Whatley v. State

• Citation: 908 N.E.2d 276
• Decision Date: 17 June 2009
• Docket Number: No. 49A02-0810-CR-934.,49A02-0810-CR-934.
• Parties: James WHATLEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

908 N.E.2d 276

James WHATLEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0810-CR-934.

Court of Appeals of Indiana.

June 17, 2009.

Hilary Bowe Ricks, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROWN, Judge.

James Whatley appeals his conviction for murder.¹ Whatley raises two issues, which we restate as:

I. Whether the trial court's admission of testimony that Whatley had been using drugs and visited Relax Inn to deliver drugs constituted fundamental error; and

II. Whether the evidence is sufficient to sustain his conviction.

We affirm.

The facts most favorable to Whatley's conviction follow. Whatley and his girlfriend Debra Bigham periodically visited Relax Inn in Indianapolis—together or separately—to use or obtain drugs. Bigham visited the motel occasionally for prostitution and to acquire drugs. Whatley would "trail" girls to "[t]ry to see what they be about. If they prostitutes or whatever" in the area around Relax Inn. State's Exhibit 21 at 9. On at least several occasions, Bharat Patel, the owner and manager of the Relax Inn, ordered Whatley or Bigham to leave the motel's premises.

In the early morning hours of August 22, 2007, Whatley and Bigham were at Relax Inn. Bigham had been awake for three days because she had been "smoking crack cocaine throughout that time." Transcript at 99. Whatley had been awake for five days "with no naps in-between." Id. at 98-99. Ciera Pedrey, who had been "turning tricks" that evening, was walking around the motel and "decided to hang out" with Whatley and Bigham, who had narcotics. Id. at 77. At some point, Whatley and the two women left the motel to pick up drugs. Bigham drove Whatley's vehicle because Whatley "had been awake for a considerable amount of time" and was "in no shape to even drive a car." Id. at 78, 99. After obtaining the drugs, Whatley, Bigham, and Pedrey returned to the motel to deliver crack cocaine. After arriving at the motel, Bigham parked Whatley's vehicle in the parking area on the backside of the motel and waited in the vehicle as Whatley entered one of the rooms on the second floor of the motel to deliver drugs. Because he had been using cocaine and had been awake for five days, Whatley fell asleep in the motel room where he delivered the crack cocaine. After about ten minutes of waiting, Bigham grew impatient that Whatley had not yet returned and honked the horn of Whatley's vehicle.

While Bigham and Pedrey were waiting for Whatley to return, Patel came out of the motel, approached Bigham and Pedrey with a flashlight, and ordered them to leave the motel's premises. Id. at 102. While Bigham was trying to explain that she wanted to wait to pick up her friend before leaving, Patel picked up a rock and threw it at Bigham. Bigham drove Whatley's vehicle to the front of the motel, where Pedrey got out of the vehicle, leaving the car door open in case she had to run back, and started walking toward the motel in an attempt to go get Whatley. However, before Pedrey could make it to the motel, Patel threw a beer bottle at Pedrey and chased her back to the vehicle, where Patel struck the hood and the windshield of the vehicle with his flashlight. Patel then called the Indianapolis Metropolitan Police Department ("IMPD").

When Bigham heard Patel called the police, she backed out of the motel parking lot and drove to a gas station about three blocks away from the motel. While at the gas station, Bigham called Whatley using a payphone and explained that Patel had attacked her. Also during the phone call, Whatley and Bigham made arrangements to meet in the parking lot of a drive-in theatre located directly adjacent to the motel parking lot.

In the meantime, Patel went to the second floor balcony of Relax Inn to visit other motel residents. As Patel was knocking on the door of one of the motel rooms, Whatley emerged from the motel room he was visiting. Whatley walked up to Patel and struck him, knocking Patel against the concrete portion of the balcony's railing and to the ground.

After he struck Patel, Whatley walked down the stairway and ran to the parking lot of the drive-in theatre to meet Bigham and Pedrey as they had arranged. Whatley opened the door to the driver's seat of the vehicle and told Bigham "Get up. Get in the passenger's seat. Come on. We've got to go." Id. at 86. He was sweaty and out of breath, "like an adrenaline rush." Id. at 106. After Bigham moved into the passenger seat and Whatley got in the driver's seat, Whatley said: "Baby, you don't have to worry about it no more. He's not ... he's not going to f___ with you no more." Id. at 86. Whatley also told Bigham that Patel "will never mess with" or attack Bigham again. Id. at 120. Whatley then told Bigham and Pedrey to go check on Patel. Although Bigham wanted to leave, Whatley insisted that Bigham and Pedrey go back to the motel to check on Patel. The women went up an exterior stairway connecting the motel's first and second floors and found Patel lying motionless on the second-floor balcony near the stairway. Bigham shook Patel's leg and said: "Hey, wake up. Are you okay?" Id. at 86.

As Bigham and Pedrey were checking on Patel, IMPD Officer Conrad Simpson arrived at Relax Inn in response to Patel's call. As Officer Simpson approached the backside of the motel, Bigham and Pedrey were descending the exterior stairway. The women explained to Officer Simpson that a man was lying on the upper balcony of the motel and that the man needed help. Officer Simpson went up the stairway and found Patel lying on his back. Upon examination, Officer Simpson determined that Patel was breathing, but unresponsive. Patel had a laceration on the back of his head, blood and other fluids were coming out of his ear, and his hands were clinched around a set of keys and shaking. Also, a cordless phone and a flashlight were near Patel on the balcony floor. Patel's blood was found on three parts of the flashlight—the lens, the handle, and the strap.

After giving their statements to police, Bigham and Pedrey were permitted to leave. After leaving the motel, the two women met Whatley, and Whatley told Bigham that he had struck Patel in the head two times with his fist. Patel died at the hospital approximately one month later. An autopsy revealed that Patel's death was caused by "a blunt force injury with associated skull fracture and then associated injury to the brain." Id. at 174.

The State charged Whatley with murder in the death of Patel. While in the Marion County Jail, Whatley was housed in the same section as Lonnie Carson, another inmate. Whatley regularly shared information about his case with Carson. Specifically, Whatley told Carson that there were three female witnesses against him. Whatley told Carson that he struck Patel in the head with a hammer. Whatley also told Carson that he was concerned about a footprint he left at the scene, but that he burned the shoes he was wearing at that time. Whatley asked Carson if he would be interested in making the three female witnesses "disappear." Id. at 258-259.

A jury found Whatley guilty of murder. The trial court sentenced Whatley to an enhanced term of sixty years after finding Whatley's prior criminal history and drug use to be aggravating circumstances and finding no mitigating circumstances.

I.

The first issue is whether the trial court's admission of testimony that Whatley had been using drugs and visited Relax Inn to deliver drugs constituted fundamental error. Generally, we review the trial court's ruling on the admission of evidence for an abuse of discretion. Noojin v. State, 730 N.E.2d 672, 676 (Ind. 2000). Whatley, however, failed to object to the admission of the testimony at issue here. Failure to object to the admission of evidence at trial normally results in waiver and precludes appellate review unless its admission constitutes fundamental error. Cutter v. State, 725 N.E.2d 401, 406 (Ind. 2000), reh'g denied. Whatley argues that the admission of the testimony was fundamental error. To rise to the level of fundamental error, an error "must constitute a blatant violation of basic principles, the harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process." Maul v. State, 731 N.E.2d 438, 440 (Ind. 2000). "The standard for fundamental error is whether the error was so prejudicial to the rights of the defendant that a fair trial was impossible." Boatright v. State, 759 N.E.2d 1038, 1042 (Ind.2001).

On appeal, Whatley challenges Bigham's testimony that she had driven Whatley to Relax Inn to deliver crack cocaine and that Whatley had been using crack cocaine for five days. Whatley argues that this testimony was evidence of uncharged misconduct, which should have been excluded under Ind. Evidence Rules 404(b)² and 403.³

The standard for assessing the admissibility of Rule 404(b) evidence is: (1) the court must determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act; and (2) the court must balance the probative value of the evidence against its prejudicial effect pursuant to Rule 403. Boone v. State, 728 N.E.2d 135, 137-138 (Ind.2000), reh'g denied; Hicks v. State, 690 N.E.2d 215, 221 (Ind.1997). The evidence is inadmissible when the State offers it only to produce the "forbidden inference" that the defendant has engaged in other, uncharged misconduct and the charged conduct was in conformity with the uncharged misconduct. Crain v. State, 736 N.E.2d 1223, 1235 (Ind.2000). The trial court has wide latitude, however, in weighing the probative value of the evidence against the possible prejudice of its admission. Id. If evidence has some purpose besides behavior in conformity with a character trait and the balancing test is favorable, ...