Darrell Cortez Williams Wright v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 15, 2020
• Docket: 19A-CR-1646
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jan 15 2020, 9:03 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark K. Leeman Curtis T. Hill, Jr. Leeman Law Office and Cass County Attorney General of Indiana Public Defender Logansport, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Darrell Cortez Williams Wright, January 15, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1646 v. Appeal from the Cass Superior Court State of Indiana, The Honorable Richard A. Appellee-Plaintiff. Maughmer, Judge Trial Court Cause No. 09D02-1803-F2-5

Bradford, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1646| January 15, 2020 Page 1 of 7 Case Summary [1] In May of 2019, Darrell Cortez Williams Wright was tried by jury on six felony

charges. During voir dire, the State used a peremptory strike on the only African-

American individual in the venire. Wright raised a Batson challenge, which was

overruled by the trial court. At the conclusion of the trial, Wright was found

guilty as charged. In June of 2018, the trial court sentenced Wright to an

aggregate sentence of thirty-seven years. Wright contends that the trial court

erroneously overruled his Batson challenge. Wright also contends that the

aggregate thirty-five-year sentence for two of his felony convictions, which were

ordered to be served consecutively, should have been capped at thirty-two

years. Because we agree only with Wright’s challenge to his sentence, we affirm

in part, reverse in part, and remand with instructions consistent with this

memorandum decision.

Facts and Procedural History [2] On March 5, 2018, the State charged Wright with Level 2 felony narcotic drug

dealing, Level 3 felony narcotic drug possession, Level 3 felony cocaine

dealing, Level 5 felony cocaine possession, Level 6 felony resisting law

enforcement, Level 6 felony obstruction of justice, and Level 6 felony

maintaining a common nuisance. On May 14, 2019, the State dismissed the

maintaining-a-common-nuisance charge. A jury trial was held on May 15 and

16, 2019. Voir dire was conducted, during which both the State and Wright had

the opportunity to question the members of the venire. The trial court’s voir dire

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1646| January 15, 2020 Page 2 of 7 procedure was to place twenty-one individuals in the jury box for each round of

questioning until there were ultimately thirteen jurors selected. The individuals

were placed in the jury box in sequential order based on a number assigned to

them. After the last round of questioning, the State used a peremptory strike on

Mr. Sullivan, the only African-American individual then in the jury box,

causing Wright to make a Batson challenge. The State responded with race-

neutral reasons for the strike by stating that Sullivan worked nights and

appeared tired and slumped over, spoke softly, and was unable to remember his

past jury service, all of which led the State to believe that Sullivan would not

adequately participate as a juror. The trial court overruled Wright’s Batson

challenge, concluding that it was moot. In concluding such, the trial court

noted that Sullivan was potential juror number forty-six, and all thirteen jurors

had been selected from the first forty-one potential jurors. The trial court also

noted that Blickenstaff, Baker, and Moss, who were also excused from the jury

box because the thirteen jurors had already been selected, were sequentially

before Sullivan. At the conclusion of the trial, Wright was found guilty as

charged.

[3] On June 18, 2019, the trial court merged the dealing and possession convictions

and sentenced Wright to twenty-six years for Count I–Level 2 felony narcotic

drug dealing, nine years for Count III–Level 3 felony cocaine dealing, two years

for Count V–Level 6 felony resisting law enforcement, and two years for Count

VI–Level 6 felony obstruction of justice. The trial court order all Counts to be

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1646| January 15, 2020 Page 3 of 7 served consecutively, except for Counts V and VI, which were ordered to be

served concurrently.

Discussion and Decision [4] Wright contends that the trial court erred by concluding that his Batson

challenge was moot. Wright also contends that the aggregate sentence for his

two dealing convictions should have been capped at thirty-two years.

I. Batson Challenge [5] Wright contends that the trial court erroneously overruled his Batson challenge

by concluding that it was moot rather than ruling on the merits. “Purposeful

racial discrimination in selection of the venire violates a defendant’s right to

equal protection because it denies him the protection that a trial by jury is

intended to secure.” Batson v. Kentucky, 476 U.S. 79, 86 (1986). “The exclusion

of even a sole prospective juror based on race, ethnicity, or gender violates the

Fourteenth Amendment’s Equal Protection Clause.” Richardson v. State, 122

N.E.3d 923, 927 (Ind. Ct. App. 2019) (citation omitted), trans. denied. “A

defendant’s race-based Batson claim involves a three-step process.” Id. The first

step requires the party objecting to the peremptory challenge to establish a

prima facie case of discrimination. Ashabraner v. Bower, 753 N.E.2d 662, 664

(Ind. 2001). To do so, the objecting party must show that “(1) the juror is a

member of a cognizable racial group; (2) [the challenging party] has exercised

peremptory challenge to remove that group’s members from the jury; and (3)

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1646| January 15, 2020 Page 4 of 7 the facts and circumstances of this case raise an inference that the exclusion was

based on race.” Id. (brackets in the original).

[6] Here, we conclude that the trial court correctly concluded that Wright’s Batson

challenge was moot. “Mootness arises when the primary issue within the case

has been ended or settled, or in some manner disposed of, so as to render it

unnecessary to decide the question involved.” C.J. v. State, 74 N.E.3d 572, 576

(Ind. Ct. App. 2017) (internal quotations omitted), trans. denied. Because the

jury had already been formed by thirteen individuals, the State’s peremptory

strike of Sullivan and Wright’s subsequent Batson challenge were unnecessary

and moot. Due to Sullivan being potential juror number forty-six and the fact

that the jury was selected from the first forty-one potential jurors, Sullivan was

never going to be a member of the jury.

[7] We acknowledge that the trial court’s voir dire procedure is problematic, in that

it significantly effects counsels’ strategy for using peremptory strikes. Counsel

should not have to make strikes prematurely or spend strikes on pure

speculation. Moreover, by seating twenty-one individuals in the jury box when

only thirteen jurors are needed, a situation can arise where an individual in the

jury box will be questioned and peremptorily struck by a party even though it

turns out that the individual had no chance of being selected as a member of the

jury. That is exactly what happened in this matter. Sullivan was one of the

twenty-one individuals seated in the jury box, who were questioned by the

parties, the State peremptorily struck Sullivan, and Wright raised a Batson

challenge; however, all of this in regards to Sullivan was unnecessary because

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1646| January 15, 2020 Page 5 of 7 the thirteen-person jury had been selected from the first forty-one individuals

that came before Sullivan. Put another way, the State’s strike of Sullivan did not

have the effect of excluding him from the jury, just as a strike would not have

effected Blickenstaff, Baker, and Moss, who were also in the jury box with

Sullivan, or the potential jurors who sat in the gallery waiting to potentially be

seated in the jury box, all of whom were excused once a jury was formed from

the first forty-one potential jurors. Thus, once the jury had been formed from

the first forty-one potential jurors, the State’s peremptory challenge and

Wright’s Batson challenge were rendered moot.

II. Sentence [8] Wright also contends and the State agrees that the aggregate sentence for

Wright’s two dealing convictions should have been capped at thirty-two years.

Wright was convicted of Level 2 felony narcotic drug dealing and Level 3

felony cocaine dealing, which when ordered to be served consecutively

amounted to an aggregate sentence of thirty-five years. Indiana Code subsection

35-50-1-2(d)(5) provides that

(d) Except as provided in subsection (c), the total consecutive terms of imprisonment to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct may not exceed the following:

(5) If the most serious crime for which the defendant is sentenced is a Level 2 felony, the total of the consecutive terms of imprisonment may not exceed thirty-two (32) years.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1646| January 15, 2020 Page 6 of 7 We agree with both parties that Wright’s two dealing convictions arose out of

an episode of criminal conduct and therefore conclude that the aggregate of the

two consecutive sentences must be capped at thirty-two years. We remand this

matter to the trial court with instructions for it to cap Wright’s aggregate

sentence for his dealing convictions to thirty-two years, for a total aggregate

sentence of thirty-four years.

[9] The judgment of the trial court is affirmed in part, reversed in part, and

remanded with instructions.

Robb, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1646| January 15, 2020 Page 7 of 7