Heiser v. State ( 1992 )

596 N.E.2d 965 (1992)

James Edward HEISER, Appellant-Defendant below,
v.
STATE of Indiana, Appellee-Plaintiff below.

No. 45A03-9202-CR-058.

Court of Appeals of Indiana, Third District.

July 29, 1992. Rehearing Denied September 3, 1992. Transfer Denied October 21, 1992.

Scott L. King, Appellate Public Defender, Crown Point, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

STATON, Judge.

James Heiser was convicted by a jury of Burglary, a Class B felony. On appeal, he raises the sole issue of whether the giving of an instruction on the silence of a defendant violates the Indiana Constitution when one co-defendant asks that it be given and the other objects.

We affirm.

James Heiser and his brother, John, were tried jointly before a jury and both were convicted of burglary. Neither testified during the trial. At the conclusion of the evidence, John's counsel tendered an instruction that the jury was not to consider a defendant's failure to testify when reaching its verdict.^[1] In response to James' objection to the instruction, the trial court modified it to specifically refer only to John's failure to testify.^[2] The modified instruction was given to the jury over the objection of James Heiser's counsel.

James argues that giving the instruction over his objection improperly highlighted James' failure to testify and, because the instruction referenced only the impropriety of considering John's failure to testify, it implied that James' silence was a proper consideration for the jury. It is well recognized in Indiana that an instruction not to consider a defendant's failure to testify given over the defendant's objection violates Article I, Section 14 of the Indiana Constitution. Lucas v. State (1986), Ind., 499 N.E.2d 1090, 1093. However, the Fifth and Fourteenth Amendments require such an instruction be given when requested by a defendant. Id., (citing Carter v. Kentucky, 450 U.S. 288, 101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981)).

The Indiana Supreme Court has declared that giving such an instruction pursuant to one co-defendant's request is proper notwithstanding an objection by the other codefendant. Lucas, supra. In Lucas, Larry Lucas and his brother, Paul, were tried jointly by a jury and convicted of several counts of burglary. Neither Larry nor Paul testified at trial. Larry tendered a final instruction regarding a defendant's right not to testify^[3] which was similar to the one tendered in the present cause. The trial court gave Larry's tendered instruction over Paul's objection that it violated his right not to be a witness against himself. In affirming the trial court's action, our supreme court found that Larry's Fifth Amendment right to an instruction warning the jury not to consider his failure to testify prevailed over Paul's right under the Indiana Constitution to decide that such an instruction not be given. Lucas, supra.

As in Lucas, John's Fifth Amendment right to the instruction prevails over James' right to decide that it not be given. Thus, the trial court correctly overruled James Heiser's objection to the instruction warning the jury not to consider John's failure to testify.

The instruction given to the jury referred only to John's failure to testify because James objected to the tendered version applicable to defendants in general. James' contention that the instruction's silence as to James' failure to testify resulted in an implication constituting reversible error is without merit because invited error by the complaining party is not reversible error. Berry v. State (1991), Ind. App., 574 N.E.2d 960, 963, trans. denied.

Affirmed.

HOFFMAN and SHARPNACK, JJ., concur.

NOTES

[1] John's tendered instruction read as follows:

The defendant is a competent witness to testify in his own behalf. He may testify or not, as he may choose. In this case, the defendant has not testified. This fact is not to be considered by the jury as any evidence of guilt. The jury shall not comment upon, refer to, or in any manner consider the fact that the defendant did not testify in arriving at your verdict in this case. [Record p. 54].

[2] The trial court modified the instruction to read:

The defendant, John W. Heiser, is a competent witness to testify in his own behalf, and he may testify or not, as he may choose. In this case, the defendant, John W. Heiser, has not testified, and this fact is not to be considered by the jury as any evidence of guilt, neither has the jury any right to comment upon, refer to or in any manner consider the fact that the defendant, John W. Heiser, did not testified [sic] in arriving at your verdict in this case. [Record p. 44].

[3] The instruction given in Lucas read as follows:

Under the law of the State of Indiana a person charged with the commission of a crime is a competent witness to testify in his or her own behalf. However, a person charged with the commission of a crime cannot be compelled to testify and is under no duty or obligation to testify. The fact that a defendant did not testify raises no presumption of any kind against him. A defendant's failure to testify shall not be commented upon, referred to, or in any manner considered by the jury in determining the guilt or innocence of that defendant. Lucas, supra.