Laketra Spinks v. State of Indiana , 122 N.E.3d 950 ( 2019 )

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.
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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.
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[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
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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.
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[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:
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(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
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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.
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[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
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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
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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
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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,
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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.
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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.
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