Attorney for Appellant
Kevin R. O’Reilly
Lafayette, Indiana
Attorneys for Appellee
Steve Carter
Attorney General of Indiana
Monica Prekopa Talbot
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
PARIS K. BUSH,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 79S00-0012-CR-743
)
)
)
)
)
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APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Donald C. Johnson, Judge
Cause No. 79D01-9909-CF-98
ON DIRECT APPEAL
September 20, 2002
SULLIVAN, Justice.
The trial court in this drug prosecution instructed the jury on the
subject of Defendant Paris K. Bush’s failure to testify despite Defendant’s
objection to the use of the instruction. This violated Defendant’s right
against self-incrimination under Article I, § 14, of the Indiana
Constitution.
Background
The facts most favorable to the judgment indicate that in February
1999, the police, with the help of a confidential informant, purchased
crack cocaine from Defendant. Defendant was convicted of Conspiracy to
Commit Dealing in Cocaine, a Class A felony,[1] two counts of Dealing in
Cocaine, a Class A felony,[2] Possession of Cocaine, a Class B felony,[3]
and Maintaining a Common Nuisance, a Class D felony.[4] He was also found
to be a habitual offender. Defendant was sentenced to a total of 80 years
incarceration.
Discussion
Defendant contends that the trial court erred in giving a final
instruction, over Defendant’s objection, which addressed Defendant’s
failure to testify.
Defendant did not testify during his trial. The court proposed
giving the following pattern jury instruction[5] 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, “I’m 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 Defendant’s objection.
Giving an instruction that highlights a defendant’s failure to
testify violates a defendant’s right against self-incrimination, if the
instruction is given over the defendant’s 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 Indiana’s 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 individual’s 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 defendant’s Fifth Amendment rights,
even when given over a defendant’s 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 violation of Defendant’s right against self incrimination
provided by Article I, § 14, of the Indiana Constitution.
However, trial court error, even of constitutional dimension, does
not necessarily require reversal 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 defendant’s] 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 court’s error in this case was harmless
beyond a reasonable doubt. Defendant’s 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 Defendant’s 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, Defendant had threatened Davis’s 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 court’s emphasis on
Defendant’s decision not to testify had on the jury. Therefore we cannot
say that the trial court’s error was harmless beyond a reasonable doubt.
Conclusion
We reverse the judgment of the trial court and remand this cause to
the trial court for further proceedings.
SHEPHARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
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[1] See Ind. Code § 35-48-4-1, § 35-41-5-2.
[2] Id. § 35-48-4-1.
[3] Id. § 35-48-4-6.
[4] Id. § 35-48-4-13.
[5] See 1 Indiana Pattern Jury Instructions (Criminal) 13.21
(Supp.1995) & 13.23 (2d ed. 1991).