MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                May 02 2019, 8:47 am

court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Assistant Section Chief
                                                         Criminal Appeals
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Walker L. Whatley, II,                                   May 2, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2182
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia A. Gooden,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Richard E.
                                                         Hagenmaier, Commissioner
                                                         Trial Court Cause No.
                                                         49G21-1804-F5-12499



Bailey, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-2182 | May 2, 2019                       Page 1 of 9
                                          Case Summary
[1]   Walker L. Whatley, II (“Whatley”) appeals his conviction for Possession of

      Cocaine, as a Level 6 felony.1 We affirm.



                                                   Issues
[2]   Whatley presents two issues for review:


                 I.       Whether he was entitled to a mistrial because of
                          purposeful discrimination in the jury selection; and


                 II.      Whether he was entitled to a mistrial because the State
                          argued new contentions in rebuttal, but Whatley was
                          denied the opportunity to present surrebuttal argument.


                                Facts and Procedural History
[3]   On April 14, 2018, a woman who identified herself as Lashona Ealy called 9-1-

      1 and reported that Whatley had shot at her before boarding an Indianapolis

      IndyGo bus at 42nd Street and Post Road. Indianapolis Metropolitan Police

      Department officers detained the bus on which Whatley had been a passenger.

      Whatley exited quickly, but officers grabbed and handcuffed him. Officers saw

      him attempting to crush a baggie into the ground with his shoe. Officers seized

      the baggie; subsequent testing revealed that it contained .0064 grams of cocaine.




      1
          Ind. Code § 35-48-4-6(a).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2182 | May 2, 2019   Page 2 of 9
      Bus passengers called out that Whatley had left something behind, and the

      officers recovered two handguns from the bus.


[4]   The State charged Whatley with Carrying a Handgun Without a License 2 and

      Possession of Cocaine, each as a Level 5 felony. Whatley was tried before a

      jury on July 26, 2018. As to the handgun charge, Whatley testified and

      presented a defense of necessity, claiming that one or more persons at the

      residence from which he fled had struck him and attempted to rob him. He

      presented evidence of having a black eye when he was arrested. Whatley

      denied that the cocaine was his. He was acquitted of the handgun offense and

      found guilty of Possession of Cocaine, as a Level 6 felony, a lesser-included

      offense of the charged offense. On August 15, 2018, Whatley was sentenced to

      time served, 240 days. He now appeals.



                                Discussion and Decision
                                Mistrial Standard of Review
[5]   A mistrial is an extreme remedy appropriate only when other remedial

      measures are insufficient to rectify the situation. Mickens v. State, 742 N.E.2d

      927, 929 (Ind. 2001). A trial judge has discretion in determining whether to

      grant a mistrial and his or her decision is afforded great deference because the

      trial judge ‘“is in the best position to gauge the surrounding circumstances of an




      2
          I.C. § 35-47-2-1.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2182 | May 2, 2019   Page 3 of 9
      event and its impact on the jury.”’ Id. (quoting Gregory v. State, 540 N.E.2d 585,

      589 (Ind. 1989)). To prevail on appeal from the denial of a motion for mistrial,

      an appellant must establish that the questioned conduct ‘“was so prejudicial

      and inflammatory that he was placed in a position of grave peril to which he

      should not have been subjected.”’ Id. The gravity of the peril is determined by

      consideration of the misconduct’s probable persuasive effect on the jury’s

      decision, rather than the impropriety of the conduct. Id.


                                           Batson Violation
[6]   During voir dire, Whatley’s counsel objected to the State’s use of peremptory

      challenges to exclude some potential jurors who were, like Whatley, African-

      American, and Whatley claimed that the State had selectively questioned a

      potential juror about medical issues and child care. The trial court stated that

      race-neutral reasons had been provided and overruled any objection “at this

      time.” (Tr. Vol. II, pg. 49.) The jury was impaneled, consisting of three

      African-American jurors, nine others, and one African-American alternate

      juror. The jury was then excused, and the trial court heard argument of counsel

      regarding compliance with Batson v. Kentucky, 476 U.S. 79 (1986). Whatley’s

      motion for a mistrial was denied.


[7]   The use of a peremptory challenge to strike a potential juror solely based on his

      or her race violates the Equal Protection Clause of the Fourteenth Amendment

      to the United States. Jeter v. State, 888 N.E.2d 1257, 1262 (Ind. 2008) (citing




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2182 | May 2, 2019   Page 4 of 9
      Batson, 476 U.S. at 79)). Batson adopted a procedure to be implemented for

      claims of discrimination in the exercise of peremptory challenges:


              First, the party contesting the peremptory challenge must make a
              prima facie showing of discrimination on the basis of race.
              Second, after the contesting party makes a prima facie showing
              of discrimination, the burden shifts to the party exercising its
              peremptory challenge to present a race-neutral explanation for
              using the challenge. Third, if a race-neutral explanation is
              proffered, the trial court must then decide whether the challenger
              has carried its burden of proving purposeful discrimination.


      Killebrew v. State, 925 N.E.2d 399, 401 (Ind. Ct. App. 2010) (citation omitted),

      trans. denied. The trial court’s decision regarding whether a peremptory

      challenge was discriminatory is given great deference on appeal and will be set

      aside only for clear error. Id.


[8]   The trial court summarized the selection process as follows:


              [On the first round,] the State did strike five jurors. … And those
              five people are all black. They did not strike nor did the Defense
              strike Prospective Juror [12], who is black. … On the second
              round the State struck three people. One of which was black[.]
              … And then in round 3, the State had no strikes. The Defendant
              struck the third white Prospective Juror with the white juror,
              number 3. So Prospective Juror [X] who is black is the alternate
              juror.


      (Tr. Vol. II, pg. 79.)


[9]   “Standing alone the removal of some African-American jurors by peremptory

      challenge does not raise an inference of discrimination.” Hardister v. State, 849

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2182 | May 2, 2019   Page 5 of 9
       N.E.2d 563, 576 (Ind. 2006).3 Even so, the trial court proceeded as if Whatley

       had made a prima facie showing of discrimination and considered the State’s

       explanations for the use of peremptory challenges. That is, some potential

       jurors appeared to the prosecutor to be reluctant to engage in voir dire – staring

       blankly when questioned, providing a one-word response, or remaining quiet.

       One potential juror had attended Church with Whatley. Two had served on

       juries where the trials culminated with not guilty verdicts.


[10]   As for alleged disparate questioning, the prosecutor explained that one African-

       American had been questioned as to whether he could serve despite a medical

       condition and child care responsibility because:


                on his questionnaire that was listed as a specific reason he
                thought he might not be able to serve was picking up children,
                and seizures which is different than the other medical issues
                listed by potential jurors today. And if someone’s going to have
                some reason to struggle with seizures today in the jury, I want to
                know about that ahead of time. That’s why I specifically [asked]
                about his medical condition and he put them together as issues
                for not be[ing] able to serve. After answering them, I was pleased
                with the answers I guess you could say and we did not move to
                strike that jury pole member.


       (Tr. Vol. II, pg. 81.)




       3
        There, the State had used five of its six peremptory strikes to strike African-American prospective jurors.
       However, the State did not strike two African-Americans, one of whom was struck by the defendant.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2182 | May 2, 2019                         Page 6 of 9
[11]   The trial court concluded:


               Third stage, we’ve gone through the first two stages where I did
               ask for a race neutral [reason]. Third stage is in light of the
               parties’ submissions; the Court must determine whether
               Defendant has shown purposeful discrimination. I find that the
               Defendant has not made that burden. There are four black jurors
               on the jury as a whole[.] … I do not see anything in this case to
               rise to the level of a showing that his constitutional rights have
               been violated at this point.


       Id. at 83. Whatley has not shown clear error in this determination. Nor has he

       shown that he was placed in a position of grave peril, such that a mistrial

       should have been granted.


                                                Surrebuttal
[12]   Indiana Code Section 35-37-2-2(4) provides in part:


               If the case is not submitted without argument, the prosecuting
               attorney shall have the opening and closing of the argument.
               However, the prosecuting attorney shall disclose in the opening
               all the points relied on in the case, and if in the closing he refers
               to any new point or fact not disclosed in the opening, the
               defendant or his counsel may reply to that point or fact, and that
               reply shall close the argument of the case.


       Similarly, Indiana Jury Rule 27 provides that the party which opens the

       argument must disclose in the opening all the points relied on in the case and if,

       in closing, the party which closes refers to a new point or fact not disclosed in

       the opening, the adverse party has the right to reply to the new point or fact.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2182 | May 2, 2019     Page 7 of 9
[13]   After the State concluded its arguments, Whatley claimed that the prosecutor –

       by presenting a brief opening statement but making new points in rebuttal

       argument – had “sandbagged” the defense and Whatley should be afforded a

       response in surrebuttal. (Tr. Vol. II, pg. 243.) According to Whatley, the State

       improperly referred to Whatley’s flight as consciousness of guilt, newly

       elaborated upon the facial bruising and 9-1-1 call, and should not have claimed

       that Whatley “only did the right thing [laying down the gun] when the cops

       showed up.” (Tr. Vol. II, pg. 243.)


[14]   Where, as here, surrebuttal is not requested until after the State concludes its

       closing rebuttal argument, the claim is waived. Jones v. State, 825 N.E.2d 926,

       932 (Ind. Ct. App. 2005), trans. denied. Waiver notwithstanding, we find no

       reversible error. The State claims that it was merely responding to points raised

       by Whatley in his closing. Such is permissible in rebuttal argument. See id. at

       933. Nonetheless, Whatley had freely admitted that he fled onto a city bus and

       the other challenged references concern the handgun charge of which Whatley

       was acquitted. Indiana Appellate Rule 66(A) provides that an error is not

       grounds for reversal where its probable impact “is sufficiently minor so as not to

       affect the substantial rights of the parties.” Whatley did not demonstrate his

       entitlement to a mistrial on this basis.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2182 | May 2, 2019   Page 8 of 9
                                               Conclusion
[15]   Whatley has not persuaded us that either purposeful discrimination in jury

       selection or the denial of surrebuttal placed him in grave peril such that a

       mistrial was warranted.


[16]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2182 | May 2, 2019   Page 9 of 9
