ATTORNEY FOR APPELLANT
Janice L. Stevens
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Michael McLaughlin
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
CECIL JENKINS, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-9903-CR-200
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable W.T. Robinette, Judge Pro Tempore
Cause No. 49G03-9804-CF-054025
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
March 21, 2000
BOEHM, Justice.
Cecil Jenkins was convicted of kidnapping, rape, and of being a
habitual offender. He was sentenced to consecutive terms of fifty years
for kidnapping and fifty years for rape enhanced by thirty years for being
a habitual offender. In this direct appeal Jenkins contends that the trial
court erred by not allowing his statements to the police to be admitted at
trial and that the State impermissibly commented on his failure to testify.
We affirm the judgment of the trial court.
Factual and Procedural Background
On April 6, 1998, as D.R. was pumping gas, Jenkins entered the
passenger side of her car. He grabbed D.R. by her hair, put an object into
her side, and ordered her to drive. After reaching an abandoned building,
Jenkins forced D.R. into a room and removed her clothes. When D.R.
objected, Jenkins covered her mouth and nose with his hand, choked her, and
then raped her.
Jenkins asked D.R. for money and choked her again until he found
money in her purse. They returned to her car and Jenkins forced D.R. to
drive to another abandoned location, where according to D.R., another rape
occurred. Jenkins then forced D.R. to drive to a bridge and pull off the
road where he exited the car and let D.R. drive away.
D.R. reported the attack to the police. Based on D.R.’s description
and Jenkins’ location near the crime scene later that evening, Jenkins was
identified as the assailant, arrested, and taken to the police station for
questioning. During the course of his interview, Jenkins admitted to
having sex with D.R., but claimed that the encounter was consensual.
Jenkins was charged with kidnapping, two counts of rape, criminal
confinement, robbery, and being a habitual offender. He did not testify at
trial. The jury found Jenkins guilty of kidnapping, rape, and being a
habitual offender, acquitted him of the robbery charge, and was unable to
reach a verdict as to the second rape or criminal confinement.
I. Hearsay
Jenkins claims that the trial court erred by refusing to permit an
interrogating officer to testify to some statements Jenkins made to police.
The State responds that the officer’s account of these statements was
hearsay and, as such, was inadmissible. At trial Detective Cahill
testified that he interviewed Jenkins on the night of the rape. After
Cahill testified that Jenkins stated that the encounter was consensual,
Cahill’s account of all other statements by Jenkins during the interview
was excluded as hearsay. In his offer of proof, Jenkins contended that his
statements to Cahill were admissible under the hearsay exceptions for
present sense impression, excited utterance, state of mind, and statements
against interest. On appeal, Jenkins contends only that the statements
were admissible as excited utterances pursuant to Indiana Evidence Rule
803(2). Neither at trial nor on appeal did Jenkins make any claim that the
omitted statements were relevant to provide a complete account of the
matters addressed in the admitted testimony. Cf. Sweeney v. State, 704
N.E.2d 86, 110-11 (Ind. 1998).
Hearsay is an out of court statement offered to prove the truth of
the matter asserted. Ind. Evidence Rule 801(c). It is inadmissible unless
it falls under an exception. Evid. R. 802. Among the exceptions to the
hearsay rule is: “A statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the
event or condition.” Evid. R. 803(2). Determining whether a statement
constitutes an excited utterance is within the trial court’s discretion and
its ruling will be reversed only for an abuse of that discretion. See
Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996).
For a hearsay statement to be admitted as an excited utterance, three
elements must be shown: (1) a startling event, (2) a statement made by a
declarant while under the stress of excitement caused by the event, and (3)
that the statement relates to the event. Id. This is not a mechanical
test. It turns on whether the statement was inherently reliable because
the witness was under the stress of an event and unlikely to make
deliberate falsifications. Id.; 13 Robert Lowell Miller, Jr., Indiana
Practice § 803.102 (2d ed. 1995).
In this case Jenkins was picked up by the police around 2:00 a.m. and
then identified by D.R. He was subsequently arrested and taken to the
police station where he waited until after 3:30 a.m. for Detective Cahill
to arrive. Cahill informed Jenkins of the charges against him and talked
to him for ten to fifteen minutes before taking a taped statement that
lasted from 4:29 a.m. to 4:54 a.m. Jenkins claims that the circumstances
surrounding his arrest and being told of the charges against him were
startling events that rendered him incapable of reflective thought during
his subsequent police interview.
Being arrested and charged with rape and robbery may conceivably be
startling events in some circumstances. Here, however, Jenkins was
arrested more than two hours before giving his statements to the police.
During this time he was read his rights, was escorted to the police
station, and was informed by Cahill of the nature of the charges against
him. Although the amount of time that passes between the startling event
and the statement is not necessarily dispositive, it is one factor to
consider when determining the admissibility of statements. See Yamobi, 672
N.E.2d at 1346-47 (statement from victim identifying shooter was an excited
utterance where victim lay dying for one hour before statement). A long
period of time reduces the likelihood that a statement is made without
deliberate thought and under the stress of excitement of an event.
Here, unlike Yamobi, there was no continuing trauma and immobilization
that rendered the declarant more reliable. To the contrary, two hours had
expired between the arrest and Jenkins’ statement. During that time Cahill
talked to Jenkins for approximately fifteen minutes after informing him of
the charges against him and before taking his statement. Jenkins had ample
time free of any ongoing effects of the arrest and his learning of the
charges against him to reflect and compose a statement. The trial court
was well within its discretion in finding the statements inadmissible at
trial.
II. Failure to Testify
Jenkins also claims that the prosecutor twice commented on his
failure to testify in violation of his Fifth Amendment privilege against
self-incrimination.
The first incident occurred during the defense’s cross examination of
Detective Cahill concerning Jenkins’ statements in his police interview.
The prosecutor objected to the effort to elicit testimony of Jenkins’
statement to police discussed in Part I. In the course of that objection,
the prosecutor stated, “In addition, State of Indiana v. Stuckey v. State
says that a defendant who does not testify cannot introduce exculpatory or
self-serving statements that are made outside of Court in Court through the
State’s case to enhance the credibility of his client without him taking
the stand, Your Honor.” Jenkins moved for a mistrial. A mistrial was
denied, but the trial court offered to admonish the jury and told the
prosecutor not to mention Jenkins’ failure to testify again.
The second reference to Jenkins’ silence took place during the
State’s rebuttal closing argument. The prosecutor stated:
There’s been a lot of discussion and a lot of argument and objections
about the Defendant’s statement and at this time I’m going to explain
to you a little bit more because the Defendant has told you on cross
examination—or, I’m sorry, on his closing argument that the State is
trying hard not to get in the statement. Why? To divert your
attention away? No, ladies and gentlemen. We are not the only party
that can present evidence in this case. The Defendant has the
absolute right not to take the stand. It’s guaranteed by the
Constitution of United States. He does not have to get up there and
tell you a thing or say anything. But him to—the defense attorney to
tell you that we’re misleading you or we’re trying to keep it out,
that is misleading, ladies and gentlemen.
Jenkins again moved for a mistrial, which was again denied. The trial
court admonished the jury that “the Defendant does not have to testify. He
doesn’t and it’s not to be mentioned, not to be considered, not to be
discussed.”
The Fifth Amendment prohibits compelling a defendant to testify
against himself. See U.S. Const. amend. 5. The United States Supreme
Court has interpreted this amendment to bar prosecutorial comment on a
defendant’s silence. See Griffin v. California, 380 U.S. 609, 615 (1965).
As this Court stated in Moore v. State, 669 N.E.2d 733, 739 (Ind. 1996), a
Fifth Amendment violation occurs “when a prosecutor makes a statement that
is subject to reasonable interpretation by a jury as an invitation to draw
an adverse inference from a defendant’s silence.” In Moore, the prosecutor
stated that the defendant “chose to put on a case in this, he didn’t choose
to testify which is his right, and he certainly doesn’t, isn’t compelled to
testify . . . .” Id. at 735. This Court concluded that “a reasonable jury
could not have interpreted the statement as a suggestion to infer guilt
from Moore’s silence.” Id. at 739.
Jenkins invited the prosecutor’s first comment. In response to
Jenkins’ repeated attempts to introduce his statements to Detective Cahill,
the prosecutor told Jenkins that if he continued in the same line of
questioning, the State would
quote the caselaw if it becomes necessary—and the caselaw statement
that a defendant who does not testify cannot introduce exculpatory
statements outside of court in order to enhance his credibility at
trial, and I’m going to quote that law in front of the jury if
[defense counsel] forces me by trying to get into the statements.
Defense counsel responded, “Be my guest.”
The second comment followed defense counsel’s suggestion in closing
argument that the State was afraid to “let [the jury] hear what Cecil
Jenkins said to [the State]” and was attempting to conceal evidence. As in
Moore, neither statement invited the jury to draw an adverse inference from
Jenkins’ silence. Both were in response to tactical moves by the defense.
A prompt admonishment was offered as to the first and was given as to the
second. Under these circumstances, the trial court was within its
discretion in determining that these comments did not warrant the extreme
sanction of a mistrial. See Kent v. State, 675 N.E.2d 332, 335 (Ind.
1996) (“The trial court's ruling on a mistrial is afforded great deference
. . . . A mistrial is an extreme remedy invoked only when no other measure
can rectify the situation.”); Schlomer v. State, 580 N.E.2d 950, 955 (Ind.
1991).
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.