MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 02 2019, 8:47 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Angela N. Sanchez
Assistant Section Chief
Criminal Appeals
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Walker L. Whatley, II, May 2, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2182
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia A. Gooden,
Appellee-Plaintiff. Judge
The Honorable Richard E.
Hagenmaier, Commissioner
Trial Court Cause No.
49G21-1804-F5-12499
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2182 | May 2, 2019 Page 1 of 9
Case Summary
[1] Walker L. Whatley, II (“Whatley”) appeals his conviction for Possession of
Cocaine, as a Level 6 felony.1 We affirm.
Issues
[2] Whatley presents two issues for review:
I. Whether he was entitled to a mistrial because of
purposeful discrimination in the jury selection; and
II. Whether he was entitled to a mistrial because the State
argued new contentions in rebuttal, but Whatley was
denied the opportunity to present surrebuttal argument.
Facts and Procedural History
[3] On April 14, 2018, a woman who identified herself as Lashona Ealy called 9-1-
1 and reported that Whatley had shot at her before boarding an Indianapolis
IndyGo bus at 42nd Street and Post Road. Indianapolis Metropolitan Police
Department officers detained the bus on which Whatley had been a passenger.
Whatley exited quickly, but officers grabbed and handcuffed him. Officers saw
him attempting to crush a baggie into the ground with his shoe. Officers seized
the baggie; subsequent testing revealed that it contained .0064 grams of cocaine.
1
Ind. Code § 35-48-4-6(a).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2182 | May 2, 2019 Page 2 of 9
Bus passengers called out that Whatley had left something behind, and the
officers recovered two handguns from the bus.
[4] The State charged Whatley with Carrying a Handgun Without a License 2 and
Possession of Cocaine, each as a Level 5 felony. Whatley was tried before a
jury on July 26, 2018. As to the handgun charge, Whatley testified and
presented a defense of necessity, claiming that one or more persons at the
residence from which he fled had struck him and attempted to rob him. He
presented evidence of having a black eye when he was arrested. Whatley
denied that the cocaine was his. He was acquitted of the handgun offense and
found guilty of Possession of Cocaine, as a Level 6 felony, a lesser-included
offense of the charged offense. On August 15, 2018, Whatley was sentenced to
time served, 240 days. He now appeals.
Discussion and Decision
Mistrial Standard of Review
[5] A mistrial is an extreme remedy appropriate only when other remedial
measures are insufficient to rectify the situation. Mickens v. State, 742 N.E.2d
927, 929 (Ind. 2001). A trial judge has discretion in determining whether to
grant a mistrial and his or her decision is afforded great deference because the
trial judge ‘“is in the best position to gauge the surrounding circumstances of an
2
I.C. § 35-47-2-1.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2182 | May 2, 2019 Page 3 of 9
event and its impact on the jury.”’ Id. (quoting Gregory v. State, 540 N.E.2d 585,
589 (Ind. 1989)). To prevail on appeal from the denial of a motion for mistrial,
an appellant must establish 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
consideration of the misconduct’s probable persuasive effect on the jury’s
decision, rather than the impropriety of the conduct. Id.
Batson Violation
[6] During voir dire, Whatley’s counsel objected to the State’s use of peremptory
challenges to exclude some potential jurors who were, like Whatley, African-
American, and Whatley claimed that the State had selectively questioned a
potential juror about medical issues and child care. The trial court stated that
race-neutral reasons had been provided and overruled any objection “at this
time.” (Tr. Vol. II, pg. 49.) The jury was impaneled, consisting of three
African-American jurors, nine others, and one African-American alternate
juror. The jury was then excused, and the trial court heard argument of counsel
regarding compliance with Batson v. Kentucky, 476 U.S. 79 (1986). Whatley’s
motion for a mistrial was denied.
[7] The use of a peremptory challenge to strike a potential juror solely based on his
or her race violates the Equal Protection Clause of the Fourteenth Amendment
to the United States. Jeter v. State, 888 N.E.2d 1257, 1262 (Ind. 2008) (citing
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2182 | May 2, 2019 Page 4 of 9
Batson, 476 U.S. at 79)). Batson adopted a procedure to be implemented for
claims of discrimination in the exercise of peremptory challenges:
First, the party contesting the peremptory challenge must make a
prima facie showing of discrimination on the basis of race.
Second, after the contesting party makes a prima facie showing
of discrimination, the burden shifts to the party exercising its
peremptory challenge to present a race-neutral explanation for
using the challenge. Third, if a race-neutral explanation is
proffered, the trial court must then decide whether the challenger
has carried its burden of proving purposeful discrimination.
Killebrew v. State, 925 N.E.2d 399, 401 (Ind. Ct. App. 2010) (citation omitted),
trans. denied. The trial court’s decision regarding whether a peremptory
challenge was discriminatory is given great deference on appeal and will be set
aside only for clear error. Id.
[8] The trial court summarized the selection process as follows:
[On the first round,] the State did strike five jurors. … And those
five people are all black. They did not strike nor did the Defense
strike Prospective Juror [12], who is black. … On the second
round the State struck three people. One of which was black[.]
… And then in round 3, the State had no strikes. The Defendant
struck the third white Prospective Juror with the white juror,
number 3. So Prospective Juror [X] who is black is the alternate
juror.
(Tr. Vol. II, pg. 79.)
[9] “Standing alone the removal of some African-American jurors by peremptory
challenge does not raise an inference of discrimination.” Hardister v. State, 849
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2182 | May 2, 2019 Page 5 of 9
N.E.2d 563, 576 (Ind. 2006).3 Even so, the trial court proceeded as if Whatley
had made a prima facie showing of discrimination and considered the State’s
explanations for the use of peremptory challenges. That is, some potential
jurors appeared to the prosecutor to be reluctant to engage in voir dire – staring
blankly when questioned, providing a one-word response, or remaining quiet.
One potential juror had attended Church with Whatley. Two had served on
juries where the trials culminated with not guilty verdicts.
[10] As for alleged disparate questioning, the prosecutor explained that one African-
American had been questioned as to whether he could serve despite a medical
condition and child care responsibility because:
on his questionnaire that was listed as a specific reason he
thought he might not be able to serve was picking up children,
and seizures which is different than the other medical issues
listed by potential jurors today. And if someone’s going to have
some reason to struggle with seizures today in the jury, I want to
know about that ahead of time. That’s why I specifically [asked]
about his medical condition and he put them together as issues
for not be[ing] able to serve. After answering them, I was pleased
with the answers I guess you could say and we did not move to
strike that jury pole member.
(Tr. Vol. II, pg. 81.)
3
There, the State had used five of its six peremptory strikes to strike African-American prospective jurors.
However, the State did not strike two African-Americans, one of whom was struck by the defendant.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2182 | May 2, 2019 Page 6 of 9
[11] The trial court concluded:
Third stage, we’ve gone through the first two stages where I did
ask for a race neutral [reason]. Third stage is in light of the
parties’ submissions; the Court must determine whether
Defendant has shown purposeful discrimination. I find that the
Defendant has not made that burden. There are four black jurors
on the jury as a whole[.] … I do not see anything in this case to
rise to the level of a showing that his constitutional rights have
been violated at this point.
Id. at 83. Whatley has not shown clear error in this determination. Nor has he
shown that he was placed in a position of grave peril, such that a mistrial
should have been granted.
Surrebuttal
[12] Indiana Code Section 35-37-2-2(4) provides in part:
If the case is not submitted without argument, the prosecuting
attorney shall have the opening and closing of the argument.
However, the prosecuting attorney shall disclose in the opening
all the points relied on in the case, and if in the closing he refers
to any new point or fact not disclosed in the opening, the
defendant or his counsel may reply to that point or fact, and that
reply shall close the argument of the case.
Similarly, Indiana Jury Rule 27 provides that the party which opens the
argument must disclose in the opening all the points relied on in the case and if,
in closing, the party which closes refers to a new point or fact not disclosed in
the opening, the adverse party has the right to reply to the new point or fact.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2182 | May 2, 2019 Page 7 of 9
[13] After the State concluded its arguments, Whatley claimed that the prosecutor –
by presenting a brief opening statement but making new points in rebuttal
argument – had “sandbagged” the defense and Whatley should be afforded a
response in surrebuttal. (Tr. Vol. II, pg. 243.) According to Whatley, the State
improperly referred to Whatley’s flight as consciousness of guilt, newly
elaborated upon the facial bruising and 9-1-1 call, and should not have claimed
that Whatley “only did the right thing [laying down the gun] when the cops
showed up.” (Tr. Vol. II, pg. 243.)
[14] Where, as here, surrebuttal is not requested until after the State concludes its
closing rebuttal argument, the claim is waived. Jones v. State, 825 N.E.2d 926,
932 (Ind. Ct. App. 2005), trans. denied. Waiver notwithstanding, we find no
reversible error. The State claims that it was merely responding to points raised
by Whatley in his closing. Such is permissible in rebuttal argument. See id. at
933. Nonetheless, Whatley had freely admitted that he fled onto a city bus and
the other challenged references concern the handgun charge of which Whatley
was acquitted. Indiana Appellate Rule 66(A) provides that an error is not
grounds for reversal where its probable impact “is sufficiently minor so as not to
affect the substantial rights of the parties.” Whatley did not demonstrate his
entitlement to a mistrial on this basis.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2182 | May 2, 2019 Page 8 of 9
Conclusion
[15] Whatley has not persuaded us that either purposeful discrimination in jury
selection or the denial of surrebuttal placed him in grave peril such that a
mistrial was warranted.
[16] Affirmed.
Riley, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2182 | May 2, 2019 Page 9 of 9