Flynn v. State

• Decision Date: 24 August 1978
• Docket Number: No. 2-377A71,2-377A71
• Parties: Wayne FLYNN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 548

379 N.E.2d 548

177 Ind.App. 360

Wayne FLYNN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2-377A71.

Court of Appeals of Indiana, Fourth District.

Aug. 24, 1978.

Stephen M. Sherman, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Dennis K. McKinney, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

Appellant Wayne Flynn ("Flynn") appeals from his conviction for unlawful possession of a controlled substance, I.C.1971, 35-24.1-4.1-7 (now repealed). We reverse.

On this appeal Flynn raises three errors in his brief. First, he alleges error for failure of the trial court to sustain his objection to a certain statement made by the deputy prosecutor during final argument. Next, he complains that the evidence is insufficient to support the verdict of the jury. Finally, he complains that the sentence he received is excessive.

We will address only the first error raised by Flynn, the alleged prosecutorial misconduct. Our consideration of this alleged error requires that we review the evidence to determine whether the statement made by the deputy prosecutor during final argument was supported by the evidence. Evans v. State (1975), Ind.App., 323 N.E.2d 672, 676. Accordingly, we turn our attention to the evidence.

The State's evidence was presented chiefly through the testimony of two police officers. This testimony reveals that for a period of about ten days one of the officers had conducted a surveillance of a large house on the north side of Indianapolis. The house contained four apartments. On the basis of this surveillance a search warrant was obtained. The two officers, in company with other policemen, executed the warrant late in the evening of September 3, 1976. After knocking for ten or fifteen minutes and identifying themselves, the officers entered. They found Flynn and his girlfriend in bed. A search of the bedroom revealed an unmarked bottle containing approximately six biphetamine capsules. The bottle apparently had been secreted behind the mirror of a dresser.

When the bottle was displayed to Flynn, he made no comment. The officers testified that the defendant's eyes were glassy; he talked slowly, and appeared to be under the influence of drugs. One of the officers acknowledged, however, that the defendant's apparent stupor could indicate that the defendant had just awakened from sleep.

Flynn, for his part, testified in his own behalf and also offered the testimony of both his roommate and the roommate's girlfriend. The girlfriend revealed that she had obtained a prescription for the same type of capsules that were found in the bedroom. She further testified that she had visited defendant's roommate a few days before the search warrant was executed. According to her testimony, she inadvertently left behind the biphetamine capsules. She said that the number of capsules she misplaced was about the same amount which the officers found in the apartment. When she discovered that Flynn had been arrested for alleged unlawful possession of the capsules, she contacted Flynn's attorney on her own initiative to explain the matter.

Flynn's roommate also took the stand. He stated that he and Flynn shared the apartment and each paid part of the rent. At different times both roommates occasionally occupied the bedroom. This witness denied knowing about the presence of pills in the apartment. Following Flynn's arrest, he did recall that his girlfriend mentioned the pills belonged to her.

The defendant, in his own behalf, denied ever having possession of the capsules. He and his roommate had lived in the apartment for only about six days before the arrest. On the day he was arrested, he had worked about ten hours. On return to his apartment, he consumed some beer and wine. Later in the evening he turned to bed and was asleep when the police arrived to execute the warrant. The defendant also explained that his roommate had possession of the bedroom most of the time.

We turn now to the issue before us and consider the alleged prosecutorial misconduct. During final argument the deputy prosecutor directed the following statement to the jury:

"I am tired of drugs on the streets of this city and I want to get the drug dealers off. I am not here to put an innocent man in prison. If you believe he is an innocent man unjustly accused, then turn him loose, but he is not. He is a drug dealer, and I think from the evidence you have heard you can deduce that." (Emphasis added.)

Flynn's trial attorney objected at this point for the reason that the statement was not supported by the evidence. The objection was overruled. Flynn's timely objection preserves this assigned error for our review. Misenheimer v. State (1978), Ind., 374 N.E.2d 523, 532.

From our review of the evidence we are constrained to find merit in Flynn's objection. In the case at bar the evidence was vigorously disputed as to whether Flynn even possessed a controlled substance. Consequently, there was absolutely no warrant for the deputy prosecutor to label Flynn a "drug dealer." Adler v. State (1961), 242 Ind. 9, 175 N.E.2d 358, 359; Hadley v. State (1975), Ind.App., 332 N.E.2d 269, 272.

It is, of course, proper for an attorney to argue for any position or conclusion based on his analysis of the evidence. Code of Professional Responsibility, D.R. 7-106(C)(4). Conversely, the attorney may not assert his personal opinion as to the guilt of a defendant. Id. These rules play no small role in the administration of justice. Flynn was entitled to be tried on the evidence presented in court. The deputy prosecutor's completely unfounded charge that the defendant is a "drug dealer" may suggest to the jury that the deputy prosecutor possessed undisclosed evidence bearing upon other possible crimes by the defendant. This error is especially serious where, as in the case at bar, the evidence is "close" on the charge for which Flynn was being tried. Evans v. State (1975), Ind.App., 323 N.E.2d 672,...