Owens v. State

Citation937 N.E.2d 880
Decision Date12 January 2011
Docket NumberNo. 29A02-1002-CR-390.,29A02-1002-CR-390.
PartiesGregory OWENS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtCourt of Appeals of Indiana
937 N.E.2d 880

Gregory OWENS, Appellant-Defendant,
STATE of Indiana, Appellee-Plaintiff.

No. 29A02-1002-CR-390.

Court of Appeals of Indiana.

Nov. 23, 2010.
Rehearing Denied Jan. 12, 2011.

937 N.E.2d 883

James H. Voyles, Jr., Jennifer M. Lukemeyer, Voyles Zahn Paul Hogan & Merriman, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.


CRONE, Judge.

Case Summary and Issues

Gregory Owens appeals his conviction for class A felony child molesting, 1 arguing that reversal is warranted due to three alleged trial errors. Two of these alleged errors are based on the Fifth Amendment privilege against self-incrimination. First, he argues that his Fifth Amendment right was violated when the State introduced evidence that he failed to respond to police requests for contact. Second, he asserts that the prosecutor improperly commented in closing argument that Owens did not testify. Third, he alleges that after a witness violated a ruling that prohibited any evidence of prior domestic abuse, he moved for a mistrial, and the trial court erred in denying his motion.

We conclude that the State did not infringe upon Owens's Fifth Amendment privilege against self-incrimination by introducing evidence that he did not contact police. Although we find that the prosecutor's comment in closing argument was improper, it does not rise to the level of fundamental error requiring reversal. Finally, we conclude that the witness's violation of the ruling prohibiting evidence of prior domestic abuse was isolated, vague, and brief, and that the trial court admonished the jury to disregard C.R.'s statement, and thus, the trial court did not err in denying Owens's motion for mistrial. We therefore affirm Owens's conviction for child molesting.

Facts and Procedural History

In 1999, Owens married G.O., who had a two-year-old daughter, C.R., from a previous relationship. They resided in Fishers, and Owens and G.O. had two children, born in 2000 and 2003. In October 2006, when C.R. was nine, G.O. moved out of the Fishers home with the three children, moved to Elwood, and divorced Owens.

In May 2007, shortly after C.R. turned ten, she disclosed to Elwood school officials and police that she had been molested by Owens on one occasion prior to moving to Elwood. C.R. stated that in the autumn of 2005, when she was eight years old, she was asleep in her bed when Owens came into her bedroom and lay on her bed,

937 N.E.2d 884
waking her up. He was naked, and C.R. did not know what to do so she pretended to be asleep. Owens "stuck his finger" in her mouth and then "tried to stick his private part" in her mouth. Tr. at 127. C.R. clenched her teeth shut. Owens rubbed his penis against C.R.'s lips and teeth. Id. at 128, 183. Owens finally left. C.R. did not immediately tell anyone because she was afraid.

The Elwood police informed G.O. and the Department of Child Services ("DCS") of C.R.'s report of molestation. A multi-disciplinary team was established to investigate C.R.'s allegation. Hamilton County Sheriff's Detective Scott McKinney arranged to have C.R. interviewed by a DCS caseworker at Chauncie's Place, a child advocacy center in Hamilton County. On June 6, 2007, C.R. was interviewed by the DCS caseworker as the other team members observed in a separate room. The team determined that C.R.'s allegation was substantiated. The following week, Detective McKinney tried to contact Owens on his cell phone more than once. During the week of June 18, 2007, Detective McKinney went to Owens's Hamilton County residence with a DCS caseworker, but Owens was not home. Detective McKinney left his business card with a message requesting that Owens contact him. Detective McKinney repeated the procedure two days later, but did not hear from Owens.

On June 22, 2007, Detective McKinney prepared a probable cause affidavit. On May 28, 2008, the State charged Owens with class A felony child molesting.2 Prior to trial, Owens filed a motion in limine, which was granted by the trial court without objection by the State, to exclude any mention of his prior domestic battery conviction and any evidence of prior uncharged misconduct. The State advised its witnesses of this ruling. Owens also filed a motion to exclude evidence of his silence when contacted by law enforcement officials. Appellant's App. at 62-63. The trial court granted the motion except insofar as that evidence explained the reason why Detective McKinney was unable to interview Owens during his investigation; the trial court permitted the State to bring up evidence of Owens's failure to contact police only during direct examination of Detective McKinney and in rebuttal closing argument if Owens argued in closing that the State did not perform a complete investigation. Tr. at 38-39.

Jury trial was held from December 14 to 16, 2009. The jury found Owens guilty as charged. He now appeals. Additional facts will be provided as necessary.

Discussion and Decision

I. Constitutional Prohibition of Government Compelled Self-Incrimination

Owens contends that the State impermissibly used evidence of his right against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution as substantive evidence of his guilt. Owens argues that his right to remain silent was violated in two instances: (1) when the State elicited testimony from Detective McKinney that Owens failed to contact him; and (2) when the State referenced his failure to testify during closing argument. We address each in turn.

During the State's case-in-chief, Detective McKinney testified about his investigation. He testified that he tried to call Owens more than once but failed to reach him. Id. at 202. He also testified that he

937 N.E.2d 885
went to Owens's home and left his business card asking Owens to call him. The prosecutor asked, "[D]id you receive any contact from Mr. Owens?" Id. Detective McKinney replied, "I did not." Id. He then testified that he went to Owens's home a second time, and left his card again with the message "Please call me" on the back of the card. Id. at 203. Again, the prosecutor asked Detective McKinney whether he had any response from Owens, and the detective replied that he had not. Id. Owens raised no objection to Detective McKinney's testimony regarding Owens's failure to contact him. During Detective McKinney's cross-examination, Owens questioned him about his failure to speak with the Elwood police and school officials who initially interviewed C.R. or anyone from the Madison County DCS. During closing argument, the prosecutor did not comment on Detective McKinney's attempts to contact Owens and Owens's lack of response.

We initially note that although Owens filed a motion in limine to exclude evidence of his silence, he did not preserve the error for review because he failed to make a contemporaneous objection. See McCarthy v. State, 749 N.E.2d 528, 537 (Ind.2001) ("This Court has consistently held that a party may not assert on appeal a claim of trial court error in the overruling of a motion in limine seeking the exclusion of evidence unless the party objected to the evidence at the time it was offered."). In such circumstances, a "reviewing court may disregard the defendant's waiver of a particular issue for appellate review and reverse the defendant's conviction only if he has demonstrated the existence of fundamental error." Purifoy v. State, 821 N.E.2d 409, 412 (Ind.Ct.App.2005), trans. denied. "[I]n order to constitute fundamental error, an error must be blatant and the potential harm must be so substantial and apparent that to ignore it would clearly constitute a denial of due process." Hinkle v. State, 569 N.E.2d 349, 350 (Ind.Ct.App.1990) (citing Burkes v. State, 445 N.E.2d 983, 985 (Ind.1983)), trans. denied (1991).

The mere fact that error occurred and that it was prejudicial will not suffice. That, after all, is the ordinary rule for reversal on appeal when the contemporaneous objection has been made. Rather the error must be one such that the defendant could not possibly have had a fair trial or such that this court is left with the conviction that the verdict or sentence is clearly wrong or of such dubious validity that justice cannot permit it to stand.
Stewart v. State, 567 N.E.2d 171, 174 (Ind.Ct.App.1991), trans. denied. Owens, however, cannot avoid procedural default because he fails to demonstrate that the admission of Detective McKinney's testimony constitutes error, let alone fundamental error.

The Fifth Amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." 3 This privilege extends to the States through the Fourteenth Amendment. Withrow v. Williams, 507 U.S. 680, 689, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993). The precise issue here is whether the Fifth Amendment prohibits the prosecution from using as substantive evidence in its case-in-chief a defendant's silence in response to police efforts to contact him. 4

937 N.E.2d 886
As we address in more detail below, the federal circuit courts are split as to whether the Constitution permits the prosecution to use a defendant's pre-arrest, pre- Miranda silence as substantive evidence in its case-in-chief.

In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the United States Supreme Court held that the Fifth Amendment prohibits the prosecution from commenting on a defendant's decision not to testify at trial. The Griffin Court reasoned that comment on the refusal to testify amounts to a penalty imposed by courts for exercising a constitutional privilege and that to allow such comment would impinge on the privilege against self-incrimination by making its assertion costly. Id. at 614, 85 S.Ct. 1229. The Griffin Court noted that a comment on the defendant's refusal to testify is "a remnant of the...

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