Moore v. State, 1276S444

• Decision Date: 30 November 1977
• Docket Number: No. 1276S444,1276S444
• Citation: 267 Ind. 270,369 N.E.2d 628
• Parties: Gerald L. MOORE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 628

369 N.E.2d 628

267 Ind. 270

Gerald L. MOORE, Appellant, v. STATE of Indiana, Appellee.

No. 1276S444.

Supreme Court of Indiana.

Nov. 30, 1977.

George K. Shields, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Moore was convicted on three counts on September 2, 1976, at the conclusion of a jury trial in Marion Criminal Court: (1) carrying a handgun in violation of the Firearms Act; (2) first-degree burglary, and; (3) armed robbery. He received sentences of six months imprisonment, ten to twenty years imprisonment, and thirty years imprisonment, respectively, for the three counts. The case arises from the burglary of an Indianapolis residence in May of 1976. Appellant and his companions Carlo Marra and Ronald Carter, entered the house with the victim at gunpoint, tied and gagged her, and removed money, jewelry, antiques and silverware, of a total value between fifteen and twenty thousand dollars.

Eight errors are alleged in this appeal: (1) the prohibition of appellant from testifying that he had offered to take a polygraph test; (2) the admission of two handguns into evidence; (3) denial of the presumption of innocence throughout trial; (4) refusal of the trial court to give appellant's tendered instruction dealing with witnesses testifying in consideration of promises of leniency; (5) a comment by the prosecutor on the state's case, made during final argument; (6) the sufficiency of the evidence for the conviction under the Firearms Act; (7) the sufficiency of the evidence for the first-degree burglary conviction; (8) the sufficiency of the evidence for the armed robbery conviction.

I.

Appellant first argues that the state's motion in limine, prohibiting him from testifying that he had offered to take a polygraph test, should not have been granted. Absent a waiver or stipulation by the opposing party, references by witnesses or counsel to the results or administration of polygraph tests, direct or indirect are inadmissible, and motions in limine are proper in respect to such references. Robinson v. State, (1974) Ind.App., 309 N.E.2d 833, 854-56, rehearing denied, (1974) Ind.App., 311 N.E.2d 461, aff'd, (1974) 262 Ind. 463, 466, 317 N.E.2d 850, 852. See also Banks v. State, (1976) Ind., 351 N.E.2d 4, 10-11, cert. denied (1977) 429 U.S. 1077, 97 S.Ct. 821, 50 L.Ed.2d 797.

Appellant cites New v. State, (1970) 254 Ind. 307 at 314, 259 N.E.2d 696 at 700, for the proposition that a defendant's statements which are freely, voluntarily, and spontaneously given are admissible into evidence. This case, however, involving a question about statements of a defendant to the police, is totally inapplicable here. Inadmissible evidence does not become admissible merely because it is freely spoken by a defendant. The record in the present case does not show whether appellant's alleged offer to take a polygraph test was in fact made, and if so whether it was accepted or refused. Neither does the record show whether a polygraph was actually available for the test, or whether the alleged offer was unconditional or conditioned upon certain stipulations. Even if the record showed the above facts, appellant's offer to take a polygraph test would not have been probative of either his innocence or his credibility. He may not have wanted to do anything more than make an offer to take the test, if faced with the possibility of actually taking one. On the other hand, he may have thought he knew a way to "beat" the polygraph, or may have only desired to take a test administered by either an examiner or by use of an instrument unacceptable to the state. In view of the unreliability of polygraphs, Vacendak v. State, (1976) Ind., 340 N.E.2d 352, 357, the rule prohibiting reference to polygraph evidence absent waiver or stipulation by all parties is properly applied to prohibit a defendant from stating that he offered to take a polygraph test. There was no error in the trial court's granting of the state's motion in limine.

II.

Appellant next challenges the admission of two handguns into evidence by the state. The guns were identified by witness Ronald Carter as the ones taken into the victim's residence the day of the crime in question by himself, Carlo Marra, and appellant Moore. Carter's testimony was that Marra used one of the guns and that appellant Moore had the other. The guns were thus properly admitted into evidence.

III.

Appellant argues that he was denied the presumption of innocence throughout the trial. He points to no part of the record in support of this assertion. To the contrary the record shows that the court gave the following preliminary instruction:

"The law presumes the defendants in this case to be innocent of the commission of any crime, and this presumption continues throughout the trial, step by step.

"You should reconcile the evidence in this case upon the theory of the innocence of the defendants if it can be reasonably and consistently done, and there should be no conviction of the defendants unless each member of the jury is convinced beyond a reasonable doubt of their guilt; for the law contemplates, and indeed demands, the concurrence of twelve minds in the conclusion that the accused is guilty; and so long as you, or any of you, have or entertain a reasonable doubt as to the defendant's guilt you should resolve that doubt in their favor and they should not be convicted."

The argument of appellant here is thus without merit.

IV.

Appellant next challenges the trial court's refusal to give his tendered instruction which dealt with witnesses testifying in consideration of promises of leniency. This instruction stated:

"One testifying in consideration of the Prosecutor's promise of leniency or threat of potential prosecution, is, in effect testifying under duress, or very substantial influence.

"Such procedure is apt to affect the truthfulness of such witness.

"You must consider such promise or threat in evaluating the testimony of any such witness.

"Of course, this is but part of the general rule, that you must consider the interest, if any, of every witness who testifies, as well as the character of such witness."

On its own motion, however, the trial court did give a general instruction on witness credibility, telling the jury that, "you may take into consideration the interest, if any, that any witness has in the result of this trial." The instruction given by the court adequately and correctly covered the subject matter of the refused instruction. Further, appellant's tendered instruction improperly invaded the province of the jury, telling them that they "must" consider a promise of leniency. There was thus no error in the refusal of appellant's tendered instruction.

V.

In view of his choice not to testify at trial, appellant claims reversible error in the following comment made by the prosecutor during final argument:

"As you know the State's evidence in regards to the Defendant Moore is totally unrebutted, everyone that testified put that man at the scene and that man is involved in this offense. . . ."

Appellant objected to this comment, and the jury was excused as a conference outside their presence was immediately held on this matter. After this conference, the trial court instructed the jury as follows:

"The comments of the prosecutor are stricken from the record as heretofore were made prior to the short recess, and you are admonished to disregard comments in arriving at a verdict in this case."

Without the prompt admonishment which the court gave here, the prosecutor's comment would have stood as a comment on appellant's failure to testify, and constituted reversible error. Rowley v. State, (1972) 259 Ind. 209, 285 N.E.2d 646; Ind.Code § 35-1-31-3 (Burns 1975). However, a prompt admonishment will cure this error. Rowley, supra; Bland...