MEMORANDUM DECISION FILED Feb 16 2018, 7:46 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew J. McGovern Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana
Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert Louis Joyce, Jr., February 16, 2018 Appellant-Defendant, Court of Appeals Case No. 82A05-1706-CR-1348 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Michael Cox, Appellee-Plaintiff. Magistrate Trial Court Cause No. 82C01-1702-F6-1038
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A05-1706-CR-1348 | February 16, 2018 Page 1 of 7 Case Summary [1] Robert Joyce, Jr., appeals his conviction for Level 6 felony battery by bodily
waste. We affirm.
Issue [2] The sole issue before us is whether the prosecutor committed misconduct by
commenting upon Joyce’s failure to testify at trial.
Facts [3] On February 20, 2017, Evansville Police Officer Matthew Taylor arrested Joyce
for disorderly conduct and resisting law enforcement. Officer Taylor put Joyce
in the back seat of his police cruiser to transport him to jail. The cruiser did not
have any kind of barrier between the front and back seats. Officer Taylor was
wearing a body cam. A couple of minutes into the drive to jail, Officer Taylor
attempted to speak with Joyce. Joyce, who was intoxicated and agitated, yelled
that he did not want to talk. The body cam also recorded Joyce saying
something along the lines of, “b****, I’ll spit in your mouth,” although it is
difficult to discern precisely what Joyce said because his speech was highly
slurred. Ex. 1, 2:16-2:20. Shortly thereafter, Officer Taylor pulled over in a
parking lot and accused Joyce of spitting on him. Joyce denied doing so.
Officer Taylor removed Joyce from his cruiser and radioed in a request for a
van or a cruiser with a cage to continue transporting Joyce to jail. Officer
Taylor told backup officers who were at the scene that Joyce had spit on his
face and asked them to retrieve napkins for him from inside his cruiser.
Court of Appeals of Indiana | Memorandum Decision 82A05-1706-CR-1348 | February 16, 2018 Page 2 of 7 [4] The State charged Joyce with Level 6 felony battery by bodily waste on a police
officer, Class A misdemeanor resisting law enforcement, Class B misdemeanor
disorderly conduct, and alleged that he was an habitual offender. Joyce pled
guilty to the resisting law enforcement and disorderly conduct charges but
demanded a jury trial on the battery charge. At trial, Officer Taylor testified
that Joyce spat on him, and the State played the body cam video. Because of
the position of the body cam in relation to Joyce, it was not possible to see him
spitting on Officer Taylor.
[5] Joyce elected not to testify at trial. During closing argument, the prosecutor
stated in part:
One of the reasons I’m asking you to believe Officer Taylor is because if you look at another instruction later on that the Court read to you, one of the, and we talked about this a little bit in voir dire, whenever you have two people that are telling you different stories, the defendant is saying, hey I didn’t spit on him, Officer Taylor is saying, hey he did, you look at the reasonableness of the testimony considering the other evidence. We talked about that in voir dire right, you might look to some third party or surveillance video I think is what the example that I had used. In this case we’ve got the surveillance video so to speak, it’s the bodycam footage that you saw, and that correlates with Officer Taylor’s testimony, it does not correlate with the defendant’s testimony. In effect, ladies and gentlemen, to find the defendant not guilty in this case you basically have to call out Officer Taylor and you have to say that Officer Taylor is a liar, a cheat, and a fraud, and he is not those things. At the end of the day Officer Taylor testified the defendant spit on him, the video corroborates that.
Court of Appeals of Indiana | Memorandum Decision 82A05-1706-CR-1348 | February 16, 2018 Page 3 of 7 Tr. Vol. IV pp. 43-44.
[6] Defense counsel did not object to the prosecutor’s closing statement. The trial
court gave an instruction to the jury stating, “The fact that the defendant did
not testify raises no presumption of any kind against the defendant. It shall not
be commented upon, referred to, or in any manner considered by the jury in
determining the guilt or innocence of the defendant.” App. Vol. II p. 59. The
jury found Joyce guilty, and he pled guilty to the habitual offender allegation.
Joyce now appeals.
Analysis [7] Joyce contends the prosecutor improperly commented on his refusal to testify in
violation of his Fifth Amendment right against self-incrimination. Because
Joyce did not object to the prosecutor’s comments, he did not preserve this
claim and he must establish that it rose to the level of fundamental error. See
Nichols v. State, 974 N.E.2d 531, 534-35 (Ind. Ct. App. 2012). When reviewing
a claim of prosecutorial misconduct, we must determine whether the prosecutor
engaged in misconduct that, under all of the circumstances, placed the
defendant in a position of grave peril to which he or she should not have been
subjected. Id. at 535. “‘Whether a prosecutor’s argument constitutes
misconduct is measured by reference to case law and the Rules of Professional
Conduct.’” Id. (quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). We
measure the weight of the peril by the probable persuasive effect of the
misconduct on the jury rather than the degree of impropriety of the conduct. Id.
Court of Appeals of Indiana | Memorandum Decision 82A05-1706-CR-1348 | February 16, 2018 Page 4 of 7 [8] To establish fundamental error based on prosecutorial misconduct, the
defendant must also show that the misconduct made a fair trial impossible or
constituted a clearly blatant violation of basic and elementary principles of due
process, presenting an undeniable and substantial potential for harm. Id. Harm
is established not by a conviction, but rather upon whether the defendant’s right
to a fair trial was detrimentally affected by the denial of procedural
opportunities for the ascertainment of the truth. Id. Misconduct or errors
implicating constitutional issues do not necessarily establish that fundamental
error has occurred. Id.
[9] “The Fifth Amendment privilege against compulsory self-incrimination is
violated when a prosecutor makes a statement that is subject to reasonable
interpretation by a jury as an invitation to draw an adverse inference from a
defendant’s silence.” Moore v. State, 669 N.E.2d 733, 739 (Ind. 1996). A
defendant bears the burden of proving that a prosecutor’s statement penalized
the exercise of his or her right to remain silent. Id. at 736. A prosecutor’s
subjective motivation in making a comment about a defendant’s silence is
irrelevant. Id. at 738.
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MEMORANDUM DECISION FILED Feb 16 2018, 7:46 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew J. McGovern Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana
Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert Louis Joyce, Jr., February 16, 2018 Appellant-Defendant, Court of Appeals Case No. 82A05-1706-CR-1348 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Michael Cox, Appellee-Plaintiff. Magistrate Trial Court Cause No. 82C01-1702-F6-1038
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A05-1706-CR-1348 | February 16, 2018 Page 1 of 7 Case Summary [1] Robert Joyce, Jr., appeals his conviction for Level 6 felony battery by bodily
waste. We affirm.
Issue [2] The sole issue before us is whether the prosecutor committed misconduct by
commenting upon Joyce’s failure to testify at trial.
Facts [3] On February 20, 2017, Evansville Police Officer Matthew Taylor arrested Joyce
for disorderly conduct and resisting law enforcement. Officer Taylor put Joyce
in the back seat of his police cruiser to transport him to jail. The cruiser did not
have any kind of barrier between the front and back seats. Officer Taylor was
wearing a body cam. A couple of minutes into the drive to jail, Officer Taylor
attempted to speak with Joyce. Joyce, who was intoxicated and agitated, yelled
that he did not want to talk. The body cam also recorded Joyce saying
something along the lines of, “b****, I’ll spit in your mouth,” although it is
difficult to discern precisely what Joyce said because his speech was highly
slurred. Ex. 1, 2:16-2:20. Shortly thereafter, Officer Taylor pulled over in a
parking lot and accused Joyce of spitting on him. Joyce denied doing so.
Officer Taylor removed Joyce from his cruiser and radioed in a request for a
van or a cruiser with a cage to continue transporting Joyce to jail. Officer
Taylor told backup officers who were at the scene that Joyce had spit on his
face and asked them to retrieve napkins for him from inside his cruiser.
Court of Appeals of Indiana | Memorandum Decision 82A05-1706-CR-1348 | February 16, 2018 Page 2 of 7 [4] The State charged Joyce with Level 6 felony battery by bodily waste on a police
officer, Class A misdemeanor resisting law enforcement, Class B misdemeanor
disorderly conduct, and alleged that he was an habitual offender. Joyce pled
guilty to the resisting law enforcement and disorderly conduct charges but
demanded a jury trial on the battery charge. At trial, Officer Taylor testified
that Joyce spat on him, and the State played the body cam video. Because of
the position of the body cam in relation to Joyce, it was not possible to see him
spitting on Officer Taylor.
[5] Joyce elected not to testify at trial. During closing argument, the prosecutor
stated in part:
One of the reasons I’m asking you to believe Officer Taylor is because if you look at another instruction later on that the Court read to you, one of the, and we talked about this a little bit in voir dire, whenever you have two people that are telling you different stories, the defendant is saying, hey I didn’t spit on him, Officer Taylor is saying, hey he did, you look at the reasonableness of the testimony considering the other evidence. We talked about that in voir dire right, you might look to some third party or surveillance video I think is what the example that I had used. In this case we’ve got the surveillance video so to speak, it’s the bodycam footage that you saw, and that correlates with Officer Taylor’s testimony, it does not correlate with the defendant’s testimony. In effect, ladies and gentlemen, to find the defendant not guilty in this case you basically have to call out Officer Taylor and you have to say that Officer Taylor is a liar, a cheat, and a fraud, and he is not those things. At the end of the day Officer Taylor testified the defendant spit on him, the video corroborates that.
Court of Appeals of Indiana | Memorandum Decision 82A05-1706-CR-1348 | February 16, 2018 Page 3 of 7 Tr. Vol. IV pp. 43-44.
[6] Defense counsel did not object to the prosecutor’s closing statement. The trial
court gave an instruction to the jury stating, “The fact that the defendant did
not testify raises no presumption of any kind against the defendant. It shall not
be commented upon, referred to, or in any manner considered by the jury in
determining the guilt or innocence of the defendant.” App. Vol. II p. 59. The
jury found Joyce guilty, and he pled guilty to the habitual offender allegation.
Joyce now appeals.
Analysis [7] Joyce contends the prosecutor improperly commented on his refusal to testify in
violation of his Fifth Amendment right against self-incrimination. Because
Joyce did not object to the prosecutor’s comments, he did not preserve this
claim and he must establish that it rose to the level of fundamental error. See
Nichols v. State, 974 N.E.2d 531, 534-35 (Ind. Ct. App. 2012). When reviewing
a claim of prosecutorial misconduct, we must determine whether the prosecutor
engaged in misconduct that, under all of the circumstances, placed the
defendant in a position of grave peril to which he or she should not have been
subjected. Id. at 535. “‘Whether a prosecutor’s argument constitutes
misconduct is measured by reference to case law and the Rules of Professional
Conduct.’” Id. (quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). We
measure the weight of the peril by the probable persuasive effect of the
misconduct on the jury rather than the degree of impropriety of the conduct. Id.
Court of Appeals of Indiana | Memorandum Decision 82A05-1706-CR-1348 | February 16, 2018 Page 4 of 7 [8] To establish fundamental error based on prosecutorial misconduct, the
defendant must also show that the misconduct made a fair trial impossible or
constituted a clearly blatant violation of basic and elementary principles of due
process, presenting an undeniable and substantial potential for harm. Id. Harm
is established not by a conviction, but rather upon whether the defendant’s right
to a fair trial was detrimentally affected by the denial of procedural
opportunities for the ascertainment of the truth. Id. Misconduct or errors
implicating constitutional issues do not necessarily establish that fundamental
error has occurred. Id.
[9] “The Fifth Amendment privilege against compulsory self-incrimination is
violated when a prosecutor makes a statement that is subject to reasonable
interpretation by a jury as an invitation to draw an adverse inference from a
defendant’s silence.” Moore v. State, 669 N.E.2d 733, 739 (Ind. 1996). A
defendant bears the burden of proving that a prosecutor’s statement penalized
the exercise of his or her right to remain silent. Id. at 736. A prosecutor’s
subjective motivation in making a comment about a defendant’s silence is
irrelevant. Id. at 738. “It is the effect of a remark, not the intent of its speaker,
that frustrates a defendant’s exercise of the right to remain silent at trial.” Id.
An improper comment on a defendant’s silence may be either direct or indirect.
Id.
[10] In this case, it seems clear that the prosecutor’s reference to Joyce’s non-existent
“testimony” was inadvertent and indirect. Earlier in the argument, the
prosecutor had referred to the defendant’s “story” about the charged incident.
Court of Appeals of Indiana | Memorandum Decision 82A05-1706-CR-1348 | February 16, 2018 Page 5 of 7 This did not implicate or refer to Joyce’s failure to testify, as opposed to Joyce
denying on the body cam recording and at trial—albeit through his attorney
and not by testifying—that he spit on Officer Taylor. The prosecutor then
discussed Officer Taylor’s testimony and reasons why the jury should believe
him. In the midst of this discussion, the prosecutor said, “In this case we’ve got
the surveillance video so to speak, it’s the bodycam footage that you saw, and
that correlates with Officer Taylor’s testimony, it does not correlate with the
defendant’s testimony.” Tr. Vol. IV p. 33.
[11] Even if it was technically erroneous to refer to “the defendant’s testimony,” we
cannot say this rose to the level of fundamental error. In context, this apparent
slip of the tongue by the prosecutor was part of a broader argument refuting
Joyce’s suggestion that Officer Taylor’s testimony was untrue. The prosecutor
did not ask the jury to draw an inference of guilt from Joyce’s silence or suggest
that the jurors should do so. Rather, the prosecutor asked the jury to reject
Joyce’s defense, to examine the corroboration between the body cam video and
Officer Taylor’s testimony, and ultimately to accept that testimony as true and
convict Joyce. Additionally, the trial court instructed the jury not to consider
Joyce’s failure to testify in any way. The prosecutor’s argument, to which
Joyce did not object, did not make a fair trial impossible or constitute a blatant
violation of elementary due process principles and, thus, is not grounds for
reversing Joyce’s conviction. See Boatright v. State, 759 N.E.2d 1038, 1043 (Ind.
2001) (holding prosecutor’s argument asking jury to accept victim’s testimony
and noting “[t]here has been absolutely no conflicting testimony in this trial”
Court of Appeals of Indiana | Memorandum Decision 82A05-1706-CR-1348 | February 16, 2018 Page 6 of 7 was not a fundamentally-erroneous comment on the defendant’s failure to
testify).
Conclusion [12] The prosecutor’s indirect reference to Joyce’s failure to testify was not
fundamentally erroneous. We affirm his conviction for Level 6 felony battery
by bodily waste.
[13] Affirmed.
Najam, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A05-1706-CR-1348 | February 16, 2018 Page 7 of 7