                                                                                 FILED
                                                                         Apr 23 2019, 10:53 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Valerie Kent Boots                                          F. Aaron Negangard
Marion County Public Defender                               Chief Deputy Attorney General
Indianapolis, Indiana                                       Stephen R. Creason
Frederick Vaiana                                            Deputy Attorney General
Voyles Vaiana Lukemeyer Baldwin &                           Samuel J. Dayton
Webb                                                        Deputy Attorney General
Indianapolis, Indiana                                       Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Laketra Spinks,                                             April 23, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-1532
        v.
                                                            Appeal from the Marion Superior
                                                            Court
State of Indiana,
                                                            The Honorable Stanley Kroh,
Appellee-Plaintiff.                                         Magistrate Judge
                                                            Trial Court Cause No.
                                                            49G03-1708-F5-31994



Tavitas, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1532 | April 23, 2019                                   Page 1 of 15
                                               Case Summary
[1]   Laketra Spinks appeals her convictions for criminal recklessness, a Level 5

      felony, and carrying a handgun without a license, a Class A misdemeanor. We

      affirm. 1


                                                       Issues
[2]   Spinks raises two issues, which we restate as:


              I.       Whether the trial court properly denied Spinks’ request to
                       exclude three witnesses who violated a separation of
                       witnesses order.

              II.      Whether the trial court properly denied Spinks’ motion for a
                       mistrial.


                                                       Facts
[3]   On July 1, 2017, Spinks, her boyfriend, and her baby went to Braids, a hair

      salon in Indianapolis. While waiting for a stylist, Spinks had a conversation

      with another customer, Robin Wilkins. A stylist, Funmilayo Clawore, began

      braiding Spinks’ hair, but Spinks was unhappy with the quality of the braids

      and complained to Djenaba Sambakey, another stylist at the salon. Sambakey

      and Spinks argued over the braids, and Spinks slapped Sambakey’s hand.

      Sambakey asked Spinks to leave the salon. Spinks told her boyfriend to leave

      with the baby and pulled a handgun from a baby bag. With twelve to fifteen



      1
       We held oral argument in this matter on April 4, 2019, at Munster High School. We thank Munster High
      School and the Lake County Bar Association for their hospitality.

      Court of Appeals of Indiana | Opinion 18A-CR-1532 | April 23, 2019                         Page 2 of 15
      people in the salon, Spinks fired the handgun into the ceiling and left the salon

      in a red four-door car.


[4]   Several people that were inside the salon called 911. One of the callers reported

      that Spinks left in a red Hyundai Sonata and gave a license plate number. A

      few minutes later, another 911 caller, Steven Dorsey, reported that a motorist

      had thrown a gun out of the car window in the area of the salon. Dorsey

      reported the vehicle’s license plate number, which was very similar to the

      license plate number reported earlier, and Dorsey waited by the Kel-Tec .22

      magnum caliber handgun, which was in the grass, until the police arrived. The

      license plate number reported by Dorsey was registered to a red Hyundai

      Elantra owned by Mishak Duzobo. Officers learned that Duzobo and Spinks

      were leasing a residence together.


[5]   At the salon, officers found damage on the ceiling, a .22 magnum caliber

      cartridge casing on the floor, and an unfired .22 magnum caliber round on the

      floor. Wilkins and Sambakey later separately identified Spinks in photo arrays

      as the woman who fired the handgun in the salon. Spinks did not have a valid

      license to carry a handgun.


[6]   On August 29, 2017, the State charged Spinks with criminal recklessness, a

      Level 5 felony, and carrying a handgun without a license, a Class A

      misdemeanor. A jury trial was held in May 2018, and the jury found Spinks

      guilty of both charges.




      Court of Appeals of Indiana | Opinion 18A-CR-1532 | April 23, 2019       Page 3 of 15
[7]   At the start of the jury trial, Spinks moved for a separation of witnesses order,

      which the trial court granted. The trial court ordered:


              All witnesses subpoenaed in this case are to remain outside the
              courtroom during the trial. No witness should discuss his or her
              testimony, or expected testimony with any other witness. The
              attorneys are instructed to advise their witnesses of this order as
              soon as they arrive at the courthouse, if not done so already. An
              intentional violation could result in being found in contempt, or
              being excluded from testifying and the separation order remains
              in effect until closing arguments begin.


      Tr. Vol. II pp. 6-7. There was no indication that the State’s witnesses were in

      the courtroom when the trial court issued the separation of witnesses order.


[8]   After the jury was impaneled but before the opening statements or presentation

      of evidence, the trial court was advised by the deputy prosecutor during the

      lunch break that “there was likely a violation of the separation order.” Id. at 21.

      The trial court held a hearing outside the presence of the jury and separately

      questioned three witnesses, Wilkins, Sambakey, and Clawore, regarding a

      conversation they had earlier that morning in the hallway outside the

      courtroom.


[9]   Wilkins admitted that the three witnesses discussed among themselves that

      morning how many gunshots they heard. Wilkins stated that she heard one

      gunshot but that the other two women stated they heard two gunshots.

      According to Wilkins, the women also saw Spinks in the hallway, and they

      said: “That’s her.” Id. at 26. Wilkins testified that she recognized Spinks “on


      Court of Appeals of Indiana | Opinion 18A-CR-1532 | April 23, 2019        Page 4 of 15
       her own” and that, at the jury trial, she would testify based only on what she

       observed. Id. Wilkins also affirmed that her trial testimony would not be

       influenced by the conversation with the other two witnesses.


[10]   Sambakey testified that she had a conversation with the other witnesses but

       denied discussing the number of gunshots or the case. Sambakey promised that

       her testimony at the jury trial would be based only on what she observed and

       would not be influenced by what someone else said in her presence.


[11]   Clawore denied having a conversation in the hallway with the witnesses about

       the case, and she denied knowing Wilkins. 2 Clawore also agreed that her trial




       2
        Spinks contends that Clawore “testified she remembers about a conversation in the hallway was [sic] being
       asked if she could identify the person that did it and she said she wasn’t sure.” Appellant’s Br. p. 8.
       Clawore’s testimony was somewhat confusing. She testified:
             Q. And I understand you may have been talking to other witnesses, possibly today. And so at
             this time we want to find out what you talked about. You’re not in trouble. You’re not - there’s
             not going to be any consequences for this, but we need to know if you did talk to any witnesses
             and what you may have talked about, if you did.
             A. Talk about what?
             Q. About the trial, or about the case, about what you’re going to testify about or anything of
             this nature.
             A. No. But only ask me a question about - he said - can I identify the person?
             Q. Okay.
             A. I said I’m not sure because I don’t notice someone for the first time, only if I see the person often, then I
             can recognize if she’s the one. But I’m not sure if she’s the one. Like I say, I’m not sure, unless it’s
             somebody (indiscernible) I’m the one.
             Q. Okay. Did you talk about the case at all, about what happened that day at -
             A. Today? No.
             Q. Here today, in the courtroom or outside the office - out in the hallway or anything?
             A. Uhm-uhm, no.
             Q. Okay.
       Tr. Vol. II pp. 36-37 (emphasis added). It is unclear when the emphasized conversation took place and with
       whom Clawore was talking. Clawore refers to “he,” but the three witnesses at issue were women.

       Court of Appeals of Indiana | Opinion 18A-CR-1532 | April 23, 2019                                              Page 5 of 15
       testimony would be based only on her observations and would not be

       influenced by what someone else said to her.


[12]   Following the pretrial examination of the three witnesses, Spinks moved to

       exclude the three witnesses from testifying at the trial. The trial court found

       that “[t]here appears to have been a violation of the Court’s separation order,

       but . . . the Court doesn’t believe it was intentionally done.” Id. at 46. The trial

       court gave Spinks leeway to cross-examine the three witnesses at the jury trial

       regarding the conversation but denied the motion to exclude them. Spinks then

       moved for a mistrial. The trial court found that Spinks had not been placed in a

       position of grave peril. The trial court did not believe that “exclusion” of the

       witnesses or a mistrial was appropriate. Id. at 48.


[13]   During the State’s presentation of evidence, Sambakey testified that Spinks shot

       the handgun two times. On cross-examination, Sambakey denied discussing

       the matter with Wilkins or Clawore on the day of the trial. Clawore testified

       that she heard one gunshot but found two bullets on the floor. She also testified

       that she could not identify the woman who shot the handgun. Clawore again

       denied discussing the matter with Wilkins or Sambakey on the day of the trial.

       Wilkins testified that the woman pulled the handgun out of her bag and shot the

       weapon. She identified Spinks as the shooter of the handgun. On cross-

       examination, Wilkins admitted that she had discussed with Sambakey and

       Clawore the number of shots that were fired and that they had “discussed the

       person that did this.” Id. at 132.



       Court of Appeals of Indiana | Opinion 18A-CR-1532 | April 23, 2019         Page 6 of 15
[14]   Spinks then again requested a mistrial. Spinks argued that Sambakey and

       Clawore had committed perjury and that the three witnesses had violated the

       separation of witnesses order. The trial court found that Sambakey and

       Clawore were not native English speakers, that Wilkins had an independent

       basis to identify Spinks, and that Sambakey identified Spinks in a photo array

       after the incident. The trial court found that it was for the jury to determine the

       witnesses’ credibility and that there was not an intentional violation of the

       separation of witnesses order. The trial court again denied the motion for

       mistrial.


[15]   The jury found Spinks guilty of criminal recklessness, a Level 5 felony, and

       carrying a handgun without a license, a Class A misdemeanor. The trial court

       sentenced Spinks to concurrent sentences of three years in the Department of

       Correction for the criminal recklessness conviction and one year for the

       carrying a handgun without a license conviction.


                                                     Analysis
                                           I. Exclusion of Witnesses

[16]   Spinks first argues that the trial court erred by failing to exclude the three

       witnesses involved in violating the separation of witnesses order. Indiana

       Evidence Rule 615 provides:


               At a party’s request, the court must order witnesses excluded so
               that they cannot hear other witnesses’ testimony. Or the court
               may do so on its own. But this rule does not authorize
               excluding:

       Court of Appeals of Indiana | Opinion 18A-CR-1532 | April 23, 2019          Page 7 of 15
               (a) a party who is a natural person;


               (b) an officer or employee of a party that is not a natural person,
               after being designated as the party’s representative by its attorney;
               or


               (c) a person whose presence a party shows to be essential to
               presenting the party’s claim or defense.


       Indiana Evidence Rule 615 allows litigants to move for separation of witnesses

       so they cannot hear each other’s testimony. Griffith v. State, 59 N.E.3d 947, 956

       (Ind. 2016).


[17]   The trial court’s order here, however, was more specific than Rule 615 by

       ordering no discussions of expected testimony among the witnesses. The trial

       court ordered:


               All witnesses subpoenaed in this case are to remain outside the
               courtroom during the trial. No witness should discuss his or her
               testimony, or expected testimony with any other witness. The
               attorneys are instructed to advise their witnesses of this order as
               soon as they arrive at the courthouse, if not done so already. An
               intentional violation could result in being found in contempt, or
               being excluded from testifying and the separation order remains
               in effect until closing arguments begin.


       Tr. Vol. II pp. 6-7.


[18]   The determination of the remedy for any violation of a separation order is

       within the discretion of the trial court. Joyner v. State, 736 N.E.2d 232, 244 (Ind.

       2000). We will not disturb the trial court’s decision on such matters absent a

       Court of Appeals of Indiana | Opinion 18A-CR-1532 | April 23, 2019         Page 8 of 15
       showing of a clear abuse of discretion. Id.; see also Wisner v. Laney, 984 N.E.2d

       1201, 1208 (Ind. 2012) (“We do not disturb a trial court’s determination

       regarding a violation of a separation of witnesses order, absent a showing of a

       clear abuse of discretion.”). “This is so even when the trial court is confronted

       with a clear violation of a separation order and chooses to allow the violating

       witness to testify at trial.” Joyner, 736 N.E.2d at 244.


[19]   “The primary purpose of a separation of witnesses order is to prevent witnesses

       from gaining knowledge from the testimony of other witnesses and adjusting

       their testimony accordingly.” Morell v. State, 933 N.E.2d 484, 489 (Ind. Ct.

       App. 2010). “Where there has been a violation of a separation order, the trial

       court, in the absence of connivance or collusion by the party calling the witness,

       may permit the witness to testify.” Id. (citing Heck v. State, 552 N.E.2d 446, 452

       (Ind. 1990)). “Even when confronted with a clear violation of a separation

       order, the trial court may choose to allow the violating witness to testify.” Id. at

       489-90 (citing Jordan v. State, 656 N.E.2d 816, 818 (Ind. 1995)).


[20]   “[T]he common law presumption is that it is an abuse of discretion to exclude

       witnesses for violations of a separation order when the party seeking to call the

       witness had no part in the violation of the order.” Jiosa v. State, 755 N.E.2d

       605, 608 (Ind. 2001). Instead, trial courts “may issue contempt citations and

       permit evidence of witnesses’ noncompliance to impeach their credibility.” Id.

       The trial court may exclude witnesses if the party is at fault or the testimony

       does not directly affect the party’s ability to present its case. Id.



       Court of Appeals of Indiana | Opinion 18A-CR-1532 | April 23, 2019        Page 9 of 15
[21]   The trial court found that there was a violation of the separation of witnesses

       order, and the parties do not seem to dispute this finding. The issue here,

       however, is whether the trial court’s resolution of the issue was proper. Spinks

       argues that the three witnesses should have been excluded, while the State

       argues that the trial court properly allowed them to testify and to be subject to

       cross-examination on the incident. The State contends that the violation was

       unintentional, the State was not at fault for the violation, and Spinks was

       allowed leeway on cross-examination to explore the violation.


[22]   Spinks argues that this case is distinguishable from Morell, 933 N.E.2d at 489-

       91, in which three of the State’s witnesses ate lunch together during the trial and

       one of the witnesses was apparently heard speaking on his cell phone regarding

       the case outside the courtroom. The trial court allowed the defendant to cross-

       examine the remaining witnesses regarding the alleged violation. On appeal,

       the defendant argued that the trial court should have questioned the witnesses

       under oath regarding the alleged violations. Our court concluded that the

       defendant had waived the argument by failing to object to the trial court’s

       procedure. Waiver notwithstanding, (1) the defendant did not point to any

       affirmative evidence that the witnesses discussed their testimony; (2) the jury

       was informed that the witnesses, who were friends, ate lunch together; and (3)

       the witnesses denied in front of the attorneys that they discussed the case. We

       found no reversible error in the trial court’s procedures.


[23]   According to Spinks, this case warrants a different outcome than Morell because

       “the jury was not in receipt of all the facts.” Appellant’s Br. p. 12. Spinks

       Court of Appeals of Indiana | Opinion 18A-CR-1532 | April 23, 2019       Page 10 of 15
       contends that the jury was not aware of the witnesses’ pretrial hearing

       testimony. Spinks seems to argue that she was prevented from discussing or

       cross-examining the witnesses based upon their pretrial hearing testimony. We

       do not find Spinks’ argument persuasive. It is unclear from Spinks’ argument

       how the witnesses’ pretrial hearing testimony was different from their trial

       testimony and how Spinks was prevented from discussing or cross-examining

       the witnesses regarding that earlier testimony. Spinks’ counsel did, in fact,

       cross-examine the three witnesses during the jury trial regarding the violation of

       the separation of witnesses order.


[24]   We agree that the trial court’s resolution to the violation was proper and within

       its discretion. Notably, Spinks’ counsel did not request any contempt findings,

       and there is no indication that the violation was intentional. Although the trial

       court had several options to resolve the issue, the trial court held a pretrial

       hearing, allowed the witnesses to testify at the trial, and allowed Spinks’

       counsel leeway during cross-examination of the witnesses during the trial. The

       jury was left to determine the witnesses’ credibility. The trial court did not

       abuse its discretion by allowing the three witnesses to testify at the trial.


                                                     II. Mistrial

[25]   Next, Spinks argues that the trial court should have granted her motions for a

       mistrial. “We review a trial court’s decision to deny a mistrial for abuse of

       discretion because the trial court is in ‘the best position to gauge the

       surrounding circumstances of an event and its impact on the jury.’” Pittman v.

       State, 885 N.E.2d 1246, 1255 (Ind. 2008) (quoting McManus v. State, 814 N.E.2d
       Court of Appeals of Indiana | Opinion 18A-CR-1532 | April 23, 2019         Page 11 of 15
       253, 260 (Ind. 2004), cert. denied, 546 U.S. 831, 126 S. Ct. 53 (2005)). “A

       mistrial is appropriate only when the questioned conduct is ‘so prejudicial and

       inflammatory that [the defendant] was placed in a position of grave peril to

       which he should not have been subjected.’” Pittman, 885 N.E.2d at 1255

       (quoting Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001)). The gravity of the

       peril is measured by the conduct’s probable persuasive effect on the jury. Id.

       “The remedy of mistrial is ‘extreme,’ strong medicine that should be prescribed

       only when ‘no other action can be expected to remedy the situation’ at the trial

       level.” Lucio v. State, 907 N.E.2d 1008, 1010-11 (Ind. 2009) (internal citations

       omitted).


[26]   Spinks argues that she was deprived of her right to a fair trial because the jury

       “was not apprised of all facts thereby allowing it to make an informed

       decision.” Appellant’s Br. p. 14. Again, it is unclear what facts the jury did not

       know. The jury heard the testimony by the three witnesses, including the cross-

       examination regarding the separation of witnesses order. Spinks’ argument on

       this point is not persuasive. See Ind. Appellate Rule 46(A)(8)(a) (requiring

       arguments to be supported by cogent reasoning).


[27]   In support of her argument, Spinks argues that Ray v. State, 838 N.E.2d 480

       (Ind. Ct. App. 2005), trans. denied, is distinguishable. In Ray, the defendant

       claimed that the prosecutor violated the separation of witnesses order and

       moved for a mistrial. The motion was based on the testimony of Dr. Amy

       Burrows, the forensic pathologist, who testified that she discussed bruising on

       the victim’s chest in the prosecutor’s office on the day of her testimony and

       Court of Appeals of Indiana | Opinion 18A-CR-1532 | April 23, 2019       Page 12 of 15
       learned that another medical witness had done a “sternum rub” on the victim.

       Ray, 838 N.E.2d at 486. The defendant claimed that the prosecutor violated the

       separation of witnesses order and moved for a mistrial. The trial court denied

       the defendant’s motion.


[28]   On appeal, the defendant argued that the “State gave Dr. Burrows ample time

       to prepare for defense counsel’s attempts to impeach her with regard to the

       bruise and foreclosed defense counsel’s opportunity to soften Dr. Burrows[’]

       resolve to the possibility that the ‘sternal rub’ created [the victim’s] bruise.” Id.

       at 488. We held:


               Even assuming that the State violated the order separating
               witnesses, we cannot say that the violation placed Ray in grave
               peril. Prejudice is presumed when a violation of a separation of
               witnesses order occurs, but the presumption can be overcome if
               the non movant can show that there was no prejudice. Stafford v.
               State, 736 N.E.2d 326, 331 (Ind. Ct. App. 2000) (relying on
               Hernandez v. State, 716 N.E.2d 948, 955 (Ind. 1999) (Boehm, J.,
               dissenting), reh’g denied), reh’g denied, trans. denied.


               Here, Ray’s counsel cross-examined Dr. Burrows. Further,
               Ray’s counsel questioned Dr. Burrows on how she learned that
               Blake had received a sternum rub. Thus, Ray was not placed in
               grave peril because the jury was informed of the conversation
               between Dr. Burrows and the prosecutor and was given adequate
               information to judge the credibility of Dr. Burrows. See, e.g.,
               Hightower v. State, 260 Ind. 481, 486, 296 N.E.2d 654, 657 (Ind.
               1973) (holding that a violation of a witness separation order did
               not warrant reversal because “[t]he jury was completely informed
               of the conversation between the witnesses . . . and was given
               adequate information by which it could judge the reliability and
               credibility of the revised testimony”), cert. denied, 415 U.S. 916,

       Court of Appeals of Indiana | Opinion 18A-CR-1532 | April 23, 2019         Page 13 of 15
               94 S. Ct. 1412, 39 L.Ed.2d 470 (1974). Moreover, the chest
               bruise was a relatively minor part of the evidence presented.


       Id. We also noted that the conviction was supported by “overwhelming

       evidence” and that “any violation of the separation of witnesses order was

       harmless.” Id.


[29]   According to Spinks, Ray is distinguishable because the jury in Ray “was

       apprised of all the facts, allowing it to make an informed decision.” Appellant’s

       Br. p. 14. As noted above, it is unclear what facts Spinks believes the jury did

       not have.


[30]   We conclude that Spinks has failed to demonstrate any prejudice from the

       violation of the separation of witnesses order. Spinks used the three witnesses’

       earlier testimony regarding the violations to cross-examine the witnesses and

       challenge their credibility. Moreover, the identity of the shooter was the main

       issue at trial, not the number of shots fired. Both Wilkins and Sambakey

       identified Spinks in photo arrays shortly after the shooting, and Wilkins

       identified Spinks as the shooter at the trial. Spinks has failed to demonstrate

       that she was placed in a position of grave peril or was prejudiced in any way by

       the violation of the separation of witnesses order. The trial court did not abuse

       its discretion by denying her motions for mistrial.




       Court of Appeals of Indiana | Opinion 18A-CR-1532 | April 23, 2019      Page 14 of 15
                                                   Conclusion
[31]   The trial court did not abuse its discretion by allowing the three witnesses to

       testify after they violated the separation of witnesses order, and the trial court

       did not abuse its discretion by denying Spinks’ motions for mistrial. We affirm.


[32]   Affirmed.


       May, J. and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1532 | April 23, 2019        Page 15 of 15
