FILED
May 10 2018, 9:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Sean C. Mullins Curtis T. Hill, Jr.
Mark A. Bates Attorney General of Indiana
Lake County Public Defender’s Office
Crown Point, Indiana Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeri Latoya Woods, May 10, 2018
Appellant-Defendant, Court of Appeals Case No.
45A05-1707-CR-1744
v. Appeal from the Lake Superior
Court.
The Honorable Diane Ross Boswell,
State of Indiana, Judge.
Appellee-Plaintiff. Trial Court Cause No.
45G03-1509-MR-10
Sharpnack, Senior Judge
Statement of the Case
[1] Jeri Latoya Woods and her family were angry that eighteen-year-old Aareon
Lackey had apparently taken and sold one of her family’s handguns. She and
her family forced Aareon and his sixteen-year-old brother Antonio Lackey to
leave a motel, and ultimately drove them to a secluded, wooded area. Woods
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shot both young men in the head and abandoned their bodies, which were
discovered weeks later. Woods appeals her two convictions of murder, both
1 2
felonies, and her two convictions of kidnapping, both Level 5 felonies. We
affirm.
Issues
[2] Woods raises three issues, which we restate as:
I. Whether the trial court violated Woods’s right to make a
statement of allocution during sentencing.
II. Whether the trial court committed fundamental error by
displaying bias against Woods during her testimony.
III. Whether the trial court abused its discretion in denying
Woods’ motion for mistrial in connection with a juror’s
request to be released from service during trial.
Facts and Procedural History
[3] The older victim, Aareon Lackey, had associated with Aarion (“Arey”)
Greenwood and his family in the past. Arey’s family members include his
grandfather, David Johnson III; his father, David Johnson IV (“Pops”); a
brother, David Johnson V (“Dooney”); and his stepmother, Woods. Woods
had seven children, the youngest three with Pops (who were thus Arey’s half-
1
Ind. Code § 35-42-1-1 (2014).
2
Ind. Code § 35-42-3-2 (2014).
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siblings). Dooney’s friend, Kiontay Cason, lived with Arey’s family during the
period relevant to this case.
[4] In the spring of 2015, Dooney and Cason were incarcerated in juvenile facilities
for offenses unrelated to this case. Dooney learned that his family was upset
because Aareon and Arey had apparently taken Pops’ two handguns. During
recorded phone calls with Dooney and Cason, Woods used coded terms such
as “jocks” and “poles” to describe the guns. Tr. Vol. 11, p. 121; Vol. 15, p. 54.
[5] Woods was also aware that Arey and Aareon had recently allegedly shot
Damon Hill, whom she treated like a son. They allegedly attacked Hill in a
wooded area, and he fled the scene despite his wound, shedding wet clothes as
he ran. Hill said the guns Arey and Aareon used belonged to Pops. Woods
was upset about the shooting. She visited Hill and told him Aareon was “going
to get what they [sic] deserve.” Tr. Vol. 13, p. 26.
[6] Dooney was released from the juvenile facility on June 23, 2015, and returned
to Woods and Pops’ house. On June 26, 2015, Pops told Dooney and Cason
that the family was going to pick up Arey from a different juvenile center and
then find Aareon. Pops wanted his handguns back. Woods, Dooney, Pops,
Cason, and David Johnson III went to the juvenile center in David Johnson
III’s van. Arey’s then-girlfriend, Michelle Hughes, was waiting at the center in
a Pontiac Bonneville.
[7] When Arey exited the juvenile center, he entered David Johnson III’s van,
while Dooney left with Hughes in the Bonneville. Hughes and Dooney looked
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unsuccessfully for Aareon before going to Hughes’ house, where Hughes
returned one of Pops’ handguns to Dooney. Later, Hughes drove Dooney to a
small supermarket, where they reunited with Woods, David Johnson III, Pops,
Cason, and Arey, all of whom were still in David Johnson III’s van.
[8] While the group in the van was waiting for Hughes and Dooney, Woods told
Cason, “We can’t go get guns without guns.” Tr. Vol. 10, p. 141. Cason saw
an ex-girlfriend in the supermarket’s parking lot, and he and Woods
approached her. Both Woods and Cason asked the ex-girlfriend if they could
borrow her handgun, but she said she had given it to someone else.
[9] Ahmad Ghouleh owned the supermarket and worked behind the counter.
Woods lived nearby and was a frequent customer, stopping by as often as three
to five times per day. She was aware Ghouleh owned a Glock 10 handgun. On
the afternoon of June 26, 2015, Woods entered the store and asked Ghouleh to
loan her his handgun, claiming she was scared because someone had broken
into her house. Ghouleh gave her the Glock 10 in a paper bag, and Woods left
the store and showed the handgun to Cason.
[10] When Dooney and Hughes arrived, Dooney gave Pops the handgun that he
had retrieved from Hughes. In turn, Pops gave the gun to Cason. Next, the
group traveled in the two vehicles to a motel where Aareon’s family was
staying. At some point prior to arriving at the motel, Woods called Hill.
During the call, Hill heard Woods say to someone in the van, “I’m going to do
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the mother f**kers like how they did my son.” Tr. Vol. 13, p. 31. She was
referring to Hill as her son.
[11] When the group arrived at the motel, Jessyca Batiest, then known as Jessyca
Lackey, was in one of the family’s two rooms. Her then brothers-in-law,
Aareon and Antonio, were also in the room. Arey knocked on the room’s
window, and Aareon and Antonio went out to the hallway. Batiest got in the
shower, and when she was done, they were gone. She later noticed that Aareon
and Antonio had left their shoes in the room, and Antonio had left his phone.
Batiest thought that was odd.
[12] While Batiest was in the shower, Aareon and Antonio spoke with Arey and
Dooney in the hallway. Dooney asked Aareon to return the handgun, and
Aareon said he had given it to another person, Larry Doss. Pops, Hughes, and
Cason entered the motel, and the group had a discussion in the exercise room.
Pops became angry when Aareon said he did not have the gun. Pops, Arey,
Cason, and Dooney escorted Aareon and Antonio out of the motel without
letting them put on their shoes.
[13] Antonio was placed in the Bonneville with Arey, Dooney, and Hughes, while
Pops put Aareon in the van with him, Woods, Cason, and David Johnson III.
Arey contacted Doss via social media and telephone to ask him to return the
gun. Doss refused, claiming he purchased it from Aareon and did not want to
give it back.
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[14] The group drove to a trailer park in Hobart, Indiana to look for Doss. When
they arrived at Doss’ trailer, Aareon informed the group that Doss might be
angry. Woods handed Dooney a handgun, and Cason still had Pops’ handgun.
They approached the trailer with Antonio and had him knock on the door, but
Doss was not home. The three returned to their vehicles, and Dooney gave his
handgun back to Woods.
[15] The group left the trailer park. As they traveled, Pops repeatedly asked Aareon
where the handgun could be found, and Aareon replied he did not know.
Woods asked Aareon whether he broke into her house, and he denied it. After
two brief stops, Woods stated, “I know what I’m finna [sic] to do, take us to the
farm.” Tr. Vol. 10, p. 165.
[16] The group drove to property known as “the farm.” It is in a rural portion of
Hobart, Indiana, consisting of over thirty acres. Some of it is farmed for alfalfa,
and other portions are wooded. Pops was familiar with the property through
his father’s sister, who knew the farm’s owner.
[17] The group parked the van and the Bonneville on a long driveway at the farm.
Woods again asked Aareon about breaking into her house, and he denied it.
He was nervous and scared. Woods told Cason to go get Antonio from the
Bonneville.
[18] Cason brought Antonio to the van. Next, Cason went back to the Bonneville
and told Arey and Hughes that Woods wanted them, leaving Dooney in the
Bonneville. Arey and Hughes walked over to the van, and Woods asked them
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if Aareon had mentioned he broke into Woods’ house. Arey admitted Aareon
had made such a statement.
[19] After Arey’s admission, Woods said, “F**k it. Come on, let’s go.” Id. at 171.
Woods and Cason escorted Aareon and Antonio down a path. Arey initially
went with them, but Woods and Cason pulled out handguns and ordered Arey
to return to the cars. Arey ran back to the vehicles, and Woods and Cason
directed Aareon and Antonio to keep walking.
[20] David Johnson III caught up with the group. When they reached a wooded
area, he ordered Aareon and Antonio to take off their clothes. Aareon and
Antonio complied. Once they were in their underwear, Woods ordered them to
get on their knees. Aareon did not comply, so Cason hit him with his gun.
Both young men continued to plead for their lives on their knees. Woods
ordered them to hug each other and then shot them in the head. They fell to
the ground. At David Johnson III’s urging, Woods shot each of them a second
time. The three then returned to the vehicles.
[21] Meanwhile, Pops got into the Bonneville with Dooney. He told Dooney that
Aareon and Antonio were going to be “dealt with” because they had been
disloyal. Tr. Vol. 8, p. 168. Hughes and Arey also returned to the Bonneville,
and Dooney, Pops, Hughes and Arey left the farm in that vehicle. The van
caught up to them shortly thereafter, and the two vehicles went back to
Ghouleh’s supermarket, where Woods returned the Glock 10 to Ghouleh in a
paper bag.
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[22] The group went back to Pops and Woods’ house, where they gathered at the
van. Woods told them, “You all [sic] the only people that know what’s going
on and what happened, and if I find out any one of you all tells somebody
what’s going on, you all going to get the same treatment they got.” Tr. Vol. 9,
p. 6. Later that day, Hill went to Woods’ house. He heard her say, “Mother
f**kers got what they deserved” and “it is what it is.” Tr. Vol. 13, p. 33.
[23] On July 6, 2015, Aareon and Antonio’s stepfather reported to the Merrillville
Police Department that his stepsons were missing and had not contacted family
members since June 25, 2015. Members of Aareon and Antonio’s family tried
to contact Arey, asking about the young men’s whereabouts. At that point,
Woods told Dooney that if he “ever got arrested or the investigators come see
us, tell them that we picked up [Aareon] and dropped him off at [the trailer
park].” Tr. Vol. 9, p. 7. She told Cason to tell the police a similar story.
[24] On July 17, 2015, a family went to the farm to have a picnic. They entered the
wooded portion of the property and discovered two human skeletons. Clothing
and personal items were scattered nearby. Each skull had a hole in the head,
and the holes were later identified as gunshot wounds, caused by identically-
sized bullets, fired into the victims by someone standing above them. The
skeletal remains were later confirmed as Aareon and Antonio’s bodies by
comparing the teeth with their dental records. Ballistics testing demonstrated
that Ghouleh’s handgun, which Woods had borrowed and returned, was the
murder weapon.
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[25] After the media reported that the bodies had been found, Woods signed over
custody of her five youngest children to her sister and left the state. On
September 28, 2015, the State charged Woods with two counts of murder, two
counts of kidnapping as Level 5 felonies, and two counts of murder in
perpetration of kidnapping. Federal agents arrested Woods in Texas in
February 2016, five months after she fled.
[26] Woods’ case was tried by a jury. She testified in her own defense, and the jury
determined she was guilty as charged. The trial court merged the charges of
murder in the perpetration of kidnapping with the murder charges and imposed
a sentence. This appeal followed.
Discussion and Decision
A. Allocution
[27] Woods argues the trial court deprived her of her right to address the court
during sentencing because the court failed to directly advise her of her right to
speak or ask her whether she had anything to say. A defendant’s right to offer a
statement on his or her behalf before the trial court pronounces sentence is
known as the right of allocution. The right of allocution is rooted in the
common law. Biddinger v. State, 868 N.E.2d 407, 410 (Ind. 2007). The Indiana
General Assembly has codified the right as follows:
When the defendant appears for sentencing, the court shall
inform the defendant of the verdict of the jury or the finding of
the court. The court shall afford counsel for the defendant an
opportunity to speak on behalf of the defendant. The defendant
may also make a statement personally in the defendant’s own
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behalf and, before pronouncing sentence, the court shall ask the
defendant whether the defendant wishes to make such a
statement. Sentence shall then be pronounced, unless a sufficient
cause is alleged or appears to the court for delay in sentencing.
Ind. Code § 35-38-1-5 (2013). A defendant claiming that he or she was denied
the right to allocution “carries a strong burden” in establishing the claim.
Vicory v. State, 802 N.E.2d 426, 429 (Ind. 2004).
[28] There has been no Indiana Supreme Court decision in which a case has been
remanded for resentencing because a trial court failed to advise a defendant per
Indiana Code section 35-38-1-5 that he or she had a right to be heard prior to
the imposition of sentence or because the defendant was not asked if he or she
wanted to be heard prior to imposition of sentence where no objection was
made in the trial court or no request to be heard was made.
[29] In Vicory, the defendant asked to make a statement while the trial court was
deciding what sentence to impose for the defendant’s violation of the terms of
his probation. The trial court denied the defendant’s request. The Indiana
Supreme Court determined the right of allocution does not apply to probation
revocation proceedings, except where the defendant requests to make a
statement, the request should be granted. The Court further noted the purpose
of allocution is to allow the trial court to consider the facts and circumstances of
the case, and the purpose has been accomplished if “the defendant is given the
opportunity to explain his view of the facts and circumstances.” Id. at 430.
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[30] The Vicory court stated that the trial court should have granted the defendant’s
request to make a statement, but the court’s refusal “did not affect his
substantive rights such that reversal is warranted” because the defendant
testified at the revocation hearing, thus accomplishing the goal of allocution.
Id. See also Biddinger, 868 N.E.2d at 412-13 (sentencing court erred in refusing
to allow defendant to make statement at sentencing after a guilty plea, but error
was harmless because defendant’s version of events had already been
introduced to the court at trial).
[31] In Angleton v. State, 714 N.E.2d 156, 159 (Ind. 1999), a defendant was
resentenced. During the resentencing hearing, the court did not ask the
defendant if he wanted to make a statement, and the defendant did not object or
ask to make a statement. He also declined the court’s invitation to present
witnesses. The trial court had offered him the opportunity to make a statement
during the original sentencing hearing.
[32] The Indiana Supreme Court noted the defendant was aware of his right to offer
a statement, both because he had been given that opportunity at the first
sentencing hearing and because the defendant had been a practicing attorney.
The Court concluded, “A defendant, especially one under these circumstances,
may not sit idly by at a sentencing hearing, fail to object to a statutory defect in
the proceeding, then seek a new sentencing hearing on that basis on appeal.
The failure to object constitutes waiver.” Id. (citing Locke v. State, 461 N.E.2d
1090 1092-93 (Ind. 1984) (trial court failed to ask defendant if he had anything
to say before sentence was imposed, but claim was waived because defendant
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failed to object), and Robles v. State, 705 N.E.2d 183, 187 (Ind. Ct. App. 1998)
(same)).
[33] In the current case, Woods testified during trial at length, explaining her
perspective on what happened. Among other topics, she repeatedly stated she
was afraid of Pops. She also expressed sorrow at Aareon and Antonio’s deaths
while denying responsibility for the murders.
[34] At sentencing, the trial court asked Woods’ counsel if Woods wanted to call
any witnesses. Woods, through counsel, responded: “Judge, we would [sic] do
not. There are several friends and family members of Ms. Woods that are
present here in court, but we do not wish to call them as witnesses at this time.”
Sentencing Tr. Vol. II, p. 16. Woods offered letters of support from her friends
3
and family, which the court accepted.
[35] Next, each side presented argument on sentencing issues. Woods’ counsel
explained, among other arguments, “Jeri believes that she was foreclosed from
being able to put before the jury a lot of the information regarding specific
instances of physical abuse that she suffered at the hands of the co-defendant,
[Pops] . . . .” Sentencing Tr. Vol. II, pp. 23-24. Counsel further explained that
Woods was “heart broken” over the young men’s deaths but maintained her
innocence. Id. at 26. After counsel finished presenting argument, the court
3
The letters were not marked as exhibits or otherwise included in the sentencing transcript.
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asked the attorney, “Does your client wish to speak today?” Id. at 30. Woods’
attorney responded, “No, your honor.” Id. Woods did not disagree or object.
[36] Woods argues the trial court should have asked her directly if she would like to
address the court. Woods argues that Indiana Code section 35-38-1-5 requires
the court to “ask the defendant” whether he or she would like to make a
statement. Regardless of whether the court should have directed the question to
Woods or Woods’ counsel, we find no reversible error. As was the case in
Vicory and Biddinger, Woods testified at length at trial, thus providing the court
with her version of events. In addition, this case is even stronger on the facts
than Vicory or Biddinger because the trial court asked whether Woods wished to
speak. After having been made aware she could present a statement on
sentencing, Woods, through counsel, declined. Woods did not contradict her
attorney or object to proceeding without giving her statement. As was the case
in Angleton, Woods’ failure to object or otherwise express a wish to address the
court amounts to waiver of any claim under Indiana Code section 35-38-1-5.
[37] Woods cites Jones v. State, 79 N.E.3d 911 (Ind. Ct. App. 2017), in support of her
claim. In that case, at sentencing the trial court asked Jones’ attorney whether
Jones wished to exercise his right of allocution. Jones’ attorney said Jones did
not wish to make a statement. A panel of this Court concluded Indiana Code
section 35-38-1-5 requires the trial court to directly ask the defendant whether
he or she wishes to address the court, comparing waiver of the right of
allocution to waiver of the right to a trial by jury. As a result, the Court
determined the trial court erred and remanded for a new sentencing hearing.
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The Court further concluded a defendant should not be found to have waived a
right of allocution by failing to speak up despite counsel’s rejection of the offer
of allocution. In dissent, Chief Judge Vaidik, citing Angleton, stated Jones
waived his claim by failing to object. The Chief Judge further stated the right of
allocution is not analogous to the right to a jury trial.
[38] We respectfully disagree with the majority’s holding in Jones and decline to
follow it. Vicory and Biddinger stand for the proposition that a trial court’s
failure to comply with Indiana Code section 35-38-1-5 is subject to harmless
error analysis. In addition, we conclude Angleton and Locke are on point and
establish that a defendant may waive the right of allocution by failing to object.
The trial court offered an opportunity to give a statement, and we conclude
from these facts that Woods chose not to speak. Following our Supreme
Court’s precedent, we conclude Woods has failed to carry her heavy burden of
proving the trial court erroneously deprived her of her right of allocution.
B. Alleged Bias and Fundamental Error
[39] Woods next claims the trial court demonstrated bias against her during her
testimony, thus depriving her of her right to a fair trial. The law presumes that
a judge is unbiased and unprejudiced. Timberlake v. State, 753 N.E.2d 591, 610
(Ind. 2001). Judges require broad latitude to run their courtrooms and to
maintain discipline and control. Brown v. State, 746 N.E.2d 63, 70-71 (Ind.
2001). A defendant asserting judicial bias must show that the trial judge’s
actions and demeanor showed partiality and prejudiced the case. Id. at 71.
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[40] Bias is not proven from judicial rulings alone. Garland v. State, 788 N.E.2d 425,
433 (Ind. 2003). Furthermore, intemperate comments may not necessarily
demonstrate bias. As the United States Supreme Court has stated:
[O]pinions formed by the judge on the basis of facts introduced
or events occurring in the course of the current proceedings, or of
prior proceedings, do not constitute a basis for a bias or partiality
motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible. Thus,
judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge.
Liteky v. U.S., 510 U.S. 540, 555, 114 S. Ct. 1147, 1157, 127 L. Ed. 2d 474
(1994). “Even where the court’s remarks display a degree of impatience, if in
the context of a particular trial they do not impart an appearance of partiality,
they may be permissible to promote an orderly progression of events at trial.”
Rowe v. State, 539 N.E.2d 474, 476 (Ind. 1989).
[41] Woods concedes she did not object to any of the trial court’s statements or
actions on grounds of bias. Where a defendant fails to object to comments a
trial judge makes during trial, the issue of bias is waived for review. Flowers v.
State, 738 N.E.2d 1051, 1061 (Ind. 2000). An appellant who seeks to overcome
waiver must demonstrate fundamental error, which is a blatant error that denies
the defendant due process. O’Neal v. State, 716 N.E.2d 82, 87 (Ind. Ct. App.
1999), trans. denied. If a judge is biased, fundamental error exists because trial
before an impartial judge is an essential element of due process. Rosendaul v.
State, 864 N.E.2d 1110, 1115 (Ind. Ct. App. 2007), trans. denied.
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[42] Resolving Woods’ accusation of bias requires a careful review of Woods’
extensive trial testimony. It is not disputed that Woods was an obstreperous
witness, especially on cross-examination. She concedes she “repeatedly failed
to comply with the hearsay rules.” Reply Br. p. 9. Indeed, on direct
examination Woods repeatedly testified as to what others told her, despite
requests by counsel not to tell the jury what others said. Tr. Vol. 14, pp. 94,
107-08, 114. Nevertheless, the trial court denied one of the State’s hearsay
objections and request to strike her testimony. Id. at 115-16.
[43] In addition, Woods gratuitously verbally attacked other witnesses on direct
examination. She insulted Pops’ parenting skills, to the point that the trial court
instructed her to “just answer the question specifically” and instructed Woods’
counsel to “be a little more direct with her.” Id. at 87. Woods also insulted
Arey and Dooney’s mother, and the trial court struck her comments from the
record. Id. at 86, 97. Finally, she described Hughes as a “pedophile” for being
in a relationship with Arey, who was ten years younger. Id. at 99. In an
attempt to keep Woods’ testimony within the bounds of the Rules of Evidence,
the court told Woods’ counsel during a bench conference, “You’re going to
have to watch her, make sure she answers the questions, make sure you stick to
the – yes, you’re going to have to – you’re going to have to maybe do a little
something else with her because she’s gabby.” Id. at 104.
[44] This led to the first incident that Woods cites as proof of bias. On direct
examination, she said she repeatedly urged Pops to get his guns back and then
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“leave it alone.” Id. at 117. Next, the following exchange occurred involving
Woods’ trial attorney (Ms. Perkins), Woods, and the trial court:
[Perkins]: What was his response?
[Woods]: I’m not trying to hear that.
[Perkins]: Okay.
[Court]: Ms. Perkins.
[Perkins]: And, again, I think I’ve laid some
foundation, Judge, for –
[Court]: For hearsay?
[Perkins]: For the excited utterance. If she said he’s
upset, he’s angry, he’s pissed, this is – there
are some exceptions here, I believe, Judge.
[Court]: Go ahead. . . .
Id. at 117-18.
[45] Woods argues the trial court’s sua sponte interjection demonstrates bias. We
disagree. Woods had demonstrated a propensity to utter hearsay testimony,
and the trial court had repeatedly informed counsel to ask direct questions to
avoid the issue. Despite the trial court’s instructions, Woods’ counsel explicitly
asked Woods for Pops’ response to her statement. The court properly
interceded to ensure that counsel followed the Rules of Evidence. Further, the
court allowed counsel to proceed once counsel raised exceptions to the hearsay
rule. This exchange fails to demonstrate bias, let alone fundamental error.
[46] Shortly thereafter, Woods described going to the supermarket, and she stated
Pops told her to go get Ghouleh’s gun. Her counsel, Ms. Perkins, then asked
her what she did next, and the following exchange occurred:
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[Woods]: That’s - this is what I did. I asked him “For what?”
and he –
[Court]: And then what happened?
[Woods]: He said, “Bitch, go” –
[State]: Objection as to –
[Court]: No, don’t tell me what he said. What happened
after that? You said, “For what?’ What’s the next
thing you did?
[Woods]: He made me go get it. That was the next thing I
did. He –
[Court]: Alright.
Id. at 119-20. During a break that immediately followed this exchange, Perkins
informed the court that she had again counseled Woods about avoiding hearsay
testimony.
[47] Woods argues the court’s instruction to her demonstrated bias. We disagree.
The court may have been irritated, but any irritation was provoked by Woods’
ongoing hearsay testimony despite admonishments by her counsel and the
court. The court appropriately redirected her testimony to avoid hearsay, and
we cannot conclude the court committed fundamental error.
[48] Woods’ direct testimony continued, and her counsel continued to caution her
to avoid describing what other people said. Id. at 148, 152, 153. Nevertheless,
even after being directly advised to avoid repeating other people’s statements,
she still repeated Pops’ responses to her comments. Id. at 153-54. The State
objected, and the court sustained the objection. Other incidents of hearsay
passed without objection by the State or court intervention, although counsel
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continued to advise her to avoid repeating other’s statements. Id. at 156, 159,
164, 183. At one point, Woods acknowledged she “can’t say what they said.”
Id. at 163.
[49] After testifying to her version of events at the farm, the following exchange
occurred:
[Perkins]: Did you shoot [Antonio]?
[Woods]: No, I’m a mother.
[State]: Objection, Your Honor.
[Court]: Jeri –
[Perkins]: What is –
[Court]: Ms. Woods, just answer her question. That’s
it. I know that might be hard, but you have
to just answer the question. Don’t add
anything to it.
[Perkins]: Jeri, would you ever harm two teenage boys?
[Woods]: No.
[Perkins]: Why not?
[State]: Objection, Your Honor.
[Court]: And your objection is?
[State]: Character evidence, 609, not –
[Court]: Sustained.
[Perkins]: Judge, 609 is not even appropriate, Judge. It’s
– it addresses prior convictions.
[State]: I’m sorry.
[Perkins]: So I’m not even sure what the objection is.
[State]: I didn’t mean to say that. It’s a long day.
[Court]: It doesn’t –
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[State]: 404(b). Sorry.
[Court]: Doesn’t – the objection, first of all, is in my
mind is relevance, so –
[Perkins]: Judge, may we approach because –
[Court]: No. Ms. Perkins, just finish with your
witness.
[Perkins]: Well, Judge, I mean, I don’t know what more
relevance we can have other than what’s in
her mind. I mean, we’re talking about this
lady’s been accused –
[Court]: Approach. Approach.
Id. at 168-70. During a bench conference, the court ultimately overruled the
State’s objection.
[50] Woods argues the trial court displayed bias by: (1) granting the State’s
objection without allowing Woods to respond; and (2) raising the issue of
relevance sua sponte. Throughout the lengthy trial, the court ruled on several
objections by both Woods and the State without waiting for the other side’s
response. Further, the court’s sua sponte discussion of relevance may have
been ill-advised, but the court ultimately overruled the State’s objection and
allowed Woods to proceed. We cannot conclude the court’s comments
demonstrated bias.
[51] When the State cross-examined Woods, the prosecutor and Woods had several
contentious exchanges. Tr. Vol. 15, pp. 40-42. The court advised Woods to
answer the State’s questions without supplying explanations or nonresponsive
answers. Id. at 42, 51, 55. On the other hand, the court also barred the State
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from requiring Woods to identify which sister she spoke with during a specific
conversation, prevented the State from seeking answers from Woods that would
have required hearsay, and sustained Woods’ objection to one of the State’s
questions as argumentative. Id. at 50, 58-59, 67.
[52] After a particularly contentious exchange between the prosecutor and Woods,
Woods’ counsel objected as follows:
[Perkins]: Judge, I’m going to just object to the commentary
by counsel, Judge.
[Court:] Approach, approach.
[State]: I asked her if I should stand closer.
[Court]: Approach.
(BENCH CONFERENCE HELD ON THE RECORD.)
[Perkins]: This is antagonistic, to say to her, well, you can see
me.
[Court]: Your client is going to hang herself here. Now, I
can tell her that. I know you’ve already told her.
At some point, if she has another outbreak, I’m
going to send the jury out and I'm going to tell her
myself.
She’s not doing herself any favors here. She’s going
to tell her story between direct cross-exam and
redirect. She’s going to get to tell her story. She’s
going to get her day in court, but she’s not going to
be acting up, trying to run this show.
Yes, it’s getting a little antagonistic. I’m not going
to stop it because she’s the precipitator, and if she
wants to ruin her chances, let her go.
[State]: I’ll move on. I can go on.
[Court]: Thank you.
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[State]: Thanks.
Id. at 74-76.
[53] Woods argues the trial court’s remarks demonstrate hostility to Woods rather
than a mere intent to control the courtroom. We disagree. The court during
this exchange expressed its intention to balance allowing Woods to tell her
version of events against preventing her from engaging in obstreperous
behavior. The court did not impose any sanctions, choosing instead to inform
Woods’ counsel that the next step to address any further outbursts would be an
admonition outside the presence of the jury. This exchange does not
demonstrate the court was biased against Woods.
[54] Later during cross-examination, the following exchange occurred while the
State asked Woods about what she did and saw while her family was outside
Larry Doss’s trailer:
[State]: All right. So all the testimony with respect to
individuals trying to either Facebook Larry or call
Larry, you didn’t hear none of that going on in the
car?
[Woods]: No.
[State]: Because you and Daddy are sitting in the front seat
talking about hunting and fishing?
[Woods]: We’re not talking about hunting and fishing.
[State] All right.
[Woods] And the Facebook messages and everything, stuff
shows that it’s Arey doing it. Arey was not in the
car with me.
[State]: Right, but he was outside the trailer; right?
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[Woods]: And I’m supposed to know what he’s doing on
Facebook?
[State]: And you’re not like miles away from him; right?
You’re pretty close to each other in terms of
distance?
[Woods]: He’s outside the car at the trailer at the door.
[State]: Right.
[Woods]: How am I supposed to know what he’s doing?
[State]: So you didn’t see –
[Woods]: I don’t know whose house this is. I don’t know
their little friend.
[State]: So you didn’t see –
[Woods]: The guy said he didn’t know who I was or recognize
me.
[State]: So you didn’t see anything?
[Woods]: No, I did not see anything.
[State]: All right.
[Court]: Okay. All right. We’re going to take a break right
here.
Pam, can you – we’re going to take a few-minute
[sic] break right here. Will you take the jury out.
[sic]
[Bailiff]: Okay.
(JURY EXITS THE COURTROOM AT 9:49 A.M.)
[Court]: Close the door.
[Bailiff]: I was standing right there so I don’t know why
we’re breaking. Is it a break or because you’re
yelling at everybody?
[Court]: That’s right, that’s right. Ms. Woods.
[Woods]: Yes.
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[Court]: I have told you several times, I’ve instructed your
attorney to tell you, and I know she has had a
conversation with you about your attitude and your
approach to answering these questions.
You are going to get your story told. I know you
have one and you want to tell it; that’s why you’re
on the stand. That’s why you have an attorney, to
help you do that.
Let her do her job. Stop trying to do her job. Just
answer the questions as they are put to you.
Don’t try to explain anything, don’t try to add
anything. I know you think it’s important, but we
have rules here and we have to follow the rules.
If you can’t follow the rules, I’ll hold you in
contempt of court, okay, for not answering the
questions properly. ‘Yes’ or ‘no,’ or just the short
answer to what you’ve been asked, not an
explanation.
And this antagonistic attitude is not helping you at
all here today. Okay.
Now, Ms. Perkins, anything you want to say to
your client about this topic?
[Perkins]: Not on the record.
[Court]: Okay. All right. We can go off the record.
[Perkins]: Thank you.
(A RECESS WAS HAD AT 9:51 A.M.)
(JURY RETURNS INTO OPEN COURT AT 10:16 A.M.)
Tr. Vol. 15, pp. 85-88.
[55] Woods argues the court’s admonishment of her proves bias. We reject this
argument. Immediately before the break, Woods was argumentative and failed
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to answer the State’s questions, thus continuing her intractable conduct. The
court followed through on its prior statement that further misbehavior by
Woods would result in an admonishment outside the jury’s presence. Instead
of showing bias, the court again demonstrated its commitment to ensuring
Woods had an opportunity to share her version of events while not tolerating
disorder in the court.
[56] On a related note, Woods argues the court’s abrupt call for a break immediately
after the vexatious exchange between the prosecutor and Woods may have
prejudiced the jury. We disagree. The court did not tell the jury why it was
calling for a break, and the record does not reflect that the court openly
expressed anger or even irritation at Woods at this point in the cross-
examination. The court called breaks several times throughout the lengthy trial
and did not always provide an explanation to the jury. We cannot conclude the
court committed fundamental error.
[57] After the State finished cross-examination, Woods testified on redirect
examination and recross examination. Finally, the jury submitted questions for
Woods, and the court presented several of them, followed by further
questioning of Woods by the parties. During the State’s questioning, the
following exchange occurred:
[State]: Okay. And you indicated earlier this morning when
I was questioning you about your marital status,
you indicated that it was the end of June when you
filed for divorce; correct?
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[Woods]: Could have been the end of June. I said it was in
June. That was in 2015; it’s 2017.
[State]: Okay. I understand that. But now when you were
asked a question by one of the jurors, you said you
knew it was the beginning of June because of your
mother’s birthday.
[Perkins]: I’m going to object. That mischaracterizes what she
said. She said “I believe.” So even if she answered
it from your Honor’s reading of the question, she
didn’t say it with certainty. She did say she
believes.
[State]: And she used her mother’s birthday as a benchmark
as to why she thought that. Correct?
[Woods]: Also, I had said –
[Court]: Is that correct? Did you - you did say that; didn’t
you?
[Woods]: I believe that it was in the beginning of June, toward
the early part of June.
[Court]: Okay.
[Woods]: My mom’s birthday is in the early part of June.
[Court]: Okay.
[State]: But when I asked you earlier this morning when it
happened, you said the end of June, June 30th.
[Woods]: You asked me a numerous amount of questions –
where did I go, when did I do it –
[State]: I’m asking –
[Woods]: (Continuing) – was it finalized, what happened.
[State]: Your Honor.
[Woods]: And I was confused. You tried to confuse me.
[State]: Your Honor, could you instruct the witness to
simply answer the questions that are asked, please.
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[Court]: I have instructed the witness, her attorney has
instructed the witness; the witness is not going to
cooperate. I do have a solution for that.
[State]: Okay. Well, let me – may I just finish?
[Court]: Yes, please, finish your questions.
Id. at 179-81.
[58] Woods argues the trial court’s implicit threat to hold her in contempt, which
was stated in the jury’s presence, went beyond mere irritation and demonstrated
prejudice against her. We disagree. Although the court may have been
irritated, irritation alone does not demonstrate bias in light of Woods’ repeated
failure to comply with the rules of evidence. By the time the court admonished
Woods in the jury’s presence, Woods had repeatedly attacked other witnesses
and discussed hearsay despite repeated direction from her counsel and the court
to avoid those subjects. She also argued with the prosecutor on the stand. The
court’s admonition to Woods outside the presence of the jury did not seem to
change her behavior. We view the court’s implied threat to hold Woods in
contempt as a reasonable measure that was necessary to control the courtroom
because prior measures were ineffective.
[59] Finally, Woods argues the court’s statements and conduct, when viewed
cumulatively, demonstrate bias. We disagree. The doctrine of hearsay can be
difficult for nonlawyers to grasp, and much of the evidence in this case
depended on what Woods and her family members said during conversations.
Further, cross-examination can produce testy exchanges. Nevertheless, Woods,
alone among all the witnesses who testified at this lengthy trial, demonstrated a
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particular inability to avoid repeating hearsay and arguing with opposing
counsel, despite repeated instructions from the court and counsel on how to
conduct herself on the stand. We cannot conclude the court’s attempts to
maintain an orderly trial demonstrated bias or fundamental error. See Rowe,
539 N.E.2d at 477 (trial court’s repeated interjections during trial individually
and in the aggregate did not show bias but rather represented an “evenhanded”
approach to keep the trial moving).
C. Woods’ Motion for Mistrial
[60] Woods argues the trial court should have granted her motion for mistrial after a
juror’s statements allegedly tainted the jury against her. An impartial jury is the
cornerstone of a fair trial, guaranteed by the Sixth Amendment and article 1,
section 13 of the Indiana Constitution. Ramirez v. State, 7 N.E.3d 933, 936 (Ind.
2014). A mistrial is an extreme remedy that is only justified when other
remedial measures are insufficient to rectify a situation. Mickens v. State, 742
N.E.2d 927, 929 (Ind. 2011). A trial court is in the best position to evaluate
whether a mistrial is warranted because it can assess first-hand all relevant facts
and circumstances and their impact on the jury. Ramirez, 7 N.E.3d at 935. We
therefore review the denial of a motion for mistrial only for abuse of discretion.
Id. However, the correct legal standard for a mistrial is a pure question of law,
which we review de novo. Id.
[61] Defendants seeking a mistrial for suspected jury taint are entitled to the
presumption of prejudice only after making two showings, by a preponderance
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of the evidence: (1) extra-judicial contact or communications between jurors
and unauthorized persons occurred; and (2) the contact or communications
pertained to the matter before the jury. Id. at 939. If a defendant fails to make
the initial two-part showing, the presumption does not apply. Id. If the
defendant makes the two-part showing, the burden then shifts to the State to
rebut this presumption of prejudice by showing that any contact or
communications were harmless. Id.
[62] Here, on the morning of the fourth day of trial, Juror 108 sent a note to the trial
judge explaining that he needed to be dismissed from the jury because he was in
fear for his life. During a discussion involving the court and the parties, the
court explained that the bailiff had told the court Juror 108 had seen members
of Woods’ family outside the courthouse the prior evening while waiting for a
ride. There was no interaction or contact. Juror 108 had also reported to the
bailiff that he was nervous about waiting for the bus on his way to and from the
courthouse.
[63] Next, the court and the parties questioned Juror 108 outside the presence of the
other jurors. Before the questioning, both parties indicated they wanted to try
to keep him on the jury, if possible. When questioning began, the juror stated,
“If I have to go to jail, I’ll go to jail for three days or whatever. I’m not going to
serve on this jury.” Tr. Vol. 6, p. 20. He explained that he and his family lived
in the same neighborhood as members of Woods and Pops’ family. Juror 108
further explained he had discussed the case with his family, and his family told
him Woods and Pops’ family members were very dangerous and he should get
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off the case. He said, “I fear for my life.” Id. at 22. Juror 108 also said he had
been “watched” by Woods’ family the previous evening while waiting for a
ride. Id. at 24. He conceded that no one had contacted his family yet, but he
was worried. The court noted Juror 108 was visibly shaking and afraid.
[64] Juror 108 further explained to the court and the parties that he had told all his
fellow jurors that morning that he wanted off the case because he feared for his
safety. The court paused the questioning to talk with the parties, sending Juror
108 to the bailiff’s office to keep him separated from other jurors. During the
break in questioning, Woods asked for a mistrial. The court declined to rule on
that request at that time.
[65] When the court brought Juror 108 back into the courtroom for further
questioning, he said Woods’ family and “affiliates” were “very cruel” and
“extremely, extremely dangerous.” Id. at 46. He further explained that when
he arrived that morning, he waited until his fellow jurors were assembled before
telling them he needed to leave the jury because he feared for his safety. Juror
108 explained to them that he’s the only one who was “really vulnerable”
because he lived in the same neighborhood as Woods’ family. Id. at 50.
[66] After the questioning ended and Juror 108 left the courtroom, Woods renewed
her motion for mistrial. The court took the motion under advisement. The
court further decided to question each of the jurors, individually, under oath,
and put the jurors who had been questioned in a different room from the jurors
who had yet to be questioned.
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[67] During questioning, the court asked each juror what he or she had heard from
Juror 108 that morning and if that would affect his or her ability to decide the
case fairly. Most of the jurors had heard Juror 108 say he was afraid for his
safety. Some also said Juror 108 reported that his son told him about the
people involved in the case. Others said Juror 108 explained he was afraid
because he takes public transportation and lives in the same area as Woods’
family. Several jurors said they were a little concerned for their safety based on
Juror 108’s statements, but none of them were so scared that they wanted to be
released from the jury. All of the jurors said that they could still be impartial
despite Juror 108’s statements. Three of them said they thought Juror 108 was
being overly dramatic about the situation.
[68] After the jurors were questioned, Woods renewed her motion for mistrial.
Woods argued, and the prosecutor conceded, that extra-judicial contact or
communications between jurors and unauthorized persons had occurred, and
the communications pertained to the case. As a result, the State was obligated
to rebut a presumption of prejudice. The prosecutor argued the presumption
was rebutted because the jurors said they could remain impartial. The court
agreed with the State and denied the motion for mistrial. Woods requested that
the court admonish the jury, and the court instructed the jury as follows:
You each were interviewed and indicated that you felt no impact
about Mr. – Juror No. 108’s request to be allowed to leave the
jury and that you could still be fair and impartial. I want to
remind you that if at any point that changes, please let us know,
and during your deliberations you’re not to give any weight to
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the fact that he felt – that he needed to be released from this jury
to your deliberations, okay?
And once again, I want to remind you please do not talk to
anybody about this case. Now, I don’t know how much you said
to your family. Certainly they have to know what you’re doing
every day, but they don’t – if they don’t know the name of the
case that you’re on, don’t tell them the name of the case because
they’re going to be reading the newspaper and they’re going to
see, you know, that you’re not reading the newspaper, but they’re
going to see that you’re on this – that if you – that this case is in
the paper and that you know something about it. So if they don’t
know the name of the case that you’re sitting on, please don’t tell
them, and if they already know, then please do not discuss any
matters with them, your family, friends, or anybody else. That’s
just imperative.
Tr. Vol. 6, pp. 139-40.
[69] We cannot conclude the trial court erred in denying Woods’ motion for
mistrial. Although there was an extra-judicial communication with Juror 108
about the case, and Juror 108 told his fellow jurors about his fears, Juror 108’s
comments did not prejudice the jury. Each of the jurors stated he or she would
be impartial despite Juror 108’s statements. The trial court was best positioned
to view the jurors and assess their credibility. Further, the trial court instructed
the jurors not to give any weight to Juror 108’s removal from the jury. The
extreme remedy of a mistrial was unnecessary here. See Weisheit v. State, 26
N.E.3d 3, 16 (Ind. 2015) (trial court did not err in denying defendant’s motion
for mistrial; one of juror’s spouses wrote a note to jurors about case, but trial
court interviewed jurors separately, and jurors who had read note said it would
not affect their ability to serve impartially).
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Conclusion
[70] For the reasons stated above, we affirm the judgment of the trial court.
[71] Affirmed.
Najam, J., and Barnes, J., concur.
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