MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any
                                                                           Jun 23 2020, 10:49 am
court except for the purpose of establishing
the defense of res judicata, collateral                                         CLERK
                                                                            Indiana Supreme Court
estoppel, or the law of the case.                                              Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Jennifer L. Koethe                                       Curtis T. Hill, Jr.
Navarre, Florida                                         Attorney General of Indiana
                                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shaun Walton,                                            June 23, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2664
        v.                                               Appeal from the LaPorte Superior
                                                         Court
State of Indiana,                                        The Honorable Richard R.
Appellee-Plaintiff                                       Stalbrink, Jr., Judge
                                                         Trial Court Cause No.
                                                         46D02-1812-F6-1347



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2664 | June 23, 2020                       Page 1 of 6
[1]   Shaun Walton appeals his conviction for Level 6 Felony Battery,1 arguing that

      the trial court erred when it denied his motion for a mistrial. Finding no error,

      we affirm.


                                                         Facts     2




[2]   On October 30, 2018, Walton, a prisoner at the Indiana State Prison, was being

      transported from his cell to a recreational area. Sergeant Adrianne Ball was

      monitoring the situation and noticed that the officer transporting Walton had

      released Walton from his grasp. Sergeant Ball assumed the role of transporting

      Walton, at which point she discovered a bulge in his pocket. Once inside the

      recreational area, Walton slipped out of Sergeant Ball’s grasp. Officer Jordan

      Hufford, who was nearby, heard Sergeant Ball scream for help and ran over to

      assist her. Officer Hufford then helped Sergeant Ball pin Walton down and

      conduct a pat-down search, which revealed workout gloves, a radio, and

      headphones on his person.


[3]   Walton knew that prisoners could not take their headphones and/or radios with

      them from their cells to the recreational area, so Sergeant Ball ordered Officer

      Hufford to take those items from Walton. As Officer Hufford was doing so, he

      accidentally broke the headphones. Walton then became angry and lunged at




      1
          Ind. Code § 35-42-2-1(c)(1), -1(e)(2).
      2
        We would advise Appellant’s counsel, in the future, to avoid using such inflammatory and emotional
      language in the Statement of Facts. This section is meant to succinctly describe the details of the case that led
      to the appeal at hand, not to passionately persuade a jury during closing argument.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2664 | June 23, 2020                         Page 2 of 6
      Sergeant Ball. A scuffle broke out, during which Walton pushed Sergeant Ball

      to the ground and “gouged up” Officer Hufford’s face. Tr. Vol. II p. 156.


[4]   On December 10, 2018, the State charged Walton with two counts of Level 6

      felony battery. During Walton’s October 29-30, 2019, jury trial, the State called

      Investigator Ashley Kilgore to testify as to what happened between Walton and

      the two officers. Investigator Kilgore described how she met with Walton, read

      him his Miranda3 Rights, and asked him to talk about the incident. After the

      State asked if she had done just that, Investigator Kilgore said, “[y]es, and he

      refused to speak with me.” Id. at 122. Then, outside the presence of the jury,

      Walton’s counsel moved for a mistrial, arguing that the State’s reliance on

      Walton’s post-Miranda silence as evidence was inappropriate. The State argued

      that Investigator Kilgore commented on Walton’s silence only to show the

      “completeness of the investigation.” Id. The trial court agreed to take the matter

      under advisement.


[5]   To rectify any harm that Investigator Kilgore’s testimony may have caused

      Walton, the State, while in the presence of the jury, asked Investigator Kilgore,

      “it’s certainly [Walton’s] right within the constitution to say nothing to you;

      correct?” Id. at 123. Investigator Kilgore confirmed that it was Walton’s

      constitutional right and that she had highlighted Walton’s silence only to

      demonstrate that she had not skipped any steps in her investigative process.




      3
          Miranda v. Arizona, 384 U.S. 436 (1966).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2664 | June 23, 2020   Page 3 of 6
[6]   During a recess, the parties further argued over Walton’s motion for a mistrial,

      which the trial court ultimately denied. However, the trial court agreed to

      present Walton’s proffered final jury instruction about a defendant’s right to

      post-Miranda silence, which reads as follows:


              While it is true that the Miranda warnings provided to the
              defendant do not contain an express assurance that silence will
              carry no penalty, such assurance is implicit to any person who
              receives the warnings. In this circumstance, it would be
              fundamentally unfair and a deprivation of due process to allow the
              defendant’s silence to be used to impeach the explanation he
              offered at trial. When considering the propriety of the defendant’s
              testimony, you should not consider, in any way, that the
              defendant chose not to make a statement to investigators after
              being informed of his constitutional rights.


      Appellant’s App. Vol. II p. 132.


[7]   The jury found Walton guilty of one count of Level 6 felony battery, but not

      guilty of the other. That same day, October 30, 2019, the trial court sentenced

      Walton to one and one-half years, to be executed in the Department of

      Correction. Walton now appeals.


                                   Discussion and Decision
[8]   Walton’s sole argument on appeal is that the trial court erred when it denied his

      motion for a mistrial. Specifically, Walton contends that the State

      inappropriately referenced Walton’s post-Miranda silence to impeach his

      testimony, which he argues was a clear due process violation warranting a

      mistrial.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2664 | June 23, 2020   Page 4 of 6
[9]    A mistrial is an “extreme remedy” that should be used only when no other

       curative measure will rectify the situation. Moore v. State, 652 N.E.2d 53, 57

       (Ind. 1995). The decision to grant or deny a mistrial is within the sound

       discretion of the trial court, and we will reverse only when the decision is

       clearly against the logic and effect of the facts and circumstances. Hall v. State,

       722 N.E.2d 1280, 1282 (Ind. Ct. App. 2000). Upon review of a denial of a

       motion for a mistrial, the defendant must demonstrate that the conduct

       complained of was both in error and had a probable persuasive effect on the

       jury’s decision. Pierce v. State, 761 N.E.2d 821, 825 (Ind. 2002).


[10]   Walton argues that Investigator Kilgore’s testimony violated the Due Process

       Clause of the Fourteenth Amendment to the United States Constitution. See

       Doyle v. Ohio, 426 U.S. 610, 619 (1976); see also Anderson v. Charles, 447 U.S. 404,

       407-08 (1980) (holding that “Miranda warnings inform a person of his right to

       remain silent and assure him, at least implicitly, that his silence will not be used

       against him[]”).


[11]   Though the State contends that Investigator Kilgore’s response was appropriate

       to describe the steps she took as part of her investigation, we find that her

       response was ill-advised and had little relevance. Indiana Evidence Rule 403

       states that “[t]he court may exclude relevant evidence if its probative value is

       substantially outweighed by a danger of one or more of the following: unfair

       prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

       presenting cumulative evidence.” And here, any relevance gleaned from

       Investigator Kilgore’s reference to Walton’s post-Miranda silence was certainly

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2664 | June 23, 2020   Page 5 of 6
       outweighed by a risk of prejudice. Thus, the complained of conduct was, to a

       certain extent, erroneous.


[12]   Nonetheless, any prejudicial harm caused by Investigator Kilgore’s statement

       was cured by what took place after she testified; therefore, Walton has not

       demonstrated that this reference to his silence had a probable persuasive effect

       on the jury’s decision. Much of the argument surrounding Walton’s motion for

       a mistrial took place outside of the jury’s presence; the reference to Walton’s

       silence was an isolated statement made as part of Investigator Kilgore’s lengthy

       testimony during a two-day jury trial; the State itself attempted to rectify any

       harm by reminding the jury of Walton’s right to not have his post-Miranda

       silence used against him; and the trial court included Walton’s proffered final

       jury instruction about how relying on Walton’s post-Miranda silence would

       violate Walton’s fundamental due process rights. In other words, we find little

       to nothing in the record that would convince us that Investigator Kilgore’s

       statement affected the jury’s decision. In sum, the trial court did not err by

       denying Walton’s motion for a mistrial.


[13]   The judgment of the trial court is affirmed.


       Bradford, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2664 | June 23, 2020   Page 6 of 6
