ATTORNEY FOR APPELLANT
Janice L. Stevens
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
CECIL JENKINS, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-9903-CR-200
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable W.T. Robinette, Judge Pro Tempore
Cause No. 49G03-9804-CF-054025
ON DIRECT APPEAL
March 21, 2000
Cecil Jenkins was convicted of kidnapping, rape, and of being a habitual offender.
He was sentenced to consecutive terms of fifty years for kidnapping and
fifty years for rape enhanced by thirty years for being a habitual offender.
In this direct appeal Jenkins contends that the trial court erred by
not allowing his statements to the police to be admitted at trial and
that the State impermissibly commented on his failure to testify. We affirm
the judgment of the trial court.
Factual and Procedural Background
On April 6, 1998, as D.R. was pumping gas, Jenkins entered the passenger
side of her car. He grabbed D.R. by her hair, put an
object into her side, and ordered her to drive. After reaching an
abandoned building, Jenkins forced D.R. into a room and removed her clothes.
When D.R. objected, Jenkins covered her mouth and nose with his hand, choked
her, and then raped her.
Jenkins asked D.R. for money and choked her again until he found money
in her purse. They returned to her car and Jenkins forced D.R.
to drive to another abandoned location, where according to D.R., another rape occurred.
Jenkins then forced D.R. to drive to a bridge and pull off
the road where he exited the car and let D.R. drive away.
D.R. reported the attack to the police. Based on D.R.s description and
Jenkins location near the crime scene later that evening, Jenkins was identified as
the assailant, arrested, and taken to the police station for questioning. During
the course of his interview, Jenkins admitted to having sex with D.R., but
claimed that the encounter was consensual. Jenkins was charged with kidnapping, two
counts of rape, criminal confinement, robbery, and being a habitual offender. He
did not testify at trial. The jury found Jenkins guilty of kidnapping,
rape, and being a habitual offender, acquitted him of the robbery charge, and
was unable to reach a verdict as to the second rape or criminal
Jenkins claims that the trial court erred by refusing to permit an interrogating
officer to testify to some statements Jenkins made to police. The State
responds that the officers account of these statements was hearsay and, as such,
was inadmissible. At trial Detective Cahill testified that he interviewed Jenkins on
the night of the rape. After Cahill testified that Jenkins stated that
the encounter was consensual, Cahills account of all other statements by Jenkins during
the interview was excluded as hearsay. In his offer of proof, Jenkins
contended that his statements to Cahill were admissible under the hearsay exceptions for
present sense impression, excited utterance, state of mind, and statements against interest.
On appeal, Jenkins contends only that the statements were admissible as excited utterances
pursuant to Indiana Evidence Rule 803(2). Neither at trial nor on appeal
did Jenkins make any claim that the omitted statements were relevant to provide
a complete account of the matters addressed in the admitted testimony.
Sweeney v. State, 704 N.E.2d 86, 110-11 (Ind. 1998).
Hearsay is an out of court statement offered to prove the truth of
the matter asserted. Ind. Evidence Rule 801(c). It is inadmissible unless
it falls under an exception. Evid. R. 802. Among the exceptions
to the hearsay rule is: A statement relating to a startling event
or condition made while the declarant was under the stress of excitement caused
by the event or condition. Evid. R. 803(2). Determining whether
a statement constitutes an excited utterance is within the trial courts discretion and
its ruling will be reversed only for an abuse of that discretion.
See Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996).
For a hearsay statement to be admitted as an excited utterance, three elements
must be shown: (1) a startling event, (2) a statement made by
a declarant while under the stress of excitement caused by the event, and
(3) that the statement relates to the event.
Id. This is
not a mechanical test. It turns on whether the statement was inherently
reliable because the witness was under the stress of an event and unlikely
to make deliberate falsifications. Id.; 13 Robert Lowell Miller, Jr., Indiana Practice
§ 803.102 (2d ed. 1995).
In this case Jenkins was picked up by the police around 2:00 a.m.
and then identified by D.R. He was subsequently arrested and taken to
the police station where he waited until after 3:30 a.m. for Detective Cahill
to arrive. Cahill informed Jenkins of the charges against him and talked
to him for ten to fifteen minutes before taking a taped statement that
lasted from 4:29 a.m. to 4:54 a.m. Jenkins claims that the circumstances
surrounding his arrest and being told of the charges against him were startling
events that rendered him incapable of reflective thought during his subsequent police interview.
Being arrested and charged with rape and robbery may conceivably be startling events
in some circumstances. Here, however, Jenkins was arrested more than two hours
before giving his statements to the police. During this time he was
read his rights, was escorted to the police station, and was informed by
Cahill of the nature of the charges against him. Although the amount
of time that passes between the startling event and the statement is not
necessarily dispositive, it is one factor to consider when determining the admissibility of
See Yamobi, 672 N.E.2d at 1346-47 (statement from victim identifying shooter
was an excited utterance where victim lay dying for one hour before statement).
A long period of time reduces the likelihood that a statement is
made without deliberate thought and under the stress of excitement of an event.
Yamobi, there was no continuing trauma and immobilization that rendered the
declarant more reliable. To the contrary, two hours had expired between the
arrest and Jenkins statement. During that time Cahill talked to Jenkins for
approximately fifteen minutes after informing him of the charges against him and before
taking his statement. Jenkins had ample time free of any ongoing effects
of the arrest and his learning of the charges against him to reflect
and compose a statement. The trial court was well within its discretion
in finding the statements inadmissible at trial.
II. Failure to Testify
Jenkins also claims that the prosecutor twice commented on his failure to testify
in violation of his Fifth Amendment privilege against self-incrimination.
The first incident occurred during the defenses cross examination of Detective Cahill concerning
Jenkins statements in his police interview. The prosecutor objected to the effort
to elicit testimony of Jenkins statement to police discussed in Part I.
In the course of that objection, the prosecutor stated, In addition,
Indiana v. Stuckey v. State says that a defendant who does not testify
cannot introduce exculpatory or self-serving statements that are made outside of Court in
Court through the States case to enhance the credibility of his client without
him taking the stand, Your Honor. Jenkins moved for a mistrial.
A mistrial was denied, but the trial court offered to admonish the jury
and told the prosecutor not to mention Jenkins failure to testify again.
The second reference to Jenkins silence took place during the States rebuttal closing
argument. The prosecutor stated:
Theres been a lot of discussion and a lot of argument and objections
about the Defendants statement and at this time Im going to explain to
you a little bit more because the Defendant has told you on cross
examinationor, Im sorry, on his closing argument that the State is trying hard
not to get in the statement. Why? To divert your attention away?
No, ladies and gentlemen. We are not the only party that
can present evidence in this case. The Defendant has the absolute right
not to take the stand. Its guaranteed by the Constitution of United
States. He does not have to get up there and tell you
a thing or say anything. But him tothe defense attorney to tell
you that were misleading you or were trying to keep it out, that
is misleading, ladies and gentlemen.
Jenkins again moved for a mistrial, which was again denied. The trial
court admonished the jury that the Defendant does not have to testify.
He doesnt and its not to be mentioned, not to be considered, not
to be discussed.
The Fifth Amendment prohibits compelling a defendant to testify against himself. See
U.S. Const. amend. 5. The United States Supreme Court has interpreted this
amendment to bar prosecutorial comment on a defendants silence. See Griffin v.
California, 380 U.S. 609, 615 (1965). As this Court stated in Moore
v. State, 669 N.E.2d 733, 739 (Ind. 1996), a Fifth Amendment violation occurs
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 defendants
silence. In Moore, the prosecutor stated that the defendant chose to put
on a case in this, he didnt choose to testify which is his
right, and he certainly doesnt, isnt compelled to testify . . . .
Id. at 735. This Court concluded that a reasonable jury could
not have interpreted the statement as a suggestion to infer guilt from Moores
silence. Id. at 739.
Jenkins invited the prosecutors first comment. In response to Jenkins repeated attempts
to introduce his statements to Detective Cahill, the prosecutor told Jenkins that if
he continued in the same line of questioning, the State would
quote the caselaw if it becomes necessaryand the caselaw statement that a defendant
who does not testify cannot introduce exculpatory statements outside of court in order
to enhance his credibility at trial, and Im going to quote that law
in front of the jury if [defense counsel] forces me by trying to
get into the statements.
Defense counsel responded, Be my guest.
The second comment followed defense counsels suggestion in closing argument that the State
was afraid to let [the jury] hear what Cecil Jenkins said to [the
State] and was attempting to conceal evidence. As in Moore, neither statement
invited the jury to draw an adverse inference from Jenkins silence. Both
were in response to tactical moves by the defense. A prompt admonishment
was offered as to the first and was given as to the second.
Under these circumstances, the trial court was within its discretion in determining
that these comments did not warrant the extreme sanction of a mistrial.
See Kent v. State, 675 N.E.2d 332, 335 (Ind. 1996) (The trial
court's ruling on a mistrial is afforded great deference . . . .
A mistrial is an extreme remedy invoked only when no other measure
can rectify the situation.); Schlomer v. State, 580 N.E.2d 950, 955 (Ind. 1991).
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.