Patrick v. State, 53S00-8609-CR-831
| Decision Date | 17 December 1987 |
| Docket Number | No. 53S00-8609-CR-831,53S00-8609-CR-831 |
| Citation | 516 N.E.2d 63 |
| Parties | Charles E. PATRICK, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Patrick M. Schrems, Deputy Monroe County Public Defender, Bloomington, for appellant.
Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.
A jury trial resulted in the conviction of appellant of Robbery, a Class B felony. Appellant was also found to be an habitual offender. He received a sentence of fifteen (15) years on the robbery charge, which was enhanced by twenty (20) years by reason of his status as an habitual offender.
The facts are: On October 14, 1985, Michael Abbitt was an attendant at the Swifty Gas Station, at the corner of Second and Walker in Bloomington, Indiana. Two men entered the gasoline station and one of them, later identified as appellant, asked Abbitt to get him cigarettes. When Abbitt obtained a pack of cigarettes, appellant then decided he wanted a carton. When Abbitt obtained a carton, he again changed his mind and decided he wanted a pack of Camel cigarettes. When Abbitt again returned to the cigarette counter, he was struck over the head repeatedly with the leg from a wooden chair. As he lay on the floor semiconscious, Abbitt felt money being removed from his pocket.
Shortly thereafter, Michelle Ross pulled into the service station and observed two men walking around the building. She found Abbitt bleeding profusely and covered with blood.
Later, after police received a description of the men who had been in the service station at the time of the robbery, Abbitt was shown a photographic lineup. He immediately selected appellant's picture and identified him as one of the robbers. Abbitt also identified appellant at trial. At trial appellant did not testify but presented two alibi witnesses who testified that he was in their trailer at the time of the robbery.
Appellant claims the trial court erred in denying his motion for mistrial when during closing arguments the prosecuting attorney stated At that time, counsel for appellant objected to the prosecutor's remarks and asked that a mistrial be declared. The trial court instructed the jury to disregard the statements of the prosecutor and instructed the jury that the appellant had "no burden whatsoever, to prove anything and that includes any obligation to present to you any evidence of remorse." The trial court then denied the motion for mistrial.
Appellant cites cases that hold that it is error to comment on a defendant's election not to testify in his own defense, citing Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. He also cites the Indiana case of Flowers v. State (1985), Ind., 481 N.E.2d 100. However, in the case at bar, we do not have a direct comment on appellant's failure to testify. Appellant was in the courtroom during his trial and the jury might well have interpreted the prosecutor's remarks to refer to the demeanor of appellant during the trial. The prosecutor's remarks nevertheless were improper and the trial court acted correctly in instructing the jury to disregard them.
In the case at bar, appellant was presenting the defense that he did not commit the crime, going to the extent of presenting alibi witnesses. Under such circumstances, it was ridiculous for the prosecuting attorney to be referring to possible remorse. One could not expect a defendant who had not committed the crime to demonstrate remorse. Given the fact that the comment of the prosecutor was improper, it does not follow automatically that a mistrial should have been granted.
In Woodrum v. State (1986), Ind.App., 498 N.E.2d 1318, Judge Neal made an accurate evaluation of this type of situation and correctly stated the law in Indiana to be that even though the prosecuting attorney's actions constituted misconduct, an...
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