Roller v. State
| Decision Date | 05 November 1992 |
| Docket Number | No. 91A02-9112-CR-00574,91A02-9112-CR-00574 |
| Citation | 602 N.E.2d 165 |
| Court | Indiana Appellate Court |
| Parties | Frankie ROLLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
Eric K. Koselke, Indianapolis, for appellant-defendant.
Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.
Frankie Roller appeals his conviction of dealing in cocaine, a class B felony. 1
We affirm.
1. Whether statements made by the prosecutor placed Roller in a position of grave peril and therefore constitute reversible error.
2. Whether the trial court erred in admitting into evidence an audio tape of a conversation between Roller and a police informant.
3. Whether the trial court erred in refusing to admit into evidence two photographs offered by Roller.
4. Whether the trial court erred when it refused to grant Roller a continuance and refused to order the release of a State witness's medical records.
On November 11, 1989, Frankie Roller procured cocaine for a police informant, Tammy Smith. Smith and her vehicle were searched before and after the transaction, and she was wearing a wire, so an audio tape of the conversation between her and Roller was produced. In addition, Police Officer Joseph Raines followed Smith as she picked up Roller, went to Richard Mailloux's house where Roller purchased the cocaine, and then dropped Roller off.
Roller was arrested and charged with dealing in cocaine, a class B felony. Six days prior to Roller's trial, the State notified Roller and the court that it intended to call Richard Mailloux as a witness. Roller's counsel sought a continuance the next day on the basis that Mailloux had previously denied selling cocaine to Roller and counsel needed more time to locate witnesses to impeach Mailloux's testimony to the contrary. The trial court denied the continuance.
During voir dire and trial, the prosecutor made several statements regarding his role as a prosecutor and Roller's counsel's role as a defense attorney. Roller's objections to these statements were overruled. During its case-in-chief, the State admitted, over Roller's objection, the audio tape of the drug transaction. The State also called Mailloux, who testified that he sold Roller cocaine on the day in question. Mailloux also testified that he had been diagnosed as paranoid schizophrenic, but refused to release his medical records to Roller. Roller moved that the trial court order the records released so that he could cross-examine Mailloux concerning his competency to testify. The trial court denied the motion.
During his testimony, Roller offered into evidence two photographs which he testified showed the view Officer Raines had of Mailloux's house during the drug transaction. The State objected to these photographs on the basis that they did not accurately depict the area as it was in November, 1989, when the transaction occurred. This objection was sustained; however, Roller was permitted to testify about the photographs and what they depicted.
Roller was convicted by the jury of dealing in cocaine. He appeals.
Roller argues that his conviction should be reversed because of improper comments made by the prosecutor during voir dire, opening statement and closing argument. Prosecutorial misconduct requires reversal only when, under the circumstances, it places the defendant in a position of "grave peril." Andrews v. State (1989), Ind., 536 N.E.2d 507, 509. "The gravity of the peril is determined by considering the probable persuasive effect of the misconduct on the jury's decision, not the degree of impropriety of the conduct." Id. (citations omitted). We must therefore examine each statement to determine whether it constitutes prosecutorial misconduct and, if so, whether it placed Roller in "grave peril."
Roller asserts that the prosecutor gave his personal opinion about Roller's guilt during voir dire when he stated:
You understand that he's not guilty until the State proves its case. If the State did not prove its case, then you would have a duty--and I have a duty to tell you, that if the State doesn't prove its case, that you should return a verdict of not guilty.
Record at 444-45. In response to Roller's objection, the prosecutor stated, "I think if I don't prove my case, I do have a duty to inform them." Id. at 445. Roller's counsel objected to this comment also, and moved for a mistrial. 2 The trial court overruled both objections and denied the motion for mistrial.
Roller asserts these remarks are improper statements by the prosecutor of his personal opinion as to the guilt of a defendant and, further, constitute an effort by the prosecutor "to cultivate or condition [the jury] to be receptive to the cause of the examiner...." Appellant's Brief at 29.
Ind.Professional Conduct Rule 3.4(e), which provides that it is improper for an attorney to "state a personal opinion as to the ... guilt or innocence of an accused," is violated when the prosecutor's comment suggests that he or she has personal or special knowledge, beyond the evidence presented to the jury, which proves that the defendant is guilty. Wallace v. State (1990), Ind., 553 N.E.2d 456, 471, cert. denied, --- U.S. ----, 111 S.Ct. 2250, 114 L.Ed.2d 491 (1991); Woods v. State (1989), Ind., 547 N.E.2d 772, 781, cert. denied, --- U.S. ----, 111 S.Ct. 2911, 115 L.Ed.2d 1074 (1991) (citing Swope v. State (1975), 263 Ind. 148, 325 N.E.2d 193, cert. denied, 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100). Further, it is improper for a party to try his or her case on voir dire. Robinson v. State (1973), 260 Ind. 517, 520-21, 297 N.E.2d 409, 411.
Here, however, neither statement suggests in any way that the prosecutor had any special knowledge about Roller's guilt or innocence, nor do the statements constitute an effort by the State to try its case. Rather, the statements are perhaps an inartful attempt to explain the presumption of innocence and the State's burden of proof. Further, the probable persuasive effect of the statements upon the jury's decision is negligible. Thus, the prosecutor's statements during voir dire were not acts of misconduct, nor did they place Roller in grave peril. Hence, the statements do not constitute reversible error.
During his opening statement, the prosecutor made the following statement: Record at 621. Roller argues that this statement is an improper expression of the prosecutor's personal opinion of his guilt and requires reversal. Our supreme court discussed a very similar statement made under very similar circumstances in Merritte v. State (1982), Ind., 438 N.E.2d 754, 756-57. In Merritte, the prosecutor stated Id. at 756. The supreme court held that this statement was not improper because it was "based on the prosecutor's analysis of the evidence" and "was not intended as, nor could it reasonably be taken to be, an inference the prosecutor had some special knowledge unrevealed to the jury that pointed more decisively to appellants' guilt." Id. at 757. Here, too, the statement at issue, which followed a discussion of the evidence the State expected to present, was "no more than a statement of [his] conclusions based on the evidence." See id. There is no error.
Roller points to two comments made by the prosecutor during his closing argument and rebuttal that he believes were improper. Roller did not object to these comments at trial, but correctly argues that prosecutorial misconduct sometimes may rise to the level of fundamental error. See Jester v. State (1990), Ind., 551 N.E.2d 840, 843; Bardonner v. State (1992), Ind.App., 587 N.E.2d 1353, 1358 n. 2, trans. denied. However, there is no fundamental error in this case.
The first passage which Roller asserts was improper contains a discussion of the different roles of the prosecutor and the defense counsel. The thrust of the discussion is that a prosecutor "must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of a crime" while a defense attorney "has no comparable obligation to ascertain or present the truth." 3 Record at 1006-07. Roller argues that these statements "placed defense counsel in a position of defending herself and not Roller," and thus denied Roller effective assistance of counsel. Appellant's Brief at 30.
The passage to which Roller objects is an almost verbatim recitation of Justice White's partial dissent in United States v. Wade (1967), 388 U.S. 218, 256-57, 87 S.Ct. 1926, 1947, 18 L.Ed.2d 1149. It has been firmly established by our supreme court that it is permissible for a prosecutor to read this passage during closing argument. See Fox v. State (1988), Ind., 520 N.E.2d 429, 431; Abercrombie v. State (1985), Ind., 478 N.E.2d 1236, 1238-39; Johnson v. State (1985), Ind., 475 N.E.2d 17, 19; Hubbard v. State (1974), 262 Ind. 176, 182, 313 N.E.2d 346, 350. 4 There is no error.
Roller also argues it was fundamental error for the trial court to allow the prosecutor to tell the jury during closing argument that defense counsel was trying to confuse them. 5 The prosecutor's comments here are very similar to the comments made in Scherer v. State (1990), Ind., 563 N.E.2d 584, 586, in which the prosecutor told the jury that the defense counsel "is trying to snow you" and "you are snowed under and you have to try to dig yourself out." The court in Scherer held that "the evidence against appellant is so overwhelming it is unrealistic to believe that the simple statements by the prosecutor repeatedly referring to a 'snow job' could have tipped the scales in the jury's...
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