Warner v. State

• Decision Date: 09 September 1976
• Docket Number: No. 275S53,275S53
• Citation: 265 Ind. 262,54 Ind.Dec. 481,354 N.E.2d 178
• Parties: Roman Earl WARNER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 178

354 N.E.2d 178

265 Ind. 262

Roman Earl WARNER, Appellant, v. STATE of Indiana, Appellee.

No. 275S53.

Supreme Court of Indiana.

Sept. 9, 1976.

Hawk P. C. Kautz, John Kappos, Merrillville, for appellant.

Theodore L. Sendak, Atty. Gen., John R. O'Bryan, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, Roman Earl Warner, was charged with kidnapping, Ind.Code § 35--1--55--1 (Burns 1975), rape, Ind.Code § 35--13--4--3 (Burns 1975), and assault and battery with intent to kill, Ind.Code § 35--13--2--1 (Burns 1975). After a trial by jury, he was found guilty of each charge. He was sentenced to life imprisonment for kidnapping, to not less than two nor more than twenty-one years for rape, and to not less than two nor more than fourteen years for assault and battery with intent to kill. All the sentences were to run concurrently. Appellant filed a motion to correct errors which was overruled. He appeals to this Court on two grounds: (1) that the deputy prosecuting attorney, in his rebuttal summation, denied appellant a fair trial by his prejudicial remarks concerning an out-of-court identification of appellant by two eye witnesses and concerning the jury's duty, as the State of Indiana, to convict appellant, and that the court erred in denying appellant's motions for a mistrial because of these remarks; and (2) that the court erred in denying appellant's petition for examination as a criminal sexual deviant, pursuant to Ind.Code § 35--11--3.1--1 (Burns 1975).

With regard to the statements made by the deputy prosecutor, the State argues that appellant waived consideration of any error on appeal, because he did not state the reasons for his objections. Each objection referred to a specific sentence or sentences, and, in the context of the case, the reason for the objections should have been obvious to the court. Appellant did not waive appeal for lack of specificity. We agree with the State that appellant did waive appellate review of other remarks by the deputy prosecutor to which he made no objection at the trial level.

Considering the merits of appellant's claim that the court erred in refusing to declare a mistrial, we set out the first statement which appellant objected to:

'That defendant is here in Court because two eye witnesses recognized him and identified him and came in here and identified him for you.'

Appellant objects to this as an evidentiary harpoon. Twenty days before trial, the prosecuting attorney had made a written stipulation that there would be no testimony or evidence referring directly or indirectly to any photographic or line-up identification. While the impropriety of this remark may have been obvious to counsel for the State, to appellant, and to the court, it is not likely that the jurors would have grasped its implications. Even if they understood the remark to refer to an identification other than one at the time of the crime, without may information about the circumstances of an earlier identification, they would give the testimony very little weight. The significance of this statement would have been obscure to the jury. We find no error in denying a mistrial on the basis of this statement. White v. State, (1971) 257 Ind. 64, 272 N.E.2d 312, and cases set our therein.

The second statement made by the deputy prosecutor which was the reason for a second motion for a mistrial is:

'You're representing the State of Indiana at this time. You are the morals of this State and this County. . . . The punishment is serious, but where law ends tyranny begins and for that reason I'm asking you to find this defendant guilty of each and every count alleged in the information. As I said the evidence has been overwhelming and I am sure that on your consideration you will find that it's more than sufficient to carry our burden of beyond a reasonable doubt.'

Appellant objects that the jurors would have interpreted the statement, 'You're representing the State of Indiana at this time,' to mean that they were prosecutors, since they knew that the State of Indiana had charged the defendant and conducted the prosecution. Such an interpretation is not reasonable. The jury was aware that its role was to decide between two parties, the State and appellant, and, after voir dire, admonishments, and instructions, it is impossible to imagine that they would believe themselves to be prosecutors. Considering this sentence with the following sentence, that they were the 'morals of this State and this County,' they would have understood the prosecutor's reference to be to their role as representatives of the community and residents of Indiana.

As for the deputy prosecutor's request that they should find appellant guilty of each count, although the punishment is serious, in order to avert tyranny, this is the type of remark which is unnecessary and unprofessional. We have noted that the prosecutor may state his opinion as to the guilt of the accused, if he prefaces it with a clear indication that his conclusion is based on the evidence the jury has heard. Swope v. State, (1975) Ind., 325 N.E.2d 193. However, it is misconduct to ask the jury to find the accused guilty or to imply that their failure to do so will have grave consequences for the criminal justice system. In this case, the reference to tyranny was an improper exaggeration, but, without further argument along that line, we do not find that the court erred in denying the motion for a mistrial. We do not find that either of the remarks objected to put appellant in a position of grave peril. White v. State, supra, 272 N.E.2d at 320.

On August 31, 1974, the same day that the jury announced its verdict, appellant filed a petition for examination as a possible criminal sexual deviant, pursuant to Ind.Code § 35--11--3.1--2 (Burns 1975). Such a petition is to be filed after conviction and prior to sentencing. Ind.Code § 35--11--3.1--3(a). On September 10th appellant amended his petition, and the trial court ruled as follows:

'The Court being duly advised now finds that the defendant herein has been convicted of rape by force, violence and coercion; the Court further finds that relief under the Criminal Sexual Deviancy Act is not available to a defendant until after he has been convicted of a sexual offense; the Court further finds that prior to said defendant's trial and conviction the Legislature amended the Criminal Sexual Deviancy Act to provide that a petition may not be made for examination as a possible criminal sexual deviate if the person has been convicted of rape committed by force, violence or coercion. (Burns § 9--40022) (sic); the Court further finds that said amendment is applicable to the defendant herein and therefore that said defendant is prohibited from petitioning for relief under the Criminal Sexual Deviancy Act; the Court therefore finds that defendant's amended petition for examination as a possible criminal sexual deviate should be denied.'

Clearly, the basis for the denial of appellant's petition was the statutory amendment excluding persons convicted of rape by force.

Appellant argues that that amendment is an ex post facto law as applied to him. The crimes which the jury found appellant had committed occurred on March 22 1973. At that time, the Criminal Sexual Deviancy statutes, Ind.Code §§ 35--11--3.1--1 to --37, permitted a person convicted of rape by force to petition for examination as a possible criminal sexual deviant. On February 15, 1974, the Indiana Legislature passed an amendment which excluded from the right to petition persons 'convicted of rape committed by force, violence or coercion.' Acts 1974, P.L. 149, § 2, p. 634, now Ind.Code § 35--11--3.1--2.1. The amendment was effective immediately.

In this appeal, we are faced with two issues: (1) whether the statute excluding persons convicted of rape by force from the right to petition for consideration for treatment as a criminal sexual deviant is a criminal statute within the meaning of the ex post facto prohibition; and (2) whether the commission of the crime or the conviction is the triggering event which determines whether the statute at issue was passed 'after the fact.'

Article 1, § 10, cl. 1, of the United States Constitution and Art. 1, § 24, of the Indiana Constitution prohibit the State from passing any ex post facto law. The ex post facto prohibition applies only to laws which deprive a person accused or convicted of a crime of a substantial personal right which he would have had at the time he committed the offense. It does not apply to laws which change private or civil rights. Courts have determined whether statutes are criminal or non-criminal. E.g., Cummings v. Missouri, (1867) 71 U.S. (4 Wall.) 277, 325--32, 18 L.Ed. 356. More often, they have considered whether the statute changed a 'substantial right,' or 'mere procedure.'

In this case, the State correctly does not argue that the right to petition is a matter of mere procedure. However, the State does argue that the Criminal Sexual Deviancy Act (hereinafter C.S.D. Act) is not a criminal statute, because the proceedings under that Act are civil in nature, citing State ex rel. Savery v. Criminal Court of Marion County, Div. One, (1955)234 Ind. 632, 130 N.E.2d 128. Assuming that the proceedings are civil in nature, e.g., nothing has to be proven by the State beyond a reasonable doubt, that finding does not satisfy the ex post facto objections. If the statute provides for an increase in punishment or deprives appellant of a possible avenue of lesser punishment, it is an ex post facto law. Calder v. Bull, (1798) 3 U.S. (3 Dall.) 386, 1 L.Ed. 648; Kring v. Missouri, (1883) 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506; Lindsey v. Washington, (1937) 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182. There is no question that the amendment changed the possible punishment to the disadvantage of appellant after he committed his offense. The C.S.D. Act applies only to those...