Jenkins v. State
| Decision Date | 28 May 1998 |
| Docket Number | No. 45A03-9705-CR-148,45A03-9705-CR-148 |
| Citation | 695 N.E.2d 158 |
| Parties | Jeremiah JENKINS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Defendant-Appellant Jeremiah Jenkins (Jenkins) appeals his conviction of robbery, a Class B felony; 1 carjacking, a Class B felony, 2 and confinement, a Class B felony. 3
We affirm in part and reverse in part.
Jenkins presents two issues for our review, which we restate and consolidate as follows:
1. Whether the trial court erred in refusing to grant a mistrial predicated on prosecutorial misconduct, and
2. Whether Jenkins was subjected to double jeopardy.
The facts most favorable to the verdict follow. On February 2, 1996, Joanne McDonald (McDonald) was returning home by car. When she exited the car she was met by Jenkins who pointed a gun in her face and ordered her back into the car. McDonald complied and placed the key back into the ignition as Jenkins requested. Jenkins then drove the car around for awhile before he let McDonald out of the car. When she exited the car, she asked Jenkins for her purse back; he refused to return it to her.
Jenkins was charged by information on February 7, 1996. The jury convicted him of all three charges on December 18, 1996. On January 9, 1997, Jenkins was sentenced to eight years in the Indiana Department of Correction on each count, to be served concurrently. Jenkins now brings this timely appeal. Additional facts are provided as needed.
First, Jenkins challenges the verdict by alleging prosecutorial misconduct. In reviewing a claim of prosecutorial misconduct, we must go through a two part analysis. We must determine: (1) whether the prosecutor committed misconduct, and (2) whether the misconduct, given the circumstances, placed Jenkins in a position of grave peril to which he should not have been subjected. Turnbow v. State, 637 N.E.2d 1329, 1333 (Ind.Ct.App.1994), trans. denied. "The gravity of the peril is determined by considering the probable persuasive effect of the misconduct on the jury's decision, rather than the degree of the impropriety of the conduct." Robinson v. State, 693 N.E.2d 548, 551 (Ind. 1998) (quoting Willoughby v. State, 660 N.E.2d 570, 582 (Ind.1996)).
The conduct at issue here is a comment that the prosecutor made during closing arguments. The prosecutor stated:
If you can't get somebody from your family to come in and say you were with them, you're not trying very hard.... If you notice though who didn't come, they didn't bring Timothy. They didn't want you to see Timothy. They didn't want you to see that he fit the description of the second person who tried to help carjack ...
(R. 368). Jenkins's attorney objected and moved for a mistrial on the grounds that the comment impermissibly shifted the burden of proof to Jenkins to put on evidence. The trial court overruled the objection but admonished the jury anyway. (R. 369-370).
Most law on this subject arises around conduct of a prosecutor who may comment on a defendant's right to testify. However, here the problem is not an impermissible comment on Jenkins's failure to testify, but on Jenkins's failure to call his brother to testify. We find this case analogous to Chubb v. State where the defendant alleged that the prosecutor committed misconduct by improperly shifting the burden of proof from the State to the defendant by statements made during closing argument asking where the defendant's witnesses were. 640 N.E.2d 44, 48-49 (Ind.1994), reh'g denied. Our supreme court held that any impropriety in the closing argument was de minimis and overcome by the court's proper preliminary and final instructions, instructing that the defendant was not required to present any evidence or prove his innocence. Id.
Here, the jury was given preliminary instructions covering the State's burden of proof, the presumption of innocence, that the defendant is not required to present any evidence, that the jury is to weigh the credibility of the evidence, that nothing the judge says during trial should be taken as a suggestion of what facts to find, and that although the attorneys are allowed to characterize evidence during closing arguments such characterization is not evidence. (R. 34, 35, 41, 46). The prosecutor then asked, during closing arguments, where a particular witness was, to which Jenkins objected. In the final instructions the court reiterated the concepts discussed in the preliminary instructions. (R. 50, 51, 60, 62, 65). As in Chubb, we find that any impropriety in the prosecutor's comment was de minimis in light of the preliminary and final instructions given the jury.
Jenkins next contends that his conviction of both robbery and carjacking subject him to double jeopardy in violation of his constitutional rights. Both the Indiana Constitution and Constitution of the United States contain prohibitions against placing a defendant in double jeopardy for the same offense. Ind. Const. art. 1, § 14; U.S. Const. amend. V. The prohibition against double jeopardy in both constitutions is meant to prevent a second prosecution for the same offense after acquittal or conviction and to prevent multiple punishments for the same offense. Schrefler v. State, 660 N.E.2d 585, 587 (Ind.Ct.App.1996). "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact the other does not." Richardson v. State, 687 N.E.2d 241, 246, n. 2 (Ind.Ct.App.1997), trans. pending (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 307 (1932)).
Carjacking is codified as follows: "[a] person who knowingly or intentionally takes a motor vehicle from another person or from the presence of another person; (1) by using or threatening the use of force on any person; or (2) by putting any person in fear; commits carjacking, a Class B felony." Ind.Code 35-42-5-2. While robbery is defined as "[a] person who knowingly or intentionally takes property from another person or from the presence of another person: (1) by using or threatening the use of force on any person; or (2) by putting any person in fear." Ind.Code 35-42-5-1. The crime of robbery becomes a Class B felony if it is committed while armed with a deadly weapon. Id. Because a motor vehicle is "property," all of the elements of carjacking are covered by the robbery charge; carjacking does not require proof of an additional fact not required by the crime of robbery. Therefore, convicting Jenkins for carjacking and robbery of the same car is clearly a violation of the constitutional prohibition against double jeopardy.
The information charging Jenkins with robbery bases that charge not only on the automobile, but also on the fact that Jenkins took McDonald's purse...
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