Johnson v. State

• Decision Date: 15 September 1983
• Docket Number: No. 4-1082A314,4-1082A314
• Citation: 453 N.E.2d 365
• Parties: Robert JOHNSON a/k/a Rick Johnson, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 365

453 N.E.2d 365

Robert JOHNSON a/k/a Rick Johnson, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 4-1082A314.

Court of Appeals of Indiana Fourth District.

Sept. 15, 1983.

J. Keith Jackson, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

After a trial by jury, Robert Johnson was convicted of Criminal Trespass, Battery, and Attempted Rape. On appeal, he raises the following issues:

1. Whether the evidence was sufficient to support the conviction for Attempted Rape;

2. Whether the court erred in denying Johnson's motion for a mistrial based on prosecutorial misconduct;

3. Whether the trial court erred in ruling that the State could cross-examine Johnson concerning his prior battery convictions if he took the stand;

4. Whether the court erred in granting the State's motion in limine to exclude evidence of the victim's reputation;

5. Whether the court erred in admitting the victim's prior out-of-court statement into evidence; and

6. Whether the court erred in not permitting Johnson to make an offer of proof in the form of direct testimony.

We affirm in part and reverse in part.

I.

Johnson first argues that there was insufficient evidence to support his conviction for Attempted Rape. ¹ Specifically, he claims there was insufficient evidence that he intended to rape the victim or that he took a substantial step toward committing rape. In reviewing sufficiency of the evidence, we neither weigh the evidence nor evaluate the credibility of the witnesses. We consider only the evidence most favorable to the State together with all logical and reasonable inferences therefrom, and we will uphold the trial court's findings if there is substantial evidence on each element of the crime charged from which the trier of fact might reasonably infer guilt beyond a reasonable doubt. Biggerstaff v. State, (1982) Ind.App., 435 N.E.2d 621; Lottie v. State, (1974) 262 Ind. 124, 311 N.E.2d 800.

The facts of this case, as established by testimony from the victim and her grandson, are virtually undisputed. The defendant came to the victim's door, was let in by her grandson, and asked her to take him to get gasoline. When she refused, he grabbed her crotch and her breast. He attempted to pull her to the floor, tugging at her jeans with one hand while putting his other hand under her blouse and pulling up her bra. The victim testified that, at one point, Johnson was pulling at her jeans with one hand and had "his other hand at his pants." Johnson released her and fled only after the victim's grandson began hitting him with a broom. Some months after this attack, Johnson told a psychologist that he went to the victim's house because he had heard she was promiscuous and he wanted to "get a little." Although this evidence is not overwhelming, the jury could reasonably infer from it that Johnson intended to rape the victim. Further, by gaining entry to the victim's house, pulling her down, and trying to remove her clothes, Johnson took a substantial step toward committing rape. These facts are very similar to those in Dilworth v. State, (1981) Ind., 425 N.E.2d 149. In Dilworth, the supreme court found sufficient evidence of attempted rape where the defendant attacked the victim in an elevator, ripped open her blouse and slacks, and fell across her. The evidence was sufficient in this case to support the jury's verdict.

II.

Next, Johnson claims the court erred in denying his motion for a mistrial on the basis of prosecutorial misconduct. In closing argument, the prosecutor made the following comments: ²

It bears on that initial question that I said to you folks when you first were selected as jurors and I asked many of you do you think a person has a right to feel safe in their own home. And you remember what Mr. Smith's response to that was? I wrote it down and I think we were--I think he was talking here with Mr. Miller perhaps. Talking about--using his example of the guy breaking into your house and you shooting him and this type of thing. Mr. Smith said well, bearing arms--the right to be safe in your own home, that's irrelevant. Now isn't that a fine state of affairs. We all know that in criminal law the job of the defense attorney is to get his client off. The job of the defense attorney is to bring out all of the insignificant facts. Bring out all of the legal technicalities and exercise the rights of that Constitution for his client. You remember all the objections in this case. Remember the things that I attempted to introduce and they were sustained on his objection. He's exercising his right. What about the rights of each and every one of you to be safe in your home. How about you Mr. Kirby? Do you want your wife to be raped in her own house? Do you want to come home and find your wife has been attacked?

Johnson's attorney objected to these remarks and moved for a mistrial. The court denied the motion and directed the prosecutor to continue his argument. From this action and from the court's failure to admonish the jury or restrain the prosecutor, it seems that the court was overruling Johnson's objection.

In reviewing this ruling, we must determine (1) whether the act in question was misconduct and (2) whether the act placed the defendant in a position of grave peril. Maldonado v. State, (1976) 265 Ind. 492, 355 N.E.2d 843; Roberts v. State, (1981) Ind.App., 419 N.E.2d 803. In this case, the prosecutor's argument was improper in several ways. Further, we are persuaded that this misconduct placed Johnson in a position of grave peril, so that the court erred in denying his motion for a mistrial.

The prosecutor stated that a defense attorney's job is to "get his client off" by bringing out "insignificant facts" and "legal technicalities." Our courts, finding no grave peril, have held that such remarks do not always mandate a mistrial. Hubbard v. State, (1974) 262 Ind. 176, 313 N.E.2d 346; Drossos v. State, (1982) Ind.App., 442 N.E.2d 1. Nevertheless, such comments are irrelevant to the issues to be decided by the jury and should not be allowed. See Craig v. State, (1977) 267 Ind. 359, 370 N.E.2d 880 (holding prosecutor's statement that he had duty to all society, including accused, while a correct statement of the law, was unfair and "highly improper."). Further, the prosecutor asked the jury to remember the evidence that was excluded on the defendant's objection (a reference to a post-arrest interrogation of Johnson). By this remark, the prosecutor implied that he had additional inculpatory evidence, which the defense attorney had kept from the jury on "technical" grounds in order to "get his client off." It is clearly misconduct for a prosecutor to imply that he possesses evidence not known to the jury indicating that the defendant is guilty of the crime charged. Merritte v. State, (1982) Ind., 438 N.E.2d 754; Marsh v. State, (1979) 271 Ind. 454, 396 N.E.2d 883. ³

The prosecutor's other comments were equally improper. By stressing the jurors' right to be safe in their own homes and asking one juror if he wanted his wife to be raped, the prosecutor was appealing to the jurors' fears and asking them to convict Johnson, not because he was guilty, but because he was dangerous. It is misconduct to phrase final argument in a manner calculated to inflame the passions or prejudices of the jury, Limp v. State, (1982) Ind., 431 N.E.2d 784, or to ask a jury to convict a defendant for any reason other than his guilt. Maldonado v. State, supra. ⁴ ABA Standards for Criminal Justice, The Prosecution Function Sec. 5.8(d). Even more improper here was the prosecutor's act of singling out juror Kirby and playing on his individual fears for his wife's safety. Courts discussing such arguments have held that, because a juror is especially likely to be influenced by a direct appeal to his or her individual fears or prejudices, it is clearly improper to address individual jurors by name in closing argument. E.g., People v. Davis, (1970) 46 Ill.2d 554, 264 N.E.2d 140; Aponte v. State, (1959) 30 N.J. 441, 153 A.2d 665; see Bessette v. State, (1885) 101 Ind. 85; see also annot. 55 A.L . R.2d 1198.

The question remaining is whether the prosecutor's misconduct in closing argument placed Johnson in a position of grave peril. See Maldonado, supra. The existence of grave peril "is determined by the probable persuasive effect of the misconduct on the jury's decision...." Id. at 499, 355 N.E.2d at 848. This does not mean, however, that the defendant must conclusively prove he would have been acquitted, absent the improper argument. White v. State, (1971) 257 Ind. 64, 272 N.E.2d 312. Rather, we must reverse where the evidence is close and the court does not counter the persuasive effect of the prosecutor's prejudicial remarks by admonishing the jury to disregard them. Adler v. State, (1961) 242 Ind. 9, 175 N.E.2d 358; Flynn v. State, (1978) 177 Ind.App. 360, 379 N.E.2d 548.

In this case, we are persuaded that the prosecutor's improper argument probably had a persuasive effect on the jurors. Although the evidence of Battery and Criminal Trespass was overwhelming, the evidence of specific intent supporting the Attempted Rape conviction was close. Thus, by implying that he had additional inculpatory evidence and by playing on the jurors' individual fears, the prosecutor impermissibly tipped the scales in his favor. Because the court did not admonish the jury to disregard these improper statements, leaving the damage uncorrected, Johnson was placed in a position of grave peril as to the Attempted Rape charge. The trial court erred in denying Johnson's motion for a mistrial.

III.

Johnson next contends that the court erred in ruling that the State could cross-examine him concerning prior misdemeanor battery convictions if he took the stand. This contention is without merit. The court's only ruling on this issue was in...