Pursuant to Ind. Appellate Rule 65(D), this

                                                                FILED
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
                                                              Oct 10 2012, 9:20 am
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:

MATTHEW J. MCGOVERN                                 GREGORY F. ZOELLER
Anderson, Indiana                                   Attorney General of Indiana

                                                    ANDREW R. FALK
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

EDWARD CECIL, JR.,                                  )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 22A04-1112-CR-689
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE FLOYD SUPERIOR COURT
                          The Honorable Maria D. Granger, Judge
                             Cause No. 22D03-0905-FB-1217



                                         October 10, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                          Case Summary

       Edward Cecil, Jr., appeals his conviction for class B felony dealing in cocaine or a

narcotic drug,1 arguing that the prosecutor improperly commented on his right against self-

incrimination guaranteed by the Fifth Amendment to the United States Constitution. Finding

no infringement of Cecil’s Fifth Amendment right, we affirm.

                                   Facts and Procedural History

       The New Albany police had used Chris Chalker as a confidential informant in

controlled drug buys several times. On May 19, 2009, Chalker called the police and

informed them that a man referred to on the street as “Black” was selling cocaine. Tr. at 60.

Chalker called Black from the New Albany Police Station and agreed to buy $100 in crack

cocaine in the Dairy Queen parking lot. The police searched Chalker to confirm that he had

no drugs, gave him five twenty-dollar bills, and set up surveillance around the Dairy Queen.

       Shortly thereafter, Cecil drove a Chevy Monte Carlo through the Dairy Queen drive-

thru with Tyreece Morris in the passenger seat. Cecil then pulled up next to Chalker, who

was standing at a payphone in the parking lot. Chalker walked up to the passenger window.

Chalker recognized Cecil as Black, but he did not know the passenger. Cecil gave Morris the

crack, and Morris gave it to Chalker. Chalker handed Morris the $100. Chalker walked

away and brought the crack to the police.

       The police pulled the Chevy over, identified the driver of the car as Cecil, and arrested

him and Morris. Special Agent Jeffrey McKinley questioned Cecil about the drug buy. Cecil


       1
           Ind. Code § 35-48-4-1(a)(1).

                                                2
said that he had been contacted to sell $100 worth of crack but believed that it was a setup

and decided not to go through with the transaction. Agent McKinley searched Cecil and

found the cell phone that Chalker had called to set up the buy. Agent McKinley also found

about $1200 on Cecil and in the Chevy, but none of the serial numbers on the bills matched

those the police had given Chalker for the buy. Later, at the police station, the police found

the twenty-dollar bills that had been given to Chalker and additional crack cocaine in

Morris’s rectum.

       The State charged Cecil with class B felony dealing in cocaine or a narcotic drug. At

trial, Morris testified that his street name was “Black,” that Chalker called him, not Cecil, and

that after he talked to Chalker he gave his phone to Cecil. Id. at 179. Morris also testified

that Cecil gave him a ride to the Dairy Queen and had no knowledge of the drug deal. The

jury found Cecil guilty as charged. Cecil appeals.

                                  Discussion and Decision

       Cecil argues that during closing argument, the prosecutor violated his right against

self-incrimination by indirectly commenting on his failure to testify, thereby committing

misconduct that resulted in fundamental error. Generally, in order to properly preserve a

claim of prosecutorial misconduct for appeal, a defendant must not only raise a

contemporaneous objection but must also request an admonishment; if the admonishment is

not given or is insufficient to cure the error, then the defendant must request a mistrial.

Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). Cecil concedes that he did not object to

the prosecutor’s comment and therefore did not properly preserve his claim.


                                               3
       To prevail on a claim of prosecutorial misconduct that has been procedurally

defaulted, the defendant must establish not only the grounds for the prosecutorial

misconduct, but also the additional grounds for fundamental error. Id. In reviewing a claim

of prosecutorial misconduct, we “determine (1) whether the prosecutor engaged in

misconduct, and if so, (2) whether the misconduct, under all of the circumstances, placed the

defendant in a position of grave peril to which he or she would not have been subjected.”

Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002) (citation and quotation marks omitted).

“Whether a prosecutor’s argument constitutes misconduct is measured by reference to case

law and the Rules of Professional Conduct.” Cooper, 854 N.E.2d at 835. “The gravity of

peril is measured by the probable persuasive effect of the misconduct on the jury’s decision

rather than the degree of impropriety of the conduct.” Id.

       Fundamental error is an “extremely narrow exception” to the contemporaneous

objection rule that allows a defendant to avoid waiver of an issue. Id. For a claim of

prosecutorial misconduct to rise to the level of fundamental error, it must “make a fair trial

impossible or constitute clearly blatant violations of basic and elementary principles of due

process and present an undeniable and substantial potential for harm.” Booher, 773 N.E.2d

at 817 (citation, quotation marks, and brackets omitted). “The element of harm is not shown

by the fact that a defendant was ultimately convicted.” Davis v. State, 835 N.E.2d 1102,

1107 (Ind. Ct. App. 2005), trans. denied (2006). “Rather, it depends upon whether the

defendant’s right to a fair trial was detrimentally affected by the denial of procedural




                                              4
opportunities for the ascertainment of truth to which he would have been entitled.” Id. at

1107-08.

       During closing argument, defense counsel stated, “The fact is, Mr. Morris told you

what happened. He acted alone. He asked Mr. Cecil for a ride, Mr. Cecil didn’t know what

the ride was for, what Mr. Morris’ intentions were. And that settles it, ladies and gentlemen

of the jury.” Tr. at 248. On rebuttal, the prosecutor stated,

       Now, we’re expected to believe that he [Cecil] was just driving. You can use
       your common sense in that if he was just driving with his friend here to New
       Albany, Indiana, for no other particular reason, and no idea what his friend Mr.
       Morris was (indiscernible) to do. But all the evidence that we have is at the
       opposite of that. That Mr. Chalker testified he knows who Mr. Black is, and
       identified him in Court and Mr. Black is none other than Mr. Cecil, who he set
       up this drug deal with.

Id. at 250 (emphasis added). Cecil argues that the highlighted sentence is an indirect

comment on Cecil’s failure to testify in violation of the Fifth Amendment to the United

States Constitution.

       The Fifth Amendment provides that no person “shall be compelled in any criminal

case to be a witness against himself.” The Fifth Amendment is violated when “the

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.” Boatright v. State, 759

N.E.2d 1038, 1043 (Ind. 2001). “However, statements by the prosecutor concerning the

uncontradicted nature of the State’s evidence do not violate the defendant’s Fifth

Amendment rights.” Dumas v. State, 803 N.E.2d 1113, 1118 (Ind. 2004). Further, if the

prosecutor’s comment “in its totality” is addressed to other evidence rather than the


                                              5
defendant’s decision not to testify, it is not grounds for reversal. Boatright, 759 N.E.2d at

1043. “The defendant bears the burden of showing that a comment improperly penalized the

exercise of the right to remain silent.” Owens v. State, 937 N.E.2d 880, 893 (Ind. Ct. App.

2010), trans. denied (2011).

       Cecil asserts that the prosecutor’s statement here is like that in Reynolds v. State, 797

N.E.2d 864 (Ind. Ct. App. 2003), and Herron v. State, 801 N.E.2d 761 (Ind. Ct. App. 2004),

in which we concluded that the prosecutor had violated the defendant’s Fifth Amendment

right. We disagree. In Reynolds, the prosecutor made the following comment:

       Was [sic] Aaron and Rachel [the State’s witnesses] both lying? He [the
       defendant] takes the 5th Amendment. You take the 5th Amendment when you
       got something to be concerned about. Incriminating yourself. 5th
       Amendment. My constitutional right not to incriminate myself. That’s what
       that means. So in order for that to apply you have to have done something to
       incriminate yourself.

797 N.E.2d at 868 (citation omitted). In Reynolds, the prosecutor made a direct comment on

the defendant’s decision to exercise his Fifth Amendment right. The prosecutor’s comment

in Reynolds is nothing like the prosecutor’s comment here.

       We find the same to be true of the prosecutor’s comment in Herron. There, the

prosecutor stated, “but as for not presenting the gun to you, that actually fired those bullets,

members of the jury, right over there at that table, that’s the only one [the defendant] in the

courtroom that can certainly tell us where that gun is.” Herron, 801 N.E.2d at 765. Thus, the

prosecutor’s comment directly singled out the defendant as having information that he did

not tell the jury and could be reasonably “interpreted to suggest that it was Herron’s

invocation of his Fifth Amendment privilege against compulsory self-incrimination that

                                               6
prevented the State from producing the nine-millimeter handgun that shot [the victim].” Id.

at 766.

          In fact, we think that the prosecutor’s statement in this case is even less problematic

than others that Indiana courts have reviewed. For example, in Dumas, 803 N.E.2d 1113, the

prosecutor made the following remark:

          [T]here is no evidence whatsoever that Irving’s [the defendant’s accomplice]
          boyfriend was involved in this. But put that aside. How and why would
          [Irving] name [Dumas] if he wasn’t involved? What motive does she have to
          lie? Was any motive that she had against Mr. Dumas presented in this court?

Id. at 1117. The supreme court concluded that the prosecutor’s remarks “were well within

the permissible range of fair commentary on the evidence or lack thereof and were not a

comment on Dumas’ right not to testify.” Id. at 1118. See also Hopkins v. State, 582 N.E.2d

345, 347 (Ind. 1991) (concluding that remark “it is certainly worthy of comment that you

never heard any testimony during this trial that the defendant was anywhere else” other than

the victim’s home when he was murdered was not focused on absence of testimony from

defendant and thus did not impinge on right to remain silent); Callahan v. State, 527 N.E.2d

1133, 1136-37 (Ind. 1988) (concluding that the remark, “Let’s see, has there been any

witnesses presented who have told us where [defendant] was that morning?” was not focused

on defendant’s failure to testify and thus was not improper).

          Here, the prosecutor’s comment did not even focus on the absence of evidence but

rather emphasized the evidence that the State presented. Specifically, the prosecutor pointed

out “[t]hat Mr. Chalker testified he knows who Mr. Black is, and identified him in Court and

Mr. Black is none other than Mr. Cecil, who he set up this drug deal with.” Tr. at 250. Thus,

                                                 7
the prosecutor’s comment is addressed to evidence that was presented, not the defendant’s

decision to remain silent. See Boatright, 759 N.E.2d at 1043. Cecil fails to carry his burden

of persuading us that the prosecutor’s comment “is subject to reasonable interpretation by a

jury as an invitation to draw an adverse inference from [his] silence.” See id. Accordingly,

we conclude that the prosecutor’s statement did not violate the Fifth Amendment. Finding no

prosecutorial misconduct, we affirm Cecil’s conviction.

       Affirmed.

RILEY, J., and BAILEY, J., concur.




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