Mahla v. State, No. 985

• Docket Nº: No. 985
• Citation: 496 N.E.2d 568
• Case Date: August 20, 1986
• Court: Supreme Court of Indiana

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496 N.E.2d 568 George C. MAHLA, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 985 § 387. Supreme Court of Indiana. Aug. 20, 1986.
Rehearing Denied Oct. 27, 1986.

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John Richard Walsh II, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

Following a jury trial, Defendant-Appellant George Mahla was convicted of child molesting, a class B felony ¹, upon his

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adopted son, age 11, and sentenced to a term of twenty (20) years imprisonment. The issues raised in this direct appeal are:

1. defendant's right to discovery at the conclusion of testimony by a State's witness;

2. excusing the jury for a brief recess without proper admonishment;

3. comments by the prosecutor during final argument;

4. sufficiency of evidence;

5. refusing to instruct on class C felony child molesting as a lesser offense; and,

6. adequacy of sentencing statement and reasonableness of sentence.

We affirm the conviction and sentence.

ISSUE I

Defendant argues the trial court committed reversible error in denying his request during trial for discovery following the testimony of a State's witness.

Detective Dale Koons testified that he made handwritten notes concerning his initial interviews with the victim and other family members, and then later reduced these notes to typewritten memoranda and discarded the handwritten notes. Following his testimony defense counsel requested that the trial court order the State to make these memoranda available for inspection, ostensibly to compare the detective's impressions of the interviews with statements by the victim and family members to be given at trial. The trial judge refused to order production of the memoranda outright, but reserved the opportunity to later reconsider the request, and specifically admonished the prosecutor to forward any exculpatory material present in the typewritten notes. Nevertheless, defendant claims failure to order production of the notes was error.

A trial judge has the responsibility to direct the trial in a manner which facilitates the ascertainment of truth, insures fairness, and obtains economy of time and effort commensurate with the rights of both society and the criminal defendant. Allen v. State (1982), Ind., 439 N.E.2d 615, 618; State ex rel. Keller v. Criminal Court of Marion County (1974), 262 Ind. 420, 317 N.E.2d 433; Reid v. State (1978), 267 Ind. 555, 372 N.E.2d 1149; Bernard v. State (1967), 248 Ind. 688, 230 N.E.2d 536. Wide discretionary latitude must therefore be given in discovery matters. Allen, supra; Harris v. State (1981), Ind., 425 N.E.2d 112; Opfer v. State (1985), Ind., 482 N.E.2d 706; Kalady v. State (1984), Ind., 462 N.E.2d 1299. Absent clear error and resulting prejudice, a trial court discovery ruling will not be overturned. Opfer, supra; Wagner v. State (1985), Ind., 474 N.E.2d 476.

The question here is whether the trial court abused its discretion in refusing to require additional discovery. Applying the considerations discussed above, we do not find clear error or resulting prejudice. The defense had been given access to a videotaped statement by the victim made during the initial stages of the investigation, and depositions of the victim and his mother were taken before trial. The subsequent trial testimony of the victim and his mother was generally consistent with their pretrial statements, and there is no indication the defense was surprised by their testimony.

ISSUE II

During the victim's testimony, the trial judge called a brief recess, but failed to provide the usual admonishment to the jury as he excused them, which defendant now contends was reversible error. The defense made no objection either before or after the jury was excused, and there is no showing of prejudice to the defendant. Thus we find any claim of error both waived and harmless. Choate v. State (1984), Ind., 462 N.E.2d 1037, 1046; Brown v. State (1964), 245 Ind. 604, 201 N.E.2d 281. We reject defendant's argument that the error was "fundamental error," apparent on the face of the record and resulting in a blatant violation of due process. This

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trial lasted several days and involved many recesses and conferences outside the presence of the jury. The jury was properly admonished on these occasions except for the brief recess at issue here. We find no error on this issue. ISSUE III

Following the State's case-in-chief defendant rested without presenting evidence. However, during final argument defense counsel urged:

Do not, do not for a moment when you retire to that jury room think that you will be freeing a guilty man when you vote to acquit George Mahla. For you will be serving a much higher purpose. You will be helping to insure that in Madison County at least the word will go out, we are not going to take the liberty away from an individual as the result of emotion, haste, prejudice and if I may for a moment speak on the subject of prejudice. What group of individuals in our country presently incur and suffer and have to live daily with more prejudice than the homosexual? What group? There is none. All of us are in agreement, that is not a lifestyle to be chosen. But what little we are beginning to know about homosexuality is that it is not a chosen life style. George Mahla could have no more choice over whether he would be a homosexual. The scientist, the social scientists are telling us that homosexuality is something that comes born in the genes. Do not find George Mahla guilty because he is a homosexual.

During the prosecutor's rebuttal, the following exchange then occurred:

Again I suggest to you that the evidence is quite clear that this happened when he was eleven years old and there is not one bit of evidence to say otherwise. He talks about the choice. Keep in mind that there is no evidence, they had the opportunity to present evidence but they rested without presenting any ...

MR. WALSH: Your Honor, I object to that. I object to that. He is commenting upon my client's decision to remain silent.

MR. BRODERICK: That is not true, your Honor.

MR. WALSH: I object, your Honor.

JUDGE: All right. Well let's move on to something of more importance, Mr. Broderick.

MR. BRODERICK: There has been no evidence presented at all by any social workers, by any psychologist about homosexuality. Whether or not it is normal, abnormal, cause of genes or some other way. I don't stand here and pretend to tell you what it is because I don't know, I am not an expert. But you as triers of fact can only rely upon evidence which is presented before you.

In this appeal defendant claims that the prosecutor's remarks were an impermissible comment on defendant's decision to remain silent, thus violating the rule of Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, and its progeny.

Griffin and subsequent cases have firmly established the rule that the prosecution may not use a defendant's decision not to testify to draw an inference of guilt before the jury. However, cases in this area distinguish between prosecutorial remarks directed to a defendant's specific decision to remain silent and argument to the effect the defense has presented no evidence to refute the State's case. In Rowley v. State (1972), 259 Ind. 209, 285 N.E.2d 646, Justice DeBruler, in reviewing a series of cases on the subject, cited with approval language from the First Circuit Court of Appeals in United States v. Flannery (1st Cir.1971), 451 F.2d 880, 882, which held that, in the absence of a prompt, strong admonition to the jury, such comments would be considered prejudicial as a matter of law "when it is apparent on the record that there was no one other than himself whom the defendant could have called to contradict the testimony." Although Rowley did not adopt the Flannery opinion's analysis of Griffin in all its particulars, the Rowley Court reversed a conviction for burglary where the prosecutor had stated "there had

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not been one bit of evidence from the witness stand that indicated the defendant was not guilty." 259 Ind. at 211, 285 N.E.2d at 647. Under the facts there presented, it was apparent the only person who could have contradicted the State's case was the defendant. 259 Ind. at 214, 285 N.E.2d at 648.

Subsequent Indiana cases have analyzed similar contentions on the particular facts presented, but have emphasized the distinction between general arguments that no evidence refutes the State's case and specific arguments concerning a defendant's failure to testify. E.g., Mayes v. State (1984), Ind., 467 N.E.2d 1189, 1196-97; Pitman v. State (1982), Ind., 436 N.E.2d 74, 78-79; Wofford v. State (1979), 271 Ind. 518, 519-20, 394 N.E.2d 100, 103; Bailey v. State (1982), Ind.App., 438 N.E.2d 22, 25-26, trans. denied.

In the present case, the prosecutor's argument, in proper context, was directed at defendant's failure to present expert testimony to the effect that homosexual behavior was somehow compelled by genetic or other factors. We do not find the comments were directed at, or could reasonably be inferred to refer to, defendant's decision not to testify. We further note the trial judge properly gave the jury final instructions that the defendant was under no duty or obligation to testify, and that the defendant's failure to testify was not to be considered in...