                                                        FILED
                                                      Sep 06 2012, 9:30 am

FOR PUBLICATION                                              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

                                             GEORGE P. SHERMAN
                                             Deputy Attorney General
                                             Indianapolis, Indiana



                            IN THE
                  COURT OF APPEALS OF INDIANA

PATRICK NICHOLS,                             )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )       No. 31A01-1112-CR-599
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                  APPEAL FROM THE HARRISON SUPERIOR COURT
                        The Honorable Roger D. Davis, Judge
                           Cause No. 31D01-1106-FC-411



                                 September 6, 2012


                            OPINION - FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       Patrick Nichols appeals his convictions for class C felony burglary, class D felony

theft, and class A misdemeanor criminal mischief, contending that in closing argument, the

prosecutor violated his Fifth Amendment privilege against self-incrimination by improperly

commenting upon his decision not to testify and that the resulting error is fundamental. We

agree and therefore reverse his convictions and remand for a new trial.

                               Facts and Procedural History

       At 3:19 a.m., on April 14, 2011, the burglary alarm sounded in the Wilson General

Store and gas station in Elizabeth. Store owner Emmett Wilson and Harrison County Police

Officer Steven Coleman went to the store. They observed that the air conditioning unit had

been removed from the store‟s front window and that the alarm system had been ripped off

the wall. They also found that the locked cigarette cabinet had been pried open and the

cigarette packages and cartons had been removed and placed in garbage bags. Officer

Coleman searched the store but did not find anyone. Wilson put the cigarettes back in the

cabinet, cleaned up the store, and went home.

       Between 6:00 and 7:00 a.m., someone placed multiple phone calls from the store. No

one was authorized to make calls from the store before 8:00 a.m. The store‟s phone records

reveal a list of long-distance phone calls made from the store between 6:00 and 7:00 a.m.

The phone records indicate that one of the phone numbers belonged to the cell phone of

Nichols‟s mother, Helen Nichols, with whom Nichols lived. State‟s Ex. 1, Tr. at 118-19. At

trial, Helen claimed that she had been asleep, having taken a sleeping pill earlier, and did not


                                               2
hear her cell phone ring. Another phone number listed on the store‟s phone records belonged

to a former coworker of Nichols. Tr. at 229.

       Around 6:45 a.m., Nichols‟s ex-girlfriend, Erica Lorenzo, received a phone call on her

“pay-as-you-go”-phone from a phone number she did not recognize. Id. at 142. She

answered and discovered that it was Nichols. He told her that “he was at Elizabeth gas

station” and offered her cigarettes and money to pick him up, but she declined. Id. at 145-46.

Nichols also asked her if she knew anyone who could pick him up, but she did not. Later that

day, Lorenzo called the number from which Nichols had phoned her and discovered that the

number belonged to Wilson General Store, and she called the police. The store‟s phone

records do not list Lorenzo‟s phone number among the numbers called between 6:00 and

7:00 a.m. Officer Coleman looked at the display on Lorenzo‟s cell phone, which indicated

that she received a call from the store at 6:48 a.m. on April 14. Id. at 208-09.

       Sometime after 7:00 a.m., Pamela Stewart was driving past Wilson General Store and

saw a person standing near a purple PT Cruiser in the alley adjacent to the store. She saw

another person sitting in the Cruiser‟s driver‟s seat. She also saw that the metal siding on the

store had been pried open. The person in the alley got into the Cruiser, and they drove off.

Stewart followed them and wrote down the vehicle‟s license plate number, which she

provided to police. Later investigation revealed that Helen had a purple PT Cruiser with a

license plate number that differed by only one “alpha character” from the license plate

number that Stewart provided to police. Id. at 114-15.




                                               3
        Also sometime after 7:00 a.m., Wilson returned to the store. He was entering the

store‟s back door when a woman ran up to him, gave him a license plate number, and told

him that someone was exiting the “sliding doors” in the alley. Id. at 65. He went to the alley

and saw that the metal siding on the store had been pried open. Inside the store, he

discovered that the cigarette cabinet had been pried open again and all the cigarettes were

gone.

        The State charged Nichols with class C felony burglary, class D felony theft, and class

A misdemeanor criminal mischief. At trial, the State presented the testimony of Wilson,

Officer Coleman, Lorenzo, and Stewart. The defense presented the testimony of Helen and

Nichols‟s current girlfriend, Natalie Isaac. During closing argument, the prosecutor reviewed

the evidence that Officer Coleman had gathered and described it as “not a lot.” Id. at 343.

The prosecutor told the jury that the “crucial evidence in this case is Erica Lorenzo,” and

asked, “What motive did she have to make this up?” Id. The prosecutor later stated,

                Now I usually don‟t comment on a person‟s [F]ifth [A]mendment right
        but I‟m gonna make an exception in this case and … and the Court‟s gonna
        instruct you, already has, not to consider that[1] as any evidence. I had a case
        one time that went to trial and it was two motorcycle outlaws. I was trying …
        trying one first. He got convicted and then I called him as a witness in the
        second case. He lost his memory. And so I tried the other outlaw and, uh, I‟m
        telling you our evidence was razor thin and, uh, the defendant had a, I consider
        a really good defense attorney. I don‟t think he‟s practicing any more. He‟s
        out of Jeff. He and I used to be enemies and then we became friends but
        beyond that in that case the defendant did take the stand and testify. And he
        was convicted and the foreman was an acquaintance of mine, of the jury, and



        1
           “[T]hat” apparently refers to argument of counsel and not the defendant‟s Fifth Amendment right
against self-incrimination. The State agrees that the prosecutor was telling the jury that it could not consider
his comments as evidence. Appellee‟s Br. at 6 (citing Tr. at 346).

                                                       4
       told me afterwards and every time I saw him afterwards, if the defendant had
       not have testified he would have been a free man.

               So there are reasons that people exercise their [F]ifth [A]mendment
       right, valid reasons. And I think in that one, like I said I thought the case was
       … our case was razor thin by it being a murder trial, I still do, and there was
       just one little item of evidence that the defendant testified to and that‟s what
       the jury used to convict him. Like, uh, Johnny Martin told me, and he was the
       foreperson of the jury, for years every time I‟d see him he‟d say if he hadn‟t
       testified he‟d been a free man.

              I‟m still wondering, uh, what motive there is for Erica to call dispatch
       and say, look, I got a call from my ex-boyfriend at 6:48 a.m. and he wanted me
       to come to Elizabeth and pick him up at a gas station.

Id. at 346-47. Nichols‟s defense counsel did not object. The jury found Nichols guilty as

charged.

                                 Discussion and Decision

       Nichols asserts that his convictions must be reversed because the prosecutor‟s

comments on his Fifth Amendment right against self-incrimination constitute prosecutorial

misconduct rising to the level of 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 he must also request an admonishment; if the admonishment

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

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

prosecutor‟s comments and therefore did not properly preserve his claim.

       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

                                              5
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) (quoting Coleman v. State, 750 N.E.2d 370,

374 (Ind. 2001)). “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

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

1107-08. “The mere fact that an alleged error implicates constitutional issues does not

establish that fundamental error has occurred.” Schmidt v. State, 816 N.E.2d 925, 945 (Ind.




                                              6
Ct. App. 2004) (citing Wilson v. State, 514 N.E.2d 282, 284 (Ind. 1987)), trans. denied.

(2005).

       The Fifth Amendment to the United States Constitution provides that no person “shall

be compelled in any criminal case to be a witness against himself.” This privilege extends to

the States through the Fourteenth Amendment. Withrow v. Williams, 507 U.S. 680, 689

(1993). In Griffin v. California, 380 U.S. 609 (1965), the United States Supreme Court held

that the Fifth Amendment prohibits the prosecution from commenting on a defendant‟s

decision not to testify at trial. See also Ziebell v. State, 788 N.E.2d 902, 913 (Ind. Ct. App.

2003) (stating that Fifth Amendment prohibits prosecutor from commenting at trial on

defendant‟s decision not to testify). The Griffin Court noted that a comment on the

defendant‟s refusal to testify is “a remnant of the inquisitorial system of criminal justice,

which the Fifth Amendment outlaws.” Id. (citation and quotation marks omitted).

          “„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.‟” Boatright v. State,

759 N.E.2d 1038, 1043 (Ind. 2001) (quoting Moore v. State, 669 N.E.2d 733, 739 (Ind.

1996)). The defendant bears the burden of showing that a comment improperly penalized the

exercise of the right to remain silent. Moore, 669 N.E.2d at 739.

       Nichols argues that the prosecutor‟s comment was similar to those 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 prosecutors improperly commented upon the


                                              7
defendant‟s failure to testify, resulting in fundamental error. In Reynolds, the prosecutor

stated,

                 Was [sic] Aaron and Rachel [two of the State‟s witnesses] both lying?
          [Reynolds] 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).2 In Herron, the prosecutor stated in closing that “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 in the courtroom that can certainly tell us where

that gun is.” 801 N.E.2d at 765.

          Here, the prosecutor specifically stated that he did not normally comment upon a

defendant‟s decision to exercise Fifth Amendment rights but that he was going to make an

exception in this case. The jury reasonably could have interpreted this to mean that whatever

the prosecutor was going to say next related to Nichols‟s decision to exercise his Fifth

Amendment privilege against self-incrimination. The prosecutor then discussed at length

another case in which the evidence was extremely thin but the defendant was convicted

because he chose to testify and in testifying he provided the jury with evidence of his guilt.

The prosecutor stated that the defendant testified “about one little item of evidence,” and


          2
          Nichols asserts that the Reynolds court held that when a prosecutor commits fundamental
prosecutorial misconduct, “the trial court must sua sponte interrupt the prosecutor and admonish the jury.”
Appellant‟s Br. at 13. We disagree. In Reynolds, the court made the unremarkable statement that “when an
improper statement by the prosecutor amounts to fundamental constitutional error, no request for admonition is
required.” 797 N.E.2d at 869. By definition, when this Court is considering whether a prosecutor committed
fundamental error, it means that the defendant failed to properly preserve his or her claim by objecting and
requesting an admonishment.

                                                      8
“that‟s what the jury used to convict him.” Tr. at 346-47. The prosecutor twice told the jury

that the foreman told him that if the defendant had not testified, he would have been “a free

man.” Id. The jury reasonably could have inferred that the prosecutor was suggesting that

Nichols decided not to testify so as to avoid incriminating himself. We conclude that the

prosecutor‟s comments reasonably could be interpreted as an invitation to draw an adverse

inference from Nichols‟s silence. See Boatright, 759 N.E.2d at 1043. In fact, we think it is

obvious that the prosecutor was suggesting that the jury draw an inference of guilt from

Nichols‟s decision not to testify. Given the obviousness of the prosecutor‟s comments and

the fact that the evidence of guilt was not overwhelming in this case, we conclude that the

comments placed Nichols in a position of grave peril and constituted clearly blatant

violations of basic and elementary principles of due process that presented an undeniable and

substantial potential for harm.3 See Booher, 773 N.E.2d at 817.

        The State appears to concede that the prosecutor‟s remarks were improper but argues

that the impropriety does not result in fundamental error, citing Owens v. State, 937 N.E.2d

880 (Ind. Ct. App. 2010), trans. denied (2011). In Owens, the defendant was accused of

child molesting, and the victim, C.R., testified at trial. The prosecutor stated in closing that

“[u]ltimately, you can rely on [C.R.‟s] testimony. And in all honesty, in large part, if not

exclusively, that‟s what you have to rely on. Because the reality is, other than Mr. Owens,

she is the only one who knows what happened to her that night.” Id. at 894 (citation and



        3
          We observe that the prosecutor told the jury that the trial court had and would instruct them not to
consider his comments as evidence. Tr. at 346. Such comments do not inoculate the prosecutor from
subsequent improper comments.

                                                      9
quotation marks omitted). We concluded that the prosecutor‟s statement reasonably could

have been interpreted as an invitation to draw an adverse inference from the defendant‟s

failure to testify. Id. However, we concluded that the improper comment did not rise to the

level of fundamental error because the comment was an isolated statement in a trial in which

the victim testified and was vigorously cross-examined and recross-examined and the

victim‟s mother and investigating detective both testified and were vigorously cross-

examined.

       The State contends that fundamental error did not occur because (1) the prosecutor did

not directly state that Nichols invoked his Fifth Amendment right not to testify in order to

avoid incriminating himself and (2) jury instructions cured any error. The first contention is

meritless. As we have already concluded, the prosecutor‟s comments were an obvious

invitation to the jury to draw an adverse inference from Nichols‟s failure to testify.

Moreover, the “Fifth Amendment protects a defendant from having the prosecution make

direct or indirect comments regarding their silence.” Hand v. State, 863 N.E.2d 386, 396

(Ind. Ct. App. 2007) (citing United States v. McClellan, 165 F.3d 535, 548 (7th Cir. 1999)).

       As for the jury instructions, the State asserts that the trial court instructed the jury that

it must not consider the attorneys‟ statements as evidence, that Nichols must not be convicted

on suspicion or speculation, and that Nichols was not required to present any evidence to

prove his innocence or explain anything. Id. at 23, 367; 20, 365; 19, 364. The prosecutor‟s

comments here go to speculation regarding the invocation of the Fifth Amendment right, not

its existence. We are unpersuaded that any of these instructions mitigated the peril or cured


                                                10
the harm that the prosecutor‟s comment created by so obviously suggesting to the jury that

Nichols‟s did not testify so as not to incriminate himself.

       Based on the forgoing, we conclude that the prosecutor‟s improper comments violated

Nichols‟s Fifth Amendment rights and resulted in fundamental error. We therefore reverse

Nichols‟s convictions and remand for a new trial.

       Reversed and remanded.

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




                                             11
