Court of Appeals of Indiana | Memorandum Decision 19A-CR-2664 | June 23, 2020 Page 1 of 6

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Jennifer L. Koethe

Navarre, Florida

ATTORNEY FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Josiah Swinney

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Shaun Walton,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

June 23, 2020

Court of Appeals Case No.

19A-CR-2664

Appeal from the LaPorte Superior 

Court

The Honorable Richard R. 

Stalbrink, Jr., Judge

Trial Court Cause No.

46D02-1812-F6-1347

Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2664 | June 23, 2020 Page 2 of 6

[1] Shaun Walton appeals his conviction for Level 6 Felony Battery,1 arguing that 

the trial court erred when it denied his motion for a mistrial. Finding no error, 

we affirm. 

Facts2

[2] On October 30, 2018, Walton, a prisoner at the Indiana State Prison, was being 

transported from his cell to a recreational area. Sergeant Adrianne Ball was 

monitoring the situation and noticed that the officer transporting Walton had 

released Walton from his grasp. Sergeant Ball assumed the role of transporting 

Walton, at which point she discovered a bulge in his pocket. Once inside the 

recreational area, Walton slipped out of Sergeant Ball’s grasp. Officer Jordan 

Hufford, who was nearby, heard Sergeant Ball scream for help and ran over to 

assist her. Officer Hufford then helped Sergeant Ball pin Walton down and 

conduct a pat-down search, which revealed workout gloves, a radio, and 

headphones on his person. 

[3] Walton knew that prisoners could not take their headphones and/or radios with 

them from their cells to the recreational area, so Sergeant Ball ordered Officer 

Hufford to take those items from Walton. As Officer Hufford was doing so, he 

accidentally broke the headphones. Walton then became angry and lunged at 

1

Ind. Code § 35-42-2-1(c)(1), -1(e)(2).

2 We would advise Appellant’s counsel, in the future, to avoid using such inflammatory and emotional

language in the Statement of Facts. This section is meant to succinctly describe the details of the case that led 

to the appeal at hand, not to passionately persuade a jury during closing argument. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2664 | June 23, 2020 Page 3 of 6

Sergeant Ball. A scuffle broke out, during which Walton pushed Sergeant Ball 

to the ground and “gouged up” Officer Hufford’s face. Tr. Vol. II p. 156.

[4] On December 10, 2018, the State charged Walton with two counts of Level 6 

felony battery. During Walton’s October 29-30, 2019, jury trial, the State called 

Investigator Ashley Kilgore to testify as to what happened between Walton and 

the two officers. Investigator Kilgore described how she met with Walton, read 

him his Miranda3 Rights, and asked him to talk about the incident. After the 

State asked if she had done just that, Investigator Kilgore said, “[y]es, and he 

refused to speak with me.” Id. at 122. Then, outside the presence of the jury, 

Walton’s counsel moved for a mistrial, arguing that the State’s reliance on 

Walton’s post-Miranda silence as evidence was inappropriate. The State argued 

that Investigator Kilgore commented on Walton’s silence only to show the 

“completeness of the investigation.” Id. The trial court agreed to take the matter 

under advisement.

[5] To rectify any harm that Investigator Kilgore’s testimony may have caused

Walton, the State, while in the presence of the jury, asked Investigator Kilgore, 

“it’s certainly [Walton’s] right within the constitution to say nothing to you; 

correct?” Id. at 123. Investigator Kilgore confirmed that it was Walton’s 

constitutional right and that she had highlighted Walton’s silence only to 

demonstrate that she had not skipped any steps in her investigative process.

3 Miranda v. Arizona, 384 U.S. 436 (1966).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2664 | June 23, 2020 Page 4 of 6

[6] During a recess, the parties further argued over Walton’s motion for a mistrial, 

which the trial court ultimately denied. However, the trial court agreed to 

present Walton’s proffered final jury instruction about a defendant’s right to 

post-Miranda silence, which reads as follows: 

While it is true that the Miranda warnings provided to the 

defendant do not contain an express assurance that silence will 

carry no penalty, such assurance is implicit to any person who 

receives the warnings. In this circumstance, it would be 

fundamentally unfair and a deprivation of due process to allow the 

defendant’s silence to be used to impeach the explanation he 

offered at trial. When considering the propriety of the defendant’s 

testimony, you should not consider, in any way, that the 

defendant chose not to make a statement to investigators after 

being informed of his constitutional rights. 

Appellant’s App. Vol. II p. 132.

[7] The jury found Walton guilty of one count of Level 6 felony battery, but not 

guilty of the other. That same day, October 30, 2019, the trial court sentenced 

Walton to one and one-half years, to be executed in the Department of 

Correction. Walton now appeals. 

Discussion and Decision

[8] Walton’s sole argument on appeal is that the trial court erred when it denied his 

motion for a mistrial. Specifically, Walton contends that the State 

inappropriately referenced Walton’s post-Miranda silence to impeach his 

testimony, which he argues was a clear due process violation warranting a 

mistrial. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2664 | June 23, 2020 Page 5 of 6

[9] A mistrial is an “extreme remedy” that should be used only when no other 

curative measure will rectify the situation. Moore v. State, 652 N.E.2d 53, 57 

(Ind. 1995). The decision to grant or deny a mistrial is within the sound 

discretion of the trial court, and we will reverse only when the decision is 

clearly against the logic and effect of the facts and circumstances. Hall v. State, 

722 N.E.2d 1280, 1282 (Ind. Ct. App. 2000). Upon review of a denial of a 

motion for a mistrial, the defendant must demonstrate that the conduct 

complained of was both in error and had a probable persuasive effect on the 

jury’s decision. Pierce v. State, 761 N.E.2d 821, 825 (Ind. 2002). 

[10] Walton argues that Investigator Kilgore’s testimony violated the Due Process 

Clause of the Fourteenth Amendment to the United States Constitution. See

Doyle v. Ohio, 426 U.S. 610, 619 (1976); see also Anderson v. Charles, 447 U.S. 404, 

407-08 (1980) (holding that “Miranda warnings inform a person of his right to 

remain silent and assure him, at least implicitly, that his silence will not be used 

against him[]”).

[11] Though the State contends that Investigator Kilgore’s response was appropriate 

to describe the steps she took as part of her investigation, we find that her 

response was ill-advised and had little relevance. Indiana Evidence Rule 403 

states that “[t]he court may exclude relevant evidence if its probative value is 

substantially outweighed by a danger of one or more of the following: unfair 

prejudice, confusing the issues, misleading the jury, undue delay, or needlessly 

presenting cumulative evidence.” And here, any relevance gleaned from 

Investigator Kilgore’s reference to Walton’s post-Miranda silence was certainly 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2664 | June 23, 2020 Page 6 of 6

outweighed by a risk of prejudice. Thus, the complained of conduct was, to a 

certain extent, erroneous. 

[12] Nonetheless, any prejudicial harm caused by Investigator Kilgore’s statement 

was cured by what took place after she testified; therefore, Walton has not

demonstrated that this reference to his silence had a probable persuasive effect 

on the jury’s decision. Much of the argument surrounding Walton’s motion for 

a mistrial took place outside of the jury’s presence; the reference to Walton’s 

silence was an isolated statement made as part of Investigator Kilgore’s lengthy 

testimony during a two-day jury trial; the State itself attempted to rectify any 

harm by reminding the jury of Walton’s right to not have his post-Miranda

silence used against him; and the trial court included Walton’s proffered final 

jury instruction about how relying on Walton’s post-Miranda silence would 

violate Walton’s fundamental due process rights. In other words, we find little 

to nothing in the record that would convince us that Investigator Kilgore’s 

statement affected the jury’s decision. In sum, the trial court did not err by 

denying Walton’s motion for a mistrial. 

[13] The judgment of the trial court is affirmed.

Bradford, C.J., and Pyle, J., concur.