Shell v. State
| Decision Date | 14 July 2014 |
| Docket Number | No. 52A02–1307–CR–598.,52A02–1307–CR–598. |
| Parties | Henry L. SHELL, Jr., Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
CRONE
, Judge.
Henry L. Shell, Jr. appeals his convictions and sentence for class B felony neglect of a dependent, class D felony battery, and class A misdemeanor resisting law enforcement. Shell raises numerous issues for our review, none of which constitute reversible error. Accordingly, we affirm.
The facts most favorable to the verdict indicate that Shell and his wife Karen resided together with Karen's nine-month-old son, L.S. Although subsequent DNA tests revealed that L.S. was not Shell's biological son, at all relevant times, Shell believed that L.S. was his son. On November 27, 2010, Shell and Karen used methamphetamine several times by injecting it with hypodermic needles. The next morning, on November 28, 2010, Shell and Karen were arguing in their bedroom as L.S. sat on the bed. Shell picked up a metal fence pole that he kept beside the bed for protection and swung it at Karen. Shell hit Karen's arm with the pole. Shell swung the pole at Karen again, but when Karen ducked out of the way, Shell hit L.S. in the head with the pole.
Karen attempted to call 911 but her cell phone would not work. Shell and Karen took L.S. to Shell's sister Shirley's house nearby. L.S. was unresponsive and stiff, had shallow breathing, and had blood caked under his nose. Shirley heard Shell say that L.S. fell off the bed. Shirley heard Karen say something about a pole. Shirley's husband Timothy took L.S. and laid him on the couch while Shirley called 911. Shell was screaming, apologizing to L.S., and stating that he wanted to kill himself. Shell ran back to his house briefly and then returned behaving frantically. Karen was hyper and frazzled and ran in and out of Shirley's house smoking cigarettes.
Emergency Medical Technician (“EMT”) Jayme Hierholzer arrived on the scene. Hierholzer observed that L.S. was not moving or breathing well. Shell told Hierholzer that he would follow the ambulance as soon as he killed himself. As she examined L.S., Hierholzer asked Shell what happened to the baby and Shell stated that “he hit the bed and he didn't know L.S. was there.” Tr. at 427. Hierholzer observed that L.S.'s pupils were fixed and dilated and that he had a bruise and swelling by his left temple.
When an ambulance and police officers arrived, Shell headed to the woods across the street. Converse Police Department Deputy Lee Mitchell photographed L.S.'s injuries and then went to the woods to locate Shell. When Deputy Mitchell found Shell, he identified himself as a police officer and told Shell that he needed to speak with him. Shell took off running. Deputy Mitchell chased after Shell, repeatedly ordering him to stop. Shell kept running while yelling, Id. at 405. Deputy Mitchell finally caught up to Shell and ordered him to get on the ground. Shell refused to comply and charged at Deputy Mitchell. Deputy Mitchell deployed his taser. The taser did not deter Shell. Shell pulled the taser probes from his chest and again charged at Deputy Mitchell. Shell hit Deputy Mitchell on the right side of his face and behind his left ear, causing cuts. Deputy Mitchell fell to the ground, and Shell ran off. Miami County Sheriff's Deputy Jeff Williams subsequently arrived, and Deputy Mitchell got in a police vehicle with him. The two officers eventually located Shell in a nearby residence and took him into custody.
Deputy Williams, who was trained as a certified drug recognition examiner, observed that Shell was exhibiting signs of someone who was under the influence of a central nervous system stimulant such as methamphetamine. Shell exhibited dilated pupils, profuse sweating, hyperactivity, and teeth grinding
. After Deputy Williams transported Shell to the Indiana State Police post, Shell repeatedly muttered that he had “fucked up.” Id. at 439.
L.S. was transported to the hospital by helicopter. Doctors determined that L.S. suffered a significant blow to his left temple which caused a subdural hematoma
. Additional tests revealed that L.S. had multiple skull fractures. Riley Hospital pediatrician Dr. Veda Akerman treated L.S. after his injury. Dr. Akerman concluded that because of L.S.'s injury, his brain is largely liquid, he will not progress beyond his current infant level, he will need round-the-clock care for the rest of his life, and his life span is likely compromised due to the injury.
The State charged Shell with five criminal counts: count I, class B felony neglect of a dependent resulting in serious bodily injury; count II, class B felony battery resulting in serious bodily injury to a person less than fourteen years of age; count III, class D felony battery resulting in bodily injury; count IV, class D felony domestic battery; and count V, class A misdemeanor resisting law enforcement. A four-day jury trial began on May 20, 2013. The jury found Shell guilty of counts I, III, and V and not guilty of the remaining two counts. Following a sentencing hearing, the trial court sentenced Shell to an aggregate sentence of twenty-one years. This appeal ensued.
Shell first contends that the trial court erred by accepting the State's race-neutral explanation for its peremptory strike against the only African–American member of the jury venire. “Purposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure.” Addison v.. State, 962 N.E.2d 1202, 1208–10 (Ind.2012)
(quoting Batson v. Kentucky, 476 U.S. 79, 86 (1986) ). We apply a three-part test to determine whether the State has improperly used a peremptory challenge to remove a potential juror from the venire solely because of that individual's race:
First, the party contesting the use of a peremptory challenge must make a prima facie showing of discrimination based upon race against the member of the venire. Next, the party using a peremptory challenge may present a race-neutral explanation for using the challenge. If the party seeking to strike a member of the venire provides a race-neutral explanation, the trial court must then decide whether the challenger has carried its burden of proving purposeful discrimination.
Thompson v. State, 966 N.E.2d 112, 120 (Ind.Ct.App.2012)
(citation and quotation marks omitted), trans. denied.
The burden at the first stage of the analysis is low, only requiring the defendant to show circumstances raising an inference that discrimination occurred. Addison, 962 N.E.2d at 1208
. Removal from the venire of the only African–American juror that could have served on the petit jury is prima facie evidence of discriminatory intent and satisfies the initial burden under Batson.
Cartwright v. State, 962 N.E.2d 1217, 1222 (Ind.2012). Regarding the second step in the analysis, “[u]nless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.” Addison, 962 N .E.2d at 1209 (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam)) (additional citation omitted). While the race-neutral reason “must be more than a mere denial of improper motive, the reason need not be particularly ‘persuasive, or even plausible.’ “ Id. If the trial court is not persuaded by the race-neutral justification, it is during the third step of the analysis that “ ‘implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.’ “ Id. at 1210.
Due to the importance of the demeanor of potential jurors and the prosecutor when the trial court evaluates a race-neutral explanation for a peremptory challenge, we afford broad latitude to the trial court's decision in such matters. Killebrew v. State, 925 N.E.2d 399, 401 (Ind.Ct.App.2010)
, trans. denied. We will set aside the trial court's decision concerning whether a peremptory challenge is discriminatory only if it is found to be clearly erroneous. Forrest v. State, 757 N.E.2d 1003, 1004 (Ind.2001).
Here, Shell raised a Batson challenge to the State's use of a peremptory strike against Mr. Summers, the only African–American prospective juror. While questioning the jury venire, the deputy prosecutor informed the prospective jurors that he had tendered “a fairly significant list of names of everyone who might conceivably be called to testify in this case” but that he was not going to call some of those witnesses “simply because I don't think it's necessary in order for us to present our story, our case, our evidence.” Tr. at 287. He then asked, “Are you, any of you gonna have any problem with that, Mr. Summers, if I don't call some of those people?” Id. Summers responded in the affirmative.1 The deputy prosecutor then asked Summers, “You want me to call them all?” Id. Summers responded, “Yeah, because a man's life is on the line basically.” Id. at 288. In using a peremptory strike against Summers, the State explained:
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