Splunge v. State

• Decision Date: 25 October 1994
• Docket Number: No. 82S00-9311-CR-1222,82S00-9311-CR-1222
• Citation: 641 N.E.2d 628
• Court: Indiana Supreme Court
• Parties: Charles B. SPLUNGE, Appellant, v. STATE of Indiana, Appellee.

Page 628

641 N.E.2d 628

Charles B. SPLUNGE, Appellant, v. STATE of Indiana, Appellee.

No. 82S00-9311-CR-1222.

Supreme Court of Indiana.

Oct. 25, 1994.

David M. Shaw, Mitchell, Staser & Shaw, Evansville, for appellant.

Pamela Carter, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

In August of 1986, appellant was convicted of Murder and Robbery. He received a sentence of sixty (60) years. The conviction was appealed to this Court and affirmed. Splunge v. State (1988), Ind., 526 N.E.2d 977, cert. denied, (1989), 490 U.S. 1110, 109 S.Ct. 3165, 104 L.Ed.2d 1028.

In February of 1991, the United States District Court for the Northern District of Indiana granted appellant's writ of habeas corpus. That decision was affirmed by the United States Court of Appeals. Splunge v. Clark (7th Cir.1992), 960 F.2d 705. A second trial was held in January of 1993; however, the jury could not reach a verdict. A third trial was commenced in March of 1993 and resulted in the conviction of appellant. He again was sentenced to a term of sixty (60) years. This is an appeal from that conviction.

The facts are: In April of 1986, appellant and Tara K. Fox entered into an agreement whereby they would search for a person to rob and would steal that person's automobile. Appellant was in possession of a handgun. After searching for a potential victim, appellant finally decided upon Kenneth Wallace, who at that time was inside the Apollo Liquor Store on Riverside Avenue in Evansville, Indiana.

Appellant gave his gun to Fox and told her that when Wallace exited the liquor store they would approach him, ask for a ride, and she was to get in the front seat with Wallace and he would get in the backseat. In order to get Wallace moving away from the liquor store, they gave him an address where they wished to go. When Wallace arrived at the designated area and was starting to stop to let appellant and Fox out, Fox pulled the handgun in order to effect the robbery. However, she stated that the gun accidentally discharged and in her excitement she fired a second shot.

Wallace was wounded in the hip and the abdomen. After the shots were fired, appellant pushed Wallace from the vehicle, left him lying on the pavement in an intersection and drove away. Several persons at the intersection witnessed this activity. One of those witnesses, Louis Moschener, was in a vehicle directly behind Wallace's vehicle and when appellant and Fox sped off he followed them. After a short chase, appellant attempted to negotiate a turn at too high a speed and crashed into a house. Both he and Fox fled the scene. Fox was captured a short time later and appellant was captured the next day.

Prior to appellant's trial, Fox entered a plea of guilty and received a sixty (60) year sentence. At appellant's latest trial, she testified to the quoted-above facts. She stated that she had received no consideration by the State in return for her testimony.

Appellant claims reversible error resulted from the prosecutor's misconduct during the closing argument. He first claims the prosecutor improperly commented upon appellant's fifth amendment right to remain silent and thereby directed the jury's attention to the fact that appellant did not testify. The actual comment of the prosecutor was: "Think about the victim. The victim in this case has the right to remain silent, too. And he will for all eternity, thanks to Mr. Splunge. He had rights, too."

In Bernard v. State (1989), Ind., 540 N.E.2d 23, in a situation very similar to the case at bar, this Court observed that the comments of the prosecutor were "condemnable." However, in that case we found the prosecutor's misconduct did not rise to reversible error. The same situation prevails here. There can be little doubt that the prosecutor in this case was attempting to remind the jury that appellant had not testified. However, he did not make direct reference to such and did not dwell on the matter. In view of the overwhelming evidence of appellant's guilt, we cannot say that the improper conduct of the prosecutor rises to reversible error.

Appellant also contends the prosecutor made an improper appeal to the jury's sympathy. Appellant refers to the comments of the prosecutor to the effect that everybody in the courtroom could go home that evening except possibly the defendant, whereas the victim in this case had not been able to go home for the past six years and that he was not going home.

Appellant cites Woolston v. State (1983), Ind., 453 N.E.2d 965 wherein the prosecutor commented on the condition of the victim who was confined to a wheelchair as a result of a shooting. This Court observed that the prosecutor's comments were improper. The case at bar differs from the situation prevailing in Woolston. In the case at bar, defense counsel had observed in his argument to the jury that the persons in the courtroom would go home with the exception of the defendant, that the rest of them could forget about the trial whereas the defendant would have to live with imprisonment for a long period of time if he was convicted. He also referred to the fact that appellant's mother and his family would have to live with the jury's decision for the rest of their life.

The prosecutor's comments were made in his rebuttal argument following the comments of the defense counsel. He merely observed that defense counsel was correct, that they would all go home except the defendant and the victim. We view this as proper commentary upon the final argument of appellant's counsel. See Goodman v. State (1992), Ind., 588 N.E.2d 507.

Appellant claims it was improper for the prosecutor to observe "that the defense counsel does not want the jury to know the truth." Appellant cites Loveless v. State (1960), 240 Ind. 534, 166 N.E.2d 864, wherein this Court condemned one attorney waging a personal attack upon opposing counsel. It is highly improper for counsel to attempt to impinge the integrity of opposing counsel. The prosecutor's conduct in this regard is deplorable and in no sense of the word is to be condoned by this Court. In Scherer v. State (1990), Ind., 563 N.E.2d 584, this Court passed upon similar conduct by a prosecutor. There as here, we observe the conduct of the prosecutor to be improper. However, as in the case at bar, the evidence of guilt was so overwhelming that we did not feel justified in reversing the case.

In the case at bar, as in Scherer, in view of the evidence presented against appellant, we would not be justified in reversing the case because of the improper conduct of the prosecutor.

Appellant contends the prosecutor committed reversible error during closing argument when he improperly construed defense counsel's argument as admitting that his client was a thief. Argument by both defense counsel and the prosecutor at this phase became rather ragged. Defense counsel attempted to set up a reconstruction of the events with the bottom line being that Tara Fox turned the gun on the defendant and forced him to drive away from the scene of the shooting.

In his rebuttal, the prosecutor continued the argument in attempting to translate for the jury that appellant's counsel had admitted appellant was a car thief. One can only sympathize with the trial judge when the final argument by counsel assumes the proportions observed here. Not only is it exasperating for the trial judge but one has to believe it also is exasperating for the jury. Here again, the prosecutor was responding to the argument of the defense counsel. Goodman, supra. We cannot say that this constitutes reversible error.

Appellant contends that in his closing argument the prosecutor mischaracterized and distorted the evidence. In his argument, the prosecutor referred to a lock-blade knife which was found in the car following the crime. Here again, the trial judge had to referee an unnecessary squabble between counsel. They argued with each other as to where the knife was found in the car and what, if any, inference should be drawn therefrom. Here again, this had little or nothing to do with the evidence of how the crime was perpetrated. We see no reversible error here.

Appellant claims the prosecutor improperly argued that the defense had failed to prove a matter when the State had been successful in its objection to the introduction of that evidence. During the trial, Jenny Upchurch and Willie Alexander testified that appellant had stated that he and Fox were trying to "hustle" Kenneth Wallace. Defense counsel then tried to pursue what the term "hustle" meant. He indicated that it did not mean they were attempting to rob Wallace but that "hustle" meant they were "pulling a trick, prostitution, or begging." The trial court sustained the State's objection on going into the street definition of the word "hustle." When the State made its objection, the evidence already was before the jury that the word "hustle" meant something other than robbery. The State's objection and the court's ruling on that objection prevented the belaboring of the extended definition of the word "hustle." The trial court was well within its discretion in terminating this extended argument on a point already made. Rowe v. State (1989), Ind., 539 N.E.2d 474.

Appellant claims the trial court erred in overruling his motion for a mistrial following final argument. He based his motion upon the various acts of misconduct of the prosecuting attorney during the final argument. As above stated, we accept appellant's statement that much of the prosecutor's final argument was improper. Appellant also is correct in his position that improper comment during final argument must be considered in the cumulative impact which it might have had upon the jury. Evans v. State (1986), Ind., 497 N.E.2d 919.

In Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d 843, this Court dealt with a situation very similar to the case at bar and observed that we had the duty...