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
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[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.
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[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
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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
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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?
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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
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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
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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.
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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.
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