Rowley v. State, 971S274

• Citation: 259 Ind. 209, 285 N.E.2d 646
• Case Date: August 08, 1972
• Court: Supreme Court of Indiana

Page 646

285 N.E.2d 646 259 Ind. 209 Dan ROWLEY, Appellant,
v.
STATE of Indiana, Appellee. No. 971S274. Supreme Court of Indiana. Aug. 8, 1972.

[259 Ind. 210] John G. Bunner, Evansville, for appellant.

Page 647

Theo. L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., for appellee.

DeBRULER, Justice.

The appellant was tried by a jury in the Vanderburgh Circuit Court, the Honorable Steve Bach, Special Judge, presiding, and convicted of burglary in the first degree. [259 Ind. 211] The evidence in this case against the appellant consisted primarily of an accomplice's testimony. This accomplice named the appellant as his partner in the crime charged in the affidavit, and testified in detail to the burglary in question. The appellant does not here question the sufficiency of the evidence in this case, but does argue that prosecutorial misconduct in this trial denied the appellant a fair trial.

The appellant's most compelling argument is that remarks made by the prosecuting attorney during his closing arguments constituted a comment upon the appellant's failure to testify in his own behalf. According to the agreed statement:

'Mr. Kiely had argued for sometime on what evidence there was concerning the guilt of the defendant and then made the remark that there had not been one bit of evidence from the witness stand that indicated the defendant was not guilty.'

The appellant objected to this comment as follows:

'MR. BUNNER: Now the defendant moves for a withdrawal of the submission of this cause from the jury for misconduct on the part of the deputy prosecuting attorney in calling attention to the fact that the defendant did not take the witness stand as a witness in his own behalf. By making remarks to the effect that there has been not one bit of evidence from the witness stand that he is not guilty, this will create a bias and prejudice in the mind of the jurors that cannot be erased by admonition.

MR. KIELY: The deputy prosecuting attorney was arguing that the testimony from the witness stand and that all the testimony from the witness stand led to a guilty conclusion and that there was no evidence from any of the witnesses on the witness stand that indicated any other finding.

COURT: The court will overrule the motion and objection of the defendant.'

[259 Ind. 212] We agree with the appellant that this remark violated his right to a fair trial and, therefore, order the conviction reversed. Indiana Code 1971, 35--1--31--3, being Burns § 9--1603, reads in relevant portion that:

'if the defendant do (sic) not testify, his failure to do so shall not be commented upon or referred to in the argument of the cause, nor commented upon, referred to, or in any manner considered by the jury. . . .'

As early as 1877, this Court, in reversing a conviction in which the prosecutor stated that he 'would have been pleased to hear from the other side', stated that:

'We construe the statute to mean, that, when a defendant in a criminal cause declines to tesify in his own behalf, absolute silence on the subject is enjoined on counsel in their argument on the trial. . . .' Long v. State (1877), 56 Ind. 182, 186.

This position has been reiterated many times since the statute was enacted. Knopp v. State (1954), 233 Ind. 435, 120 N.E.2d 268; Keifer v. State (1932), 204 Ind. 454, 184 N.E. 557; Pollard v. State (1929), 201 Ind. 180, 166 N.E. 654; Davis v. State (1928), 200 Ind. 88, 161 N.E. 375; Davis v. State (1925), 197 Ind. 448, 151 N.E. 329; Blume v. State (1900), 154 Ind. 343, 56 N.E. 771; Coleman v. State (1887), 111 Ind. 563, 13 N.E. 100; Showalter v. State (1882), 84 Ind. 562. This long standing prohibition against commenting on the silence of the accused was recently given constitutional dimension in Briffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, when the Supreme

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Court stated that the Fifth Amendment, in its bearing on the states through the Fourteenth Amendment, forbids comment by the prosecution on the accused's silence.

The State argues however, (1) that the remarks did not constitute a comment on the appellant's failure to testify, and (2) that even if the remarks were objectionable the court [259 Ind. 213] properly admonished the jury in his closing instructions. We will address ourselves to these two questions in turn, noting that the State cites no authority for either argument.

The test for determining whether a remark in this area is objectionable has been variously stated in other jurisdictions. The test which goes the farthest in allowing the prosecution to remark on the accused's silence was recently re-stated in United States ex rel. Leak v. Follette, 418 F.2d 1266 (2nd Cir. 1969), as follows:

'Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?' 418 F.2d at 1269.

Even under this strict test it has generally been held that comment on the uncontradicted nature of the State's case is impermissible where the defendant alone could have contradicted the government's case, which is the situation here. See United States ex rel. Leak v. Follette, supra, and cases cited therein. We...