Darnell Wilson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 1, 2016
• Docket: 49A02-1504-CR-216
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 01 2016, 8:29 am regarded as precedent or cited before any 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 Victoria L. Bailey Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Indianapolis, Indiana

Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Darnell Wilson, February 1, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1504-CR-216 v. Appeal from the Marion Superior Court, Criminal Division, Room 3 State of Indiana, The Honorable Stanley Kroh, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G03-1405-FB-28371

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-216 | February 1, 2016 Page 1 of 9 [1] Following a jury trial, Darnell Wilson was convicted of Aggravated Battery, a

Class B felony.1 The trial court subsequently determined Wilson to be a

Habitual Offender. On appeal, Wilson presents one issue for our review: Did

the trial court abuse its discretion in denying his motion for a mistrial based on

prosecutorial misconduct?

[2] We affirm.

Facts & Procedural History

[3] An ongoing dispute between two family groups underscores the events giving

rise to Wilson’s conviction. On May 26, 2014, the Memorial Day holiday,

Veronica Alexander and her partner, Anthony Moffitt, along with their family

and a few friends, were having a cookout at their home on North Grant Street

in Indianapolis. James Currin and his partner, Shante Bowie, and their five

children were driving down Grant Street in a gray minivan. According to

Alexander, Currin and Bowie were driving up and down the street “taunting”

and “threatening” Alexander’s and Moffitt’s children. Transcript at 27. Bowie

claimed that she and Currin were going to visit a friend who lived on Grant

Street. When Currin came to a stop sign near Alexander’s home, Moffitt

approached the vehicle and started shouting for Currin to get out.

1 Ind. Code § 35-42-2-1.5(2). Effective July 1, 2014, this offense was reclassified as a Level 3 felony. Because Wilson committed this offense prior to that date, it retains its prior classification as a Class B felony.

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-216 | February 1, 2016 Page 2 of 9 [4] Currin got out of the car and told Bowie, “you just leave,” “I’m about to whoop

his ass.” Id. at 166. Currin and Moffitt then began trading punches. Bowie

moved into the driver’s seat and as she turned the minivan around in a

driveway, a window of the vehicle was broken out. Bowie then drove to her

aunt’s home located one block over on Chester Avenue. When Bowie arrived,

she saw Wilson, who is her uncle, and asked him to head over to Grant Street

to help Currin. She also called the police. Currin then came running between

houses and across an alleyway and met up with Wilson. As they headed back

to the Chester Avenue house, Alexander, Moffitt, and others followed. When

police arrived, they spoke with Alexander and Bowie. The responding officers

told the people from Grant Street to go back to Grant Street and told the people

from Chester Avenue to stay on Chester Avenue. Alexander, Moffitt, and the

others returned to the North Grant Street home.

[5] Shortly after the police left, Lamont Wilson, Vicky Brooks, and Shawn Bowie

arrived at the Chester Avenue residence. Lamont spoke with those in the

home, including Wilson, and told them, “I think we should go teach them a

lesson.” Id. at 173. A group of individuals, including Wilson, walked across

the alley and through a field to the Grant Street residence. Brooks had armed

herself with a knife and at some point, Lamont and Wilson armed themselves

with large sticks or two-by-fours. As the group approached the Grant Street

residence, they exchanged words with Moffitt and others. Wilson was

positively identified as one of the individuals that entered onto the Grant Street

property prior to the ensuing melee. During the confrontation, Moffitt was

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-216 | February 1, 2016 Page 3 of 9 struck with what appeared to be two-by-fours, punched, and stomped on after

he fell to the ground. Wilson admitted to throwing a punch, but claimed he hit

another individual involved in the altercation. Other witnesses identified

Wilson as one of the individuals hitting, punching, and stomping on Moffitt.

Alexander was also attacked and sustained knife wounds to her back, buttocks,

upper legs, and arm.

[6] A neighbor who was present at the Grant Street home called 911 while other

neighbors ran from their homes to try to stop the violence. Wilson and the rest

withdrew to the Chester Avenue residence. Moffitt, Alexander, and another

were taken to the hospital where they were treated for various injuries. Moffitt

was hospitalized for multiple fractures in his face and jaw; he underwent

surgery, and at the time of trial, was still suffering from the effects of the attack.

[7] On May 30, 2014, the State charged Wilson with aggravated battery as a Class

B felony, and subsequently alleged him to be a habitual offender. A jury trial

was held on March 5, 2015. During closing argument, the State focused

primarily on Wilson’s liability as an accomplice to beating Moffitt and that the

severity of Moffitt’s injuries qualified the offense as aggravated battery, not a

lesser battery offense. The defense’s closing argument sought to highlight

inconsistencies in witnesses’ testimonies and to paint those at the Grant Street

residence, including Moffitt, as the aggressors. Defense counsel further argued,

“[p]eople act consistent with their personalities. We know that [Moffitt’s]

personality is, he starts fights.” Transcript at 302-03. Defense counsel

suggested that Moffitt “lost a fight and now he’s using the justice system to

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-216 | February 1, 2016 Page 4 of 9 punish everyone in that family because of that.” Id. at 303. During rebuttal

argument, the State addressed what the defense claimed were inconsistencies

and the defense’s argument that Moffitt instigated the fight by suggesting that

defense counsel was “misstat[ing]” the evidence presented. Id. at 309. Defense

counsel objected and the following ensued:

[DEFENSE COUNSEL]: Counsel, that is an improper argument. To accuse counsel of misstating - -

[DEPUTY PROSECUTOR]: I didn’t say intentionally, Your Honor.

THE COURT: All right. And ladies and gentlemen, again, remember the instruction that you’re given. What the lawyers say during closing argument or opening statement, it’s not evidence. They are allowed to discuss the evidence and the law and attempt to persuade you to a particular verdict. You can accept or reject those arguments as you see fit.

If you’ll continue.

[DEPUTY PROSECUTOR]: Thank you, Judge.

I am not saying he did this intentionally. I’m saying if he’s misstating the facts, though, as they came out from the witness stand, which is what counts, how can you believe any of the argument that he’s made.

[DEFENSE COUNSEL]: Again - - I’m sorry, Judge. Can we approach?

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-216 | February 1, 2016 Page 5 of 9 THE COURT: Well, I - - the Court would sustain the objection and - -

[DEFENSE COUNSEL]: Then I move for a mistrial.

THE COURT: All right. Well, the Court would deny the request for mistrial.

And, again, ladies and gentlemen, when the lawyers are arguing the case, your recollection of the evidence is what is important here. The evidence came from the witness stand, the sworn testimony.

You know, the burden is with the State of Indiana and what the lawyers say is not evidence. You can accept or reject the arguments as you see fit.

Id. at 309-10.

[8] The jury ultimately found Wilson guilty of aggravated battery. Wilson waived

his right to a jury trial on the habitual offender count, and the trial court heard

evidence and took the matter under advisement. On March 20, 2015, the trial

court found Wilson to be a habitual offender and sentenced him to an aggregate

term of sixteen years.

Discussion & Decision

[9] Wilson argues that the trial court abused its discretion in denying his motion for

mistrial made during closing argument. Wilson maintains that the deputy

prosecutor’s suggestion that his defense counsel misstated the evidence

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-216 | February 1, 2016 Page 6 of 9 amounted to prosecutorial misconduct. Because credibility of the witnesses,

including himself, and by extension his attorney, was key, Wilson asserts that

the deputy prosecutor’s statements placed him in a position of grave peril.

[10] We begin by noting that a trial court’s decision to grant or deny a motion for

mistrial is afforded great deference on appeal because the trial court is in the

best position to gauge the surrounding circumstances of an event and its impact

on the jury. Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001). A court on

appeal therefore reviews the trial court’s decision solely for an abuse of

discretion. Id. “After all, a mistrial is an extreme remedy that is only justified

when other remedial measures are insufficient to rectify the situation.” Id.

[11] When a mistrial request is based on a properly-preserved claim of prosecutorial

misconduct, the defendant must establish (1) that the prosecutor engaged in

misconduct and (2) that the questioned conduct was so prejudicial and

inflammatory that he was placed in a position of grave peril to which he should

not have been subjected. Id. The gravity of the peril is determined by

considering the alleged misconduct’s probable persuasive effect on the jury’s

decision, not the impropriety of the conduct. Id.

[12] When an improper argument is alleged to have been made, the correct

procedure is to request the trial court to admonish the jury. Dumas v. State, 803

N.E.2d 1113, 1117 (Ind. 2004); Brewer v. State, 605 N.E.2d 181, 182 (Ind. 1993).

If the party is not satisfied with the admonishment, then he or she should move

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-216 | February 1, 2016 Page 7 of 9 for mistrial. Dumas, 803 N.E.2d at 1117; see also Ryan v. State, 9 N.E.3d 663,

667 (Ind. 2014).

[13] Here, we need not determine whether the deputy prosecutor’s statements

amounted to misconduct because such statements, which were defused by the

trial court’s admonishment, did not place Wilson in a position of grave peril to

which he would not otherwise have been subjected. During Wilson’s closing

argument, defense counsel suggested that Moffitt, and by extension, the deputy

prosecutor, were abusing the justice system to “punish” Wilson and everyone

else in his family2 and further characterized Moffitt as the instigator. Transcript

at 303. Defense counsel also outlined perceived inconsistencies in the

testimony of the various witnesses. The deputy prosecutor responded to such

arguments, characterizing defense counsel’s perceived inconsistencies as

misstatements of the record.3

[14] Upon defense counsel’s objection, the trial court immediately advised the jury

that the statements during the closing arguments for both sides were not

2 It should be noted that improper argument is a two-way street. We agree with the State that an inference could be drawn from defense counsel’s statements that Moffitt, and by extension the prosecutor, were attempting to “pervert the course of justice” for personal reasons. Appellee’s Brief at 14. To this end, defense counsel’s argument was much closer to the line of misconduct than the deputy prosecutor’s comments. See generally Ind. R. Prof. Cond., Preamble ¶ 5 (“A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including . . . other lawyers”). 3 “Prosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor’s response would otherwise be objectionable.” Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006). Here, the deputy prosecutor’s remarks were made during the rebuttal phase of closing arguments and in direct response to the contentious argument made by defense counsel.

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-216 | February 1, 2016 Page 8 of 9 evidence. The court reiterated to the jury that it could accept or reject the

arguments “as you see fit.” Id. at 309. Upon denying defense counsel’s

subsequent request for a mistrial, the trial court again admonished the jury that

it was to consider its recollection of the evidence and not the arguments made

by the attorneys. In closing, the deputy prosecutor even stated: “And I want to

make it clear, folks, I’m not implying that anyone is doing anything nefarious

here at all. I’m just saying the facts are what is [sic] the key.” Id. at 311.

Having reviewed the entire record, it is unlikely that the jury was persuaded by

the challenged comments and ignored its duty to independently examine and

rely upon the evidence as it was presented.

[15] Moreover, we note that the court admonished the jury as to its role as the

factfinder and reiterated the State’s burden. Repeated admonishments are

presumed to have cured any error that may have occurred. See Emerson v. State,

952 N.E.2d 832, 840 (Ind. Ct. App. 2011), trans. denied. Wilson does not

dispute the accuracy of the admonishment and has not offered any argument to

rebut the presumption that the admonishment cured the error.

[16] The trial court did not abuse its discretion in denying Wilson’s motion for

mistrial.

Judgment affirmed.

Robb, J., and Barnes, J. concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-216 | February 1, 2016 Page 9 of 9