Horn v. State, 1-1077A246

Docket NºNo. 1-1077A246
Citation176 Ind.App. 527, 376 N.E.2d 512
Case DateMay 31, 1978
CourtCourt of Appeals of Indiana

Page 512

376 N.E.2d 512
176 Ind.App. 527
Michael Edward HORN, Appellant (Defendant below),
STATE of Indiana, Appellee (Plaintiff below).
No. 1-1077A246.
Court of Appeals of Indiana,First District.
May 31, 1978.

[176 Ind.App. 528]

Page 514

Charles L. Berger, Evansville, for appellant.

Theo. L. Sendak, Atty. Gen., David Michael Wallman, Deputy Atty. Gen., Indianapolis, for appellee.


Defendant-appellant Michael Edward Horn (Horn) appeals his conviction for aggravated assault and battery and raises as [176 Ind.App. 529] errors: (1) prosecutorial misconduct; (2) an in court identification of Horn; (3) introduction of the weapon and test results; (4) admission of evidence concerning Horn's guilty plea in an earlier offense; and, (5) closing argument by the prosecutor concerning accessory law.

The facts viewed most favorably to the State show that Ronald Lindsey (Lindsey) noticed a car in his front yard as he arrived home from work early one morning. After asking the driver what he was doing there and being told to get the hell out of the way, Lindsey told the driver to stay there and that he would have the police there shortly. Lindsey called police on his C. B. radio in his vehicle, and, as he put down the mike, he was knocked to the ground. While on the ground, Lindsey slit a back tire with his pocket knife when he heard the engine start on the driver's car.

Thereafter, as Lindsey held the driver, he felt something hit him in the back, turned, and saw Horn holding a knife. Lindsey then let go of the driver and ran to the middle of the street in an attempt to escape. One of the men shouted to the other to bring a tire tool, and Horn then approached Lindsey with the knife. Lindsey ran from the street into a neighbor's yard, stumbled, fell, covered his head, and then felt what he believed to be a number of blows to his back. Horn and the driver then drove away.

Later, a fireman, who had transported Lindsey to the hospital, saw a car of the make Lindsey had told firemen about going down the street with a flat tire. Firemen followed the car and reported the license number to a dispatcher to notify police. The car then came to a stop; Horn approached the ambulance, rudely asked what the ambulance men wanted, and then moved toward a nearby house. Police arrived, apprehended Horn, and took a knife from him.

On appeal, Horn urges error in three alleged instances of prosecutorial misconduct.

Horn first argues that the deputy prosecuting attorney's opening remarks were improper and prejudicial and took the form of evidence. Horn claims that the State failed to preface its remarks with a statement such as "the evidence will show" or words to that effect. The record, however, clearly shows that the State began [176 Ind.App. 530] its opening statement as follows:

(T)his is opening statements and anything I say at this point in time is not evidence and cannot be taken by you as evidence. This is simply designed for the State as well as the defendant to have an opportunity to explain to you what they expect the evidence to be, what they expect to present during their case. It's more or less a skeletal outline, or some sort of thumbnail sketch so that you can get sort of an overview of the entire case.

In judging the propriety of a prosecutor's remarks, the court is to consider the statement in the context of the argument as a whole. Swope v. State (1975), Ind., 325 N.E.2d 193, cert. denied, 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100. Also, "the conduct of counsel in presenting argument to the jury lies within the discretion of the trial court whose judgment will not be set aside absent a showing of abuse of discretion." Ervin v. State (1972), 154 Ind.App. 89, 93, 289 N.E.2d 131, 134. The remarks in the present case do not constitute misconduct, and the trial court did not abuse its trial discretion in overruling Horn's objection.

Horn next alleges misconduct during State's cross-examination of Horn and claims that the court's admonishment was insufficient to cure the prejudicial effects of the State's remarks. We disagree.

Page 515

Here, the trial court made two admonishments as to the controverted remarks and therein cured whatever prejudicial effect, if any. " 'Where it appears that reasonable and prompt measures are taken by the trial court to prevent any injurious effects from such improper remarks . . .' the harm will be presumed to have been cured. Rowley v. State (1972), 259 Ind. 209, 216, 285 N.E.2d 646, 650." Hoskins v. State (1978), Ind., 375 N.E.2d 191. Further, aside from bare assertion, Horn has failed to demonstrate that the admonishments were insufficient. Horn also alleged error with respect to this incident in the trial court's overruling Horn's motion to withdraw the case from the jury. Rulings on mistrials for alleged attorney misconduct lie within the discretion of the trial court, Rufer v. State (1976), Ind., 342 N.E.2d 856, and will be overturned only upon a showing of clear error. No clear error has been demonstrated here.

As to the third alleged act of misconduct prosecutorial remarks during[176 Ind.App. 531] closing argument Horn points to statements of opinion as to the evidence and truthfulness of witnesses made by the State. The trial judge properly overruled Horn's objections as our review of the transcript shows the remarks to have been clearly harmless.

Horn also raises issue with statements in the State's closing argument which, Horn alleges, were to the effect that the jury was a link in the law enforcement chain. The statement to which Horn objects is:

It's been said that a chain is only as strong as its weakest link. I submit that the police officers have investigated and done their job; that the civil witnesses, the citizens have come forward and told you what occurred; that the Court has done its job; and that I have prosecuted this case to the best of my ability. Consequently, the chain of the enforcement of laws, whether they be for the defendant or the State of Indiana, is now passed...

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    ...now time for the jury to perform its duty. We find no error. See State v. Larsen, 81 Idaho 90, 99, 337 P.2d 1, 6 (1959); Horn v. State, 176 Ind.App. 527, 376 N.E.2d 512 (1978); Fulgham v. State, 386 So.2d 1099 (Miss.1980); see also Sparks v. State, 161 Tex.Cr.R. 100, 275 S.W.2d 494 Error is......
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