Moore v. State

669 N.E.2d 733, 1996 Ind. LEXIS 92, 1996 WL 403362
CourtIndiana Supreme Court
DecidedJuly 18, 1996
Docket12S02-9507-CR-838
StatusPublished
Cited by102 cases

This text of 669 N.E.2d 733 (Moore v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore v. State, 669 N.E.2d 733, 1996 Ind. LEXIS 92, 1996 WL 403362 (Ind. 1996).

Opinions

ON PETITION TO TRANSFER

SHEPARD, Chief Justice.

Appellant Thomas Moore appeals his convictions for rape 1 and forcible oral sex.2 The Court of Appeals set aside the convictions based on the prosecutor's reference during final argument to Moore's decision not to testify. We granted transfer and now affirm the convictions.

I. Facts

On September 14, 1987, the victim in this case, whom we shall refer to as A.B., was driving home after attending an evening class. As she traveled on a dark and desolate portion of highway, a car appeared in her rearview mirror. Its headlights repeatedly brightened and dimmed, and A.B. thought she saw a red light on the vehicle. Believing it was a police car, she pulled over, and it drew up behind her.

A figure left the car. As the stranger approached, he shined a flashlight into her back seat and then into her eyes. He asked her if she knew how fast she had been driving and demanded her Hcense and registration. She placed the documents in his exposed hands. He ordered her to move her car onto a side road, and she complied. A.B. then exited her car at the man's request. With the flashlight focused in her eyes, he tested her sobriety and proceeded to "arrest" [735]*735her, using a plastic cord to bind her hands behind her back. He took off her eyeglasses, blindfolded her, and shoved her into his own car.

The man drove around for a time before stopping to kiss A.B. and fondle her breasts. Removing her pants and hitting her legs until she uncrossed them, the assailant forced her to submit to cunnilingus, and then he raped her. Later, when A.B. refused to perform fellatio, he strangled her into submission. Then he raped her twice more before cutting her bindings and dumping her near her car. Police arrested Moore for the crimes, and the State charged him with one count of rape and one count of forcible oral sex,3 both as class B felonies.

At trial, the key issue was the identity of the police impersonator. A.B. provided a general physical description, but because of the flashlight and blindfold, she could not visually identify Moore as her assailant. The prosecution showed that hair and body fluids recovered from A.B. were consistent with specimens taken from Moore. The State also introduced evidence that a latent fingerprint lifted from A.B.'s vehicle registration matched Moore's. In defense, Moore presented three alibi witnesses: his ex-wife, his girlfriend, and a friend. Moore did not testify.4

The jury convicted Moore on both counts. The trial judge sentenced him to twenty years for rape and to a consecutive term of twelve years for forcible oral sex. Moore makes the following claims of error:

(1) the prosecutor referred to Moore's decision not to testify,
(2) the prosecutor committed various acts of misconduct,
(8) the warrant under which the police obtained biological specimens from him was defective, and
(4) the evidence was insufficient to support the convictions.

II. The No-Comment Rule

Moore requests reversal because the prosecutor referred to his decision not to testify. In response to Moore's criticism that the State's evidence was imprecise, the prosecutor remarked:

when you look at the defendant's case and he chose to put on a case in this, he didn't choose to testify which is his right, and he certainly doesn't, isn't compelled to testify but he did choose to put on witnesses, that by examination of all the evidence, the more precise case which is [the State's] is not a matter of science but beyond a reasonable doubt.

(R. 1684-85.) Defense counsel moved for a mistrial, but the court denied the motion. Instead, the court instructed the jurors to disregard the remark and polled them.5

This remark literally referred to Moore's silence. In light of the prosecutor's immediate effort at correction, however, we [736]*736think it was inadvertent.6 Moore bears the burden of proving that the remark penalized his exercise of the right to remain silent. See U.S. Const.Amend. V; Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). If he has shown that the remark was improper, we must presume that reversal is necessary until the State proves beyond a reasonable doubt that any error was harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The question then is whether the jury would have found Moore guilty without the improper remark. United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). We conclude that the remark in this case was not improper and that, even if it were, it was harmless.

A. Propriety of the Remark

At common law, a person with an interest in the outcome of a civil or criminal proceeding was not competent to testify. 3 William Blackstone, Commentaries on the Laws of England 369 (ed. John L. Wendell 1852) (stating that interested parties could not testify in civil proceedings); 4 id. at 356 (stating that civil evidence rules applied with few exceptions to criminal proceedings); see Jacobs v. Finkel, 7 Blackf. 432, 435-36 (1845) (civil proceeding). Criminal defendants thus could not testify in their own behalf at trial. Ferguson v. Georgia, 365 U.S. 570, 573-75, 81 S.Ct. 756, 758-60, 5 L.Ed.2d 783 (1961); Whelchell v. State, 23 Ind. 89, 91 (1864). In the early nineteenth century, courts tried to minimize the harshness of disqualification by allowing criminal defendants to make un-sworn statements, often without the assistance of counsel. Ferguson, 365 U.S. at 582-87, 81 S.Ct. at 763-66.7 In the years after the Civil War, almost every state and the federal government abrogated the common law disqualification of criminal defendants. Id. at 577 & n. 6, 81 S.Ct. at 761 & n. 6.

The rule against prosecutorial comment on a defendant's decision not to testify was created in conjunction with the removal of disqualification. Defendant competency was principally opposed by those who feared it would lead to coerced self-incrimination. Id. at 578-80, 81 S.Ct. at 761-62. Jurors might infer guilt if a competent defendant chose not to take the stand. Rock v. Arkansas, 483 U.S. 44, 50 n. 5, 107 S.Ct. 2704, 2708, n. 5, 97 L.Ed.2d 37 (1987); Wilson v. United States, 149 U.S. 60, 66, 13 S.Ct. 765, 766, 37 L.Ed. 650 (1893). To allay this fear, many of the competency statutes bound prosecutors to silence regarding a defendant's decision not to testify. Ferguson, 365 U.S. at 580, 81 S.Ct. at 762.8

Indiana was part of this trend. Our legislature codified the common law disqualification of interested witnesses in the 1852 code. See Note, Testimonial Privilege and Competency in Indiana, 27 Ind. L.J. 256, 258 n. 5 (1951).

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Cite This Page — Counsel Stack

Bluebook (online)
669 N.E.2d 733, 1996 Ind. LEXIS 92, 1996 WL 403362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-state-ind-1996.