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ATTORNEYS FOR APPELLANT
Susan K. Carpenter Public Defender of Indiana P. Jeffrey Schlesinger Deputy Public Defender Crown Point, IN

ATTORNEYS FOR APPELLEE
Steve Carter Attorney General of Indiana Kelly A. Miklos Deputy Attorney General Indianapolis, Indiana

__________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 45S00-0608-CR-298
DARRYL JETER,

FILED
Jun 26 2008, 11:55 am
of the supreme court, court of appeals and tax court

CLERK

Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Lake Superior Court, No. 45G04-0312-MR-00010 The Honorable Thomas Stefaniak, Jr., Judge _________________________________

June 26, 2008

Rucker, Justice.

A jury found Darryl Jeter guilty of murder in the shooting death of Indiana State Trooper Scott Patrick. He was also found guilty of auto theft, a Class D felony. Upon the jury's recommendation of life without parole the trial court sentenced Jeter accordingly. The trial court also sentenced him to three years for the auto theft conviction to be served consecutively. In this

direct appeal Jeter raises three issues, which we recast as four and rephrase as follows: (1) did the trial court err in concluding that Jeter's attempt to peremptorily challenge a prospective juror violated Batson v. Kentucky, 476 U.S. 79 (1986); (2) did the trial court abuse its discretion by replacing a seated juror with an alternate; (3) was an eyewitness's in-court identification of Jeter unduly suggestive; and (4) did the trial court err in the admission of certain testimony. We affirm.

Facts

In the early morning hours of December 22, 2003 Darryl Jeter was driving a stolen car along Interstate 80/94 in Gary, Indiana. The car was missing a front tire. En route to visit his girlfriend, Ms. Young, Jeter was on parole from the state of Illinois and was not permitted to travel outside of that jurisdiction without prior permission from his parole officer. Seeing the car and the sparks that were coming from the missing front tire, a motorist called the Indiana State Police. Jeter exited 80/94 onto the Grant Street exit ramp, which was near the house where he planned to visit his girlfriend. The car ended up stuck in a grassy area off the side of the ramp. Walking along the exit, Jeter called Young at approximately 4:15 a.m., told her he had a flat tire, that he would grab his compact discs, and he would get another car and be on his way.

In the meantime, responding to a dispatch of a vehicle in distress, Indiana State Trooper Scott Patrick arrived on the scene. The record is silent as to what occurred immediately

thereafter. In any event, following is the summarized testimony of Karl Dickel, an over-the-road truck driver. Pulling his rig onto the Grant Street exit, Dickel saw a state patrol car with its emergency lights flashing and observed two people struggling and wrestling with one another at the rear of the car. The two were later identified as Jeter and Trooper Patrick. As they broke apart, Jeter faced Dickel's truck and Dickel turned on his high beam headlights in order to aid the trooper by blinding Jeter. According to Dickel he saw part of Jeter's face and profile. Jeter then walked around the right front hood of the police car and pulling a handgun fired twice at Trooper Patrick, who was on the other side of the car also near the hood. According to Dickel, although the trooper appeared to have been hit, he nonetheless returned fire, striking Jeter. After

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exchanging additional gunfire Jeter ran from the immediate area. He dropped his handgun and compact discs along the way. Trooper Patrick lay bleeding on the ground.

Immediately thereafter State Trooper Geoffrey Gruber arrived on the scene and began assisting Trooper Patrick. As he did so, Dickel saw Jeter returning to the area and alerted Trooper Gruber, "That is the guy that shot him." Tr. at 197. Jeter climbed into the cab of a truck that was parked nearby and appeared to be attempting to drive away. Trooper Gruber removed Jeter from the truck and placed him in handcuffs.

Paramedics arrived on the scene. Both Jeter and Trooper Patrick were transported to an area hospital. Trooper Patrick died as a result of a gunshot wound to the neck. While at the hospital being treated for a gunshot wound to his shoulder, Jeter told the emergency room nurse to "[t]ell the officer he was sorry, he didn't mean to shoot him . . . . But [he] just didn't want to go back to jail." Tr. at 895. Informed that would be difficult to do because the officer was dead, Jeter "sprang up from a reclining position and said, `He's dead? He's dead?'" to which the nurse responded affirmatively. Tr. at 892.

Background

The State charged Jeter with murder and auto theft as a Class D felony. Based on the aggravating circumstance that the victim was a law enforcement officer acting in the course of duty, the State sought the death penalty. Ind. Code

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