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Owens v. State - 937 N.E.2d 880 (Ind. Ct. App. 2010)

Rule:

The Fifth Amendment, U.S. Const. amend. V, prohibits the prosecutor from commenting at trial on the defendant's decision not to testify. Such a comment violates a defendant's privilege against compulsory self-incrimination if the statement is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant's silence. However, if the prosecutor's comment in its totality is addressed to other evidence rather than the defendant's failure to testify, it is not grounds for reversal. The prosecutor may in fact comment on the uncontradicted nature of the State's evidence without running afoul of the Fifth Amendment. The defendant bears the burden of showing that a comment improperly penalized the exercise of the right to remain silent.

Facts:

Defendant Gregory Owens married G.O., who had a two-year-old daughter, C.R. In 2006, G.O. and Owens divorced. In 2007, C.R. disclosed to her school officials and police that Owens molested her in 2005. Detective Scott McKinney tried, without success, to contact Owens on his cell phone more than once for the purpose of investigating. Detective McKinney later went to Owens' home; Owens was not there and Detective McKinney left his business card with a message requesting that Owens contact him. Detective McKinney repeated the procedure two days later but did not hear from Owens. Detective McKinney prepared a probable cause affidavit charging Owens with class A felony child molesting. At trial in Indiana state court, Owens filed a motion to exclude evidence of his silence when contacted by law enforcement officials. The trial court granted the motion. During the trial, however, Detective McKinney testified as to Owens' failure to contact him. At the end of the trial, the jury found Owens guilty as charged. Owens appealed, arguing that his right to remain silent was violated in two instances: (1) when the State elicited testimony from Detective McKinney that Owens failed to contact him; and (2) when the State referenced his failure to testify during closing argument.

Issue:

1. Was Owens' right to remain violated when the State elicited testimony from Detective McKinney that Owens failed to contact him?

2. Was Owens' right to remain violated when the State referenced Owens' failure to testify during closing argument?

Answer:

1. No; 2. No.

Conclusion:

1. The appellate court ruled that the State did not infringe upon Owens' Fifth Amendment privilege against self-incrimination by introducing evidence that Detective McKinney did not hear from Owens during the investigation. Owens' mere lack of response did not support a finding that he invoked the right to remain silent. Perhaps Owens did not respond because the wind blew Detective McKinney's cards away, or perhaps some other reason. Also, since Detective McKinney never told Owens why he wanted to talk to him, there was no basis to conclude that Owens even would have known that he was the subject of an investigation.

2. The appellate court held that Owens' right against self-incrimination was not violated when the State referenced his failure to testify during the closing arguments. The court found that the prosecutor’s comment was improper as the jury could have reasonably interpreted the comment as an invitation to draw an adverse inference from the failure to testify. Notwithstanding the finding of impropriety, the court ruled that the prosecutor's improper comment did not rise to the level of fundamental error so as to violate Owens' fundamental right against self-incrimination. The Court considered that C.R. testified and was vigorously cross-examined and recross-examined, and that G.O. and Detective McKinney also testified and were cross-examined. There was no blatant violation of the principles of due process.

The court affirmed the trial court's judgment.

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