Daniel Thompkins v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
FILED
Feb 06 2012, 8:37 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
KARL SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DANIEL THOMPKINS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1108-CR-429
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jose D. Salinas, Judge
Cause No. 49G14-1103-FD-020246
February 6, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Daniel Thompkins appeals his conviction of Class A misdemeanor possession of
paraphernalia. He contends that the prosecutor engaged in misconduct during closing
arguments at his bench trial by using sarcasm, calling Thompkins a liar and a thief, and
saying that Thompkins perjured himself. Because there was no objection at trial and this
does not amount to fundamental error, we find that there was no prosecutorial
misconduct. We therefore affirm.
Facts and Procedural History
On March 24, 2011, Indianapolis Metropolitan Police Department Officer Mark
Decker was dispatched to 22 North Gray Street in Indianapolis for a domestic battery
complaint. Officer Decker observed that the complaining witness, Rickee Brock, who
was the mother of Thompkins‟ child, had redness on her neck, a scratch on the back of
her neck, and a scratch on her chest. Brock informed Officer Decker that she believed
Thompkins, the alleged offender, was at 2152 North Drexel Avenue. Officer Decker
testified at trial that Brock did not appear to be under the influence of drugs. Tr. p. 43.
Officer Decker got on the radio and gave a description of Thompkins, his vehicle,
and the address where he was believed to be. Officer Michael Roach drove to the address
and saw Thompkins walking out of a house two houses down from the address given.
Officer Roach spoke to Thompkins who said that he had been at home all night. Officer
Roach performed a pat-down for officer safety, finding a glass crack pipe in Thompkins‟
front right pants pocket. The pipe had a Chore Boy or Brillo pad stuck in one end, burnt
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ends, and burnt crack cocaine residue inside. However, Thompkins did not have any
drugs on his person and did not appear to be under the influence of narcotics. Id. at 16.
After Officer Roach confronted him with contradictory information, Thompkins
admitted that he had not spent all night at home. Thompkins then told Officer Roach that
when he went to Brock‟s house to pick up his child, he saw Brock and some of her
friends doing heroin. After they argued, Thompkins said that he took her crack pipe, put
it in his pocket, and told her he was going to take it to Child Protective Services to prove
her drug use in light of a custody issue they were having. The crack pipe was still in his
pocket when he was later arrested.
The State charged Thompkins with Count 1: Class D felony strangulation, Count
2: Class D felony criminal confinement, Count 3: Class A misdemeanor battery, and
Count 4: Class A misdemeanor possession of paraphernalia. The first three counts were
later dismissed. Thompkins waived his right to a jury trial, Appellant‟s App. p. 28-29,
and a bench trial was held on July 12, 2011.
During the State‟s closing arguments, the prosecutor engaged in sarcasm,1 referred
to Thompkins as a liar and a thief,2 and claimed that Thompkins perjured himself.3
Immediately following the closing arguments, the trial court issued its judgment, finding
Thompkins guilty. The trial court judge said,
1
For example, the prosecutor said about Brock‟s failure to appear as a witness at trial, “Shocked
that she‟s not here, Your Honor. A domestic violence doesn‟t show up in court? Victim doesn‟t show up
in court? I am shocked.” Tr. p. 62.
2
“He‟s a liar and a thief, Your Honor. This defendant is a liar and a thief. Okay. He lied to the
cops. He lied to you on the stand today about how this happened. He‟s desperately trying to back track.
He‟s a liar and a thief. That‟s what the record shows.” Tr. p. 61.
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“Here‟s my rebuttal. He‟s a liar. He lied today. He perjured himself. That‟s the State‟s view
of the evidence.” Tr. p. 62.
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Having heard the evidence the Court is going to find that the State has met
its burden. I‟m going to find the defendant guilty of Count IV, Possession
of Paraphernalia, as an A misdemeanor. I do find the evidence – the State‟s
evidence more persuasive than the defendant‟s. The credibility that the
Court has to judge as far as the witnesses it hears, is strong on this case.
Credibility of the officers, their testimony, far outweighs that of the
defendant.
Tr. p. 62-63.
Thompkins now appeals.
Discussion and Decision
Thompkins contends that the prosecutor engaged in prosecutorial misconduct
during his closing arguments. However, trial counsel did not object to any of the alleged
instances of misconduct when they occurred. Generally, in order to preserve a claim of
prosecutorial misconduct for appeal, a defendant must object at trial. Washington v.
State, 902 N.E.2d 280, 289-90 (Ind. Ct. App. 2009), trans. denied. Where a defendant
fails to make an objection to the allegedly improper comments, he fails to preserve any
claim of prosecutorial misconduct for appellate review. Id. at 290. However, waiver
notwithstanding, a defendant may still bring a claim for prosecutorial misconduct on
appeal if he asserts fundamental error. Id.Fundamental error is a very narrow exception that “makes „a fair trial impossible
or constitute[s] clearly blatant violations of basic and elementary principles of due
process . . . present[ing] an undeniable and substantial potential for harm.‟” Cooper v.
State, 854 N.E.2d 831, 835 (Ind. 2006) (quoting Benson v. State, 762 N.E.2d 748, 756
(Ind. 2002)).
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However, notably this case was not tried before a jury, but rather was tried to the
bench. “[I]n criminal bench trials, we presume that the court disregard[s] inadmissible
testimony and render[s] its decision solely on the basis of relevant and probative
evidence.” Griffin v. State, 698 N.E.2d 1261, 1267 (Ind. Ct. App. 1998), trans. denied.
Further, generally valid issues such as “unfair prejudice, confusion of the issues, or
potential to mislead the jury” are relevant only in jury trials. See Ruiz v. State, 926
N.E.2d 532, 535 (Ind. Ct. App. 2010), trans. denied.
Since “it is presumed that the judge disregard[s] inadmissible testimony and
weigh[s] only proper evidence in determining whether the State carried its burden of
proving beyond a reasonable doubt that the defendant committed the crime,” Ottman v.
State, 397 N.E.2d 273, 265 (Ind. 1979), we cannot say that the prosecutor‟s actions
amounted to fundamental error. While the sarcasm and name-calling employed was not
the most appropriate course of action for the prosecutor to take, we do not need to
address the merits of this prosecutorial misconduct claim because Thompkins was not
prejudiced in any way. We have faith that our trial court colleague was able to make a
fair and just determination in this case based solely on the facts and was not swayed by
the tone of voice or characterization of Thompkins that the prosecutor employed.
In issuing his judgment, the trial court judge explicitly said “having heard the
evidence the Court is going to find that the State has met its burden. . . . Credibility of the
officers, their testimony, far outweighs that of the defendant. . . . I do not believe that he
was taking [the crack pipe] and trying to preserve it for another use – for CPS.” Tr. p.
62-63. It is clear that the judgment was based on the presented testimony and not any of
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the alleged inappropriate remarks and sarcasm by the prosecutor. Thompkins was not
denied a fair trial, nor were his due process rights infringed; there was no fundamental
error. We therefore affirm Thompkins‟ conviction.
Affirmed.
ROBB, C.J., and NAJAM, J., concur.
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