FILED
Aug 03 2017, 8:57 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Leeman Law Office and Attorney General of Indiana
Cass County Public Defender
Logansport, Indiana Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Allison Nickels, August 3, 2017
Appellant-Defendant, Court of Appeals Case No.
09A02-1703-CR-534
v. Appeal from the Cass Superior
Court
State of Indiana, The Honorable Richard,
Appellee-Plaintiff. Maughmer, Judge
Trial Court Cause No.
09D02-1605-F5-20
Robb, Judge.
Court of Appeals of Indiana | Opinion 09A02-1703-CR-534 | August 3, 2017 Page 1 of 9
Case Summary and Issue
[1] Following a bench trial, Allison Nickels was found guilty of domestic battery, a
Level 6 felony, and interference with reporting of a crime, a Class A
misdemeanor. Nickels appeals, raising one issue for our review: whether the
trial court erred by denying her an opportunity to present a closing argument.
Concluding the trial court committed reversible error in denying Nickels her
right to present closing argument before a verdict was announced, we reverse
and remand.
Facts and Procedural History
[2] In May of 2016, Nickels was living with her ex-husband, Everett, and their two
children when she and Everett became embroiled in a fight. As a result, the
State charged Nickels with domestic battery, a Level 6 felony for committing
the offense in the presence of a child under the age of sixteen; and interference
with reporting of a crime, a Class A misdemeanor.1 On February 9, 2017, the
parties appeared for a bench trial. Nickels’ ex-husband and the police officer
who responded to the scene testified for the State; Nickels testified on her own
behalf. Everett testified he was helping the parties’ seven-year-old daughter get
ready for school when Nickels, seeming irritated, entered the room. After they
argued briefly, Nickels struck Everett in the face with her fists. Everett told
1
Nickels was also charged with battery, a Level 5 felony, but the State dismissed that charge before trial.
Court of Appeals of Indiana | Opinion 09A02-1703-CR-534 | August 3, 2017 Page 2 of 9
Nickels he was going to call the police and exited their daughter’s bedroom.
Nickels followed Everett into the hallway and struck him on the back, pulled
his ears, and headbutted him in the face. She also knocked the cellphone from
his hands, causing the battery to fall out. After Everett retrieved the battery and
put his phone back together, he left the house and called police. Nickels
admitted she struck Everett but testified it did not occur in the presence of their
daughter. She also denied touching Everett’s cellphone at any time.
[3] After the parties rested their cases, the following occurred:
The Court: Okay. Argument?
[State]: Your Honor, I think there is plenty of . . .
The Court: You are right there is.
[State]: With regard to the battery taking place in front of the
child.
The Court: Court finds for you, okay?
[State]: Thank you.
The Court: Do you have argument, [defense counsel]?
[Defense counsel]: Well, I don’t think that beyond a reasonable
doubt that we have interference with reporting a crime but
[Nickels] --- to the extent that she can has been straightforward to
some extent as far as what happened. That’s all I can tell you.
The Court: Okay. Recommendation counsel, [State]? First of
all do you waive a PSI or do we need to have a PSI?
Transcript, Volume 1 at 57. The parties waived a pre-sentence investigation,
made their recommendations as to sentencing, and the trial court found Nickels
guilty as charged and sentenced her that same day to 558 days, which
amounted to a time-served sentence. Nickels now appeals.
Court of Appeals of Indiana | Opinion 09A02-1703-CR-534 | August 3, 2017 Page 3 of 9
Discussion and Decision
[4] Nickels contends the trial court erred in denying her the right to make a closing
argument and requests that her convictions be reversed due to the error.
[5] The opportunity to make a closing argument is a basic element of the criminal
process. See Herring v. New York, 422 U.S. 853, 864-65 (1975) (holding that “the
appellant, through counsel, had a right to be heard in summation” and to deny
him the opportunity was to deny him the assistance of counsel and the right to
present a defense). “The very premise of our adversary system of criminal
justice is that partisan advocacy on both sides of a case will best promote the
ultimate objective that the guilty be convicted and the innocent go free.” King v.
State, 467 N.E.2d 726, 728-29 (Ind. 1984) (citing Herring, 422 U.S. at 862).
[6] The State acknowledges the right to present a closing argument, but notes that
“[a]lthough the trial court stated preliminarily that it was finding for the State, it
invited Nickels’ trial counsel to give a closing argument.” Brief of Appellee at
8. Because Nickels did not object and in fact made a brief statement, the State
contends Nickels has waived her claim that she was denied the opportunity to
present a closing argument. In support of its waiver argument, the State cites
Casterlow v. State, 256 Ind. 214, 267 N.E.2d 552 (1971) and Lee v. State, 175 Ind.
App. 17, 369 N.E.2d 1083 (1977). It is true that Casterlow held the defendant
waived his assertion he was deprived of his right to make an argument at the
close of evidence, 256 Ind. at 217-18, 267 N.E.2d at 553-54; however, Casterlow
was decided several years before Herring held there was a constitutional right to
Court of Appeals of Indiana | Opinion 09A02-1703-CR-534 | August 3, 2017 Page 4 of 9
present closing argument in a bench trial. Cf. Casterlow, 256 Ind. at 218, 267
N.E.2d at 553 (announcing the decision “[w]ithout here determining whether
one is entitled . . . to present oral arguments in a case tried before the court”).
And both Casterlow and Lee are distinguishable on their facts. In both cases, the
trial court announced its verdict of guilty following the close of evidence
without allowing either party the opportunity to give closing argument. See
Casterlow, 256 Ind. at 217-18, 267 N.E.2d at 553; Lee, 175 Ind. App. at 20-21,
369 N.E.2d at 1086 (Staton, J., concurring). In this case, the trial court offered
the State the opportunity to make an argument, interrupted the argument to
announce it was finding for the State, and only asked for argument from
Nickels after it had already announced its intention to find against her. The
State’s assertion that the trial court only “preliminarily” found for the State and
that it “invited” closing argument from Nickels inaccurately characterizes what
happened. There is no indication the trial court’s finding was “preliminary”
because the court asked for sentencing recommendations as soon as Nickels’
counsel finished his brief statement, and therefore, its “invitation” for defense
counsel to give closing argument was at best an empty formality. Neither
Casterlow nor Lee dictate a finding of waiver here.2
2
The State also cites Judge Staton’s concurring opinion in Lee in which he noted the “better practice would
be for the trial court to expressly inquire whether counsel has a final argument or summation” and then if the
reply is negative, a clear record of waiver exists. 175 Ind. App. at 22, 369 N.E.2d at 1086. The State posits
that is “exactly what the trial court did here” in giving Nickels an opportunity to present argument which her
counsel did. Br. of Appellee at 9. Again, we find this statement does not accurately portray what occurred
here – the trial court did allow Nickels’ counsel to make an argument, but only after it had already announced
its decision.
Court of Appeals of Indiana | Opinion 09A02-1703-CR-534 | August 3, 2017 Page 5 of 9
[7] In United States v. Spears, 671 F.2d 991 (7th Cir. 1982), the trial court took the
case under advisement at the close of evidence and scheduled a hearing three
weeks hence for the purpose of announcing a decision. The Seventh Circuit
Court of Appeals held the defendant had made a tactical choice to waive his
right of summation when he did not assert his right to make a closing argument
or otherwise object at any time during those three weeks. Id. at 995. In so
deciding, however, the court also noted that a defendant must have a clear
opportunity to either assert or waive the right to closing argument before the trial
court announces a verdict. Id. at 994. Here, after both parties rested their cases,
the trial court asked for argument and the State began to give its closing
argument when the trial court interrupted and announced it would be finding
for the State. Under those circumstances, Nickels’ counsel did not have a clear
opportunity to object to the trial court’s procedure as it appeared the trial court
would be allowing closing arguments until it suddenly interrupted and, without
allowing the defense to present a closing argument, announced its decision. Cf.
id. at 995 (finding waiver in part because “[t]his case does not involve
precipitous action on the part of the trial judge”).
[8] Further, the fact that Nickels nonetheless made a brief argument does not cure
the error. Although we assume the trial judge followed the law and listened to
what Nickels’ counsel had to say, making an argument to persuade a
presumably neutral arbiter to find in one’s favor is an entirely different situation
than trying to persuade a judge to reconsider a decision he has already made.
Closing argument serves several purposes: it clarifies and sharpens the issues,
Court of Appeals of Indiana | Opinion 09A02-1703-CR-534 | August 3, 2017 Page 6 of 9
gives the defense one last chance to persuade the trier of fact there may be
reasonable doubt of the defendant’s guilt, and, in a bench trial, aids the judge’s
decision-making by providing opposing viewpoints. See Herring, 422 U.S. at
862-64. In Spence v. State, 463 A.2d 808 (Md. 1983), the Maryland Court of
Appeals addressed whether the opportunity to argue the merits of a criminal
case after a verdict that was rendered prior to closing argument and then
stricken on defendant’s objection satisfies the defendant’s constitutional right to
present a summation. In holding that it did not, the court noted:
In our view, at a bench trial, the presiding judge is obliged to
display every indicia of having an open mind, subject to being
persuaded by a logical and convincing argument, prior to
announcing the verdict. Furthermore, the verdict is the moment
which signals the defendant’s fate. He is constitutionally entitled
to an opportunity before that moment to attempt to convince the
trier of fact that he is innocent or that he is not guilty beyond a
reasonable doubt. Depriving him of this opportunity is
tantamount to shortening his day in court and denies him a fair
trial. In our judgment, the striking of the verdict can not restore
the same stage, nor create the same atmosphere of fairness.
Moreover, due process includes the right to have counsel argue
the most hopeless case to the factfinder before [the] verdict. It is
clear if counsel must argue such a case after the verdict is
announced, counsel will truly be “whistling in the wind.”
Id. at 812; see also U.S. v. King, 650 F.2d 534, 536-37 (4th Cir. 1981) (holding
defendant was denied any “real” opportunity to present closing argument when
trial court immediately announced judgment but told defense counsel to “[g]o
ahead if you want to argue it. I have already made my finding. It’s not going
Court of Appeals of Indiana | Opinion 09A02-1703-CR-534 | August 3, 2017 Page 7 of 9
to change anything.”). Where even formally withdrawing an improvidently
announced judgment and reopening the case for argument is insufficient to
protect the defendant’s right to give closing argument, the procedure employed
by the trial court here is at least equally so.
[9] Finally, the judgment here came down to a “duel of credibility”: the State
presented evidence from Nickels’ ex-husband and Nickels testified on her own
behalf as to the incident that occurred between the two of them. The credibility
assessment was undeniably for the judge to make, but even though the trial was
not complex or lengthy, Nickels still had a right to summarize the evidence
from the point of view most favorable to her and to point out the weaknesses of
the State’s position prior to the trial court making a decision.
Some cases may appear to the trial judge to be simple—open and
shut—at the close of the evidence. And surely in many such
cases a closing argument will, in the words of Mr. Justice
Jackson, be “likely to leave (a) judge just where it found him.”
But just as surely, there will be cases where closing argument
may correct a premature misjudgment and avoid an otherwise
erroneous verdict.
Herring, 422 U.S. at 863 (footnote omitted). The trial court’s announcement of
a verdict before Nickels was afforded an opportunity to make her closing
argument is reversible error.
Conclusion
Court of Appeals of Indiana | Opinion 09A02-1703-CR-534 | August 3, 2017 Page 8 of 9
[10] Nickels had a right to present a closing argument without having to overcome
the trial court’s pre-judgment. Because she was not afforded that right, we
reverse and remand for a new trial.
[11] Reversed and remanded.
Vaidik, C.J., and Bailey, J., concur.
Court of Appeals of Indiana | Opinion 09A02-1703-CR-534 | August 3, 2017 Page 9 of 9
Allison Nickels v. State of Indiana
Combined Opinion