Hadley v. State
Decision Date | 19 August 1975 |
Docket Number | No. 1--1074A159,1--1074A159 |
Citation | 165 Ind.App. 416,332 N.E.2d 269 |
Parties | Carl Steven HADLEY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
Court | Indiana Appellate Court |
Goltra & Harrison, Columbus, for appellant.
Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Hadley was tried by jury and found guilty of selling less than five grams of hashish to an undercover agent of the Bartholomew County Sheriff's Department. The primary issue raised in his appeal is whether various comments by the prosecutor individually or collectively constituted misconduct so as to deprive Hadley of a fair trial. We reverse.
Hadley's initial allegation of prosecutorial misconduct is directed to the following statements made by the prosecutor in final argument:
Hadley maintains that these statements were comments by the prosecutor upon Hadley's failure to testify in his own behalf and as such violate his Fifth Amendment and statutory 1 rights as discussed in Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 and Rowley v. State (1972), 259 Ind. 209, 285 N.E.2d 646, respectively.
In Rowley, our Supreme Court adopted the test of Williams v. Wainwright (5th Cir. 1969), 416 F.2d 1042, to determine whether a prosecutor's comment impinges upon a defendant's Fifth Amendment rights:
'A comment made by a prosecuting attorney, directly or indirectly, which is subject to interpretation by a jury as a comment upon failure of a defendant to testify has been strictly regarded as an impingement on the substantial right of the defendant.'
Applying that test to the above comments we conclude that the prosecutor's statements were clearly impermissible. The language used was of such character that the jury could have interpreted it as a comment upon Haldley's failure to testify. Unless cured by proper admonition such comments constitute prejudicial and reversible error.
Examining the record we find that the trial court did not admonish the jury. Under the guidelines of Bland v. State (1973), Ind.App., 39 Ind.Dec. 489, 303 N.E.2d 61, this is reversible error:
'Rowley v. State, supra, reinforces the position that admonishment to the jury is the essential device to correct misconduct by the prosecutor.
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