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03/23/88 RALPH F. FOX v. STATE INDIANA

Filed: March 23, 1988.

RALPH F. FOX, III, APPELLANT (DEFENDANT BELOW)
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE STARKE CIRCUIT COURT, The Honorable David P. Matsey, Judge, Cause No. 6764.

Pivarnik, J., Shepard, C. J., Givan, and Dickson, JJ., concur., DeBruler, J., concurs and Dissents with separate opinion.

Author: Pivarnik

PIVARNIK, J.

Defendant-Appellant Ralph Fox was convicted of Robbery While Armed, a class B felony, and Theft, a class D felony. Fox was sentenced to a twenty (20) year term on the robbery conviction, and received no sentence for the theft conviction. His Motion to Correct Errors was denied and he directly appealed to this Court.

Fox raises the following issues for our review:

1. prosecutorial misconduct; and

2. error in admitting a State's witness' voluntary audio and video taped statements.

The facts most favorable to the verdict show on May 11, 1983, Kern's Keg in San Pierre, Indiana, was robbed by two men wearing ski masks. The men took a bank bag which contained approximately three hundred ($300) dollars in cash, a tavern key, a zodiac medal, and bills from nearby grocery stores. Three (3) persons, including the barmaid, were in the bar at the time of the robbery, but no one was able to identify the perpetrators. A few months

later, Christopher Day was apprehended during a separate robbery, and he confessed to committing a very large number of robberies, including the one at Kern's Keg. Day implicated Fox as being his accomplice in that robbery. Day made two voluntary statements to the police, one of which was audio taped and the other video taped. Day entered into a plea agreement with the State after making the voluntary statements. Those statements were played for the jury at trial.

I

Fox first contends numerous instances of prosecutorial misconduct occurred at trial. Fox correctly points out the standards in our jurisdiction relating to prosecutorial misconduct. Briefly, the standard to determine whether prosecutorial misconduct has occurred is whether the conduct under all circumstances placed the defendant in a position of grave peril to which he should not have been subjected. This position should be measured by the probable persuasive effect of the misconduct on the jury's decision and whether there were repeated instances of misconduct which would evidence a deliberate attempt to improperly prejudice the defendant. Bixler v. State (1984), Ind., 471 N.E.2d 1093, 1102, U.S. cert. den. 106 S.Ct. 106, citing Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d 843, 848.

The first instance Fox points to is the State's calling Donna Bloomberg (Bonebreak) to testify in its case in chief. The State asserts it acted properly in attempting to disprove, through Bloomberg's testimony, a defense which Fox indicated he would attempt to prove. Fox contends because no alibi evidence was introduced at trial, the State acted improperly. However, on August 4, 1983, prior to trial, Fox filed with the court his Notice of Alibi Defense which stated Fox was at his aunt's and an acquaintance's homes on the day in question. At trial, defense counsel objected to the witness' testimony after one question and answer. The court sustained the objection and instructed the jury to disregard the prosecutor's question regarding her status as an alibi witness, and the witness' response. The witness was then excused. Any possible error here was therefore cured by the court's actions.

Fox next argues prosecutorial misconduct occurred when, on rebuttal, the State referred to two non-testifying witnesses. Fox contends the jury was left with a clear understanding the witnesses weren't called because their testimony would only buttress the already damaging testimony of other witnesses against him. The record shows that in his closing argument, defense counsel initially referred to these very witnesses and implied the State did not ask the witnesses to testify for a specific reason. The prosecutor, in response to defense counsel's argument, properly attempted to explain why these witnesses were not called. Grassmyer v. State (1981), Ind., 429 N.E.2d 248, 256. Defense counsel objected to the prosecutor's reference to the witnesses and the court admonished the prosecutor to pursue the issue no further. When the prosecutor continued his earlier reference, defense counsel made no objection. There is no error here meriting reversal.

Fox next points to the prosecutor's comment on rebuttal that defense counsel suggested the crime was never committed. A reading of the record again shows the prosecutor's statement was made in reference to defense counsel's earlier comment on Day's credibility. He stated, "Maybe Chris Day didn't even rob Kern's Keg." Again, the prosecutor's statement was a response to defense counsel's argument, and was not improper. ...


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