MEMORANDUM DECISION                                                                  FILED
                                                                                 Feb 16 2018, 7:46 am
Pursuant to Ind. Appellate Rule 65(D),                                               CLERK
this Memorandum Decision shall not be                                            Indiana Supreme Court
                                                                                    Court of Appeals
regarded as precedent or cited before any                                             and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Louis Joyce, Jr.,                                 February 16, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A05-1706-CR-1348
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Michael Cox,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1702-F6-1038



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A05-1706-CR-1348 | February 16, 2018         Page 1 of 7
                                             Case Summary
[1]   Robert Joyce, Jr., appeals his conviction for Level 6 felony battery by bodily

      waste. We affirm.


                                                     Issue
[2]   The sole issue before us is whether the prosecutor committed misconduct by

      commenting upon Joyce’s failure to testify at trial.


                                                     Facts
[3]   On February 20, 2017, Evansville Police Officer Matthew Taylor arrested Joyce

      for disorderly conduct and resisting law enforcement. Officer Taylor put Joyce

      in the back seat of his police cruiser to transport him to jail. The cruiser did not

      have any kind of barrier between the front and back seats. Officer Taylor was

      wearing a body cam. A couple of minutes into the drive to jail, Officer Taylor

      attempted to speak with Joyce. Joyce, who was intoxicated and agitated, yelled

      that he did not want to talk. The body cam also recorded Joyce saying

      something along the lines of, “b****, I’ll spit in your mouth,” although it is

      difficult to discern precisely what Joyce said because his speech was highly

      slurred. Ex. 1, 2:16-2:20. Shortly thereafter, Officer Taylor pulled over in a

      parking lot and accused Joyce of spitting on him. Joyce denied doing so.

      Officer Taylor removed Joyce from his cruiser and radioed in a request for a

      van or a cruiser with a cage to continue transporting Joyce to jail. Officer

      Taylor told backup officers who were at the scene that Joyce had spit on his

      face and asked them to retrieve napkins for him from inside his cruiser.

      Court of Appeals of Indiana | Memorandum Decision 82A05-1706-CR-1348 | February 16, 2018   Page 2 of 7
[4]   The State charged Joyce with Level 6 felony battery by bodily waste on a police

      officer, Class A misdemeanor resisting law enforcement, Class B misdemeanor

      disorderly conduct, and alleged that he was an habitual offender. Joyce pled

      guilty to the resisting law enforcement and disorderly conduct charges but

      demanded a jury trial on the battery charge. At trial, Officer Taylor testified

      that Joyce spat on him, and the State played the body cam video. Because of

      the position of the body cam in relation to Joyce, it was not possible to see him

      spitting on Officer Taylor.


[5]   Joyce elected not to testify at trial. During closing argument, the prosecutor

      stated in part:


              One of the reasons I’m asking you to believe Officer Taylor is
              because if you look at another instruction later on that the Court
              read to you, one of the, and we talked about this a little bit in voir
              dire, whenever you have two people that are telling you different
              stories, the defendant is saying, hey I didn’t spit on him, Officer
              Taylor is saying, hey he did, you look at the reasonableness of
              the testimony considering the other evidence. We talked about
              that in voir dire right, you might look to some third party or
              surveillance video I think is what the example that I had used. In
              this case we’ve got the surveillance video so to speak, it’s the
              bodycam footage that you saw, and that correlates with Officer
              Taylor’s testimony, it does not correlate with the defendant’s
              testimony. In effect, ladies and gentlemen, to find the defendant
              not guilty in this case you basically have to call out Officer
              Taylor and you have to say that Officer Taylor is a liar, a cheat,
              and a fraud, and he is not those things. At the end of the day
              Officer Taylor testified the defendant spit on him, the video
              corroborates that.



      Court of Appeals of Indiana | Memorandum Decision 82A05-1706-CR-1348 | February 16, 2018   Page 3 of 7
      Tr. Vol. IV pp. 43-44.


[6]   Defense counsel did not object to the prosecutor’s closing statement. The trial

      court gave an instruction to the jury stating, “The fact that the defendant did

      not testify raises no presumption of any kind against the defendant. 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.” App. Vol. II p. 59. The

      jury found Joyce guilty, and he pled guilty to the habitual offender allegation.

      Joyce now appeals.


                                                  Analysis
[7]   Joyce contends the prosecutor improperly commented on his refusal to testify in

      violation of his Fifth Amendment right against self-incrimination. Because

      Joyce did not object to the prosecutor’s comments, he did not preserve this

      claim and he must establish that it rose to the level of fundamental error. See

      Nichols v. State, 974 N.E.2d 531, 534-35 (Ind. Ct. App. 2012). When reviewing

      a claim of prosecutorial misconduct, we must determine whether the prosecutor

      engaged in misconduct that, under all of the circumstances, placed the

      defendant in a position of grave peril to which he or she should not have been

      subjected. Id. at 535. “‘Whether a prosecutor’s argument constitutes

      misconduct is measured by reference to case law and the Rules of Professional

      Conduct.’” Id. (quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). We

      measure the weight of the peril by the probable persuasive effect of the

      misconduct on the jury rather than the degree of impropriety of the conduct. Id.


      Court of Appeals of Indiana | Memorandum Decision 82A05-1706-CR-1348 | February 16, 2018   Page 4 of 7
[8]    To establish fundamental error based on prosecutorial misconduct, the

       defendant must also show that the misconduct made a fair trial impossible or

       constituted a clearly blatant violation of basic and elementary principles of due

       process, presenting an undeniable and substantial potential for harm. Id. Harm

       is established not by a conviction, but rather upon whether the defendant’s right

       to a fair trial was detrimentally affected by the denial of procedural

       opportunities for the ascertainment of the truth. Id. Misconduct or errors

       implicating constitutional issues do not necessarily establish that fundamental

       error has occurred. Id.


[9]    “The Fifth Amendment privilege against compulsory self-incrimination is

       violated 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.” Moore v. State, 669 N.E.2d 733, 739 (Ind. 1996). A

       defendant bears the burden of proving that a prosecutor’s statement penalized

       the exercise of his or her right to remain silent. Id. at 736. A prosecutor’s

       subjective motivation in making a comment about a defendant’s silence is

       irrelevant. Id. at 738. “It is the effect of a remark, not the intent of its speaker,

       that frustrates a defendant’s exercise of the right to remain silent at trial.” Id.

       An improper comment on a defendant’s silence may be either direct or indirect.

       Id.


[10]   In this case, it seems clear that the prosecutor’s reference to Joyce’s non-existent

       “testimony” was inadvertent and indirect. Earlier in the argument, the

       prosecutor had referred to the defendant’s “story” about the charged incident.

       Court of Appeals of Indiana | Memorandum Decision 82A05-1706-CR-1348 | February 16, 2018   Page 5 of 7
       This did not implicate or refer to Joyce’s failure to testify, as opposed to Joyce

       denying on the body cam recording and at trial—albeit through his attorney

       and not by testifying—that he spit on Officer Taylor. The prosecutor then

       discussed Officer Taylor’s testimony and reasons why the jury should believe

       him. In the midst of this discussion, the prosecutor said, “In this case we’ve got

       the surveillance video so to speak, it’s the bodycam footage that you saw, and

       that correlates with Officer Taylor’s testimony, it does not correlate with the

       defendant’s testimony.” Tr. Vol. IV p. 33.


[11]   Even if it was technically erroneous to refer to “the defendant’s testimony,” we

       cannot say this rose to the level of fundamental error. In context, this apparent

       slip of the tongue by the prosecutor was part of a broader argument refuting

       Joyce’s suggestion that Officer Taylor’s testimony was untrue. The prosecutor

       did not ask the jury to draw an inference of guilt from Joyce’s silence or suggest

       that the jurors should do so. Rather, the prosecutor asked the jury to reject

       Joyce’s defense, to examine the corroboration between the body cam video and

       Officer Taylor’s testimony, and ultimately to accept that testimony as true and

       convict Joyce. Additionally, the trial court instructed the jury not to consider

       Joyce’s failure to testify in any way. The prosecutor’s argument, to which

       Joyce did not object, did not make a fair trial impossible or constitute a blatant

       violation of elementary due process principles and, thus, is not grounds for

       reversing Joyce’s conviction. See Boatright v. State, 759 N.E.2d 1038, 1043 (Ind.

       2001) (holding prosecutor’s argument asking jury to accept victim’s testimony

       and noting “[t]here has been absolutely no conflicting testimony in this trial”


       Court of Appeals of Indiana | Memorandum Decision 82A05-1706-CR-1348 | February 16, 2018   Page 6 of 7
       was not a fundamentally-erroneous comment on the defendant’s failure to

       testify).


                                                 Conclusion
[12]   The prosecutor’s indirect reference to Joyce’s failure to testify was not

       fundamentally erroneous. We affirm his conviction for Level 6 felony battery

       by bodily waste.


[13]   Affirmed.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1706-CR-1348 | February 16, 2018   Page 7 of 7
