Walker v. State

171 N.E.3d 1043 (Table)

Iven D. WALKER, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 20A-CR-2197

Court of Appeals of Indiana.

FILED June 3, 2021

Attorney for Appellant: Ronald K. Smith, Muncie, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Tyler Banks, Supervising Deputy Attorney General, Indianapolis, Indiana

MEMORANDUM DECISION

May, Judge.

[1] Iven D. Walker appeals following his conviction of Level 5 felony domestic battery.¹ Walker presents four issues for review, which we revise and restate as:

I. Whether the trial court erred in allowing the State to exercise a peremptory challenge excluding an African American venireperson;

II. Whether the trial court erred in allowing the State to present evidence of Walker's prior convictions of domestic battery against the victim;

III. Whether the trial court erred in instructing the jury regarding the admissibility of Walker's prior convictions; and

IV. Whether Walker's sentence is inappropriate given the nature of his offense and his character.

We affirm.

Facts and Procedural History

[2] At approximately 6:00 p.m. on February 19, 2020, Walker and D.R. were at a bus stop at the intersection of Memorial Drive and Madison Street in Muncie, Indiana. Walker and D.R. had been dating for approximately two years. Walker asked D.R. for a cigarette, and D.R. offered him a rolled cigarette. Walker became upset because he wanted a "real" cigarette. (Tr. Vol. II at 44.) Walker then started reaching into D.R.’s pockets and a struggle ensued. David Sheveily, a retired reserve police officer, was sitting in his vehicle at the intersection waiting for the traffic light to turn, when he observed Walker push D.R. to the ground. Walker started to punch D.R. in the face and stomp on her. D.R. raised her arms to protect herself, and she ripped her coat trying to get away from Walker.

[3] Once the light turned green, Sheveily pulled into a nearby Walgreens parking lot. Sheveily yelled at Walker to stop hitting D.R., but Walker did not stop punching D.R. until Sheveily walked near them and threatened to intervene. Sheveily then called 911, and he observed Walker and D.R. walk across the street into a CVS. Officer Gage Winters and Officer Lauren Skiner from the Muncie Police Department responded to the 911 call. Officer Skiner spoke with Sheveily and D.R., and Officer Winters spoke with Walker. The officers then arrested Walker and transported him to jail.

[4] On February 26, 2020, the State charged Walker with Class A misdemeanor domestic battery² and Class B misdemeanor battery.³ The State also filed a notice of intent to seek an enhanced penalty as to each charge based upon a prior conviction.⁴ While Walker was in jail awaiting trial, he participated in video visits with D.R. During the visits, Walker told D.R. that he needed her "to help him[.]" (Id. at 47.) Walker asked D.R. to contact the prosecutor's office and recant her statement, but D.R. refused. He also asked D.R. if she planned to appear at his trial and said he "wasn't worried about it" after D.R. told him she would not appear. (Id. at 117.)

[5] Prior to trial, the State filed notice of intent to introduce evidence pursuant to Indiana Rule of Evidence 404(b) regarding three previous domestic violence incidents between Walker and D.R. The first incident occurred on September 21, 2018, and although Walker was arrested and charged with Level 6 felony attempted strangulation⁵ and Level 6 felony domestic battery following the incident, those charges were later dismissed. The second incident occurred on January 14, 2019. Walker was arrested and convicted of Level 6 felony domestic battery after the incident. The third incident occurred on November 12, 2019, and resulted in another Level 6 felony domestic battery conviction for Walker. The State explained that it intended to introduce the Rule 404(b) evidence in the instant case to establish "the relationship between the parties, specifically the hostility and conflict of said relationship." (App. Vol. II at 59.) Walker filed a memorandum in opposition to the State's motion and argued that the evidence of prior domestic violence incidents was inadmissible. After a hearing, the trial court ruled that evidence relating to the domestic violence incident that did not result in a criminal conviction was inadmissible, but evidence regarding the two incidents that resulted in convictions was admissible.

[6] The trial court conducted a jury trial on October 19 and 20, 2020. During voir dire, Walker raised a Batson⁶ objection to the State's use of a peremptory challenge to excuse Juror 15, who was an African American woman. The State then explained:

Our office receptionist knows the family. Her [sic] daughters play together on volleyball ... based on her personal relationships with her, that [Juror 15] can be difficult to get along with in group settings. She is oftentimes somebody who is very opinionated and doesn't get along well with others, and the State doesn't believe based on that information from our office receptionist that she would make—be a good fit for the jury in this kind of requirement where you need to work cooperatively with others and people of very strong opinions and strong personalities would not be good. That's the basis for the State striking her.

(Tr. Vol. II at 20.) The court then allowed the parties to further question Juror 15. Juror 15 confirmed that she knew the receptionist in the prosecutor's office because the receptionist coached Juror 15's daughter's volleyball team. Juror 15 also acknowledged there sometimes was tension among the parents of the volleyball players. The trial court ruled:

The prosecution has offered a race-neutral basis for striking the juror in question, that being that the prosecution believes that through these volleyball interactions that she is going to be a person who might cause confrontation and might be difficult to deal with in the jury room. That doesn't have anything to do with her race. In fact, I didn't know my [sic] myself either that she was black. I couldn't recognize that with her mask on.

So I don't think that the defendant has shown purposeful discrimination here. I would note the language in [an unidentified Court of Appeals opinion discussing court procedure following a Batson objection] also indicates that the procedure places great responsibility in the hands of the Trial Judge, who is in the best position to determine whether a preemptory challenge is based on an impermissible factor. This is a difficult determination because of the nature of peremptory challenges, that they are often based on subtle impressions and intangible factors, so I do find that the State has based this preemptory challenge on several impressions and unchangeable factors, and not on an impermissible factor of race.

So I will allow the State to exercise a preemptory challenge as to [Juror 15].

(Id. at 24-25.)

[7] After voir dire, the trial court read the jury a series of preliminary instructions, including Preliminary Instruction 10:

You will hear evidence in this case that the Defendant was previously convicted of domestic battery offenses committed against [D.R.]. The State is seeking to use this evidence only for one purpose: to show motive, more specifically, that the Defendant had hostility toward [D.R.], and this hostility may be the motive for the charged act of domestic violence.

You are to use this evidence only for this purpose and not for any other purpose or reason.

(App. Vol. II at 122.) During trial, Walker renewed his objections to the State's presentation of Rule 404(b) evidence, and the trial court overruled Walker's objections. Before the State presented the Rule 404(b) evidence, the trial court reminded the jury about Preliminary Instruction 10. Officer Mariah Copeland of the Muncie Police Department testified that on January 14, 2019, she responded to a domestic violence call and arrested Walker for committing a battery against D.R. Sergeant Kristofer Swanson of the Muncie Police Department similarly testified that he responded to a domestic violence call on November 12, 2019, and he arrested Walker for committing a battery against D.R. Walker then testified that he pled guilty to charges of domestic battery following both arrests. The jury returned a verdict of guilty on all counts, and the trial court entered judgment of conviction on only the Level 5 felony domestic battery charge to avoid any double jeopardy violation.

[8] The trial court held a sentencing hearing on November 23, 2020, and sentenced Walker to a term of six years in the Indiana Department of Correction. The trial court found several aggravating factors, including: (1) Walker's lengthy criminal history; (2) Walker's two previous domestic battery convictions against the same victim; (3) Walker's attempt to get the victim to recant; (4) Walker being in a position of trust with the victim; and (5) Walker being on supervised probation at the time of the instant offense. The trial court also identified one mitigating factor, Walker's history of alcohol abuse, but the court assigned that factor little or no mitigating weight.

Discussion and Decision

I. Batson Challenge

[9] In Batson v. Kentucky , the Supreme Court of the United States held "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." 476 U.S. 79, 89, 106 S. Ct. 1712, 1719 (1986). In Powers v. Ohio , the Supreme Court extended Batson by holding "a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same races." 499 U.S. 400, 402, 111 S. Ct. 1365, 1365 (1991). Justice Anthony Kennedy explained that a prosecutor's use of racially discriminatory...