Horn v. State

• Decision Date: 31 May 1978
• Docket Number: No. 1-1077A246,1-1077A246
• Citation: 176 Ind.App. 527,376 N.E.2d 512
• Parties: Michael Edward HORN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 512

376 N.E.2d 512

176 Ind.App. 527

Michael Edward HORN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1-1077A246.

Court of Appeals of Indiana,First District.

May 31, 1978.

Charles L. Berger, Evansville, for appellant.

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

ROBERTSON, Judge.

Defendant-appellant Michael Edward Horn (Horn) appeals his conviction for aggravated assault and battery and raises as 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 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. 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 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 to you in trust that if you are satisfied beyond a reasonable doubt that this defendant is guilty of the crime of Assault and Battery with intent to Kill, that you will return that chain both unbroken and uncompromised by finding by your verdict that the defendant is guilty as charged. So ladies and gentlemen of the jury, it's up to you, and I trust that after a full review of this case that you will give the State of Indiana, as well as the defendant Michael Horn, nothing less than full justice in your verdict of guilty as charged. Thank you. (Our emphasis).

Horn claims that this argument "took them (the jury) out of their role of being impartial triers of the facts . . . (and) left the jury with the impression that it is their duty as part of a chain of police action to convict anyone they bring before them." (Horn's brief.) We disagree. The underscored portions of the questioned argument, supra, properly speak to the considered role of the jury in adjudging the accused. Additionally, a prosecutor may state his opinion as to the guilt of the accused when opinion is based upon the evidence presented to the jury and when there is no implication of a prosecutor's personal knowledge of an accused's guilt or innocence. Pearish v. State (1976), Ind., 344 N.E.2d 296, 298; Swope v. State, supra. Our Supreme Court, furthermore, in Warner v. State (1976), Ind., 354 N.E.2d 178, 179, examined and sustained somewhat similar prosecutorial argument; we believe that the remarks here were no more objectionable or prejudicial than those in Warner. In our opinion, the argument in the case at bar and as objected to did not place Horn "in a position of grave peril." Id. at 181.

Horn next assigns as error the overruling of his motion to suppress an in court identification of Horn. He argues that a pre-trial identification by the victim in a hospital hallway some thirty minutes to an hour after the incident was so impermissibly suggestive as to cause "irreparable misidentification." We find no error in the trial court's ruling. First, our Supreme Court, when presented a similar issue involving identification at a police show-up fifteen minutes after a robbery and a subsequent in court identification, recently stated It is clear that a one-on-one confrontation between suspect and victim is as a general proposition very suggestive, Cooper v. State (1977), Ind., 359 N.E.2d 532, but it is not always unnecessarily suggestive. Zion v. State (1977), Ind., 365 N.E.2d 766; Dewey v. State (1976), Ind., 345 N.E.2d 842. The value of the witness's observing the suspect while the image of the offender is fresh in his mind has been held to make some immediate identifications not unnecessarily suggestive. Zion, supra; Dillard v. State (1971), 257 Ind. 282, 274 N.E.2d 387. Poindexter v. State (1978), Ind., 374 N.E.2d 509.

Any suggestive elements involved in the identification in the case at bar were not, in our opinion, unnecessarily suggestive.

Secondly, it is also the rule that "(i)dentifications which are subsequent to the suggestive procedure need be excluded only if the original impropriety is likely to result in later misidentification." Poindexter, supra. Here,...