COA orders new trial after court denied right to closing arguments

A Cass County woman convicted of battery in front of her young daughter will get a new trial after the Indiana Court of Appeals determined the trial court committed reversible error by denying the woman the right to present closing arguments.

In Allison Nickels v. State of Indiana, 09A02-1703-CR-534, Allison Nickels and her ex-husband, Everett, became involved in a fight in in the presence of their daughter, which resulted in the state charging Nickels with Level 6 felony domestic battery and Class A misdemeanor interference with reporting of a crime. Everett Nickels testified during a subsequent bench trial that he had been helping their 7-year-old daughter get ready for school when his ex-wife entered the room, started arguing with him, then struck him in the face with her fists.

Everett Nickels said he then left the room and threatened to cause the police, prompting Allison Nickels to continue her physical assault and knock the cellphone from his hands. During her testimony, Allison Nickels denied that the fight occurred in front of their daughter or that she touched his cellphone.

After the parties rested their cases, the Cass Superior Court allowed counsel for the state to make a brief statement before telling the state, “Court finds for you, okay?” Nickels’ counsel was then allowed to make a brief statement before the court asked if there would be a waiver of a presentence investigation.

Nickels was sentenced to time served, and on appeal she argued the trial court erred in denying her right to make a closing argument. The state, however, argued the trial court invited Nickels to make a closing argument after finding for the state and that Nickels’ counsel did not object but, instead, made a brief statement.

The state based its argument partially on the case of Casterlow v. State, 256 Ind. 214, 267 N.E.2d 552 (1971), which held that a defendant had waived his assertion that he was denied the right to make a closing argument. However, Indiana Court of Appeals Judge Margret Robb wrote in a Thursday opinion that the later case of Herring v. New York, 422 U.S. 853, 864-65 (1975) held there was a constitutional right to make a closing argument at a bench trial.

Further, Casterlow is distinct in that the judge in that case ruled without allowing either party to present closing arguments, while the Cass Superior judge allowed the state to make an argument before finding for its position. The fact that the judge gave Nickels’ counsel the opportunity to present an argument after deciding for the case does not cure the error, Robb said, as “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.”

“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,” Robb continued. “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… .”

The appellate court reversed her convictions and remanded the case for a new trial.