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Woods v. State

Court of Appeals of Indiana

May 10, 2018

Jeri Latoya Woods, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal 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 Indianapolis, Indiana

          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 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, [1] and her two convictions of kidnapping, both Level 5 felonies.[2] 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- 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 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 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.

         [¶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 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.

         [¶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.

         [¶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 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.

         [¶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 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 and family, which the court accepted.[3]

         [¶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 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. 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.

         [¶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.

         [¶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 "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 ...

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