Larry Lyons, Jr. v. State of Indiana ( 2013 )


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  •                                                                             Sep 16 2013, 5:32 am
    FOR PUBLICATION
    ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:
    BROOKE N. RUSSELL                             GREGORY F. ZOELLER
    Indianapolis, Indiana                         Attorney General of Indiana
    J.T. WHITEHEAD
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    LARRY LYONS, JR.,                             )
    )
    Appellant-Defendant,                    )
    )
    vs.                              )        No. 36A01-1208-CR-331
    )
    STATE OF INDIANA,                             )
    )
    Appellee-Plaintiff.                     )
    APPEAL FROM THE JACKSON CIRCUIT COURT
    The Honorable William E. Vance, Judge
    Cause No. 36C01-1102-FB-7
    September 16, 2013
    OPINION - FOR PUBLICATION
    BRADFORD, Judge
    Appellant-Defendant Larry Lyons Jr. was charged with and tried for Class B
    felony dealing in methamphetamine (Count I), Class D felony methamphetamine
    possession (Count II), Class D felony unlawful possession of a syringe (Count III), and
    Class A misdemeanor paraphernalia possession (Count IV). A jury found Lyons guilty of
    Counts I and II, and the trial court merged Count II into Count I and sentenced Lyons to
    eight years of incarceration with two years suspended. Lyons contends that the trial court
    committed fundamental error in instructing the jury in the following respects: (1) failing
    to adequately instruct the jury that it was not to deliberate or reach any conclusions prior
    to the close of evidence, (2) failing to advise the alternate jurors that they were not to
    participate in deliberations, and (3) failing to instruct the bailiff to confiscate all
    electronic devices prior to deliberations. Because we conclude that no fundamental error
    occurred, we affirm.
    FACTS AND PROCEDURAL HISTORY
    On February 22, 2011, the State charged Lyons with Counts I-IV. On March 20
    and 21, 2012, Lyons’s jury trial was held. A jury of twelve with two alternates was
    seated. Prior to the opening of evidence, the trial court instructed the jury, in part, as
    follows:
    You are permitted to discuss the evidence among yourselves in the jury
    room during recesses from trial, but only when all jurors and alternates are
    present. You should keep an open mind. You should not form or express
    any conclusion or judgment about the outcome of the case until the court
    submits the case to you for your deliberations. You must not talk about this
    case with anyone else. Do not talk to any of the parties, their lawyers or
    any of the witnesses. If anyone tries to talk about the case in your presence,
    you should tell the bailiff immediately and privately. If there is any
    publicity about this trial, you must not read, listen to or watch it.
    2
    ….
    You are instructed that until your jury service is complete, you shall not use
    computers, laptops, cellular telephones or other electronic devices, during
    discussions or during deliberations unless specifically authorized by the
    court.
    Tr. pp. 1-2, 9.
    At the conclusion of the first day of Lyons’s trial, the trial court advised the jury as
    follows: “Remember, you are not to discuss these matters under consideration with
    anyone else. If somebody asks you at home this evening about whatever you heard in
    court, you can tell them I’ll tell you tomorrow night, but for now I can’t discuss it.” Tr.
    p. 132. Lyons made no objection to any of the trial court’s jury instructions, he did not
    object to the trial court’s advisement at the end of the first day of his trial, and he offered
    no alternate instructions at any point. The jury convicted Lyons of Counts I and II and
    found him not guilty of Counts III and IV. On July 18, 2012, the trial court merged
    Count II into Count I and sentenced Lyons to eight years of incarceration with two years
    suspended.
    DISCUSSION AND DECISION
    Lyons concedes that he failed to preserve below any of the claims he now makes
    on appeal. Lyons contends, however, that the trial court committed fundamental error by
    failing to (1) adequately instruct the jury that it was not to deliberate or reach any
    conclusions prior to being given the case, (2) instruct the jury that the alternates could not
    participate in deliberations, and (3) failing to instruct the bailiff to confiscate electronic
    devices prior to deliberations.
    3
    A claim that has been waived by a defendant’s failure to raise a
    contemporaneous objection can be reviewed on appeal if the reviewing
    court determines that a fundamental error occurred. See, e.g., Trice v. State,
    
    766 N.E.2d 1180
    , 1182 (Ind. 2002); Hayworth v. State, 
    904 N.E.2d 684
    ,
    694 (Ind. Ct. App. 2009). The fundamental error exception is “extremely
    narrow, and applies only when the error constitutes a blatant violation of
    basic principles, the harm or potential for harm is substantial, and the
    resulting error denies the defendant fundamental due process.” Mathews v.
    State, 
    849 N.E.2d 578
    , 587 (Ind. 2006). The error claimed must either
    “make a fair trial impossible” or constitute “clearly blatant violations of
    basic and elementary principles of due process.” Clark v. State, 
    915 N.E.2d 126
    , 131 (Ind. 2009). This exception is available only in “egregious
    circumstances.” Brown v. State, 
    799 N.E.2d 1064
    , 1068 (Ind. 2003).
    Brown v. State, 
    929 N.E.2d 204
    , 207 (Ind. 2010).
    I. Whether the Trial Court Committed Fundamental Error in Instructing the Jury
    Instructing the jury lies solely within the discretion of the trial court, and we will
    reverse only upon an abuse of that discretion.” Schmid v. State, 
    804 N.E.2d 174
    , 182
    (Ind. Ct. App. 2004), trans. denied. A defendant is entitled to have the jury instructed
    correctly on an essential rule of law. McCarthy v. State, 
    751 N.E.2d 753
    , 755 (Ind. Ct.
    App. 2001), trans. denied. “Generally, we will reverse a trial court for failure to give a
    tendered instruction if: 1) the instruction is a correct statement of the law; 2) it is
    supported by the evidence; 3) it does not repeat material adequately covered by other
    instructions; and 4) the substantial rights of the tendering party would be prejudiced by
    failure to give it.” Creager v. State, 
    737 N.E.2d 771
    , 776 (Ind. Ct. App. 2000). Jury
    instructions are to be considered as a whole, and we will not find that the trial court
    abused its discretion unless we determine that the instructions taken as a whole misstate
    the law or otherwise mislead the jury. Schmid, 
    804 N.E.2d at 182
    .
    A. Failure to Adequately Instruct the Jury not to Deliberate or Reach Conclusions
    4
    Indiana Code section 35-37-2-4 provides, in relevant part, that
    The court shall admonish the jurors in the preliminary instruction, before
    separating for meals, and at the end of the day, that it is their duty not to
    converse among themselves or permit others to converse with them on any
    subject connected with the trial, or to form or express any opinion about the
    case until the cause is finally submitted to them.
    As Lyons points out, the trial court failed to advise the jurors at the end of the first
    day of trial that they were not to form or express and opinion about the case until it was
    given to them. Lyons argues that this omission was a blatant violation of basic principles
    that potentially harmed him, necessitating a new trial. We cannot agree.
    While we acknowledge that the trial court failed to admonish the jury pursuant to
    the letter of Indiana Code section 35-37-2-4, we cannot conclude that its failure amounts
    to fundamental error. Fundamental error occurs only in egregious cases where the harm
    or potential for harm is substantial, and we are unpersuaded that this is one of those cases.
    First, the jurors were, in fact, given a preliminary instruction that they were not to form or
    express an opinion until the case was given to them. Second, the trial was only two days
    long, meaning that the trial court missed only one opportunity to so advise the jurors.
    Third, there has been no showing of harm or that the potential for harm was substantial:
    Lyons points to nothing in the record indicating that the jury made up its mind before
    receiving the case from the trial court. Under the circumstances of this case, where the
    trial court did correctly instruct the jury once and there is no indication of prejudice, we
    cannot say that the trial court committed fundamental error in this regard.
    B. Failure to Instruct Alternates not to Participate in Deliberations
    5
    Lyons argues that the trial court’s failure to advise the two alternate jurors that
    they were not to participate in deliberations amounts to fundamental error. Again, we
    cannot agree. While the failure to so advise the alternates was, in fact, erroneous, we
    cannot agree that Lyons has established fundamental error. “An alternate is not, of
    course a member of the jury, and he or she qualifies as an outside influence under
    [Evidence] Rule 606(b).” Griffin v. State, 
    754 N.E.2d 899
    , 903 (Ind. 2001), clarified on
    reh’g on other grounds, 
    763 N.E.2d 450
     (Ind. 2002). Pursuant to Evidence Rule 606(b),
    Upon an inquiry into the validity of a verdict or indictment, a juror may not
    testify as to any matter or statement occurring during the course of the
    jury’s deliberations or to the effect of anything upon that or any other
    juror’s mind or emotions as influencing the juror to assent to or dissent
    from the verdict or indictment or concerning the juror’s mental processes in
    connection therewith, except that a juror may testify (1) to drug or alcohol
    use by any juror, (2) on the question of whether extraneous prejudicial
    information was improperly brought to the jury’s attention or (3) whether
    any outside influence was improperly brought to bear upon any juror.
    Although Lyons is correct that Indiana precedent indicates that “[i]f an alternate
    juror participates in deliberations, a new trial may be granted[,]” we conclude that Lyons
    has failed to establish that he is entitled to one. Weatherspoon v. State, 
    912 N.E.2d 437
    ,
    441 (Ind. Ct. App. 2009), trans. denied. Both Griffin and Weatherspoon seem to require
    that evidence regarding outside influence must be put into the record pursuant to Rule
    606(b) in order to allow review of a claim that an alternate improperly influenced
    deliberations, and that did not happen here. There is absolutely no evidence that the
    alternates participated in deliberations or affected the jury’s decision in any way. Lyons
    has not established harm or substantial risk of harm.
    II. Whether the Trial Court Committed
    6
    Fundamental Error in Instructing the Bailiff
    Lyons contends that the trial court committed fundamental error in failing to
    instruct the bailiff to confiscate electronic devices from the jurors. Indiana Jury Rule
    26(b) provides as follows:
    The court shall instruct the bailiff to collect and store all computers, cell
    phones or other electronic communication devices from jurors upon
    commencing deliberations.         The court may authorize appropriate
    communications (i.e. arranging for transportation, childcare, etc.) that are
    not related to the case and may require such communications to be
    monitored by the bailiff. Such devices shall be returned upon completion
    of deliberations or when the court permits separation during deliberations.
    Courts that prohibit such devices in the courthouse are not required to
    provide this instruction. All courts shall still admonish jurors regarding the
    limitations associated with the use of such devices if jurors are permitted to
    separate during deliberations.
    Even assuming that the trial court gave no such instruction to the bailiff, Lyons
    has failed to establish fundamental error. The jurors were explicitly instructed that “until
    your jury service is complete, you shall not use computers, laptops, cellular telephones or
    other electronic devices, during discussions or during deliberations unless specifically
    authorized by the court[,]” Tr. p. 9, and “we presume the jury follows the instructions it
    is given.” Tormoehlen v. State, 
    848 N.E.2d 326
    , 332 (Ind. Ct. App. 2006), trans. denied.
    Lyons points to nothing in the record to rebut the presumption that the jurors followed the
    trial court’s instruction, even if they were still in possession of electronic communication
    devices. The mere possibility that a juror may have used an electronic device during
    deliberations is insufficient to establish fundamental error.
    The judgment of the trial court is affirmed.
    BAILEY, J., and MAY, J., concur.
    7
    

Document Info

Docket Number: 36A01-1208-CR-331

Judges: Bradford, Bailey

Filed Date: 9/16/2013

Precedential Status: Precedential

Modified Date: 11/11/2024