Darrell Cortez Williams Wright v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
court except for the purpose of establishing Jan 15 2020, 9:03 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Leeman Law Office and Cass County Attorney General of Indiana
Public Defender
Logansport, Indiana J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darrell Cortez Williams Wright, January 15, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1646
v. Appeal from the Cass Superior
Court
State of Indiana, The Honorable Richard A.
Appellee-Plaintiff. Maughmer, Judge
Trial Court Cause No.
09D02-1803-F2-5
Bradford, Chief Judge.
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Case Summary
[1] In May of 2019, Darrell Cortez Williams Wright was tried by jury on six felony
charges. During voir dire, the State used a peremptory strike on the only African-
American individual in the venire. Wright raised a Batson challenge, which was
overruled by the trial court. At the conclusion of the trial, Wright was found
guilty as charged. In June of 2018, the trial court sentenced Wright to an
aggregate sentence of thirty-seven years. Wright contends that the trial court
erroneously overruled his Batson challenge. Wright also contends that the
aggregate thirty-five-year sentence for two of his felony convictions, which were
ordered to be served consecutively, should have been capped at thirty-two
years. Because we agree only with Wright’s challenge to his sentence, we affirm
in part, reverse in part, and remand with instructions consistent with this
memorandum decision.
Facts and Procedural History
[2] On March 5, 2018, the State charged Wright with Level 2 felony narcotic drug
dealing, Level 3 felony narcotic drug possession, Level 3 felony cocaine
dealing, Level 5 felony cocaine possession, Level 6 felony resisting law
enforcement, Level 6 felony obstruction of justice, and Level 6 felony
maintaining a common nuisance. On May 14, 2019, the State dismissed the
maintaining-a-common-nuisance charge. A jury trial was held on May 15 and
16, 2019. Voir dire was conducted, during which both the State and Wright had
the opportunity to question the members of the venire. The trial court’s voir dire
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procedure was to place twenty-one individuals in the jury box for each round of
questioning until there were ultimately thirteen jurors selected. The individuals
were placed in the jury box in sequential order based on a number assigned to
them. After the last round of questioning, the State used a peremptory strike on
Mr. Sullivan, the only African-American individual then in the jury box,
causing Wright to make a Batson challenge. The State responded with race-
neutral reasons for the strike by stating that Sullivan worked nights and
appeared tired and slumped over, spoke softly, and was unable to remember his
past jury service, all of which led the State to believe that Sullivan would not
adequately participate as a juror. The trial court overruled Wright’s Batson
challenge, concluding that it was moot. In concluding such, the trial court
noted that Sullivan was potential juror number forty-six, and all thirteen jurors
had been selected from the first forty-one potential jurors. The trial court also
noted that Blickenstaff, Baker, and Moss, who were also excused from the jury
box because the thirteen jurors had already been selected, were sequentially
before Sullivan. At the conclusion of the trial, Wright was found guilty as
charged.
[3] On June 18, 2019, the trial court merged the dealing and possession convictions
and sentenced Wright to twenty-six years for Count I–Level 2 felony narcotic
drug dealing, nine years for Count III–Level 3 felony cocaine dealing, two years
for Count V–Level 6 felony resisting law enforcement, and two years for Count
VI–Level 6 felony obstruction of justice. The trial court order all Counts to be
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served consecutively, except for Counts V and VI, which were ordered to be
served concurrently.
Discussion and Decision
[4] Wright contends that the trial court erred by concluding that his Batson
challenge was moot. Wright also contends that the aggregate sentence for his
two dealing convictions should have been capped at thirty-two years.
I. Batson Challenge
[5] Wright contends that the trial court erroneously overruled his Batson challenge
by concluding that it was moot rather than ruling on the merits. “Purposeful
racial discrimination in selection of the venire violates a defendant’s right to
equal protection because it denies him the protection that a trial by jury is
intended to secure.” Batson v. Kentucky, 476 U.S. 79, 86 (1986). “The exclusion
of even a sole prospective juror based on race, ethnicity, or gender violates the
Fourteenth Amendment’s Equal Protection Clause.” Richardson v. State, 122
N.E.3d 923, 927 (Ind. Ct. App. 2019) (citation omitted), trans. denied. “A
defendant’s race-based Batson claim involves a three-step process.” Id. The first
step requires the party objecting to the peremptory challenge to establish a
prima facie case of discrimination. Ashabraner v. Bower, 753 N.E.2d 662, 664
(Ind. 2001). To do so, the objecting party must show that “(1) the juror is a
member of a cognizable racial group; (2) [the challenging party] has exercised
peremptory challenge to remove that group’s members from the jury; and (3)
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the facts and circumstances of this case raise an inference that the exclusion was
based on race.” Id. (brackets in the original).
[6] Here, we conclude that the trial court correctly concluded that Wright’s Batson
challenge was moot. “Mootness arises when the primary issue within the case
has been ended or settled, or in some manner disposed of, so as to render it
unnecessary to decide the question involved.” C.J. v. State, 74 N.E.3d 572, 576
(Ind. Ct. App. 2017) (internal quotations omitted), trans. denied. Because the
jury had already been formed by thirteen individuals, the State’s peremptory
strike of Sullivan and Wright’s subsequent Batson challenge were unnecessary
and moot. Due to Sullivan being potential juror number forty-six and the fact
that the jury was selected from the first forty-one potential jurors, Sullivan was
never going to be a member of the jury.
[7] We acknowledge that the trial court’s voir dire procedure is problematic, in that
it significantly effects counsels’ strategy for using peremptory strikes. Counsel
should not have to make strikes prematurely or spend strikes on pure
speculation. Moreover, by seating twenty-one individuals in the jury box when
only thirteen jurors are needed, a situation can arise where an individual in the
jury box will be questioned and peremptorily struck by a party even though it
turns out that the individual had no chance of being selected as a member of the
jury. That is exactly what happened in this matter. Sullivan was one of the
twenty-one individuals seated in the jury box, who were questioned by the
parties, the State peremptorily struck Sullivan, and Wright raised a Batson
challenge; however, all of this in regards to Sullivan was unnecessary because
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the thirteen-person jury had been selected from the first forty-one individuals
that came before Sullivan. Put another way, the State’s strike of Sullivan did not
have the effect of excluding him from the jury, just as a strike would not have
effected Blickenstaff, Baker, and Moss, who were also in the jury box with
Sullivan, or the potential jurors who sat in the gallery waiting to potentially be
seated in the jury box, all of whom were excused once a jury was formed from
the first forty-one potential jurors. Thus, once the jury had been formed from
the first forty-one potential jurors, the State’s peremptory challenge and
Wright’s Batson challenge were rendered moot.
II. Sentence
[8] Wright also contends and the State agrees that the aggregate sentence for
Wright’s two dealing convictions should have been capped at thirty-two years.
Wright was convicted of Level 2 felony narcotic drug dealing and Level 3
felony cocaine dealing, which when ordered to be served consecutively
amounted to an aggregate sentence of thirty-five years. Indiana Code subsection
35-50-1-2(d)(5) provides that
(d) Except as provided in subsection (c), the total consecutive
terms of imprisonment to which the defendant is sentenced for
felony convictions arising out of an episode of criminal conduct
may not exceed the following:
(5) If the most serious crime for which the defendant is
sentenced is a Level 2 felony, the total of the consecutive
terms of imprisonment may not exceed thirty-two (32)
years.
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We agree with both parties that Wright’s two dealing convictions arose out of
an episode of criminal conduct and therefore conclude that the aggregate of the
two consecutive sentences must be capped at thirty-two years. We remand this
matter to the trial court with instructions for it to cap Wright’s aggregate
sentence for his dealing convictions to thirty-two years, for a total aggregate
sentence of thirty-four years.
[9] The judgment of the trial court is affirmed in part, reversed in part, and
remanded with instructions.
Robb, J., and Altice, J., concur.
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