Jerrick Whitley v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 24, 2015
• Docket: 49A02-1406-CR-433
• Status: Published

Opinion

MEMORANDUM DECISION Feb 24 2015, 6:51 am

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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 Valerie K. Boots Gregory F. Zoeller Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jerrick Whitley, February 24, 2015

Appellant-Defendant, Court of Appeals Case No. 49A02-1406-CR-433 v. Appeal from the Marion Superior Court

State of Indiana, The Honorable Helen Marchal, Judge Appellee-Plaintiff Cause No. 49G16-1401-FD-1987

Mathias, Judge.

[1] Jerrick Whitley (“Whitley) was convicted in Marion Superior Court of Class D

felony confinement and Class A misdemeanor battery. Whitley raises two

issues on appeal:

Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-433 | February 24, 2015 Page 1 of 13 I. Whether the trial court abused its discretion when it admitted the recording of the victim’s 911 call into evidence; and, II. Whether the trial court fundamentally erred by failing to tender a specific unanimity instruction to the jury.

[2] We affirm in part, reverse in part, and remand for proceedings consistent with

this opinion.

Facts and Procedural History

[3] Whitley and Jasmine Walker (“Jasmine”) were involved in a romantic

relationship prior to December 4, 2013. On that date, Whitley and Jasmine

argued, and Whitley began to gather the belongings he kept at Jasmine’s home.

As the argument became more heated, Jasmine alleged that Whitley put his

hand around her neck. Jasmine claimed she lost consciousness and when she

awoke she was lying on the floor of the hall closet.

[4] Next, Whitley demanded that Jasmine drive him to his home. He also threw

Jasmine’s cell phone, which dislodged the phone’s battery. Jasmine’s three

children were present in the home, and as Jasmine was attempting to calm her

youngest child, Whitley put his arm around her neck and lifted her off the

ground. Whitley continued to demand that Jasmine take him where he wanted

to go.

[5] Jasmine, fearful of what Whitley might do, drove Whitley to his home. Her

eight-year-old son was also in the car. Whitley complained about Jasmine’s

slow driving and hit her in the face with a closed fist. When they arrived at

Whitley’s residence, Whitley took Jasmine’s car keys. Jasmine and her son

Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-433 | February 24, 2015 Page 2 of 13 attempted to walk away, but Whitley came after them and demanded that

Jasmine drive him to an additional location.

[6] After Whitley returned Jasmine’s keys, she locked him out of the vehicle. But

Whitley picked up a cinder block and threatened to smash the car window, so

Jasmine unlocked the vehicle. Whitley also took Jasmine’s purse and cell

phone. During the drive to the intersection of 16th Street and Brookside,

Whitley hit Jasmine a second time in the face. After Whitley exited the vehicle

with Jasmine’s belongings, Jasmine executed a u-turn because she wanted to

see which direction Whitley was going. As she slowly drove past him, Whitley

shattered her rear driver’s side window with his fist.

[7] Jasmine drove to her brother’s home nearby where she called and checked on

her two daughters. Jasmine, her son, and her brother then returned to Jasmine’s

house where she called 911. Whitley was arrested in January 2014.

[8] On January 17, 2014, Whitley was charged with Class D felony strangulation,

Class D felony intimidation, Class D felony battery of a child, Class D felony

confinement, Class A misdemeanor battery resulting in bodily injury, Class B

misdemeanor criminal recklessness and Class B misdemeanor criminal

mischief. The State later amended the charging information to add an

additional count of battery as a Class C felony. A jury trial commenced on

May 9, 2014. Whitley was found guilty of Class D felony confinement and

Class A misdemeanor battery, and he was acquitted of the remaining charges.

Whitley was later sentenced to concurrent terms of 1095 days for the

Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-433 | February 24, 2015 Page 3 of 13 confinement conviction and 365 days for the battery conviction. Whitley now

appeals. Additional facts will be provided as needed.

I. The 911 Call

[9] Whitley claims that the trial court abused its discretion when it admitted the

recording of Jasmine’s 911 call into evidence over his hearsay objection. The

State argues that the trial court properly admitted the recording under the

excited utterance exception to the hearsay rule. “Generally, ‘[a] trial court has

broad discretion in ruling on the admissibility of evidence and we will disturb

its rulings only where it is shown that the court abused that discretion.’” Speers

v. State, 999 N.E.2d 850, 852 (Ind. 2013) (quoting Turner v. State, 953 N.E.2d

1039, 1045 (Ind. 2011)).

[10] Hearsay is defined as “a statement that . . . is not made by the declarant while

testifying at the trial or hearing[] and . . . is offered in evidence to prove the

truth of the matter asserted.” Ind. Evidence Rule 801(c). Hearsay is

inadmissible unless it falls under an exception provided either by law or the

rules of evidence. Ind. Evidence Rule 802. An exception to the hearsay rule, an

excited utterance, is “[a] statement relating to a startling event or condition

made while the declarant was under the stress of excitement caused by the

event or condition.” Ind. Evidence. Rule 803(2); see also Fowler v. State, 829

N.E.2d 459, 463 (Ind. 2005) (stating that the statement may be admitted if three

elements are shown: (1) a startling event, (2) a statement made by a declarant

while under the stress of excitement caused by the event, and (3) that the

statement relates to the event). “The ultimate issue is whether the statement is Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-433 | February 24, 2015 Page 4 of 13 deemed reliable because of its spontaneity and lack of thoughtful reflection and

deliberation.” Fowler, 829 N.E.2d at 463. An excited utterance can be made in

response to a question so long as the statement is unrehearsed and is made

under the stress of excitement from the event. Yamobi v. State, 672 N.E.2d 1344,

1346 (Ind. 1996) (“A declaration does not lack spontaneity simply because it

was an answer to a question.”).

[11] In support of his argument, Whitley focuses primarily on the length of time

between the events in this case and the 911 call. “The lapse of time is not

dispositive, but if a statement is made long after a startling event, it is usually

‘less likely to be an excited utterance.’” Teague v. State, 978 N.E.2d 1183, 1187

(Ind. Ct. App. 2012) (quoting Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct.

App. 2010)).

[12] Whitley exited Jasmine’s vehicle, and she drove to her brother’s home. She

then returned to her own home before calling 911, so we can infer that more

than a few minutes passed. Whitley argues, “[d]uring her drive to her brother’s

home, and then during the longer drive back to her own home with her brother,

Jasmine had ample time to deliberate and reflect upon the evening’s events and

to discuss matters with her brother.” Appellant’s Br. at 19. Although an

indeterminate amount of time passed after Whitley exited Jasmine’s vehicle and

Jasmine placed the 911 call, after reviewing the record, we may reasonably infer

that minutes passed, and not hours. Importantly, during much of this time,

Jasmine did not have her cellphone, because Whitley had taken it from her.

Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-433 | February 24, 2015 Page 5 of 13 [13] The State presented evidence that Jasmine was still under stress from being

battered and confined when she placed the 911 call. Jasmine cried while

speaking with the 911 operator and her voice sounded shaky. Also, the

responding police officer observed that Jasmine was crying and seemed scared

and nervous when he arrived at her home. Tr. pp. 215-16. Jasmine told the

officer she was afraid that Whitley would return to her home and cause further

harm. Id.

[14] For all of these reasons, the trial court acted within its discretion when it

determined that Jasmine placed the 911 call while under the stress of

excitement caused by the startling event and admitted the 911 call into evidence

under the excited utterance exception to the hearsay rule.

[15] Even if the trial court erred in admitting the 911 call into evidence, we will not

reverse the convictions if the error was harmless. Turner v. State, 953 N.E.2d

1039, 1059 (Ind. 2011). The error is harmless if there is “substantial

independent evidence of guilt satisfying the reviewing court there is no

substantial likelihood the challenged evidence contributed to the conviction.”

Id. “Generally, errors in the admission of evidence are to be disregarded unless

they affect the substantial rights of a party.” Id. If the erroneously admitted

evidence was cumulative, the admission is harmless error for which we will not

reverse a conviction. Lehman v. State, 926 N.E.2d 35, 37 (Ind. Ct. App. 2010).

Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-433 | February 24, 2015 Page 6 of 13 [16] Jasmine’s statements during the 911 call are cumulative of her testimony at trial

and other properly admitted evidence. Accordingly, any error in the admission

of the 911 call was harmless.

II. Jury Instruction [17] In Baker v. State, 948 N.E.2d 1169 (Ind. 2011), the defendant was charged with

three counts of child molestation for molesting three different victims. At trial,

the victims described numerous acts of child molestation that occurred in a

three-year period of time. Baker was convicted as charged.

[18] On appeal, Baker argued that his convictions were “not sustained by evidence

of jury unanimity” because the State presented evidence of a greater number of

separate criminal offenses than with what Baker was charged. Id. at 1173,

1175. Our supreme court held that

the State may in its discretion designate a specific act (or acts) on which it relies to prove a particular charge. However if the State decides not to so designate, then the jurors should be instructed that in order to convict the defendant they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim and included within the time period charged.

Id. at 1177. See also Lainhart v. State, 916 N.E.2d 924 (Ind. Ct. App. 2009)

(concluding that the trial court committed fundamental error by failing to

instruct the jury that it was required “to reach a unanimous verdict as to which

crime, if any, the defendant committed”).

Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-433 | February 24, 2015 Page 7 of 13 [19] In this case, Whitley observes that the State generically charged him with one

count of Class A misdemeanor battery and one count of Class D felony

confinement but claims the State presented evidence of multiple, separate

batteries and two separate acts of confinement. Therefore, he argues that the

trial court should have sua sponte tendered to the jury the specific unanimity

instruction approved in Baker.1 Because Whitley did not raise the issue in the

trial court, he argues that fundamental error occurred, i.e. the lack of a Baker

instruction deprived him of a fair trial.

[20] “The ‘fundamental error’ exception is extremely narrow and applies only when

the error constitutes a blatant violation of basic principles, the harm or potential

for harm is substantial, and the resulting error denies the defendant

fundamental due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006).

“The error claimed must either make a fair trial impossible or constitute clearly

blatant violations of basic and elementary principles of due process.” Brown v.

State, 929 N.E.2d 204, 207 (Ind. 2010) (internal quotation omitted). “This

exception is available only in egregious circumstances.” Id. (internal quotation

omitted).

[21] In Baker, the defendant waived his claim of instructional error but argued that

he was deprived of a fair trial. Our supreme court observed that the only issue

in the case was the credibility of the witnesses and the defense strategy was to

1 The trial court simply advised the jury that “[t]o return a verdict, each of you must agree to it.” Appellant’s App. p. 90. The jury was also instructed not to sign any verdict form “for which there is not unanimous agreement.” Id. at 94-95.

Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-433 | February 24, 2015 Page 8 of 13 point out inconsistencies in the victims’ statements to the jury. 948 N.E.2d at

1179. Baker argued that the children were lying in retaliation for Baker

reporting that one victim was in a car with a boy at 3:00 a.m., and as a result

she was grounded. Our supreme court concluded:

Ultimately the jury resolved the basic credibility dispute against [Baker] and would have convicted the defendant of any of the various offenses shown by the evidence to have been committed. We conclude Baker has not demonstrated that the instruction error in this case so prejudiced him that he was denied a fair trial.

Id. (internal quotation and citation omitted).

[22] Here, Whitley was charged and convicted of one count of Class A

misdemeanor battery. The State generically alleged that Whitley “did

knowingly in a rude, insolent or angry manner touch Jasmine Walker, another

person, and further that said touching resulted in bodily injury to the other

person, specifically: pain and/or swelling and/or redness.” Appellant’s App. p.

31. In its closing argument, the State argued that there were “multiple batteries

in this case.” Tr. p. 300. Specifically, the State discussed the evidence of the

following alleged acts: 1) that Whitley grabbed Jasmine’s neck with his hands,

2) he put his arm around her neck, choking Jasmine, 3) Whitley punched

Jasmine in the face for driving too slow, and 4) he punched Jasmine a second

time after she stopped the vehicle at a stop sign. Tr. pp. 300-01.

[23] Whitley was also convicted of Class D felony confinement and the charging

information provided: Whitley “did knowingly, by force, or threat of force,

remove Jasmine Walker and/or [D.C.] from one place to another, that is: from

Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-433 | February 24, 2015 Page 9 of 13 Ms. Walker’s home to 450 N. Gray St. and/or to 16th Street and/or 2800

Brookside N. Drive.” Appellant’s App. p. 30. Whitely contends that

there can be no confidence in the unanimity of the jury’s verdict because the instruction on unanimity failed to advise the jury that to convict it must either unanimously agree that [Whitley] committed the same act or acts of confinement by forcible removal, or that he committed both of the forcible removals described by Jasmine that were included in the charge.

Appellant’s Br. at 13.

[24] As in Baker, credibility was the only issue at trial, and Whitley argued that

Jasmine was a “scorned” woman whose testimony was not credible and was

not consistent with other evidence admitted at trial. See tr. pp. 305-26. Whitley

was acquitted of both strangulation and Class C felony battery.2 The acquittal

on those charges leads to the reasonable conclusion that the jury did not find

Jasmine’s or her children’s testimony concerning the first incident in the

hallway outside Jasmine’s bedroom to be credible.

[25] However, the State argued that it proved three additional acts of battery, and

therefore, Whitley argues that it is not possible to determine whether the jurors

unanimously agreed that he committed the same act of battery against Jasmine.

In support of this argument, Whitley cites Castillo v. State, 734 N.E.2d 299 (Ind.

Ct. App. 2000), summarily aff’d on transfer, 741 N.E.2d 1196 (2001).

2 The Class C felony battery charge alleged that Whitley knowingly touched Jasmine “in a rude, insolent, or angry manner, which resulted in serious bodily injury to” her. Appellant’s App. p. 39. The charging information defined the bodily injury as “extreme pain and/or permanent or protracted loss or impairment of a function of a bodily member or organ and/or a concussion and/or unconsciousness.” Id.

Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-433 | February 24, 2015 Page 10 of 13 [26] Castillo was charged with one count of dealing in cocaine. Over Castillo’s

objection, the State was permitted to introduce evidence of two acts of dealing

in cocaine. During closing argument, the State told the jury that it had “a

choice” and could find Castillo guilty of either the dealing in cocaine that

occurred at Castillo’s home or an earlier dealing that same day at a different

location. Id. at 304.

[27] On appeal, Castillo argued that his conviction was not supported by a

unanimous jury verdict. Our court observed that that the trial court did not

instruct the jurors that they were required to render a unanimous verdict

concerning which dealing crime Castillo committed. Id. “It is possible, given

these facts, that some jurors believed that Castillo committed the earlier dealing

crime at Garcia’s home while other jurors believed that Castillo committed the

dealing violation at his home later that same day. Consequently, it is possible

that the jury’s verdict of guilty regarding the charge of dealing in cocaine was

not unanimous.” Id. at 304-05. Our court therefore vacated Castillo’s

conviction for dealing in cocaine.

[28] Citing Castillo, our court similarly vacated the defendant’s conviction for

disseminating harmful material to a minor in Scuro v. State, 849 N.E.2d 682

(Ind. Ct. App. 2006), trans. denied. In that case, the State presented evidence that

Scuro disseminated harmful material to the victim on at least three separate

occasions, but he was charged with only one count of dissemination to the

victim based on an unspecified incident. Id. at 688. As in Castillo, our court

observed that “we have no way of knowing” whether the jury’s verdict was

Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-433 | February 24, 2015 Page 11 of 13 unanimous as to one of the three separate acts. Id. Therefore, even though

Scuro waived the issue because he failed to object to either the verdict forms or

the verdict, our court vacated his conviction for dissemination of harmful

material to a minor.3 Id. at 689.

[29] Due process requires jurors “to render a unanimous verdict as to which actual

offense was perpetrated.” Lainhart, 916 N.E.2d at 941 (citing Schad v. Arizona,

501 U.S. 624, 631-32 (1991); Richardson v. United States, 526 U.S. 813, 820

(1999)). In this case, it is possible that the jurors believed that Whitley battered

Jasmine based on one of three alleged acts of battery but that no unanimity

amongst the jury existed as to which act or acts Whitley committed. We

therefore conclude that the trial court’s instructional error deprived Whitley of a

fair trial as to the Class A misdemeanor battery charge, and we vacate that

conviction.

[30] However, we reach the opposite conclusion on the Class D felony confinement

conviction. Although the charging information alleged that Whitley confined

Jasmine from her “home to 450 N. Gray St. and/or to 16th Street and/or 2800

Brookside N. Drive,” at trial the State argued and the evidence established that

Whitley continuously confined Jasmine from her home to Brookside Drive

where Whitley finally exited her vehicle. See Appellant’s App. p. 30; Tr. pp.

299-300. The jury considered the credibility of Jasmine’s testimony that

3 This same conviction was also vacated on additional grounds after our court determined that Indiana Code section 35-49-3-3 does not permit multiple convictions where only one display of harmful material is disseminated, albeit to multiple victims.

Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-433 | February 24, 2015 Page 12 of 13 Whitley forced her to drive him to both his home and a second location and

concluded that her testimony was credible. Accordingly, we conclude that, with

regard to the confinement conviction, the instructional error did not prejudice

Whitely.

Conclusion

[31] The trial court did not abuse its discretion when it admitted the recording of

Jasmine’s 911 call into evidence. Also, we affirm Whitley’s Class D felony

confinement conviction. However, the trial court’s failure to tender to the jury

the specific unanimity instruction approved of in Baker constitutes fundamental

error. Therefore, we conclude that Whitley’s Class A misdemeanor battery

charge should be vacated, and we remand this case to the trial court for

proceedings consistent with this opinion.

[32] Affirmed in part, reversed in part, and remanded for proceedings consistent

with this opinion.

Najam, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-433 | February 24, 2015 Page 13 of 13