Moore v. State, No. 12S02-9507-CR-838

• Docket Nº: No. 12S02-9507-CR-838
• Citation: 669 N.E.2d 733
• Case Date: July 18, 1996
• Court: Supreme Court of Indiana

Page 733

669 N.E.2d 733 Thomas O. MOORE, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below). No. 12S02-9507-CR-838. Supreme Court of Indiana. July 18, 1996.
Rehearing Denied Dec. 30, 1996.

Page 734

Charles M. Crouse, Jr., Frankfort, for Appellant.

Pamela Carter, Attorney General, Suzann Weber Lupton, Deputy Attorney General, Indianapolis, for Appellee.

ON PETITION TO TRANSFER

SHEPARD, Chief Justice.

Appellant Thomas Moore appeals his convictions for rape ¹ and forcible oral sex. ² The Court of Appeals set aside the convictions based on the prosecutor's reference during final argument to Moore's decision not to testify. We granted transfer and now affirm the convictions.

I. Facts

On September 14, 1987, the victim in this case, whom we shall refer to as A.B., was driving home after attending an evening class. As she traveled on a dark and desolate portion of highway, a car appeared in her rearview mirror. Its headlights repeatedly brightened and dimmed, and A.B. thought she saw a red light on the vehicle. Believing it was a police car, she pulled over, and it drew up behind her.

A figure left the car. As the stranger approached, he shined a flashlight into her back seat and then into her eyes. He asked her if she knew how fast she had been driving and demanded her license and registration. She placed the documents in his exposed hands. He ordered her to move her car onto a side road, and she complied. A.B. then exited her car at the man's request. With the flashlight focused in her eyes, he tested her sobriety and proceeded to "arrest"

Page 735

her, using a plastic cord to bind her hands behind her back. He took off her eyeglasses, blindfolded her, and shoved her into his own car.

The man drove around for a time before stopping to kiss A.B. and fondle her breasts. Removing her pants and hitting her legs until she uncrossed them, the assailant forced her to submit to cunnilingus, and then he raped her. Later, when A.B. refused to perform fellatio, he strangled her into submission. Then he raped her twice more before cutting her bindings and dumping her near her car. Police arrested Moore for the crimes, and the State charged him with one count of rape and one count of forcible oral sex, ³ both as class B felonies.

At trial, the key issue was the identity of the police impersonator. A.B. provided a general physical description, but because of the flashlight and blindfold, she could not visually identify Moore as her assailant. The prosecution showed that hair and body fluids recovered from A.B. were consistent with specimens taken from Moore. The State also introduced evidence that a latent fingerprint lifted from A.B.'s vehicle registration matched Moore's. In defense, Moore presented three alibi witnesses: his ex-wife, his girlfriend, and a friend. Moore did not testify. ⁴

The jury convicted Moore on both counts. The trial judge sentenced him to twenty years for rape and to a consecutive term of twelve years for forcible oral sex. Moore makes the following claims of error:

(1) the prosecutor referred to Moore's decision not to testify,

(2) the prosecutor committed various acts of misconduct,

(3) the warrant under which the police obtained biological specimens from him was defective, and

(4) the evidence was insufficient to support the convictions.

II. The No-Comment Rule

Moore requests reversal because the prosecutor referred to his decision not to testify. In response to Moore's criticism that the State's evidence was imprecise, the prosecutor remarked:

when you look at the defendant's case and he chose to put on a case in this, he didn't choose to testify which is his right, and he certainly doesn't, isn't compelled to testify but he did choose to put on witnesses, that by examination of all the evidence, the more precise case which is [the State's] is not a matter of science but beyond a reasonable doubt.

(R. 1684-85.) Defense counsel moved for a mistrial, but the court denied the motion. Instead, the court instructed the jurors to disregard the remark and polled them. ⁵

This remark literally referred to Moore's silence. In light of the prosecutor's immediate effort at correction, however, we

Page 736

think it was inadvertent. ⁶ Moore bears the burden of proving that the remark penalized his exercise of the right to remain silent. See U.S. Const.Amend. V; Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). If he has shown that the remark was improper, we must presume that reversal is necessary until the State proves beyond a reasonable doubt that any error was harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The question then is whether the jury would have found Moore guilty without the improper remark. United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). We conclude that the remark in this case was not improper and that, even if it were, it was harmless.

A. Propriety of the Remark

At common law, a person with an interest in the outcome of a civil or criminal proceeding was not competent to testify. 3 William Blackstone, Commentaries on the Laws of England 369 (ed. John L. Wendell 1852) (stating that interested parties could not testify in civil proceedings); 4 id. at 356 (stating that civil evidence rules applied with few exceptions to criminal proceedings); see Jacobs v. Finkel, 7 Blackf. 432, 435-36 (1845) (civil proceeding). Criminal defendants thus could not testify in their own behalf at trial. Ferguson v. Georgia, 365 U.S. 570, 573-75, 81 S.Ct. 756, 758-60, 5 L.Ed.2d 783 (1961); Whelchell v. State, 23 Ind. 89, 91 (1864). In the early nineteenth century, courts tried to minimize the harshness of disqualification by allowing criminal defendants to make unsworn statements, often without the assistance of counsel. Ferguson, 365 U.S. at 582-87, 81 S.Ct. at 763-66. ⁷ In the years after the Civil War, almost every state and the federal government abrogated the common law disqualification of criminal defendants. Id. at 577 & n. 6, 81 S.Ct. at 761 & n. 6.

The rule against prosecutorial comment on a defendant's decision not to testify was created in conjunction with the removal of disqualification. Defendant competency was principally opposed by those who feared it would lead to coerced self-incrimination. Id. at 578-80, 81 S.Ct. at 761-62. Jurors might infer guilt if a competent defendant chose not to take the stand. Rock v. Arkansas, 483 U.S. 44, 50 n. 5, 107 S.Ct. 2704, 2708, n. 5, 97 L.Ed.2d 37 (1987); Wilson v. United States, 149 U.S. 60, 66, 13 S.Ct. 765, 766, 37 L.Ed. 650 (1893). To allay this fear, many of the competency statutes bound prosecutors to silence regarding a defendant's decision not to testify. Ferguson, 365 U.S. at 580, 81 S.Ct. at 762. ⁸

Indiana was part of this trend. Our legislature codified the common law disqualification of interested witnesses in the 1852 code. See Note, Testimonial Privilege and Competency in Indiana, 27 Ind. L.J. 256, 258 n. 5 (1951). The disqualification rule in civil proceedings applied only to the parties themselves and a few other classes of interested persons. 2 Rev. Stat. Ind., pt. 2, ch. 1, § 238, at 80 (1852). Our statutes followed Blackstone in providing that rules of civil competency would apply in criminal proceedings, but the victim and the defendant's accomplices, with their consent, would be competent.

Page 737

2 Rev. Stat. Ind., pt. 3, ch. 1, § 90, at 372 (1852).

A decade later, the legislature eliminated altogether the disqualification of parties in civil litigation. Act of Mar. 11, 1861, § 2, 1861 Ind. Acts 47, 51-52. This Court held that even though the criminal competency provision continued to incorporate the civil competency rules by reference, the legislature intended the criminal rules to incorporate the civil rules as they had existed in 1852. The intervening abolition of party disqualification in civil actions thus did not extend to defendants in criminal proceedings. Hoagland v. State, 17 Ind. 488, 489-90 (1861).

A decade later, the legislature abolished the disqualification of criminal defendants. See Act of Mar. 10, 1873, sec. 1, 1871 Ind. Acts 227, 227-28. ⁹ This statute "gave to a defendant in a criminal cause the privilege of testifying in his own behalf," Fletcher v. State, 49 Ind. 124, 130 (1874), and also provided that

if the defendant do not testify, his failure to do so shall not be commented upon, or referred to in the argument of the cause, nor commented upon, referred to or in any manner considered by the jury trying the same, and it shall be the duty of the court, in such case, to instruct the jury as to their duty under the provisions of this section. ¹⁰

1873 Act, sec. 1 (emphasis added). ¹¹ This Court initially construed the no-comment statute very broadly, holding that "when a defendant in a criminal cause declines to testify in his own behalf, absolute silence on the subject is enjoined on counsel in their argument on the trial." Long v. State, 56 Ind. 182, 186 (1877) (emphasis added); see also Showalter v. State, 84 Ind. 562 (1882).

Nevertheless, this Court soon limited the impact of the rule of absolute silence by distinguishing between direct and indirect references. Though direct references generally violated the no-comment statute, they did not necessarily mandate reversal. See Knopp v. State, 233 Ind. 435, 120 N.E.2d 268 (1954); Pollard v. State, 201 Ind. 180, 166 N.E. 654 (1929); Davis v. State, 197 Ind. 448, 151 N.E. 329 (1926); Blume v. State, 154 Ind. 343, 56 N.E. 771 (1900). Indirect references generally did not lead to reversal. See Davis v. State, 200 Ind. 88, 161 N.E. 375 (1928); Frazer v. State, 135 Ind. 38, 34 N.E. 817 (1893).

Spurred by the U.S. Supreme Court's holding in Griffin that prosecutorial comments on a defendant's silence violated the Fifth Amendment, federal courts developed a less formalistic rule. Apparently originating in the Eighth Circuit as a...