                                                                     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
