Williams v. State, 1180S428

• Decision Date: 07 October 1981
• Docket Number: No. 1180S428,1180S428
• Parties: Larry WILLIAMS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 662

426 N.E.2d 662

Larry WILLIAMS, Appellant, v. STATE of Indiana, Appellee.

No. 1180S428.

Supreme Court of Indiana.

Oct. 7, 1981.

Jere L. Humphrey, Plymouth, for appellant.

Theodore L. Sendak, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was convicted of murder, Ind.Code § 35-42-1-1; conspiracy, Ind.Code § 35-41-5-2; and armed robbery, Ind.Code § 35-42-5-1, and was determined to be an habitual offender, Ind.Code § 35-50-2-8. Trial was by jury and the jury recommended against the death penalty. He received terms of sixty years, twenty years, and twenty years, for these offenses, respectively, and an additional term of thirty years for the habitual criminal determination, all of the terms to be served consecutively.

I.

Williams contends that the court erred in denying his motion for mistrial because of an improper comment by the prosecutor, during final summation, upon his failure to testify at trial. The prosecutor stated:

"It's true DeWayne Schuh, Larry Perkins and George Redmon testified, agreed to testify pursuant to plea agreements. They all said they'd agree to testify, and to testify means to sit on the stand under oath. Nobody agreed to make up a story. There's no evidence of that. There's really nothing their stories are the only stories you have in basis. They became our witnesses by their own doing and by the doing of Larry Williams, when they agreed to commit this crime. They were the people at the scene and they're the ones best to know what happened. They were there. They are his friends and their story is basically the only story.

MR. HUMPHREY: May we approach the bench, Your Honor."

Defense counsel objected to the statement that "their story is basically the only story", and requested a mistrial. The judge sustained the objection, told the prosecutor that he did not want to hear any more of that, but denied the motion for mistrial.

Comment by the court or prosecutor upon the defendant's refusal to testify is a vestige of the inquisitional system of criminal justice which the Fifth Amendment outlaws. Griffin v. California, (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.

"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." Williams v. Wainwright, (5th Cir. 1969) 416 F.2d 1042, 1043.

It also violates the specific statutory prohibition thereof in Ind.Code § 35-1-31-3.

"We construe the statute (now codified at Ind.Code § 35-1-31-3) to mean, that, when a defendant in a criminal cause declines to testify in his own behalf, absolute silence on the subject is enjoined on counsel in their argument on the trial...." Long v. State, (1877) 56 Ind. 182, 186.

In some situations it may not be improper comment for the prosecution to go so far as to point out during final summation that the prosecution's case is unimpeached and uncontradicted. Frazier v. State, (1893) 135 Ind. 38, 34 N.E. 817. However where no one but the accused could have contradicted the prosecution's witnesses such a statement is improper and objectionable comment on the accused's failure to testify. Rowley v. State, (1972) 259 Ind. 209, 285 N.E.2d 646; Desmond v. United States, (1st Cir. 1965) 345 F.2d 225; United States v. Flannery, (1st Cir. 1971) 451 F.2d 880.

The case for the prosecution was based in large measure upon the testimony of codefendants Larry Perkins, DeWayne Schuh and George Redmon. According to their testimony, Schuh, Perkins, Redmon, and appellant Williams planned the robbery of the victim Yarian; appellant and Perkins then procured a sawed-off shotgun; and Schuh, Perkins, and appellant drove to the Yarian residence where appellant Williams alone left the car with the gun while wearing a ski-mask over his face and robbed, shot, and killed Yarian. Mrs. Yarian, the only other person present at the precise point of the shooting testified that she could not identify her husband's assailant because his face was covered with a ski-mask.

In the prosecutor's final summation he pointed out to the jury that Schuh, Perkins, and Redmon were people at the scene and that people at the scene know best what happened. He then said that they had given the only story. Appellant was the only other person placed at the scene who did not testify. He was the only person who could give a version of the events of equal strength to their stories, i.e., another "story" or side of the story which might serve to contradict. In this framework, the prosecutor's statement that "their story is basically the only story" was subject to interpretation by the jury as a comment on the failure of the defendant Williams to take the stand, and was an invasion of right.

In Indiana pursuant to our holding in Rowley v. State, supra, the invasion of right from this improper comment could have been remedied by an immediate and effective admonition by the court to the jury to disregard it. Pursuant to Gross v. State, (1974) 261 Ind. 489, 306 N.E.2d 371, and Lee v. State, 424 N.E.2d 1011 (Ind.1981) however, it is reversible error for the trial court to give a preliminary or final instruction to the jury regarding the refusal of the defendant to testify, in the absence of a request by the defendant for it. An admonition to the jury to disregard a prosecutorial statement which is subject to interpretation by the jury as a comment on the refusal to testify, can, like the instruction not to consider the refusal to testify at trial, invite jury consideration of that fact, and therefore should be treated similarly. We therefore hold that the jury should be given an admonition when the defendant requests one, and not otherwise, and that the test to be applied in determining whether or not to grant a mistrial is whether or not such an admonition would be fully effective if given. Here we believe it would have been, and it was therefore not error to refuse to declare a mistrial.

II.

Appellant sought suppression of shotgun shells and split shot fishing sinkers seized by the police in a search of his mother's residence with warrant. He claimed that the warrant was invalid as based upon a stale affidavit. The trial court concluded that appellant had no standing to assert the claim. We find the warrant valid and the seizure of the items proper and affirm the trial court on this basis.

The offense alleged occurred on March 6, 1979. The affidavit for search warrant was executed and the warrant issued on or about May 12, 1979. The search was immediately conducted and the seizures made. The affidavit chronicled events occurring on March 6, 1979, including the shotgun shooting and robbery of the victim, the division of the loot at the mother's house, and the statement of appellant that he intended to burn the purse.

Time can be a critical requirement in determining probable cause. In Ashley v. State, (1968) 251 Ind. 359, 241 N.E.2d 264, we held that probable cause to believe that marijuana was in a certain building on a particular day was not probable cause to believe that it would be in the same building eight days later. Here, we do not deal with marijuana, which can be expected in the natural course of events to be smoked or moved into commercial channels, but with the burned remnants of a purse and its contents, ashes or sludge, having an innocent appearance and no utility. There is a substantial probability that refuse of this nature will not be removed from the site of the burning. There was probable cause to believe that these substances would be at the house and premises of appellant's mother some sixty-seven days after the burning and the warrant was not illegal on this basis.

Appellant next contends that the warrant was illegal in that it authorized the officers to search the premises for ammunition, while there was nothing in the affidavit to justify the belief that such matter would be in the house. According to the testimony given on the motion to suppress and the comments of the judge given in support of his order denying the motion, the shotgun shells and the sinkers were found by the officers in the house in plain view. Assuming that that part of the warrant authorizing the officers to search for ammunition was illegal, such illegality would not have rendered the items inadmissible. The warrant was ample justification for the intrusion of the police upon the house and premises, and in the course of legitimately searching for the burned remnants of the purse and its contents, evidence of the crime, the police found the shotgun shells and the sinkers in plain view. From the nature of the murder weapon, appellant's former possession of the murder weapon and ammunition for it, and appellant's use of the house as a hideout immediately after the crime, the officers had probable cause to believe that the items would connect appellant to the crime. The seizure of the items was not contrary to the guarantee of the Fourth and Fourteenth Amendments to the United States Constitution or Art. I, § 11, of the Indiana Constitution. Ludlow v. State, (1974) 262 Ind. 266, 314 N.E.2d 750; Wilson v. State, (1975) 263 Ind. 469, 333 N.E.2d 755.

III.

Appellant next claims that the trial court erred in limiting his cross-examination of accomplices with respect to plea agreements reached by them in return for their testimony against him. Such cross-examination should be full and wide-ranging as it bears heavily upon the weight to be accorded to incriminating testimony. Newman v. State, (1975) 263 Ind. 569, 334 N.E.2d 684. Here, the understanding reached by the prosecution with the witnesses included not only favorable disposition of charges against them stemming from the murder of Mr. Yarian, but other charges against them of murder in which appellant was also charged. The court ruled that counsel could...