Spinks v. State

122 N.E.3d 950

Laketra SPINKS, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 18A-CR-1532

Court of Appeals of Indiana.

FILED April 23, 2019

Attorneys for Appellant: Valerie Kent Boots, Marion County Public Defender, Indianapolis, Indiana, Frederick Vaiana, Voyles Vaiana, Lukemeyer Baldwin & Webb, Indianapolis, Indiana

Attorneys for Appellee: F. Aaron Negangard, Chief Deputy Attorney General, Stephen R. Creason, Deputy Attorney General, Samuel J. Dayton, Deputy Attorney General, Indianapolis, Indiana

Tavitas, Judge.

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 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.

[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 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 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.

[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:

(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 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 ...