ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Garvin D. Senn, III Jeffrey A. Modisett
Evansville, Indiana Attorney General of Indiana
Timothy R. Dodd Priscilla J. Fossum
Evansville, Indiana Deputy Attorney General
SUPREME COURT OF INDIANA
ROGER COY, JR., ) ) Appellant (Defendant Below ), ) ) v. ) Cause No. 42S00-9803-CR-166 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
December 9, 1999
SHEPARD, Chief Justice.
Appellant Roger Coy, Jr. was convicted of murder, Ind. Code
§ 35-42-1-1, and burglary, Ind. Code § 35-43-2-1. The trial court imposed concurrent sentences of sixty years for murder and ten years for burglary.
On November 22, 1994, Wallace sold some scrap metal for $103.50. He cashed the check and spent $50 to $60 at a liquor store and bar on the way home. At home, he also paid a friend $10 for a box in which he could lock up the beer he had purchased. This left him with about $45 of the scrap money in his wallet.
A friend of Coy's testified at trial that Coy admitted killing
someone in Pearl City. (R. at 1341-42.) He reported that Coy said
"he couldn't believe that he took somebody's life for only $45.00."
Wallace's body was discovered two days after his death, on
Thanksgiving day. Police subsequently discovered that he was
killed by a single bullet to his brain, and that his billfold was
The State charged Coy and Lane with murder and burglary. They
were co-defendants until partway through voir dire, when the court
reconsidered Coy's earlier motion for separate trial and granted
the prosecutor told prospective jurors that, unlike overzealous
prosecutors on television, he was not "out to win," but instead
wanted to ensure a fair trial by protecting Coy's constitutional
rights. (R. at 301-303, 537-41.) He said that prosecuting
attorneys are "ministers of justice," (R. at 304, 538-39),
representing the people of the State of Indiana, (R. at 304, 540-
Coy's counsel objected to these statements multiple times, and he twice moved to strike the jury panel. The judge denied these motions.See footnote 2 After discussing the matter with the prosecutor and the judge out of the hearing of prospective jurors, defense counsel discussed his own role in the proceedings, saying that he saw himself as a seeker of truth like the prosecutor. (R. at 376.) He further said, "I think if the truth comes out we'll be okay." (R. at 377.)
"The function of voir dire examination is not to educate
jurors, but to ascertain whether jurors can render a fair and
impartial verdict in accordance with the law and the evidence."
Bannowsky v. State, 677 N.E.2d 1032, 1034 (Ind. 1997). A
prosecutor's attempt to indoctrinate the jury during voir dire may
require reversal if his or her questions amount to misconduct, and
if that misconduct subjects the defendant to grave peril.
Bardonner v. State, 587 N.E.2d 1353, 1357 (Ind. Ct. App. 1992),
trans. denied. The gravity of the peril is "determined by the
probable persuasive effect on the jury's decision, not by the
degree of impropriety of the conduct." Id.
In Bardonner, the prosecutor asked prospective jurors whether they thought that both the State and the defense have an obligation to seek the truth. When a juror responded affirmatively, he told the panelists "that wasn't the law." Id. at 1355. He quoted extensively from a dissenting opinion in the U.S. Supreme Court, United States v. Wade, 388 U.S. 218, 256-58 (1967) (White, J., dissenting), on the role of prosecutors and defense attorneys. He interspersed his own comments. The prosecutor said that the State's obligation was not to win its case, but to see that justice
is done. Bardonner, 587 N.E.2d at 1356. The prosecutor also
declared that defense counsel need present no evidence, even if he
knows the truth, that defense counsel can confuse a witness, even
a truthful one, and that our system of justice requires conduct
from defense attorneys that in many instances has little if any
relation to the search for truth. Id.
The Court of Appeals held these statements to be misconduct
that placed the defendant in grave peril, stating, "we cannot say
that the prosecutor's comments--attacking the integrity of defense
counsel by indicating that defense counsel would do anything to
hide the truth, including impeaching testimony of truthful
witnesses--did not affect the jurors' verdict." Id. at 1362. Our
Court disapproved of similar statements by a prosecutor in Miller
v. State, 623 N.E.2d 403, 407 (Ind. 1993).
Here, Judge Crowley reviewed defense counsel's objections and
motions in light of Bardonner. (R. at 687.) He noted that there
are two potentially objectionable components to the statements
challenged in Bardonner: (1) painting prosecutors as "ministers of
justice", and (2) denigrating defense attorneys. (Id.) He
overruled Coy's objections, because the prosecutor had used only
the first Bardonner component. (Id. at 688.) We agree with Judge
Crowley's resolution of this issue.
While it is true that prosecutors have special
responsibilities set out in Indiana Professional Conduct Rule 3.8,See footnote
all attorneys are officers of the legal system, Prof. Cond.
Preamble, and have a duty of candor toward tribunals, Prof. Cond.
R. 3.3. The State argues on appeal that the prosecutor "was
seeking to contrast his role with that of prosecutors as portrayed
on television," not with that of defense attorneys. (Appellee's
Br. at 5 (emphasis omitted).) Regardless of the prosecutor's
motive, in the right circumstances such comments might improperly
sway a jury in favor of conviction. See, e.g., Bardonner, 587
While we have disapproved of the technique of reading the Wade
dissent ("we have scruples, they do not"), it is quite ordinary for
both sides in a trial to work at portraying counsel, client, and
case in the best possible light. Which of these represent fair or
harmless techniques and which are abusive is a call best placed in
the hands of trial judges. While Judge Crowley might well have
been warranted in curtailing the prosecutor's comments in this
case, he did not err in allowing them to stand.
B. Coy Not Subject to Death Penalty or Life Imprisonment. The prosecutor told two panels during jury selection that the State had not petitioned for the death penalty or life imprisonment.
Coy's counsel objected on the basis that, with the knowledge that
neither the death penalty nor a life sentence would be imposed, the
jury could "convict a little easier." (R. at 360.) He moved to
dismiss the panel and, in the alternative, to discuss the potential
penalties with the potential jurors. The Court denied both
motions. Counsel then asked whether he could inform the
prospective jurors that the penalty in this case would be very
serious. The Court agreed to his request. Counsel told the panel
that the consequences of a guilty verdict would be "extremely
serious." (R. at 369.) Coy now argues that the jury should not
have been encouraged to determine guilt or innocence by what it
believed to be the appropriate penalty. (Appellant's Br. at 15
(citing Warfel v. State, 454 N.E.2d 1218 (Ind. 1983)).)
Certainly, prosecutors should refrain from discussing
penalties with prospective jurors. Madison v. State, 534 N.E.2d
702, 706 (Ind. 1989). Soon after the 1977 adoption of a new
criminal code, we observed: "In performing [its] [g]uilt assessing
task, the jury must be oblivious to the legislature's punishment
scheme. To hold otherwise, we would be condoning verdicts in which
the jury might compromise, to the defendant's benefit or detriment,
in order to reach a certain number of years imprisonment." Debose
v. State, 270 Ind. 675, 676, 389 N.E.2d 272, 273-74 (1979).
As with certain other legal rules, however, on this point of procedure death has been "different." We have previously held, for
example, that a judge does not err when he informs the jury during
voir dire that the defendant is not subject to death, stating:
The penalty prescribed by the Legislature is irrelevant to the jurors in the performance of their 'guilt assessing' duty, and they should be oblivious to the Legislature's punishment scheme since judges rather than juries now fix sentences. . . . The penalty of death[,] however[,] for the commission of a crime must be recognized as unique and singular. The possibility of the imposition of a death sentence can be an ever present and secretly held concern of prospective jurors in a murder case and as such might reasonably be expected to improperly influence the manner in which they answer questions on voir dire. It cannot reasonably be said that defendant's subsequent trial was rendered unfair by the remarks of the judge which were calculated to prevent prospective jurors from engaging in improper speculation about the propriety of the death penalty.
Burgess v. State, 444 N.E.2d 1193, 1195-96 (Ind. 1983).
In light of Burgess, we conclude that this prosecutor's
remarks were not misconduct. The potential jurors merely learned
that Coy would not receive death or life in prison, rather than
learning the entire range of penalties for each of the offenses for
which Coy might have been convicted. Thus, the danger that the
jurors would compromise on a verdict was slight. Moreover, the
benefit derived from the remarks was considerable: a juror's
concern that he or she might be asked to impose one of the two
harshest penalties permitted in Indiana was thereby alleviated.
Finally, Judge Crowley avoided any prejudicial effect by permitting Coy's counsel to describe the penalty at issue in Coy's case as "extremely serious," (R. at 369), and by instructing the jury that the "judge is solely responsible for assessing the
penalty within a broad range of possibilities," (R. at 34). Coy
has not shown error.
C. Protective Order. On the first day of voir dire, three jurors were selected, admonished to completely avoid television, newspaper and radio broadcasts, and sent home. (R. at 408.) The court informed those jurors that they should call the court at 8 a.m. the next morning to determine when their further service would be needed, and that they need not return to the courtroom until summoned. (R. at 406.) Four more jurors were chosen immediately before the lunch break on the second day of jury selection. They were similarly admonished and sent home. (R. at 490-92.) After the jurors left the courtroom, the prosecutor advised the court that one of the State's witnesses might need protection from Coy, who had been released on his own recognizance because the trial had been set beyond the date after which Coy could be legally incarcerated. (R. at 520-03); Ind. Crim. Rule 4(A). Coy's counsel objected because members of the news media were present in the courtroom and "potential jurors that we've already selected . . . are out there." (R. at 506; see also R. at 503.) Counsel moved to strike the seven jurors already selected on the basis that the prosecutor was attempting to prejudice the jurors via the news media. Judge Crowley denied the motion because (1) no jurors were present in the courtroom when the prosecutor made the statement, (2) the jurors had been admonished to avoid the media, therefore (3) the prosecutor's comment did not prejudice Coy. (R. at 657-
59.) We agree.
No jurors, empaneled or prospective, were present in the
courtroom when the prosecutor advised the court of the danger to
its witness. Judge Crowley had extensively admonished the
empaneled jurors to avoid the media. Assuming they followed his
instructions, they did not hear the challenged comments. When the
next group of prospective jurors were questioned, Coy's counsel
could have inquired about their media exposure to the challenged
comments, had he believed that they might have learned of the
remarks. Coy has presented no evidence that any jurors learned of
the prosecutor's remarks about the safety of his witness. Judge
Crowley properly denied Coy's motions.
"Autopsy photographs are admissible if (1) they provide relevant evidence, and (2) their probative value is not substantially outweighed by their tendency to impassion the jury against the defendant." Malone v. State, 700 N.E.2d 780, 783 (Ind.
1998) (citing Edgecomb v. State, 673 N.E.2d 1185, 1196 (Ind.
1996)). Coy challenges the admission of the photographs on the
basis that their probative value is substantially outweighed by the
danger of the prejudice they might cause. The State has replied
that Coy waived review of this challenge "because his record does
not include the photographs he now claims should have been
excluded." (Appellee's Br. at 9; see also R. at 1000-01.)
Coy cites Indiana Appellate Rule 7.2(A)(3)(b) in support of
his contention that his argument is not waived. (Appellant's Reply
Br. at 3.) That rule provides:
Physical objects (except . . . pictures and like materials) which because of their nature cannot be incorporated in the transcript, shall not be sent to this court on appeal, but shall remain in the custody of the trial court below until the appeal is terminated. . . . A photograph of such exhibits may be included in the transcript.
App. R. 7.2(A)(3)(b). The pictures at issue here were a part of a
six-photo array, placed on poster board for presentation to the
jury. (R. at 1001.) It is unclear whether the pictures could be
removed from the board and individually placed in the record for
our review. Regardless, "[i]ncompleteness or inadequacy of the
record shall not . . . preclude review on the merits." App. R.
7.2(C)(2). While we could order the photos to be transmitted for
our inspection, id., we think the forensic pathologist's
description of them provides sufficient information for the
purposes of our analysis.
Sullivan, and Rucker, JJ., concur.
Dickson, J., concurs in result.
Boehm, J., concurs in result with separate opinion in which Dickson, J., concurs
Garvin D. Senn, III
Jeffrey A. Modisett
Priscilla J. Fossum
Timothy R. Dodd
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
Garvin D. Senn, III
Jeffrey A. Modisett
Priscilla J. Fossum
the credibility for prosecution witnesses as prescreened by a
neutral observer. In a perfect world that may be the case.
Indeed, it may have occurred here. But to permit the prosecution
to claim neutrality is both unnecessary and subject to abuse. In
effect it presents a factual claim, sub silentio, that is
untestable on the record, namely that the prosecutor is objective,
thorough, and competent. That is hopefully always the case, and
undoubtedly sometimes the case, but there is no need for the jury
to be exposed to such a claim, and good reason to prohibit it.
Although I do not agree that the trial court's handling of the prosecutor's statements was correct, I also do not believe it affected the result, and therefore concur in the result reached by the majority.
DICKSON, J., concurs.