Garrett v. State

• Decision Date: 30 August 1973
• Docket Number: No. 2--1072A68,2--1072A68
• Citation: 157 Ind.App. 426,300 N.E.2d 696,38 Ind.Dec. 321
• Parties: Robert GARRETT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 696

300 N.E.2d 696

157 Ind.App. 426

Robert GARRETT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2--1072A68.

Court of Appeals of Indiana, Second District.

Aug. 30, 1973.

Rehearing Denied Oct. 1, 1973.

Transfer Denied Nov. 20, 1973.

Terrence P. Pehler, Kammins, Lemond, Carson & Stewart, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., for appellee.

BUCHANAN, Presiding Judge.

CASE SUMMARY

Robert Garrett (Garrett) appeals from his conviction by a jury of First Degree Burglary and Robbery in Marion Criminal Court, Division Three, claiming the Prosecuting Attorney improperly injected his opinion of Garrett's guilt into the proceedings and insufficient evidence to convict.

We affirm.

FACTS

The facts and evidence, when viewed most favorably to the State and the judgment of the court below, reveal that:

Garrett was charged with First Degree Burglary and Robbery in an Affidavit filed in Marion County Criminal Court on January 17, 1972 and was tried and convicted on March 29, 1972.

During voir dire, the Deputy Prosecuting Attorney made the following statement:

'Mr. Kearby, just to clear one thing up sir, I, also take an oath when I went on the Prosecutors Staff as you would take when you go on this jury and as you took as a prospective joror, and I do not presume this Defendant to be innocent; I presume him to be guilty, and I would intend, and do in fact intend, to present the evidence in this case so as to show his guilt. If I presumed him to be innocent or have any belief whatsoever in his innocence it would be my job and in fact my duty not to prosecute. Do you understand that?'

Defense counsel's objection and Motion For A Mistrial ¹ were overruled and denied by the trial court.

Before the trial, the Judge gave Preliminary Instructions to the jury, which read in part:

'INSTRUCTION NUMBER 8

'The law presumes the defendant in this case to be innocent of the commission of any crime, and this presumption continues throughout the trial, step by step.

'. . ..'

No further incidents occurred after the trial began involving statements by the Prosecuting Attorney as to his belief in or presumption of Garrett's guilt.

The evidence introduced at trial would indicate that on the evening of November 6, 1970, Laura Sauer was in her home in Marion County, when two men wearing ski masks entered the home and instructed her to lead them to her husband's safe. She complied, but the two men, with the aid of a third man who subsequently entered the home, were unable to open the safe. Mrs. Sauer testified that one of the men was armed. Ultimately the masked men took the entire safe and its contents from the Sauer residence.

Testimony of Mr. Sauer revealed that the safe contained $5,500 to $6,000 in coins which constituted the receipts of Mr. Sauer's vending machine company.

Charles R. Flora testified that he had committed the robbery of the Sauer residence on November 6, 1970, and that he was assisted by Garrett and one Kenneth Taylor. Flora had been arrested in connection with a separate incident, and was testifying against Garrett as an accomplice who had been granted immunity from prosecution. During cross-examination, Flora admitted to several prior convictions and extensive criminal activity. His testimony contained certain inconsistencies as to matters unrelated to the participation of Garrett in the robbery.

Flora testified that the three men removed the safe and two bags of loose change from the Sauer home, took the Sauers' car, and proceeded to the Flora home. After disposing of the Sauers' car, Flora, Garrett, and Taylor spent the rest of the night rolling the change acquired in the robbery in wrappers.

Mrs. Flora subsequently testified and substantiated her husband's testimony in that she was in her home on the night of November 6, 1970, when Flora, Garrett, and Taylor came in at 11 P.M. She saw the three men bring in an Army duffel bag which contained a large number of nickels, dimes, and quarters. She testified that after obtaining money wrappers, the men spent the rest of the night working in the living room.

The jury returned a verdict of guilty on both the First Degree Burglary and the Robbery charge and Garrett was sentenced to terms of from ten to twenty years on both counts--and now appeals.

ISSUES

Garrett presents two issues in his appeal:

ISSUE ONE: Did the trial court's refusal to grant a mistrial or admonish the jury after objection by counsel to the Prosecutor's statement of his presumption of Garrett's guilt, constitute reversible error?

ISSUE TWO: Was the verdict of the jury supported by sufficient evidence?

As to ISSUE ONE, Garrett contends that the statement by the Prosecutor destroyed the presumption of innocence to which he was entitled and denied him a fair trial.

The State answers that the statement by the Prosecutor merely established the State's position of what it intended to prove, and did not unfairly prejudice Garrett.

As to ISSUE TWO, Garrett argues that certain inconsistencies in the testimony of the witnesses so impeached their evidence that it had no probative value, and that therefore the decision of the jury was not supported by sufficient evidence.

The State answers that, even if the testimony could be considered inconsistent, such matters go only to the weight of the evidence, and that this court on appeal may not reweigh the evidence.

DECISION

ISSUE ONE.

CONCLUSION--It is our opinion that the statement of the Prosecutor as to his belief in Garrett's guilt in these circumstances did not constitute reversible error.

A statement by the prosecuting attorney that he presumes or believes a defendant to be guilty must be examined in context.

While impanelling the jury, the Deputy Prosecutor bespoke himself thusly:

'Mr. Kearby, just to clear one thing up sir, I, also take an oath when I went on the Prosecutors Staff as you would take when you go on this jury and as you took as a prospective juror, and I do not presume this Defendant to be innocent; I presume him to be guilty, and I would intend, and do in fact intend, to present the evidence in this case so as to show his guilt. If I presumed him to be innocent or have any belief whatsoever in his innocence it would be my job and in fact my duty not to prosecute. Do you understand that?' (Emphasis supplied.)

Defense counsel immediately moved for a mistrial, and after the jury was excused this colloquy took place in which counsel expounded on their views as to the prejudicial effect of the foregoing statement:

Defense counsel

'As to this particular Motion for Mistrial it is the law of the State of Indiana, as I understand it, that a Prosecutor may not make inflammatory remarks to the jury in final argument. He may not make inflammatory remarks to the jury at all. He may not express an opinion as to the guilt or innocence of a Defendant any more than the Court can do so. If a Prosecutor stands on Final Argument and states that he feels that the Defendant is guilty he is making such an inflammatory remark and so much more true should then be on Vordire (sic) before a jury then is even picked.'

Deputy Prosecutor

'Your Honor, to state my position on that, Mr. Pehler, on Vordire (sic) made the statement that it was his job, and the Court's job, the Jury's job and the Prosecutor's job to presume this man innocent. The State's position, Your Honor is that if, in fact, the Prosecutor's office or myself, as a member of that office presume that man to be innocent then, in fact, have evidence that he was innocent, or had no evidence whatsoever of guilt, that we, in fact, must dismiss the charges, and could, in fact, not prosecute. Our only position is that through Mr. Pehler's statement, was in reply to his statements to this prospective jury that, in fact, I presumed him innocent. I think if I presumed him innocent I would certainly be violating the oath I took as a representative of the State of Indiana in attempting to prosecute this man and I certainly do not feel that is in any way inflammatory. I think it is rather obvious to a jury, or certainly becomes so during the period of trial that certainly somebody primarily the prosecutor must believe the man is guilty or he would not, in fact, be prosecuted. I see no--I do not feel that is inflammatory in any way and could only state that once again I would be derelict in not only my duty to my oath but to my profession if I thought this man to be innocent to attempt to prosecute him.'

After the Motion for Mistrial was denied, Defense Counsel then asked the court to admonish the jury to disregard the personal opinions of the Prosecutor. This relief was also denied, and the trial proceeded. No similar incident occurred after the trial began.

The proper function of counsel in a voir dire proceeding is to assist in the impanelling of an impartial jury and the trial judge has considerable latitude in keeping the questioning within reasonable bounds. Roby v. State, (1938) 216 Ind. 55, 17 N.E.2d 800; Martin v. Lilly, (1919) 188 Ind. 139, 121 N.E. 443; State v. Manley, (1969) 54 N.J. 259, 255 A.2d 193.

Counsel in an excess of zeal may overstep these bounds. A considerable body of law owes its genesis to statements by prosecutors, usually in argument, as to the defendant's guilt:

'Statements by a prosecuting attorney in argument to the effect that he would not prosecute a case, or the case at bar, unless he believed the defendant to be guilty, have generally been held objectionable, and in some instances prejudicial. This holding has been based on the ground, inter alia, that such statement implies a belief based on the attorney's independent investigation, and not solely on the evidence produced at the trial.' 50 A.L.R.2d 766, 787--788.

The danger of prejudice to the defendant by such statements is they may imply that the prosecutor has independent personal knowledge of facts other...