Dye v. State

• Decision Date: 10 November 2011
• Docket Number: No. 20A04–1011–CR–728.,20A04–1011–CR–728.
• Citation: 956 N.E.2d 1165
• Parties: Anthony H. DYE, Appellant–Defendant,v.STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

956 N.E.2d 1165

Anthony H. DYE, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 20A04–1011–CR–728.

Court of Appeals of Indiana.

Nov. 10, 2011.

Kenneth R. Martin, Goshen, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BRADFORD, Judge.

Appellant–Defendant Anthony Dye appeals following his guilty plea to Class B felony Unlawful Possession of a Firearm by a Serious Violent Felon ¹ (“SVF”) and a jury's finding that he is a Habitual Offender,² by virtue of which his twenty-year SVF sentence was enhanced by thirty years. Dye raises the following four issues, which we restate and reorder as follows:

I. Whether the trial court erred in denying Dye's motion to dismiss the habitual offender charge;

II. Whether the trial court erred in denying Dye's Batson challenge that the State impermissibly used peremptory challenges to exclude members of an identifiable racial group from the jury;

III. Whether the trial court erred in denying Dye's mistrial motion; and

IV. Whether Dye's sentence is inappropriately harsh.

We affirm.

FACTS AND PROCEDURAL HISTORY

On March 18, 2007, Dye knowingly possessed a firearm having previously been convicted, on September 10, 1998, of attempted battery with a deadly weapon. On May 1, 2007, the State charged Dye with SVF and with being a habitual offender. On September 2, 2009, the State amended the habitual offender charge, which was based on an April 8, 1993, conviction for forgery and a September 10, 1998, conviction for possession of a handgun within 1000 feet of a school. The attempted battery and possession of a handgun within 1000 feet of a school charges were filed in cause number 20C01–9703–CF–18 (“Cause 18”) and apparently arose out of the same incident, and Dye pled guilty to them on the same date. In exchange for his guilty pleas, the State dismissed a Class A felony attempted murder charge, also filed in Cause 18 and apparently arising out of the same incident.

On July 6, 2010, Dye pled guilty to the SVF charge and moved to dismiss the habitual offender charge on the basis that use of the attempted battery conviction to support the SVF charge and use of the possession of a handgun within 1000 feet of a school conviction to support the habitual offender charge constituted an impermissible double enhancement because the convictions arose out of the same res gestae.³ On July 21, 2010, the trial court denied Dye's motion to dismiss and set the matter for jury trial.

On October 6, 2010, during voir dire, the State peremptorily struck potential juror Campbell, which prompted a Batson challenge from Dye, who claimed that Campbell had been struck due to her race. The prosecutor responded that he had struck Campbell because her husband had been convicted of a crime and that she might be unduly sympathetic to Dye. The trial court found the State's reason for striking Campbell to be race-neutral and denied Dye's Batson challenge.

During trial, Elkhart Police Detective Joel Borden testified regarding Dye's 1993 conviction for forgery. During Detective Borden's testimony, the following exchanges took place:

Q. What was the involvement between [accomplice] Deny Gadson and Anthony Dye?

A. Basically, the two of them—Mr. Dye forged—excuse me—stole some checks from his brother, forged his brother's name, and then the majority of those he and Mr. Gadson would go to cash.

* * *

Q. ... Did you have the opportunity to the discuss this case with Mr. Dye?

A. Yes, I did.

...

Q. And what did he tell you regarding his involvement?

A. He confessed to his involvement with this incident, both getting the checks, stealing them from his brother, I believe it was Maurice Dye. And that he filled out on the majority of these, as I recall, he had filled out the front of the checks, signed his brother's name, and then made them payable to Mr. Gadson, and then they would go and cash these.

Tr. pp. 426, 428. Dye made no contemporaneous objection to this testimony.

Later, State's Exhibit 2 was used to prove Dye's second prior felony, possession of a handgun within 1000 feet of a school in Cause 18. Dye and the State had previously agreed that Exhibit 2 would be redacted to remove all reference to the attempted murder charge in Cause 18. The exhibit as initially admitted, however, contained a copy of the plea agreement from Cause 18 that was improperly redacted such that it still indicated that Dye had been charged with attempted murder at one point. Dye moved for a mistrial, which motion the trial court denied, and declined the trial court's offer to admonish the jury.

Following trial, the jury found Dye to be a habitual offender. On November 1, 2010, the trial court sentenced Dye to twenty years of incarceration for SVF, enhanced the sentence thirty years by virtue of his status as a habitual offender, and suspended fifteen years of the sentence to probation.

DISCUSSION AND DECISION

I. Enhancement of Current Crimes and Sentences with Prior Convictions

Here, the State used one prior felony conviction to support Dye's SVF conviction and another prior felony conviction that apparently arose out of the same incident to partially support a habitual offender finding. The Indiana Supreme Court has held that “a defendant convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the defendant was a ‘serious violent felon.’ ” Mills v. State, 868 N.E.2d 446, 452 (Ind.2007). Here, however, we have two different convictions. Dye informs us of no Indiana case, and our research has uncovered none, in which using two different convictions for two separate enhancement purposes has ever been found problematic. Indeed, this court has addressed the use of different convictions in precisely the same circumstances as here and has concluded that such use is acceptable. In Lewis v. State, 769 N.E.2d 243, 249 (Ind.Ct.App.2002), aff'd on reh'g, 774 N.E.2d 941, trans. denied, we held that “in circumstances in which the felony convictions used to classify the defendant as a serious violent felon and to classify him as an habitual offender are different, there is no impediment to imposing an habitual offender enhancement upon a sentence for unlawful possession by a SVF.”

Dye does not acknowledge the Lewis holding, much less argue that it is incorrect. What Dye does urge us to do, however, is create an exception to Lewis for convictions that, while distinct, arise out of the same res gestae. Analogizing with Mills and other “double enhancement” cases, Dye argues that enhancement using two convictions arising out of the same res gestae amounts to the same thing as using the same conviction twice. We decline to so hold. Unless and until the Indiana Supreme Court holds that two distinct convictions arising out of the same res gestae cannot be used as they were here, we shall adhere to the general principle that double enhancement challenges only arise when the same conviction is used twice.

II. Batson Challenge⁴

Dye contends that the State peremptorily struck Campbell on the improper basis that she was the only African–American in the jury pool.

The exercise of racially discriminatory peremptory challenges is constitutionally impermissible. Wright v. State, 690 N.E.2d 1098, 1104 (Ind.1997). In order to establish a prima facie case of purposeful discrimination in the selection of a jury, a defendant must show: (1) that the prosecutor has exercised peremptory challenges to remove members of a cognizable racial group from the venire; and (2) that the facts and circumstances of the defendant's case raise an inference that the prosecutor used that practice to exclude venire persons from the jury due to their race. Bradley v. State, 649 N.E.2d 100, 105 (Ind.1995) (citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). Once a prima facie showing has been established, the burden shifts to the State to present an explanation for challenging such jurors. Batson, 476 U.S. at 97, 106 S.Ct. 1712, 90 L.Ed.2d 69. The trial court then has a duty to determine whether the defendant has established purposeful discrimination. Id. at 98, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. In Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), the United States Supreme Court refined the test for determining whether a juror has been struck for a reason violative of Batson. The Court declared that the race-neutral explanation must be more than a mere denial of improper motive, but it need not be “persuasive, or even plausible.” Id. at 768, 115 S.Ct. 1769. “ ‘[T]he issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.’ ” Id. (quoting Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion)).McCormick v. State, 803 N.E.2d 1108, 1110–11 (Ind.2004).

Here, Dye has failed to make a prima facie case of racially discriminatory use of peremptory challenges to prospective jurors. There is no clear indication in the record that prospective juror Campbell was a member of a cognizable racial group and that, if she was, she was the only one. In any event, the State offered a sufficient race-neutral reason for Campbell's strike. The prosecutor stated on the record that the reason he was striking Campbell was that, as the wife of a person convicted of a crime, he felt that she would be sympathetic to Dye's argument that he had changed in the time since his prior convictions, essentially a jury nullification argument related to the habitual offender charge. Because there is no discriminatory intent apparent from the face of this explanation, it is sufficient to survive a Batson...