Sterling v. State
| Decision Date | 21 November 2022 |
| Docket Number | Court of Appeals Case No. 22A-CR-25 |
| Citation | 199 N.E.3d 377 |
| Parties | Devon L. STERLING, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Attorney for Appellant: Anthony C. Lawrence, Anderson, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana
[1] Following a jury trial, Devon Sterling was convicted of murder, a felony, and being a prisoner in possession of a deadly weapon, a Level 4 felony. Sterling appeals and claims that: (1) the trial court abused its discretion by failing to dismiss an alternate juror; (2) the trial court abused its discretion by excluding a defense witness; and (3) the trial court's verdict forms were improper. We disagree and, accordingly, affirm.
[2] In the summer of 2018, Sterling and Ezekiel Jones were both inmates at the Pendleton Correctional Facility. Sterling and Jones did not get along, and they had fought previously. Sterling believed that Jones wanted to kill him. On July 11, 2018, Sterling was permitted to leave his cell house and go to the commissary. One of the correctional officers told Sterling to return to his assigned area, but Sterling refused. Shortly thereafter, the correctional officer heard a "thud." Tr. Vol. II pp. 235. When he turned around, the officer saw Jones lying on his back and bleeding profusely from the neck.
[3] Video of the incident showed Sterling approach Jones from behind, stab Jones once in the neck with an object, and quickly leave the area. The correctional officers attempted to stop Jones's bleeding, and medical staff soon appeared and transported Jones to the infirmary, where Jones was eventually pronounced dead. During a subsequent search, investigators found a shiv—a makeshift knife—located in a railing above a prison cell, which matched the shiv held by Sterling in the video. DNA analysis of the shiv returned too many contributors to obtain a match with Sterling. Sterling's recorded telephone calls included one to his mother in which he stated that Jones had been stabbed. Sterling also told his mother not to be angry with him. Jones never stated to his mother that he acted in self-defense. Instead, he told his mother that he was sorry.
[4] On February 13, 2019, the State charged Sterling with Jones's murder and with being a prisoner in possession of a deadly weapon, a Level 4 felony. A jury trial was held in November 2021. At trial, Sterling testified on his own behalf and claimed that Jones wanted to kill him and tried to kill him in the past by attacking him with a knife. Sterling also claimed that Jones was a gang member and that Jones and his fellow gang members repeatedly threatened Sterling. Sterling claimed that he obtained the shiv for protection on the advice of another inmate. Sterling claimed that, as he passed Jones, Jones turned to attack him, but Sterling was able to strike first by stabbing Jones once in the neck. Sterling claimed that he threw his weapon in the toilet and that the recovered shiv was not the one he used.
[5] During the trial, the bailiff informed the trial court that the alternate juror may have read about the case in a local newspaper. The trial court questioned the alternate juror under oath outside the presence of the other jurors. The juror indicated that she had read an article about the case but could only recall from the article that Sterling may be from Fort Wayne. Sterling moved to strike the alternate juror, but the trial court denied the motion, and the trial continued.
[6] Sterling also attempted to call a witness, Melvin Sanders, a fellow inmate of Sterling and Jones. During an offer of proof, Sanders testified that Jones had threatened to kill Sterling. The trial court excluded this testimony because Sanders's statement had not been disclosed to the State during discovery and because the statement was improper character evidence.
[7] At the conclusion of the trial, the jury found Sterling guilty as charged. The trial court subsequently sentenced Sterling to sixty-five years executed for the murder conviction and a concurrent twelve-year sentence for the conviction for possession of a deadly weapon conviction. Sterling now appeals.
[8] Sterling first argues that the trial court abused its discretion by failing to dismiss the alternate juror after the alternate indicated that she had read an article about the case before she was selected as a juror. We disagree.
[9] The right to an impartial jury is a constitutional right that is an essential element of due process. Pugh v. State , 52 N.E.3d 955, 971-72 (Ind. Ct. App. 2016) (citing Caruthers v. State , 926 N.E.2d 1016, 1020 (Ind. 2010) ). "Biased jurors must be dismissed, and when there is a suggestion that they have been exposed to extrajudicial matters, the trial court should make a threshold assessment of the likelihood of resulting prejudice." Id. at 972 (citing Caruthers , 926 N.E.2d at 1020-21 ). If the trial court determines that there is no risk of substantial prejudice, it need not investigate further. Id. (citing Caruthers , 926 N.E.2d at 1021 ). If, however, the trial court finds the risk of prejudice is substantial, as opposed to remote or imaginary, "it should interrogate the jury collectively to determine who, if anyone, has been exposed, and then individually interrogate any such jurors away from the others." Id. If the trial court discovers any degree of exposure and the likely effect thereof, it must take appropriate action, including at least a collective admonishment. Id. "At all stages in this process, the trial court has the discretion to take whatever actions it deems necessary and appropriate." Id.
[10] Here, the bailiff informed the trial court that the alternate juror may have been exposed to local media coverage of the case prior to serving as an alternate juror. When the trial court learned this, it questioned the alternate juror outside the presence of the jury. The alternate indicated that, prior to serving on the jury, she had read an online article about the case but that the only information she could remember from the article was Tr. Vol. III p. 197-98. The alternate also stated that, once she was selected as an alternate juror, she avoided media coverage of the trial as instructed by the trial court. See id. at 200 (). When the trial court asked the alternate if she had mentioned the article with the other jurors, the alternate said that she had not but also stated:
I did – I did say something about – Because they had said, after the phone conversation we heard with his mom, and they were asking about his mom not being here and I said, well I thought that he might be from the Fort Wayne area,[1 ] but I didn't know for sure.... But that's all I've said in the jury room.
[11] The trial court instructed the alternate not to mention to the jurors the article or anything else she may have learned from an outside source about the case or "anything ... about the conversation that we've had here[.]" Id. The trial court denied Sterling's motion to excuse the alternate and stated: Id. at 207-08.
[12] The trial court did precisely what it should have done when confronted with the possibility that a juror had been exposed to extra-judicial information; the trial court made a "threshold assessment of the likelihood of resulting prejudice." Pugh , 52 N.E.3d at 972. The trial court determined that there was no risk of substantial prejudice because the alternate testified that she could only recall from the article that the defendant might be from Fort Wayne and that, although she told the other jurors the defendant might be from Fort Wayne, she had not directly mentioned the article to the other jurors. Because there was no risk of prejudice from this information, the trial court did not need to investigate the matter further. Id.
[13] Sterling claims that the trial court should have questioned the jurors individually to confirm whether the alternate had, in fact, mentioned anything else from the article. Sterling, however, does not appear to have made such a request to the trial court. It is well settled that " ‘[a] trial court cannot be found to have erred as to an issue or argument that it never had an opportunity to consider." Partee v. State , 184 N.E.3d 1225, 1233 (Ind. Ct. App. 2022) (quoting Shorter v. State , 144 N.E.3d 829, 841 (Ind. 2020) ), trans. denied. " Id. Waiver notwithstanding, the trial court, after questioning the alternate juror, made a threshold determination that there was no substantial risk of prejudice, and was not required to investigate further. Pugh , 52 N.E.3d at 972 (citing Caruthers , 926 N.E.2d at 1021 ).
[14] We find Sterling's citation to Lindsey v. State , 260 Ind. 351, 358, 295 N.E.2d 819, 823 (1973), to be unavailing, as the facts in Lindsey are quite different from those present here. In Lindsey...
To continue reading
Request your trial