Peterson v. State
| Decision Date | 31 August 1998 |
| Docket Number | No. 45A05-9712-CR-516,45A05-9712-CR-516 |
| Citation | 699 N.E.2d 701 |
| Parties | Dorian PETERSON, Byron Anderson Thompson, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Co-appellants-Co-defendants Dorian R. Peterson ("Peterson") and Byron Thompson ("Thompson") appeal their convictions, after a joint jury trial, of one count of Criminal Recklessness, a class C felony, 1 and two counts of Criminal Recklessness, class D felonies. 2 2 Both Peterson and Thompson submitted appellant's briefs in this consolidated appeal. We affirm Thompson's convictions. However, we reverse Peterson's convictions and remand for a new trial.
Thompson raises one issue which was also raised by Peterson. The issue which both defendants raised may be restated as:
I. Whether prosecutorial misconduct during closing statement requires reversal.
Peterson raises four issues. However, because one requires reversal, we address it only. Restated, it is:
II. Whether the trial court erred by refusing to give Peterson's tendered instructions regarding accomplice liability.
The evidence most favorable to the verdicts reveals that the three victims lived together. One of the victims owed Peterson $50.00. Peterson and his associates went to the victims' home to collect the debt, but the debtor/victim was not home. Peterson was furious and grabbed one of the other victims by the throat, demanding payment. Peterson left without collecting the debt.
When the debtor/victim returned, he contacted Peterson and agreed to meet him to pay the debt. The debtor/victim and the two other victims armed themselves with knives and went out to meet Peterson. Peterson and Thompson, along with some other men, met the victims. Thompson brandished a handgun. After the debtor/victim paid the debt, he heard Peterson say to Thompson, "Man, f--- these dudes, pop these bitches." As the three victims ran, three shots rang out. The debtor/victim was struck in the foot with a bullet. After being shot, the debtor/victim looked back and saw Thompson holding a gun. None of the other men with Thompson had been armed with a gun.
Peterson and Thompson were both charged with three counts of Criminal Recklessness, each count relating to a different victim. Both defendants testified in their own defense, denying the charges. Peterson denied having given the order to fire the gun. Peterson testified that someone else did the shooting and it was unrelated to the dispute between him and the victims.
During closing argument, the deputy prosecutor made several statements or arguments which drew objections from defendants' counsels. The specific statements made by the deputy prosecutor about which the defendants complain are summarized as follows:
[Defense counsel] made the statement to you that all witnesses' testimony should be considered evenly, but you have a common sense. You can use that law that the judge will instruct you on and think about interest, whose butt's on the line here, Dorian Peterson and Byron Thompson.
....
Let me just put it like this, if ever a person had a reason to fabricate a story and distort the truth, it's got to be people like Dorian Peterson and Byron Thompson. And I guess the best way to put it, I'm just going to use an example. Let's say you have an event, a sequence of events, a chain of events, whatever it may be, and then the whole world stops and you're the last twelve people that could be talked to, that police could come up to. Anybody, you know, could go to--let's say you're historians and you're the ones that are there to figure out what happened, okay, and you have choices to make. Of all the people you could go to figure out what happened, the last person you would go to or the last people you would go to would be the people that set the whole chain of events off in the first place, especially if it can get them in trouble.
....
Do you think human beings can tell the same story the same way, what do we got, twelve different times now, three victims, four different times total? That's not human. If their stories lined up every time, that would be incredible. Inconsistencies are what they base their argument on and say don't find our clients guilty because they didn't tell the same stories. That's not possible, it's human, and inconsistencies are the one thing that prove all of the victim's veracity in this case.
....
Are we going to have different stories? You bet, that's human, and I want to make that point as clear as I can. I guess that's what it means to be a victim of a violent crime. You don't get a trial by jury. You don't get the right to appeal. You get convicted and sentenced to life and a painful memory of what people did to you.
....
Well, that's what you get, and then you wait patiently for your day of justice to come. You wait patiently for eight months to take that witness stand and explain your side of the events, and you know what you get? You get called a big fat liar. That's what you get. That's the justice that you get. You see, it's not for no reason that [Defense counsel] asked all of you in voir dire have any of you ever been a victim of a violent crime because if he had and you answered yes to this, you know, and none of you did.
The deputy prosecutor then began to make the argument that the defendants had not presented any other witnesses to testify in their defense. After defense counsel interposed objections, and the court intervened, the deputy prosecutor argued with the judge as follows:
... all these arguments I ran by [another judge] way before this trial, and they're cutting me off on every one.... I apologize, ladies and gentlemen. Everything I want to say, I guess, isn't proper.
The deputy prosecutor stated further as follows:
Now, the defense lawyers have pointed to a lot of different things here to create reasonable doubt. They pointed to the fact that Byron Scott was the first name given,.... Where's the bullet, where's the shells? You know what, every animal in the animal kingdom has a defense mechanism, okay? The scorpion has a stinger. A bee has a stinger as well. The lion has the strong forearms and the jaws. The chameleon can change colors. But, you see, the octopus has no defense at all, so what it does when it's confronted by its attacker is that it jets out an inky blob like substance into the water, into the air, and it wins by confusion. It escapes unharmed because its attackers get confused, and I am not these two gentlemen's attackers. You are.
Although defendants' attorneys raised objections during the closing argument, neither moved for a mistrial. The trial court overruled some objections, directing that the proceedings "move along," sustained other objections, and admonished the jury to disregard some of the statements made by the deputy prosecutor. The court repeatedly indicated that, despite the deputy prosecutor's statements, the jury would be instructed regarding the law.
The defendants were convicted as charged. This appeal followed.
Peterson and Thompson assert that the deputy prosecutor's statements set out above were improper. Specifically, the defendants argue that the deputy prosecutor improperly informed the jury that 1) the defendants' role was to confuse the issues; and 2) the defendants had the right to an appeal. Additionally, the defendants assert that the prosecutor intimated that he, as prosecutor, was not allowed to argue certain evidence because it was improper. The defendants contend that the improper statements, when considered cumulatively, prejudiced their rights to a fair and impartial trial.
At the outset, we note that the correct procedure to be employed when the prosecutor makes an improper argument is to request that the trial court admonish the jury and, if further relief is desired, to request a mistrial. Isaacs v. State, 673 N.E.2d 757, 763 (Ind.1996). The failure to request an admonishment or move for a mistrial results in waiver. Id. To overcome waiver under these circumstances, the defendant must demonstrate fundamental error. Id.
A successful claim of prosecutorial misconduct requires a determination that there was misconduct by the prosecutor which had a probable persuasive effect on the jury's decision. Cox v. State, 696 N.E.2d 853, 859 (1998) (). The degree of impropriety of the conduct is irrelevant. Id.
A timely admonition may cure prejudice resulting from prosecutorial misconduct. See DeBerry v. State, 659 N.E.2d 665, 669 (Ind.Ct.App.1995). Also, the trial court's jury instructions are presumed to cure any improper statements made during trial. Fox v. State, 520 N.E.2d 429, 431 (Ind.1988).
In general, the prosecution is not permitted to introduce evidence of a defendant's exercise of his constitutional rights in order to impeach the defendant or invite the jury to infer the defendant's guilt from the exercise of those rights. Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). However, the prosecutor's comment upon the lack of evidence by the defense concerning otherwise incriminating evidence against the defendant is proper as long as the State does not focus upon the accused's failure to testify. Martinez v. State, 549 N.E.2d 1026, 1028 (Ind.1990); Channell v. State, 658 N.E.2d 925, 930 (Ind.Ct.App.1995) (), trans. denied. Also, a prosecutor may respond to allegations and inferences raised by the defense even if the prosecutor's argument would otherwise be objectionable. Denes v. State, 508 N.E.2d 6, 11 (Ind.1987). Finally, our ...
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