Walker v. State, No. 1-1182A337

Docket NºNo. 1-1182A337
Citation454 N.E.2d 425
Case DateSeptember 26, 1983
CourtCourt of Appeals of Indiana

Page 425

454 N.E.2d 425
Thomas WALKER, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 1-1182A337.
Court of Appeals of Indiana,
First District.
Sept. 26, 1983.
Rehearing Denied Oct. 26, 1983.

Page 427

Frank G. Kramer, Ewbank, Meyer & Kramer, Lawrenceburg, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Presiding Judge.

Thomas Walker appeals the verdict convicting him of driving under the influence, Ind.Code 9-4-1-54(b). Walker was tried by a jury in the Dearborn County Court on November 15, 1982.

We affirm.

The facts disclose Walker was arrested for driving while intoxicated and driving left of center on June 14, 1982. A police officer observed Walker make a wide turn on a particular street in Aurora and cross the center line. The officer stopped Walker and noticed the odor of alcohol. Walker was escorted to the Aurora police station, where he was given a breathalyzer examination and dexterity test. The results of the breathalyzer examination revealed Walker had a blood-alcohol level of .12% and he failed three of the four dexterity tests.

The jury found Walker guilty of driving under the influence, but acquitted him on driving left of center. The trial court sentenced Walker to ten days in jail which was suspended, a $500 fine and costs, suspended him from operating a motor vehicle for sixty days, and placed him on probation.

Walker alleges the trial court violated his right to equal protection as guaranteed by the fourteenth amendment of the United States Constitution and violated his sixth amendment right to a fair and impartial trial by imposing a harsher sentence because he exercised his right to a jury trial. Walker alleges prosecutorial misconduct occurred during the State's final argument. Walker also challenges the sufficiency of the evidence to support the verdict and asserts he is entitled to a new trial because of newly discovered evidence.

Walker alleges the prosecutor's final argument constituted misconduct. The prosecutor began his rebuttal argument by stating:

Ladies and gentlemen, if you buy that reasoning, you're ignoring the law of the State of Indiana. And each one of you told me this morning that you follow the law as the Judge gives it to you.

At this point, Walker's attorney objected to this argument, noting that the jury could find Walker not guilty and still follow the law. Although Walker did not move for an admonishment, the trial court stated:

Upon the objection made, the Court is aware that each side tries to sway the jury as to a particular verdict in this matter and would be concerned that the jury listen to the instructions and apply the law as stated by the Court in this case.

Walker argues that the prosecutor's statement denied his right to a fair trial.

It is well settled that the conduct of final argument as well as the course of the trial lies within the sound discretion of the trial court. Whitacre v. State, (1980) Ind., 412 N.E.2d 1202. Final instructions are presumed to correct any misstatement of the law made during final argument, Atkins v. State, (1982) Ind.App., 437 N.E.2d

Page 428

114. Moreover, it is presumed that an admonishment is sufficient to cure any prejudice that might have attached to a defendant because of a statement by the prosecutor during closing argument, unless it appears that such prejudice is so severe that it places the defendant in grave peril. Johnson v. State, (1982) Ind., 435 N.E.2d 242.

We remain unpersuaded that if Walker suffered prejudice, it was sufficient to place him in grave peril. The trial court's statement, although it was not an admonishment, certainly informed the jury that it would instruct them about the law. The trial court did not abuse its discretion in overruling Walker's objection.

Walker argues that the evidence was insufficient to support his conviction of driving under the influence. In considering a claim of insufficiency of the evidence, the reviewing tribunal will not weigh the evidence nor judge the credibility of witnesses. Rather we look to the evidence most favorable to the State, and the reasonable inferences that may be drawn therefrom. If this evidence and those inferences provide substantial evidence to support the elements of the offense, the verdict will not be disturbed. Wiles v. State, (1982) Ind. 437 N.E.2d 35. The evidence at trial established Walker smelled of alcohol when he was stopped, he was unable to successfully complete dexterity tests, his blood alcohol level was .12%, and he admitted that he had...

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12 practice notes
  • Hill v. State, No. 1084S399
    • United States
    • Indiana Supreme Court of Indiana
    • 17 Noviembre 1986
    ...importance of protecting the constitutional right to jury trial was emphasized in Judge Robertson's opinion in Walker v. State (1983), 454 N.E.2d 425, 429, trans. It is well settled that to punish a person for exercising a constitutional right is "a due process violation of the most basic s......
  • Harwei, Inc. v. State, No. 2-283A64
    • United States
    • Indiana Court of Appeals of Indiana
    • 23 Enero 1984
    ...the judgment of conviction, it will not be disturbed. Smith v. State, (1983) Ind., 454 N.E.2d 412; Walker v. State, (1983) Ind.App., 454 N.E.2d 425 (transfer The crucial issue here is whether a defendant can create a false impression in one who knows the defendant's representation is false.......
  • Mayberry v. State, No. 26A04-9205-CR-159
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Diciembre 1992
    ...conflicts with a defendant's exercise of his constitutional right to a jury trial. (citations omitted). Walker v. State (1983), Ind.App., 454 N.E.2d 425, 429. 4 When one exercises her right to a trial, she is pleading not guilty to the crime charged. At trial, the defendant is clothed with ......
  • Bluck v. State, No. 12A02-9812-CR-976.
    • United States
    • 22 Septiembre 1999
    ...his constitutional right to a jury trial. The right to trial by jury for serious offenses is a fundamental right. Walker v. State, 454 N.E.2d 425, 429 (Ind. Ct.App.1983), trans. denied. A more severe sentence may not be imposed upon a defendant because he exercises that right. Hill v. State......
  • Request a trial to view additional results
12 cases
  • Hill v. State, No. 1084S399
    • United States
    • Indiana Supreme Court of Indiana
    • 17 Noviembre 1986
    ...importance of protecting the constitutional right to jury trial was emphasized in Judge Robertson's opinion in Walker v. State (1983), 454 N.E.2d 425, 429, trans. It is well settled that to punish a person for exercising a constitutional right is "a due process violation of the most basic s......
  • Harwei, Inc. v. State, No. 2-283A64
    • United States
    • Indiana Court of Appeals of Indiana
    • 23 Enero 1984
    ...the judgment of conviction, it will not be disturbed. Smith v. State, (1983) Ind., 454 N.E.2d 412; Walker v. State, (1983) Ind.App., 454 N.E.2d 425 (transfer The crucial issue here is whether a defendant can create a false impression in one who knows the defendant's representation is false.......
  • Mayberry v. State, No. 26A04-9205-CR-159
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Diciembre 1992
    ...conflicts with a defendant's exercise of his constitutional right to a jury trial. (citations omitted). Walker v. State (1983), Ind.App., 454 N.E.2d 425, 429. 4 When one exercises her right to a trial, she is pleading not guilty to the crime charged. At trial, the defendant is clothed with ......
  • Bluck v. State, No. 12A02-9812-CR-976.
    • United States
    • 22 Septiembre 1999
    ...his constitutional right to a jury trial. The right to trial by jury for serious offenses is a fundamental right. Walker v. State, 454 N.E.2d 425, 429 (Ind. Ct.App.1983), trans. denied. A more severe sentence may not be imposed upon a defendant because he exercises that right. Hill v. State......
  • Request a trial to view additional results

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