following trial by jury, of murder, Ind.Code Sec. 35-42-1-1(1) (Burns 1979), and was sentenced to forty (40) years imprisonment. This direct appeal presents two issues for review:

1. Whether the prosecutor's comments during closing argument placed Defendant in a position of grave peril, and thus violated his right to a fair trial.

2. Whether the trial court erred in admitting into evidence State's Exhibit No. 23, a pre-autopsy photograph of the decedent-victim.

On July 3, 1981, Defendant shot and killed Keith Bigley with a forty-five (.45) caliber semi-automatic pistol. He put the body in his car, drove to a river where he dragged the body into the water and then hid or destroyed the evidence of the crime. At trial Defendant claimed that Bigley was a "hit-man" for a motorcycle gang and that he had shot him in self-defense.

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ISSUE I

Under this assignment, Defendant contends that the judgment of the trial court must be reversed by reason of repeated instances of prosecutorial misconduct during final argument which, individually or cumulatively, placed him in "grave peril" such as to deny him his fair trial rights and require reversal. He cites three instances of alleged misconduct, the first being that the prosecutor misstated evidence and the other two being instances of urging the jury to convict the Defendant for reasons other than his guilt. In the interest of judicial economy and brevity, we decline to treat these contentions, other than to say that we find them to be without merit.

The first instance above mentioned related to the prosecutor's reference to Defendant's membership in a motorcycle "gang" known as "Death." The second instance complained of was the prosecutor's argument that suggested that a failure to convict might subject them, their children or their loved ones to danger; and the third was argument that suggested that an acquittal of the Defendant subjected society to a high degree of risk. In context, we are of the opinion that these did not subject Defendant to "grave peril" as that term was used in White v. State, (1971) 257 Ind. 64, 78, 272 N.E.2d 312, 320; Maldonado v. State, (1976) 265 Ind. 492, 355 N.E.2d 843, and other cases cited by him.

At the time the two comments first mentioned were made, defense counsel merely interposed an objection and stated why he believed them to be improper. He did not move for a mistrial or even ask that the jury be admonished to disregard them. At the time the last mentioned comment was made counsel did not even make an objection. We acknowledge that the court overruled the objections that were made, which strongly indicates that such motions addressed to the objections would also have been overruled. Nevertheless, the objections made and rulings thereon preserved nothing for appellate review. Objecting to counsel's argument is like objecting to a question that has been asked and answered. If the question is believed to have been improper, a motion to strike the answer and to admonish the jury must be interposed, if the right of review is to be preserved. Norton v. State, (1980) Ind., 408 N.E.2d 514, 525; Pettit v. State, (1982) Ind.App., 439 N.E.2d 1175, 1180.

The correct procedure to employ against improper argument is to request an admonishment. Dean v. State, (1982) Ind., 433 N.E.2d 1172, 1178. Following the giving of the admonishment, if it is believed that the damage has not been, thereby repaired, a motion for mistrial should be made. Where it is obvious, from the nature and degree of misconduct, that no admonishment could suffice, the motion for one may be dispensed with. But, admonishments are presumed to cure error which may have occurred, Ballard v. State, (1974) 262 Ind. 482, 318 N.E.2d 798, and such errors are presumed to be curable in that manner. The granting of a mistrial lies within the sound discretion of the trial court, and its determination will be reversed only where an abuse of discretion can be established. Thompkins v. State, (1978) 270 Ind. 163, 383 N.E.2d 347; White v. State, 257 Ind. at 78, 272 N.E.2d at 312.

In this case, Defendant requested no remedial action of the court. In the one instance, the court indicated that it did not believe that the prosecutor had misbehaved; however, this did not necessarily preclude further consideration had a proper motion been addressed to the matter complained of.

With regard to the charge that the Prosecutor misstated the evidence, we find that on cross-examination of a defense witness, Mary Stahl, she indicated her belief that the Defendant was a member of the motorcycle "gang." Her opinion, was subject to being stricken; but, again, there was no motion to strike it and to admonish the jury to disregard it. There was, therefore, some evidence before the jury upon the question.

ISSUE II

Defendant next assigns error to the admission of State's Exhibit No. 23, a pre-autopsy photograph. This photograph depicts the face and neck of the decedent, with eyes open, and skin partially decayed. A bullet wound is visible on the neck. The photograph was offered in connection with the testimony of Rensen Holdeman, an Elkhart...