Attorneys for Appellee
Attorney General of Indiana
Monica Prekopa Talbot
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
September 20, 2002
The trial court in this drug prosecution instructed the jury on the subject of Defendant Paris K. Bushs failure to testify despite Defendants objection to the use of the instruction. This violated Defendants right against self-incrimination under Article I, § 14, of the Indiana Constitution.
Defendant did not testify during his trial. The court proposed giving the
following pattern jury instruction
during the guilt phase of trial:
Under the law of the State of Indiana, a person charged with the commission of a crime is a competent witness to testify in his or her own behalf. However, a person charged with the commission of a crime cannot be compelled to testify and is under no duty or obligation to testify.
The fact that the Defendant did not testify raises no presumption of any kind against him. 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.
(R. at 346.)
Defendant moved to strike the first paragraph of the instruction. The court
refused stating that it was part of the pattern instruction. The defense
reiterated its objection, stating, Im objecting to giving [the instruction] because it calls
attention to the fact that [Defendant] could have testified if he chose to
testify. I do not object to the last paragraph in that it
raises no presumption. (R. at 1087.) The trial court gave the
full instruction over Defendants o
Giving an instruction that highlights a defendants failure to testify violates a defe
right against self-incrimination, if the instruction is given over the defendants objection.
See Ind. Const. art. I, § 14; Bufkin v. State, 700 N.E.2d 1147,
1152 (Ind. 1998); Priest v. State, 386 N.E.2d 686, 689 (Ind. 1979); Hill
v. State, 371 N.E.2d 1303, 1305-06 (Ind. 1978); Gross v. State, 306 N.E.2d
371, 372 (Ind. 1974). In Gross we said:
If as a trial tactic, the defense determines that such an instruction would assist its case, it may request the judge to so instruct. Furthermore, if the judge sua sponte offers to give the instruction, and the defense fails to object, the defense will be deemed to have consented to its submission. However, if the judge states his intention to submit the instruction and defense does object, the giving of the instruction constitutes an invasion of Fifth Amendment rights and judicial error.
306 N.E.2d at 372-73. In Hill we observed that the protection afforded by Gross might not be afforded under the Fifth Amendment of the United States Constitution, this court found that Indianas Constitution nevertheless required the same protection:
Since there is no controlling United States Supreme Court case on this point, this Court may establish a stricter standard than that of the federal district courts to protect an individuals rights against self-incrimination under the Fifth Amendment of the United States Constitution and the Indiana Constitution, Art. 1, § 14.
Hill, 371 N.E.2d at 1305.
Later in 1978, the U.S. Supreme Court held that instructions of the type
presented here did not violate a defendants Fifth Amendment rights, even when given
over a defe
ndants objection. Lakeside v. Oregon, 435 U.S. 333, 340-41 (1978).
As a matter of state constitutional law, however, this Court maintained the
position taken in Gross and Hill. See Bufkin, 700 N.E.2d at 1152
(A defendant . . . has a state constitutional right under Art. I,
§ 14 not to have this instruction given over his objection.); Priest,
386 N.E.2d at 689 (the mechanism erected [in Gross and Hill] for the
accused to choose whether to have the jury given an instruction regarding his
failure to testify is a requisite for full realization of the right or
each citizen granted by Article I, section 14[, of the Indiana Constitution].).
Here, the instruction was given over the objection of the Defendant. This
was a viol
ation of Defendants right against self incrimination provided by Article I,
§ 14, of the Indiana Constitution.
However, trial court error, even of constitutional dimension, does not necessarily r
of a conviction. Rather, if the error is such that it would
not affect the outcome of the trial, we deem it harmless. See
Coleman v. State, 750 N.E.2d 370, 374 (Ind. 2001) (contribut[ion] to [the defendants]
conviction); Torres v. State, 673 N.E.2d 472, 474 n.1 (Ind. 1996) (harmless beyond
a reasonable doubt); Bivens v. State, 642 N.E.2d 928, 957-58 (Ind. 1994) (harmless
beyond a reasonable doubt).
We cannot say that the trial courts error in this case was harmless
beyond a reaso
nable doubt. Defendants arrest was based on the information of
a confidential informant, Davis, who cooperated with police to catch Defendant in a
drug transaction. Davis made a phone call to a phone number listed
as belonging to Defendant. Davis identified the voice on the phone to
the police as the Defendants voice. Davis set up two controlled buys
of crack cocaine. Defendant did not make the deliveries. Instead, an
intermediary delivered the crack cocaine to Davis. During the first controlled buy
Davis was in a car with an officer. Davis pointed out Defendant
who he claimed to see nearby. The officer testified that he saw
a black male subject . . . but from the [his] vantage point
[he] could not identify that subject. (R. at 1014.)
During the trial, Davis testified that prior to his cooperation with the police, Defe ndant had threatened Daviss girlfriend. Davis also testified that on another occasion, Defendant had beaten him. Though there was sufficient evidence to convict Defendant, the most incriminating evidence came from the confidential informant Davis. We are not confident that we can predict the effect that the trial courts emphasis on Defendants decision not to testify had on the jury. Therefore we cannot say that the trial courts error was harmless beyond a reasonable doubt.