from the Lake Superior Court. The Honorable Diane Ross
Boswell, Judge. Trial Court Cause No.45G03-1509-MR-10
Attorneys for Appellant Sean C. Mullins Mark A. Bates Lake
County Public Defender's Office Crown Point, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Laura R. Anderson Deputy Attorney General
Sharpnack, Senior Judge
of the Case
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 shot both young men in the head and
abandoned their bodies, which were discovered weeks later.
Woods appeals her two convictions of murder, both felonies,
her two convictions of kidnapping, both Level 5
felonies. We affirm.
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.
and Procedural History
The older victim, Aareon Lackey, had associated with Aarion
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- siblings). Dooney's friend, Kiontay
Cason, lived with Arey's family during the period
relevant to this case.
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.
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.
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
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 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.
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.
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
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 the mother f**kers like how they
did my son." Tr. Vol. 13, p. 31. She was referring to
Hill as her son.
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
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
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.
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.
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.
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
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.
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 if Aareon had
mentioned he broke into Woods' house. Arey admitted
Aareon had made such a statement.
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
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.
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.
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.
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.
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.
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.
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.
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
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 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).
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.
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.
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).
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
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 failed to object), and
Robles v. State, 705 N.E.2d 183, 187 (Ind.Ct.App.
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.
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 and family,
which the court accepted.
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 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
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.
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. 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.
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.
Alleged Bias and Fundamental Error
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.
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).
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.
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.
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.
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 "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 ...