An inmate who used a makeshift weapon to fatally attack another inmate did not convince the Court of Appeals of Indiana that his murder conviction should be reversed.
While serving time at the Pendleton Correctional Facility, Devon Sterling stabbed Ezekiel Jones in the neck with a makeshift knife called a “shiv.” Sterling and Jones did not get along and had previously fought, with Sterling asserting that Jones wanted to kill him.
The incident occurred in July 2018, when Sterling was in the prison commissary and refused a correctional officer’s order to return to his cell house. Shortly thereafter, the officer heard a “thud” and saw Jones lying on his back, bleeding profusely from the neck.
Video footage from a nearby camera showed Sterling approach Jones from behind, stab him with an object and quickly leave the scene. Jones was pronounced dead after being taken to the infirmary.
During a subsequent search, investigators found a shiv located in a railing above a prison cell that matched the shiv Sterling was seen holding in the video. However, DNA analysis of the shiv returned too many contributors to obtain a match with Sterling.
Sterling was eventually charged with felony murder and Level 4 felony being a prisoner in possession of a deadly weapon.
During a jury trial, Sterling testified on his own behalf, claiming Jones had tried to kill him in the past by attacking him with a knife, so he obtained the shiv for protection. He also testified that as he passed Jones on the day of the stabbing, Jones turned to attack him, but Sterling struck him first by stabbing Jones in the neck.
Additionally, Sterling claimed he threw his weapon in the toilet, so the recovered shiv was not the one he used.
During trial, an alternate juror revealed that she had read a newspaper article about the case beforehand. But the Madison Circuit Court denied Sterling’s motion to strike her from the jury when she stated that she “could only recall from the article that Sterling may be from Fort Wayne.”
The trial court also excluded testimony from one of Sterling’s witnesses, another inmate named Melvin Sanders, who claimed Jones had threatened to kill Sterling. The court found that the defense witness’s statement had not been disclosed to the state during discovery and was improper character evidence.
The jury ultimately found Sterling guilty as charged, and the trial court sentenced him to 65 years for the murder conviction with a concurrent 12-year sentence for the Level 4 felony.
In affirming, the Court of Appeals first found that the trial court did not abuse its discretion by failing to dismiss the alternate juror.
Rather, the COA found 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” — it made a “threshold assessment of the likelihood of resulting prejudice.”
“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,” Judge Elizabeth Tavitas wrote. “Because there was no risk of prejudice from this information, the trial court did not need to investigate the matter further.”
The COA also found the trial court was not required to individually question each of the jurors under the circumstances.
Additionally, the appellate court found that Sanders’ proffered testimony was not admissible character evidence but was instead inadmissible evidence of specific instances of conduct by Jones. As such, the trial court did not err by excluding the proffered testimony.
Lastly, the appellate panel declined to entertain Sterling’s argument that the trial court’s jury verdict forms were unfair because the forms listed “guilty” as the first option and “not guilty” as the second option.
“Sterling claims that (Tonge v. State, 575 N.E.2d 269 (Ind. 1991)) was wrongly decided and urges us to set a ‘bright line’ rule that the option of not guilty must appear first on a verdict form,” Tavitas wrote. “Sterling misunderstands our role as an intermediate appellate court. … Because we have no authority to reconsider Tonge, Sterling’s claim fails.”
The case is Devon L. Sterling v. State of Indiana, 22A-CR-25.