Harper v. State
| Decision Date | 22 February 1985 |
| Docket Number | No. 1082S394,1082S394 |
| Parties | Tyrone E. HARPER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Robert K. Johnson, Deputy Atty. Gen., Indianapolis, for appellee.
Following a trial by jury, Defendant (Appellant) was convicted of Rape, a class A felony, Ind.Code Sec. 35-42-4-1 (Burns 1979), Resisting Law Enforcement, a class D felony, Ind.Code Sec. 35-44-3-3 (Burns 1979), and was found to be an habitual offender, Ind.Code Sec. 35-50-2-8 (Burns Supp.1984). He was sentenced to a term of imprisonment of seventy (70) years upon the rape conviction, the forty year sentence for the rape having been enhanced by thirty (30) years upon the habitual offender finding, and to a concurrent three year sentence for resisting law enforcement. His direct appeal presents five (5) issues for our review, as follows:
(1) Whether the trial court erred in denying the Defendant's motion for mistrial predicated upon his claim that, during the State's final argument, the deputy prosecutor made an impermissible comment on his failure to testify;
(2) Whether the evidence was sufficient to sustain the rape conviction;
(3) Whether State's exhibits numbers 9, 10, 11, 12, and 13 were the products of an illegal search and seizure;
(4) Whether the trial court erred in admitting into evidence State's exhibits numbers 2, 5, 8A, 8B, 8C and 15 over Defendant's objection that they were irrelevant and served only to prejudice the jury against him;
(5) Whether the verdict finding him to be an habitual offender is contrary to law.
The record discloses that on October 19, 1981, P.C., the Defendant's nineteen (19) year old step-daughter, informed her mother P.C. tried to leave the room, but the Defendant would not let her do so. He grabbed her, threw her on the bed, and hit her in the face four or five times. When P.C. fought back, the Defendant grabbed her throat, choked her, and threatened to kill her. P.C. testified that she then acceded to his demands because she feared for her life and that the Defendant ultimately penetrated her vagina. When P.C. discovered that she was bleeding, the Defendant told her to take a bath. He removed the sheet from her bed and put it into the washing machine.
and the Defendant, who had been living with them for a few weeks, that her boyfriend had asked her to marry him and that the two of them were planning to leave together that evening to take a trip. P.C.'s boyfriend, however, never arrived, and P.C. went to bed, still dressed in her clothing, at approximately 4:00 a.m. on October 20, 1981. When P.C. awakened the next morning, her mother had already gone to work, but she found the Defendant in the kitchen looking through the telephone book. He told P.C. that he was going to call her boyfriend and tell him that she was not going to marry him because he (the boyfriend) thought she was not a virgin. P.C. told the Defendant that this was none of his business, became upset, and went into her bedroom and cried. The Defendant followed her into the bedroom where he suggested that she lose her virginity with someone else for her boyfriend. She said no. The Defendant then showed her a passage in the Bible relating a story concerning two daughters who had gone to bed with their father. The Defendant said, "let me put it in you," and P.C. again refused. She told him that he was "crazy." He then told her that it was time that she became a woman and told her that she was going to do it and get it over with
P.C. lay in bed for the next several hours, but after the Defendant came into her room and asked her not to tell her mother and told her that he was leaving, she dressed and ran to a neighbor's home. The neighbor took her to the hospital and called the police.
The police obtained a description of the Defendant and of the automobile he might be driving from the victim and gave such information to the police dispatcher. At approximately 10:30 p.m., two officers saw a car and driver matching the descriptions which had been dispatched, but when the officers attempted to stop the automobile, it sped away with the officers in pursuit. After a lengthy, high-speed chase, the Defendant's automobile struck another vehicle, and the police apprehended the Defendant. The driver of the car which Defendant's vehicle had struck suffered considerable pain in his back and was treated by physical therapists.
Defendant argues that his motion for mistrial should have been granted in that the above statement constituted an impermissible comment upon his failure to testify in violation of the Fifth Amendment and Ind.Code Sec. 35-1-31-3 (Burns 1979, repealed effective September 1, 1982). Any comment which is subject to interpretation as a comment upon an accused's failure to testify is prohibited. Griffin v. California, (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; Mayes v. State, (1984) Ind., 467 N.E.2d 1189, 1196, and cases cited therein.
The deputy prosecutor's comment followed defense counsel's closing argument in which he stated that P.C. had willingly Although we find that the deputy prosecutor's statement was close to the line of impropriety, considering the fact that only two people could testify as to whether the act was or was not consensual and one of them (the victim) had testified; we, nevertheless, find that in its totality, the comment appears to have been addressed not to Defendant's failure to testify but rather to his failure to present any evidence to substantiate his claims that the victim was emotionally unbalanced and had not only consented to but had encouraged the Defendant's carnal attentions.
engaged in intercourse with her stepfather because she loved him "in a sexual, romantic way" and felt "jilted, rejected, humiliated [and] embarrassed" because her boyfriend had not met her as he had promised. Thus, the defense attorney argued, "she wanted and she needed an expression of love and to express love." He further claimed that P.C. was jealous of her mother's relationship with the Defendant
The trial court obviously did not view the statement as a comment on Defendant's failure to testify and, further, gave a standard instruction stating that the Defendant was not required to present any evidence to prove his innocence or to prove or explain anything. Defendant was not entitled to a mistrial.
Defendant's challenge to the sufficiency of the evidence is addressed to the question of whether the State proved that the rape was committed "by using or threatening the use of deadly force," thus elevating the crime to a class A felony.
P.C. testified that the Defendant refused to let her leave her bedroom, that he grabbed her arm and threw her onto the bed, and that he pushed her down and hit her in the face with his first four or five times. When P.C. hit the Defendant, he put his hands to her throat and choked her for from ten to thirty seconds and told her that he was going to kill her. He then hit her again to get her to remove her blouse. The doctor who examined her...
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...specifically asked to search the home or whether the third party had agreed to the search. 526 N.E.2d at 1006 (quoting Harper v. State, 474 N.E.2d 508, 512 (Ind.1985)). However, courts have determined searches to be invalid “where the State has shown no more than the defendant's mere acquie......
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