                                                                                     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


      Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018                            Page 1 of 33
      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).


      Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018        Page 2 of 33
      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

      Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018   Page 3 of 33
       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




       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018   Page 4 of 33
       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.




       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018   Page 5 of 33
[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

       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018   Page 6 of 33
       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.


       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018   Page 7 of 33
[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.



       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018   Page 8 of 33
[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
       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018     Page 9 of 33
               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.




       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018   Page 10 of 33
[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

       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018    Page 11 of 33
       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.


       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018                           Page 12 of 33
       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.

       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018   Page 13 of 33
       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.


       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018   Page 14 of 33
[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.


       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018    Page 15 of 33
[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



       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018   Page 16 of 33
       “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:

       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018             Page 17 of 33
               [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

       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018       Page 18 of 33
       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 –

       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018         Page 19 of 33
               [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


       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018             Page 20 of 33
       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.

       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018            Page 21 of 33
               [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?

       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018        Page 22 of 33
        [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.

Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018         Page 23 of 33
               [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

       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018          Page 24 of 33
       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?



       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018   Page 25 of 33
        [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.

Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018         Page 26 of 33
               [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

       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018         Page 27 of 33
       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


       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018   Page 28 of 33
       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

       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018    Page 29 of 33
       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.


       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018   Page 30 of 33
[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



       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018   Page 31 of 33
               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).

       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018    Page 32 of 33
                                                 Conclusion
[70]   For the reasons stated above, we affirm the judgment of the trial court.


[71]   Affirmed.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 45A05-1707-CR-1744 | May 10, 2018   Page 33 of 33
