Rufer v. State, 775S160

• Docket Nº: No. 775S160
• Citation: 264 Ind. 258, 342 N.E.2d 856
• Case Date: March 02, 1976
• Court: Supreme Court of Indiana

Page 856

342 N.E.2d 856

264 Ind. 258

Bruce Leroy RUFER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 775S160.

Supreme Court of Indiana.

March 2, 1976.

Rehearing Denied April 26, 1976.

James E. Burke, South Bend, for appellant

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

PRENTICE, Justice.

Defendant (Appellant) was convicted in a trial by jury of the offenses of accessory before the fact to the commission or attempt to commit a felony while armed and conspiracy to commit a felony (robbery). He was sentenced to imprisonment for a term of twenty (20) years upon the accessory charge and for an indeterminate period of from two (2) to fourteen (14) years upon the conspiracy charge. The charges arose out of his participation in an armed robbery in which one of the victims and one of the perpetrators were shot and killed. His appeal raises three issues:

(1) Correctness of the denial of Defendant's motions for mistrial for prosecutorial misconduct during jury voir dire examination and during trial.

(2) Correctness of the denial of motions for mistrial for prosecutorial misconduct during summation to the jury.

(3) Correctness of the denial of Defendant's tendered included offenses' instruction.

ISSUE I

During the voir dire examination of prospective jurors by defense counsel, one of the veniremen stated that it would be necessary to know whether or not the principal had been charged before he could determine the guilt of an accessory. Subsequently, also during jury voir dire examination, the prosecutor identified a Mr. Gonderman, who was present in the court room, as the attorney for O'Conner, the principal. On two occasions during the examination of witnesses, the prosecutor made reference to Mr. Gonderman in such context, according to the defendant, as to identify him as the principal's lawyer. On each of such occasions, the defendant moved for a mistrial, charging that this was done to inform the jury, particularly the one above mentioned, that the principal had been charged with the crime.

Whether or not the principal had been charged with the crime was immaterial, as it would be no evidence of his guilt. We fail to perceive harm to the defendant, however, even if we concede the defendant's contention that the prosecutor's reference during witness examination so identified Mr. Gonderman--a concession we do not make. Assuming, for purposes of argument If the principal had in fact been charged and this fact were in evidence, the defendant would have been entitled to an instruction that such charge could not be regarded as evidence of the principal's guilt--just as he was entitled to an instruction that the charge against him did not constitute evidence. We agree with the defendant that whether or not the principal had been charged was irrelevant. However, if the inference that the principal had been charged was in fact deductible from the conduct complained of, we, nevertheless, do not agree that he was thereby placed in a position of peril warranting reversal under Robinson v. State, (1973) 260 Ind. 517, 297 N.E.2d 409, 411.

that one or more of the jurors believed that an accessory should not be found guilty unless the principal was charged, such is, nevertheless, not the law. It was required that the jury find, beyond a reasonable doubt, that the principal did commit the crime for which the defendant was charged as an accessory, and the jury was so instructed. To have returned a verdict of not guilty because the principal had not been charged, notwithstanding proof beyond a reasonable doubt of all requisites of the crime, would have been error.

ISSUE II

Defendant made motion for mistrial during prosecutor's summation, one charging misconduct in expressing his personal opinion regarding the defendant's guilt and another for vilifying the defendant and attacking the defense counsel. We find no error in the trial court's rulings upon said motions.

Commenting upon the defendant's credibility, the prosecutor made the following statements:

'* * * I think almost everybody that testified was honest except one person and I bet it wouldn't take too long to figure that out. He stands up here and says * * *.'

'He gave the police, he gave a different statement than he testified in Court from what he told them. He related how he was first interviewed by three people, then he denied any knowledge of this thing. I mean, when are we going to get the truth from somebody that wants to testify on the stand when he is being accused of a crime. He could have gotten up there and told the truth. He could have had some humility, some honesty some integrity,...