MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any
court except for the purpose of establishing                              May 02 2019, 9:00 am

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                                   ATTORNEYS FOR APPELLEE
Deborah B. Markisohn                                     Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
                                                         Tyler G. Banks
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kevin Ladell Robinson,                                   May 2, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1606
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Peggy R. Hart,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G05-1610-F3-39569



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1606 | May 2, 2019                           Page 1 of 8
                                          Case Summary
[1]   Kevin Ladell Robinson (“Robinson”) appeals his convictions of two counts of

      Criminal Confinement, as Level 3 felonies.1 He presents the sole issue of

      whether he was entitled to a mistrial on grounds that potential jurors saw him

      in circumstances suggesting he was in law enforcement custody, thereby

      undermining the presumption of innocence. We affirm.



                                   Facts and Procedural History
[2]   On October 4, 2016, friends Sarah Ferguson (“Ferguson”) and Cherith Hadnott

      (“Hadnott”) encountered Robinson at the Indianapolis home of Robinson’s

      brother. Robinson, Ferguson, and Hadnott decided to leave together to run

      errands, obtain food, and rent a hotel room. There was some discussion of

      Robinson and Hadnott planning to engage in sexual activity at the hotel room.


[3]   Robinson rented a hotel room and there the trio used some drugs that Robinson

      had supplied. They left several times for various errands and Robinson

      provided transportation to Hadnott for a pre-arranged sexual encounter. Upon

      return to the hotel room, Hadnott took a shower and dressed. Robinson then

      indicated that he wanted to have sex with Hadnott and insisted that he would




      1
          Ind. Code § 35-42-3-3.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1606 | May 2, 2019   Page 2 of 8
      not have paid for food and the hotel room without that expectation. Hadnott

      refused Robinson’s overtures and the interaction deteriorated.


[4]   Robinson called both women names, took possession of Hadnott’s cell phone,

      held a gun to her head, and “snatched” money from her hands. (Tr. Vol. II, pg.

      159.) Hadnott attempted to grab her shoes and run from the room, but

      Robinson caught her, slammed her onto one of the beds, and choked her until

      she became “dizzy and light-headed.” Id. at 161. Robinson released his grip on

      Hadnott, but their verbal argument continued for hours.


[5]   Robinson insisted that the women “had to make his money back and then he

      would let [them] go.” Id. at 110. Ferguson convinced Robinson to let her have

      Hadnott’s cell phone so that she could post an online advertisement for

      prostitution. Once she had control of the cell phone, Ferguson sent a text

      message to Tracy McDaniel (“McDaniel”), a social worker who had assisted

      Ferguson in the past. Ferguson provided McDaniel with the hotel location and

      room number and McDaniel contacted police. Detective Brian Durham of the

      Indianapolis Metropolitan Police Department (“Det. Durham”) participated in

      a plan to remove Ferguson and Hadnott safely. That is, he would pose as a

      prostitution customer and request a “two-girl special” so that both would leave

      the hotel room at once. Id. at 114.


[6]   Ferguson advised Robinson that she had obtained a customer for herself and

      Hadnott, and Robinson responded that he “wanted his money” and “was ready

      to go.” Id. at 115. Hadnott, unaware of the plan, refused to cooperate, and


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1606 | May 2, 2019   Page 3 of 8
      Robinson struck her. Eventually, all three left the hotel room for the ostensible

      purpose of meeting the customer. Robinson was immediately arrested.


[7]   The State charged Robinson with robbery, strangulation, and two counts of

      criminal confinement. His jury trial commenced on May 17, 2018. Following

      a discussion on preliminary matters, the trial court recessed the proceedings to

      conduct an initial hearing for an unrelated defendant. After that initial hearing,

      potential jurors were invited into the courtroom for voir dire. As the potential

      jurors were searching for seats, Deputy Christine Bowling (“Deputy Bowling”)

      opened a door and began to proceed into the courtroom with Robinson behind

      her. Seeing that the courtroom was occupied, the deputy “slowly backed up”

      and Robinson was “pulled back.” Id. at 50, 55.


[8]   From his seat inside the courtroom, defense counsel could see Robinson and

      understand that he had been ordered to back up. Explaining that he felt the first

      fourteen potential jurors shared that vantage point, defense counsel asked for

      the dismissal of the first panel. The trial court took the motion under

      advisement and instructed the attorneys, deputies, and bailiffs to use the door in

      question to avoid the impression that it was exclusively used to transport

      persons in custody. After the jury was impaneled and recessed for lunch, the

      trial court conducted a bench conference at which Robinson requested a

      mistrial. Deputy Bowling provided her recollection of the aborted courtroom

      entry, the State and Robinson presented arguments, and the trial court denied

      the motion for a mistrial. The trial culminated with the jury acquitting



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1606 | May 2, 2019   Page 4 of 8
       Robinson of robbery and strangulation but convicting him of two counts of

       criminal confinement.


[9]    On June 12, 2018, Robinson received two concurrent sentences of fourteen

       years imprisonment. He now appeals.



                                 Discussion and Decision
[10]   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

       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.”’ 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.


[11]   Robinson contends that the State inadvertently allowed the jurors to have an

       impression that he was in custody while awaiting trial, thereby undermining the

       presumption of his innocence. A defendant is entitled to a presumption of

       innocence and thus, “requiring a defendant to appear in jail garb has long been


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1606 | May 2, 2019   Page 5 of 8
       held to deny due process.” Stephenson v. State, 864 N.E.2d 1022, 1029 (Ind.

       2007). Also, the routine use of visible shackles during the guilt phase of trial is

       forbidden by the Fifth and Fourteenth Amendments to the United States

       Constitution. Deck v. Missouri, 544 U.S. 622, 629 (2005). But our Indiana

       Supreme Court found that the denial of a mistrial was not erroneous where

       three jurors had observed a handcuffed defendant being transported from the

       courtroom to the jail and the jurors had provided assurances that they would

       not be adversely affected by the viewing. Bailey v. State, 519 N.E.2d 1238, 1240

       (Ind. 1988). And in Misenheimer v. State, 374 N.E.2d 523 (Ind. 1978), the Court

       considered circumstances where an entire jury waiting in the hallway had

       inadvertently seen the defendant being taken through a barred door from a lock-

       up area. The Court concluded: “[s]uch an inadvertent incident is not so

       prejudicial as to require a mistrial.” Id. at 529.


[12]   Here, Deputy Bowling was placed under oath and was examined as follows:


               Defense Counsel: Deputy, you were given the job of bringing the
               defendant, Kevin Robinson, out to the courtroom this morning;
               is that correct?


               Deputy Bowling: Correct.


               Defense Counsel: Okay. And you didn’t realize the jury was
               coming in when you brought – when you started to bring Mr.
               Robinson into the courtroom, is that –


               Deputy Bowling: Correct.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1606 | May 2, 2019   Page 6 of 8
               Defense Counsel: So can you describe for the Court, in your
               own words, what happened when you opened that door into the
               courtroom?


               Deputy Bowling: Okay. He was standing behind me, I was
               going to come in, give him his belt, which was on that file
               [cabinet] over there, and once I initially opened the door and I
               saw the jurors filing in, I said oh no, and I just slowly backed up.
               Mr. – he was behind me the whole time. … I told Mr. Robinson
               to stand against the wall. I reopened the door just a little bit and
               I snuck my hand around and grabbed the belt[.]


       (Tr. Vol. II, pgs. 54-55.) Other testimony established that Robinson was in

       street clothing and not wearing handcuffs. He was not standing in the holding

       area and the holding area door was closed. At the time, it appeared to Deputy

       Bowling that the potential jurors were searching for their seats.


[13]   The trial court articulated the circumstances surrounding the event as follows:


               The Court has found that for whatever reason the defendant was
               escorted out of this courtroom, the jurors were brought in, and
               when the deputy was trying to bring him back, she had observed
               that and shut the door. But I think that we all agree the evidence
               is clear and the Court is a witness to this as – myself is that the
               defendant is in street clothes, nice street clothes. He’s – was
               never in a jumpsuit. Also, I think from the evidence we’ve heard
               that the --- the holding cell happens to be behind – located behind
               that door. However, it was closed. So the defendant was just
               standing on the blue carpeting and I think that there was ample
               evidence and – the proffers here made today that the carpeting
               [sic] hallway, if you will, is pretty much accessible to everybody
               who kind of works in this criminal justice system.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1606 | May 2, 2019    Page 7 of 8
       Id. at 64-65. Whether any of the jurors were aware of the event was not

       established. At most, the record reveals that jurors may have been

       inadvertently exposed to a brief view of Robinson in circumstances suggesting

       that he was in custody. The trial court did not abuse its discretion in finding the

       event not to be sufficiently prejudicial to require a mistrial.



                                               Conclusion
[14]   Robinson has not demonstrated his entitlement to a mistrial.


[15]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1606 | May 2, 2019   Page 8 of 8
