ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Thoma Jeffrey A. Modisett
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
Priscilla J. Fossum
Deputy Attorney General
SUPREME COURT OF INDIANA
WILLIAM T. PHILLIPS, JR., ) ) Appellant (Defendant Below ), ) ) v. ) Cause No. ) 02S00-9811-CR-745 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
November 10, 1999
claiming prosecutorial misconduct and improper admission of
character evidence. We affirm.
warranted reversal. Specifically, he points to evidence
supporting the theory that there were two sets of keys to
Phillips' house, one of which Phillips claims the victim used
the night he was killed, and complains that the prosecutor
repeatedly said only one set of keys was recovered.
Phillips' counsel objected to the prosecutor's comments the first time they were uttered, and the trial judge issued an admonition sua sponte, telling the jury to rely on its memory of the evidence. The prosecutor then continued in the same vein, making the same comments to which Phillips' counsel had already objected. While defense counsel did not renew his objection or request an additional admonishment, he did counter the prosecutor's characterization of the facts with his own version.
A defendant must do more than simply object promptly to alleged errors in closing argument. To preserve an issue regarding the propriety of closing argument for appeal, a defendant . . . must also request an admonishment, and if further relief is desired, defendant must move for a mistrial. Wright v. State, 690 N.E.2d 1098, 1111 (Ind. 1997) (citing Zenthofer v. State, 613 N.E.2d 31, 34 (Ind. 1993)). Failure to request an admonition results in waiver of the issue. Zenthofer, 613 N.E.2d at 34; see also Stacker v. State, 348 N.E.2d 648, 651 (Ind. 1976).
At trial, counsel for the parties vigorously disputed how
many sets of keys there were, when and where the keys were
recovered, which ones were in evidence, and so on. Each
lawyer disagreed with the other's characterization of the
evidence, but both seemed to have a basis in the evidence for
their positions. There was no misconduct. Judge Gull
reminded the jury it should rely on its own memory of the
evidence to sort out this dispute giving the matter the
attention it warranted.
of a prior physical altercation between Mr. Cassell and Mr.
Phillips. (Appellant's Br. at 15.) He argues that the
evidence is inadmissible under Indiana Evidence Rule 404(b).
Rule 404(b) provides that evidence of other misconduct may not be admitted to prove that a defendant acted in conformity with a certain character trait. The rule was designed to prevent finders of fact from assessing present guilt on a defendant's past propensities. Hicks v. State, 690 N.E.2d 215 (Ind. 1997). Evidence of such misconduct may, however, be admissible for other purposes, such as proof of intent or motive. Evid. R. 404(b). The State asserts that evidence of the altercation between Phillips and Cassell is admissible to prove that Phillips intended or had motive to murder the victim.
The analysis of admissibility under Rule 404(b)
incorporates the relevancy test of Rule 401 and the balancing
test of Rule 403. Hicks, 690 N.E.2d at 221. First the court
must determine that the evidence of other crimes, wrongs, or
acts is relevant to a matter at issue other than the
defendant's propensity to commit the charged act; and
[second,] the court must balance the probative value of the
evidence against its prejudicial effect pursuant to Rule 403.
Relevant evidence is admissible unless its probative
value is substantially outweighed by the danger of unfair
prejudice. Evid. R. 403. We review this balance for an abuse
of discretion. Hicks, 690 N.E.2d at 223. We cannot say that
the trial court abused its discretion here. While the
information may have been slightly prejudicial, the evidence
was highly probative of Phillips' animosity toward the victim,
his motive, and his intent to kill, as the State asserts. The
evidence was properly admitted.
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