Taylor v. State, No. 52A04-9601-CR-2

Docket NºNo. 52A04-9601-CR-2
Citation677 N.E.2d 56
Case DateFebruary 25, 1997
CourtCourt of Appeals of Indiana

Page 56

677 N.E.2d 56
Charles E. TAYLOR, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 52A04-9601-CR-2.
Court of Appeals of Indiana.
Feb. 25, 1997.
Opinion on Rehearing May 12, 1997.
Transfer Denied July 16, 1997.

Page 59

Caroline B. Briggs, Flora, for Appellant-Defendant.

Pamela Carter, Attorney General, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

RILEY, Judge

STATEMENT OF THE CASE

Defendant-Appellant Charles E. Taylor (Taylor) appeals his conviction of conspiracy to commit dealing in marijuana, a Class D felony. 1

We affirm.

ISSUES

Taylor presents the following re-stated consolidated issues for our review:

1. Whether prosecutorial misconduct occurred during the closing argument.

2. Whether Taylor's constitutional rights were violated by the trial court's communications with the jury during deliberation.

3. Whether evidence was improperly excluded by the trial court.

4. Whether the trial court erred in allowing the information to be amended on the day of trial.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to the verdict follow. At a downtown bar in Peru, prior to Taylor's arrest, Taylor was in communication with police informant (Walker) about the cost of marijuana. Taylor indicated that Walker could come to his residence when he needed more marijuana. Walker telephoned Taylor's residence on February 22, 1994, and set up an appointment with a woman who also lived there (Gilliland) to pick up marijuana later that afternoon. When Walker arrived he talked with Taylor in the front room about the marijuana. Taylor later indicated that Walker was to follow Gilliland into the bedroom. Gilliland then provided the marijuana and collected the money while Taylor watched. Walker left, and Gilliland gave the money to Taylor.

Taylor was charged with conspiracy to commit dealing in marijuana on May 26, 1994, arising from the February 22, 1994, transaction. The trial was held on May 9, 1995. After the jury was sworn in, Taylor moved to dismiss the conspiracy charge, alleging it was defective. Rather than dismissing the charge, the trial court ordered that the information be amended, over Taylor' § objection. After deliberation, the jury found Taylor guilty of the offense charged. This appeal followed. Additional facts are provided below as necessary.

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DISCUSSION AND DECISION

I. Prosecutorial Misconduct

First, Taylor challenges the verdict by alleging prosecutorial misconduct. In reviewing a claim of prosecutorial misconduct, we must go through a two part analysis. We must determine: (1) whether the prosecutor committed misconduct, and (2) whether the misconduct, given the circumstances, placed Taylor in a position of grave peril to which he should not have been subjected. Turnbow v. State, 637 N.E.2d 1329, 1333 (Ind.Ct.App.1994), trans. denied.

The conduct at issue here is a comment that the prosecutor made in the closing argument. During the closing argument the prosecutor twice called the evidence "uncontroverted," to which Taylor's attorney objected and moved for a mistrial on the grounds that the comment impermissibly referred to Taylor's failure to testify. The trial court overruled both objections. (R. 788, 782).

"The Fifth Amendment privilege against compulsory self-incrimination is violated when a prosecutor makes a statement that is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant's silence." Moore v. State, 669 N.E.2d 733, 739 (Ind.1996). However, "[t]he Indiana Supreme Court has indicated that if in its totality the prosecutor's comment is addressed to other evidence rather than the defendant's failure to testify, it is not grounds for reversal." Channell v. State, 658 N.E.2d 925, 932 (Ind.Ct.App.1995), reh'g denied, trans. denied.

When the challenged language is not a direct comment on the defendant's failure to testify, we must decide whether the comment amounts to a summary of the evidence, rather than an attempt to comment on the defendant's silence. We previously have held that statements made by the State as to the uncontradicted nature of the State's evidence do not violate a defendant's Fifth Amendment rights. Comment on the lack of evidence by the defense concerning otherwise incriminating evidence against him is proper "as long as the State focuses on the absence of any evidence to contradict the State's evidence and not on the accused's failure to testify." Martinez v. State, 549 N.E.2d 1026, 1028 (Ind.1990); Channell, 658 N.E.2d at 932 (holding that arguments which focus on the uncontradicted nature of the State's case do not violate the defendant's right not to testify).

There were two comments made by the prosecutor which are at issue here. The two comments were: (1) "the evidence is uncontroverted, there's no evidence before you to the contrary ...;" (2) "when they sit there on the couch, they then talk about the quarter-pound, according to testimony of Kicker [Walker], and there is nothing to the contrary whatsoever, that is uncontroverted...." Although they need to be addressed separately, neither comment requires reversal in this case.

In his reply brief, Taylor argues that because he is the only one who could have controverted the testimony, the prosecutor's comment on the uncontroverted evidence is necessarily improper. The precedent given by Taylor to uphold this argument is the supreme court decision in Dooley v. State, 271 Ind. 404, 393 N.E.2d 154, 155 (1979). 2 There are several factors which distinguish this case from Dooley. In Dooley, the defendant did not testify and presented no evidence whatsoever. The prosecutor there said that the evidence was "uncontroverted in any way by other evidence." Id. 393 N.E.2d at 155. This is very similar to the prosecutor's first challenged comment in this case. 3 Although the trial court in Dooley reversed the case based on comments made by the prosecutor, it was not this comment but later ones which necessitated reversal. The first comment directly referred to the defendant's privilege not to testify, and the

Page 61

second comment included: "nobody else got up and told you...." Dooley, 393 N.E.2d at 155. Those two comments were much more direct than the ones at issue here, obviously referring to the lack of testimony rather than the lack of conflicting evidence.

The first comment made by the State here, that the evidence before the jury is uncontroverted, is clearly a comment on the evidence as a whole. It is general enough not to constitute an impermissible reference to Taylor's failure to testify.

The second comment made by the prosecutor requires further analysis. The prosecutor said that the evidence pertaining to the discussion in the front room before the sale was uncontroverted. Taylor argues that he is the only one who could have controverted the evidence presented against him as to this step in the process, because he and Walker were the only ones present in the room. He argues that saying it is uncontroverted, when he is the only other one who was there, is an impermissible comment on his failure to testify.

Again, Taylor relies on Dooley to support this proposition. However, that case is not about the inferences drawn from the impermissible comment in a specific fact situation, but focuses on the failure of the court to properly admonish the jury. 393 N.E.2d at 156. Taylor also cites Rowley v. State, 259 Ind. 209, 285 N.E.2d 646 (Ind.1972). In that case, the prosecutor's improper comment was much more direct that the one we are dealing with here. That case acknowledges that there is a unique factual situation, when "no one but appellant could have contradicted the government witnesses," which makes a comment on the lack of contradicting evidence inappropriate. Rowley, 285 N.E.2d at 649 (quoting Desmond v. United States, 345 F.2d 225, 226-227 (1st Cir.1965)).

In this case, Taylor is not the only person who could have contradicted the testimony given. Gilliland was there, although she may have momentarily left the room. Furthermore, the State discusses several different stages in the transaction: the conversation at the bar, the telephone call to set up the appointment, the conversation before the sale, and the exchange of cash for the marijuana, not just the conversation on the couch referred to by the prosecutor. Regardless of the factual circumstances, the comment here is focused on the evidence presented, and not on the defendant's silence.

It is necessary to note that the standard relied on by Taylor, for determining whether the prosecutor improperly referred to the defendant's failure to testify, has been recently modified. Taylor relies on the standard set forth in Rowley which is: "a comment made by a prosecuting attorney, directly or indirectly, which is subject to interpretation by a jury as a comment upon failure of a defendant to testify has been strictly regarded as an impingement on the substantial right of the defendant." 285 N.E.2d at 648 (quoting Williams v. Wainwright, 416 F.2d 1042, 1043 (5th Cir.1969)) (emphasis added). This test has been modified by Moore which uses the following standard: "The Fifth Amendment privilege against compulsory self-incrimination is violated when a prosecutor makes a statement that is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant's silence." 669 N.E.2d at 739 (Ind.1996) (emphasis added). This new test inserts a reasonableness measure that was not existent in the strict Rowley test. Although the comment here could have possibly been misconstrued by the jury, it is not reasonable that it would lead a jury to make adverse inferences. The totality of the comment addresses the evidence presented, not the evidence missing. The comment by the prosecutor was not improper and does not constitute prosecutorial misconduct. 4

Page 62

II. Jury Deliberations

The...

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22 practice notes
  • Shaw v. Wilson, No. 12–1628.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 28, 2013
    ...of the offense” after the deadline in Section 35–34–1–5. Similar statements are made in appellate cases. See, e.g., Taylor v. Indiana, 677 N.E.2d 56 (Ind.Ct.App.1997) (“The amendment here did not change the theory of the case, change the identity of offense charged, or cause prejudice to Ta......
  • Singleton v. State, No. 45A03-0712-PC-551.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 26, 2008
    ...trans. not sought; Tripp, 729 N.E.2d at 1064-65; Smith v. State, 718 N.E.2d 794, 800 (Ind.Ct.App.1999), trans. denied; Taylor v. State, 677 N.E.2d 56, 67 (Ind.Ct.App. 1997), trans. denied; Hart v. State, 671 N.E.2d 420, 427 (Ind.Ct.App.1996), trans. not sought; Todd v. State, 566 N.E.2d 67,......
  • Shaw v. Wilson, No. 12-1628
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 24, 2013
    ...of the offense" after the deadline in Section 35-34-1-5. Similar statements are made in appellate cases. See, e.g., Taylor v. Indiana, 677 N.E.2d 56 (Ind. Ct. App. 1997) ("The amendment here did not change the theory of the case, change the identity of offense charged, or cause prejudice to......
  • Foster v. State, No. 71S00-9709-CR-510
    • United States
    • Indiana Supreme Court of Indiana
    • September 8, 1998
    ...356 N.E.2d 1188, 1197 (1976), overruled on other grounds, Smith v. State, 689 N.E.2d 1238, 1246-47 n. 11 (Ind.1997); Taylor v. State, 677 N.E.2d 56, 63 (Ind.Ct.App.), transfer denied, 690 N.E.2d 1178 (Ind.1997). If the court does determine that Section 34-36-1-6 requires the court to provid......
  • Request a trial to view additional results
23 cases
  • Shaw v. Wilson, No. 12–1628.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 28, 2013
    ...of the offense” after the deadline in Section 35–34–1–5. Similar statements are made in appellate cases. See, e.g., Taylor v. Indiana, 677 N.E.2d 56 (Ind.Ct.App.1997) (“The amendment here did not change the theory of the case, change the identity of offense charged, or cause prejudice to Ta......
  • Singleton v. State, No. 45A03-0712-PC-551.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 26, 2008
    ...trans. not sought; Tripp, 729 N.E.2d at 1064-65; Smith v. State, 718 N.E.2d 794, 800 (Ind.Ct.App.1999), trans. denied; Taylor v. State, 677 N.E.2d 56, 67 (Ind.Ct.App. 1997), trans. denied; Hart v. State, 671 N.E.2d 420, 427 (Ind.Ct.App.1996), trans. not sought; Todd v. State, 566 N.E.2d 67,......
  • Shaw v. Wilson, No. 12-1628
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 24, 2013
    ...of the offense" after the deadline in Section 35-34-1-5. Similar statements are made in appellate cases. See, e.g., Taylor v. Indiana, 677 N.E.2d 56 (Ind. Ct. App. 1997) ("The amendment here did not change the theory of the case, change the identity of offense charged, or cause prejudice to......
  • Foster v. State, No. 71S00-9709-CR-510
    • United States
    • Indiana Supreme Court of Indiana
    • September 8, 1998
    ...356 N.E.2d 1188, 1197 (1976), overruled on other grounds, Smith v. State, 689 N.E.2d 1238, 1246-47 n. 11 (Ind.1997); Taylor v. State, 677 N.E.2d 56, 63 (Ind.Ct.App.), transfer denied, 690 N.E.2d 1178 (Ind.1997). If the court does determine that Section 34-36-1-6 requires the court to provid......
  • Request a trial to view additional results

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