Emerson v. State
| Decision Date | 15 June 1988 |
| Docket Number | No. 49S00-8707-CR-709,49S00-8707-CR-709 |
| Citation | 524 N.E.2d 314 |
| Parties | John W. EMERSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
William F. Thoms, Jr., Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Donald B. Kite, Sr., Deputy Atty. Gen., Indianapolis, for appellee.
A jury trial resulted in a conviction of appellant of Battery, a Class C felony, for which he received a sentence of five (5) years enhanced by thirty (30) years by reason of his habitual offender status, and Battery, a Class B misdemeanor, for which he received a sentence of six months, the sentences to run concurrently.
The facts are: On July 25, 1986, Robert W. Brown was sitting on a bench in Douglas Park, in Indianapolis, playing cards when appellant's codefendant, Derrick Jones, grabbed him from behind by the neck, pulled him off the bench, and started beating him in the face with his fists. During the beating, which lasted about two minutes, Brown's glasses were broken and he was dazed. When Brown got to his feet, he saw appellant and his two codefendants beating his son, Lynn Brown, with sticks while he was lying on the ground. When Robert Brown started toward his son, the three men stopped beating the son and ran across the park. The son testified that as he started to his father's rescue, the three men jumped on him. Henry Emerson and appellant beat him with sticks and Jones hit him with a knife just as he was getting up.
Appellant claims the trial court erred by allowing the prosecutor to comment on appellant's failure to testify and to present a defense. During final argument, the prosecutor stated:
Appellant's objection to this statement by the prosecutor was overruled by the court. At a later point in his argument, the prosecutor stated:
"There's been absolutely no evidence of self-defense--"
As to the first statement made by the prosecuting attorney, appellant's counsel in closing argument had stated that the State failed to produce a doctor to testify that the victim's wound was a knife wound. The State concedes that the response of the prosecutor was possibly improper; the State takes the position, however, that the comment of the prosecuting attorney did not rise to the level of reversible error. With this, we agree. The prosecutor did not elaborate on the statement in any attempt to place the responsibility of going forward with the evidence on the defense. When one considers the strong uncontradicted evidence of appellant's guilt, it can hardly be said that the comment of the prosecutor rises to the stature of reversible error.
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