Phelps v. State

Decision Date25 February 1977
Docket NumberNo. 675S140,675S140
PartiesGerald Wayne PHELPS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

John G. Bunner, Bunner, John and Heathcotte, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Gerald Phelps, hereinafter the defendant, was charged with rape and kidnapping. He was convicted in a jury trial and sentenced to life imprisonment. He appeals this conviction on various grounds of prosecutorial misconduct.

The prosecutrix was a dancer at a bar in Evansville. Shortly after midnight on March 27, 1974, she left her place of employment on foot. The defendant, who had met her earlier at the bar, drove up alongside her and offered her a ride home. The defendant did not take her to her destination. He forced her to commit fellatio and forcibly raped her in the back seat of his car. The prosecutrix escaped by jumping from the car. She called the police from a nearby home and soon thereafter identified the defendant at the bar where he was apprehended. The defendant admitted sexual intercourse but claimed it was consensual, not forcible.

I.

During the voir of the prospective jurors, the prosecutor made the following response to a question of defense counsel:

'I still object to that. It is he's presumed innocent. There's nothing in the law that says he's innocent, or he wouldn't be here.' (Our emphasis.)

The prosecutor's inference of guilt was recognized by the trial judge as not being the law and an admonishment to disregard the statement was given to the jury, although a motion for mistrial was overruled. Instructions were given the selected jury on the presumption of innocence and that an information is not evidence against the defendant.

The second alleged misconduct occurred when defense counsel sought to have the prosecutrix advised against volunteering answers. The prosecutor responded that the witness had been punished enough and during the ensuing argument between counsel stated the witness had 'a lot she cannot testify to out of fear.' The jury was instructed to disregard the statements.

In both the above instances the trial judge recognized the impropriety of the prosecutor's remarks. The instructions and admonishments he delivered to the jury were sufficient to remove all possibility of harm from these statements. DeHority v. State, (1938) 215 Ind. 390, 19 N.E.2d 945.

The defendant objects to certain questions asked by the prosecutor during voir dire. The questions were, for example, whether a juror was suspicious of rape charges being fabricated, or whether a rape victim should resist to the point of death. "(T)he ultimate function of voir dire is to explore the nuances of conscience to determine whether a prospective juror is able to participate fairly in the deliberations'.' Robinson v. State, (1973) 260 Ind. 517, 521, 297 N.E.2d 409, 412, quoting 47 Am.Jur.2d 786, Jury, § 195. This exploration is largely within the discretion of the trial judge. Where, as here, the questions were designed to sound the jurors' attitudes towards rape and the hypothetical questions did not suggest prejudicial evidence not adduced at trial, the trial judge did not abuse his discretion in permitting the questions.

II.

The next alleged misconduct occurred during cross-examination of the defendant. When asked about statements he had made to the police, the defendant stated that he had requested a polygraph examination. The prosecutor asked if he had made this request upon the court or upon himself. A motion to strike was granted and the jury was admonished to disregard the statements concerning the polygraph, explaining that polygraphs are generally inadmissible. The defendant contends that the mere mention of the word polygraph may be error, citing Austin v. State, (1974) 262 Ind. 529, 319 N.E.2d 130, cert. den. 421 U.S 1012, 95 S.Ct. 2417, 44 L.Ed.2d 680. That case found any error to be harmless where, upon prompt objection, the trial court struck the testimony and admonished the jury. Here, the testimony concerning a polygraph was introduced without objection. When objection was made, the testimony was struck and the jury admonished. This was sufficient to cury any harm.

III.

On cross-examination of the defendant, the prosecutor asked:

'Well, do you think it might have been in your best interest to have told the police and the Prosecutor's Office this story you're telling this jury?'

An objection was made and sustained. A motion for mistrial was overruled. The jury was told, 'He had no obligation to tell the prosecutor anything.' Following Doyle v. Ohio, (1976) 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, we have held that 'use of an accused's postarrest silence to impeach his trial testimony is fundamentally unfair.' Jones v. State, (1976) Ind., 355 N.E.2d 402, 404. In that case one of the defendants was asked over a dozen times why he had not told the police or the press of his innocence. The trial court permitted this questioning although admonishing the jury that the defendant was under no duty to speak. This admonishment was found insufficient to cure the harm.

An inquiry which seeks from the accused an explanation of his silence is an improper comment upon an accused's post-arrest silence. The inference is impermissible because, '(E)evry post-arrest silence is insolubly ambiguous'. Doyle v. Ohio, supra, at 426 U.S. 610, 617, 96 S.Ct. 2240, 2244, 49 L.Ed.2d 91, 97. This case is distinguishable, however, in that a prompt objection was sustained and an admonishment given. The prosecutor was not permitted to repeat the question and it was given no sanction by the trial judge. Additionally, the defendant testified during the same sequence of questions that he had protested his innocence to the police on at least two occasions after his apprehension. The...

To continue reading

Request your trial
21 cases
  • Phelps v. Duckworth, 84-1052
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 13 September 1985
    ...of two to twenty-one years and life imprisonment, and his conviction was affirmed unanimously by the Indiana Supreme Court. 266 Ind. 66, 360 N.E.2d 191 (1977), certiorari denied, 434 U.S. 844, 98 S.Ct. 146, 54 L.Ed.2d In 1978 petitioner sought a writ of habeas corpus in the United States Di......
  • Phelps v. Duckworth
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 27 February 1985
    ...sentences of life imprisonment and two to twenty-one years. The conviction was affirmed by the Indiana Supreme Court. Phelps v. State, 266 Ind. 66, 360 N.E.2d 191, cert. denied, 434 U.S. 844, 98 S.Ct. 146, 54 L.Ed.2d 110 In 1978, Mr. Phelps filed a petition for a writ of habeas corpus pursu......
  • Romack v. State
    • United States
    • Indiana Appellate Court
    • 31 March 1983
    ...which an attorney may discover grounds for challenges is by sounding jurors' attitudes toward a particular crime. In Phelps v. State, (1977) 266 Ind. 66, 360 N.E.2d 191, the court held that the trial court did not abuse its discretion by allowing the prosecutor to ask prospective jurors whe......
  • Beasley v. State
    • United States
    • Indiana Supreme Court
    • 16 December 1977
    ...question and answer and admonished the jury to disregard them. It is presumed that such admonishments correct the error. Phelps v. State, (1977) Ind., 360 N.E.2d 191; Hudson v. State, (1976) Ind., 354 N.E.2d 164; Martin v. State, (1974) 261 Ind. 492, 306 N.E.2d ISSUE IV Ind.Code 1975, 35-8-......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT