Moore v. State, 177

• Citation: 268 Ind. 519,376 N.E.2d 1129
• Decision Date: 16 June 1978
• Docket Number: No. 177,177
• Parties: Eligha MOORE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). S 9.
• Court: Supreme Court of Indiana

Page 1129

376 N.E.2d 1129

268 Ind. 519

Eligha MOORE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 177 S 9.

Supreme Court of Indiana.

June 16, 1978.

Harriette Bailey Conn, Public Defender, Kenneth T. Roberts, Special Asst. Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Eligha Moore, was indicted for first-degree murder and felony murder. He was found guilty of second degree murder and sentenced to a term of imprisonment of not less than fifteen nor more than twenty-five years. On appeal he raises the following issues:

1. Whether any of certain alleged errors not objected to at trial were fundamental errors;

2. Whether charges against a co-defendant were improperly dismissed;

3. Whether the prosecutor improperly commented on the accused's failure to testify; and

4. Whether there was sufficient evidence to support the jury's verdict.

I.

During the prosecutor's opening statement the prosecutor stated that he would prove both the defendant and his co-defendant guilty of felony murder through the confession of co-defendant Turner. It is conceded that no objection was made. However, defendant contends that the statement was a violation of Bruton v. U. S., (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, and a fundamental error. The statement referred to was not admitted into evidence; however, Turner turned state's evidence and testified during the trial. There was no violation of Bruton and no fundamental error.

An instruction advised the jury that the indictment contained two counts, one for first-degree murder and one for felony murder. The jury was told it could return a verdict of guilty under either of those counts. The defendant alleges that the instruction is erroneous because first-degree murder is an included offense of felony murder, and it is improper to separate an included offense into another count. However, in Holland v. State, (1976) Ind., 352 N.E.2d 752, we held that a two-count indictment for first-degree murder and felony murder was proper.

An instruction was given by the trial court that the jury was not to consider the failure of the defendant to testify. This instruction was not objected to and was therefore not erroneous. Gross v. State, (1974) 261 Ind. 489, 306 N.E.2d 371.

II.

The defendant was jointly indicted for the murder of George Brown. After their arrest, a confession was obtained from Turner, the co-defendant. A jury trial was commenced against both defendants. Pursuant to a plea bargain, Turner testified for the state. After this testimony, Turner was granted a severance by the trial court and the jury was instructed that "his matter has been severed from this trial."

No objection was made to this procedure at trial. The defendant now alleges that Ind.Code § 35-1-31-7 (Burns 1975) requires that a co-defendant be discharged before he may be a witness for the state. The statute is clearly discretionary as is indicated by the use of the term "may." Additionally, the defendant has not alleged any personal prejudice resulting from his co-defendant's severance rather than a discharge.

III.

During final argument to the jury the prosecutor made what is now being argued as a prejudicial comment on the accused's failure to testify. There is no verbatim transcript of the argument, although there is a record of the motion for a mistrial which came after arguments and the reading of instructions. The record clearly reflects that the trial judge offered to admonish the jury and that defense counsel declined this offer. An admonishment is generally sufficient to cure any harm and would have been adjudged to have cured the harm in this case. Phelps v. State, (1977) Ind., 360 N.E.2d 191. There was no error in overruling the defendant's motion for a mistrial.

IV.

The defendant's two assignments of error that the evidence was insufficient and that the trial court erred in overruling his motion for a directed verdict will be treated together. When reviewing the sufficiency of the evidence, this Court considers the evidence most favorable to the verdict together with all reasonable inferences which may be drawn from that evidence....