Wofford v. State, No. 279S49

• Docket Nº: No. 279S49
• Citation: 271 Ind. 518, 394 N.E.2d 100
• Case Date: September 11, 1979
• Court: Supreme Court of Indiana

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394 N.E.2d 100 271 Ind. 518 Samuel WOFFORD, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below). No. 279S49. Supreme Court of Indiana. Sept. 11, 1979.

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Harlan M. Noel, Hammond, for appellant.

Theodore L. Sendak, Atty. Gen., Rollin E. Thompson, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Samuel D. Wofford, was convicted by a jury of murder, Ind.Code § 35-42-1-1 (Burns 1979), and was sentenced to forty years' imprisonment. His direct appeal raises the following issues:

1. Whether the defendant was denied a fair trial due to improper remarks of the deputy prosecutor;

2. Whether the admission of certain photographs and certain testimony was reversible error;

3. Whether the evidence was sufficient to support the jury's verdict; and

4. Whether it was error to allow the alternate juror and the instructions to be sent to the jury room.

A summary of the facts from the record most favorable to the state indicates that late one night the defendant had invited James R. Medley into the living room of the apartment he shared with Sharon Brown. The two men had something to eat and then defendant told Brown to go into the bedroom. Brown testified that while she was in the bedroom, she heard shots from the living room. Defendant called her and when she came into the living room he said, "I just killed this man."

Brown also testified that the defendant told her to tell the police she had shot Medley because he wouldn't leave. On further direct examination, it was established that Brown's testimony about seeing defendant with a gun and his instructions to her about what to tell the police had not been included in her original deposition statement to the defense because she was afraid of reprisal from the defendant. The defendant's counsel was told before the trial that Brown's testimony had changed but he did not take a second deposition.

I.

The defendant first contends that the prosecutor made an improper comment on the defendant's failure to testify. Although the defendant had not testified, he had put a witness on the stand in an attempt to impeach the state's witness, Sharon Brown, and show that Brown might have been the one who shot Medley. During the final argument to the jury, the prosecutor commented on the fact that the defendant's evidence [271 Ind. 520] did not contradict the state's case in the following remarks:

"What I have to say now, is Mr. Jablonski has not touched the State's case. Mr. Jablonski has spent his entire time talking about prostitution. Mr. Jablonski spent a lot of time talking about who was actually holding the gun at one particular moment. Okay, does that action in any way rebut what the State's evidence shows?"

The defendant cites Rowley v. State, (1972) 259 Ind. 209, 285 N.E.2d 646, in support of his argument that the above remarks were an improper comment on the defendant's failure to testify. It is true that any direct or indirect reference to the defendant's failure to testify is an impingement of his constitutional and statutory rights not to testify. Griffin v. California, (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; Ind.Code § 35-1-31-3 (Burns 1975). However, this Court has held that where the defendant puts on evidence in his defense, it is proper for the prosecutor to comment on the fact that the defendant's evidence does not contradict the state's case. Fortson v. State, (1978) Ind. 379 N.E.2d 147; Ross v. State, (1978) Ind. 376 N.E.2d 1117.

In the instant case, counsel for defense had spent considerable time trying to establish from his witness that Sharon Brown had given perjured testimony, that she was a prostitute, that she had bought the gun for her own protection, and that therefore the jury could infer that she, not the defendant, had killed Medley. Under these circumstances the prosecutor's comment was not a direct or indirect reference to defendant's failure to testify and did not jeopardize defendant's rights.

II.

The defendant next alleges that the admission of certain photographs and certain

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testimony was erroneous and that taken either individually or collectively these admissions constitute reversible error.

The first exhibit objected to was state's exhibit Number One which was a close-up picture of Medley's head and chest after he had been shot and was lying slumped on a couch. At the time the photograph was offered by the prosecution for introduction, there had been no testimony presented describing the death or shooting of the victim. The state offered the photograph for the purpose[271 Ind. 521] of identifying the victim via the testimony of the victim's brother-in-law who identified the man as James Medley. The defendant objected that a sufficient foundation had not been established since the brother-in-law could not testify to the accuracy of the scene. He further argues that the picture was highly prejudicial since it showed the victim with a head wound which was not established as the cause of death. However, we have often held that the trial court has considerable latitude in determining the admissibility of photographs when a conflict appears between the state's right to present relevant evidence and the defendant's right to be...