Anthony Morton v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Apr 24 2018, 6:16 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Appellate Division
James B. Martin
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony Morton, April 24, 2018
Appellant-Defendant, Court of Appeals Case No.
49A02-1708-CR-1738
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Lisa F. Borges,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G04-1605-F1-19983
Bailey, Judge.
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Case Summary
[1] Anthony Morton (“Morton”) appeals his convictions for attempted murder, a
Level 1 felony,1 and arson, as a Level 2 felony.2 The sole issue he raises on
appeal is whether the trial court committed fundamental error when it
instructed the jury.
[2] We affirm.
Facts and Procedural History
[3] On May 25, 2016, the State charged Morton with attempted murder, a Level 1
felony, and two counts of arson resulting in serious bodily, a Level 2 felony.
On March 14, 2017, the State filed an additional information charging that
Morton was a habitual offender.3
[4] Morton was tried by jury on June 5 and 6, 2017. The trial court gave the jury
preliminary instructions regarding, among other things, their duty as jurors,
including refraining from use of electronics and independent research during
the trial (instruction number 1); the procedure to follow if they have personal
knowledge of the case (instruction number 2); and juror questions and the
procedure for asking them (instruction number 11). Appellant’s Appendix Vol.
1
Ind. Code § 35-42-1-1 (2016); I.C. § 35-41-5-1(a).
2
I.C. § 35-43-1-1(a).
3
I.C. § 35-50-2-8.
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II at 142-44, 158. In addition, the trial court gave the jury preliminary
instructions regarding the burden of proof and reasonable doubt (instruction
number 7), and the credibility of witnesses and weighing evidence (instruction
number 8). Id. at 154-55.
[5] At the conclusion of the trial, the trial court gave the jury two final instructions
admonishing them to consider the instructions—preliminary and final—as a
whole (instruction numbers 13 and 14). Id. at 161-62. In addition, the trial
court once again gave the instruction regarding burden of proof and reasonable
doubt (instruction number 21). Id. at 169.
[6] No alternate jurors were directed to serve, and the jury found Morton guilty of
attempted murder and one count of arson as a Level 2 felony. The jury found
Morton not guilty of the second count of arson. Morton admitted to the
allegation that he is a habitual offender. On July 13, 2017, the trial court
sentenced Morton to forty years for attempted murder, enhanced by twenty
years pursuant to the habitual offender adjudication, and to six years for arson
as a Level 2 felony. This appeal ensued.
Discussion and Decision
[7] Morton contends that the trial court erred in instructing the jury.
Because instructing the jury is a matter within the sound
discretion of the trial court, we will reverse a trial court’s decision
to tender or reject a jury instruction only if there is an abuse of
that discretion. Washington v. State, 997 N.E.2d 342, 345 (Ind.
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2013). We determine whether the instruction states the law
correctly, whether it is supported by record evidence, and
whether its substance is covered by other instructions. Id. at 345-
46. “Jury instructions are to be considered as a whole and in
reference to each other; error in a particular instruction will not
result in reversal unless the entire jury charge misleads the jury as
to the law in the case.” Whitney v. State, 750 N.E.2d 342, 344
(Ind. 2001) (quoting Edgecomb v. State, 673 N.E.2d 1185, 1196
(Ind. 1996)).
Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016).
[8] At trial, Morton did not object to either the preliminary or final jury
instructions.
Where … the defendant failed to preserve an alleged instructional
defect, the objection is waived, and reversal is warranted only in
instances of fundamental error. Wright v. State, 730 N.E.2d 713,
716 (Ind. 2000). “Error is fundamental if it is ‘a substantial
blatant violation of basic principles’ and where, if not corrected,
it would deny a defendant fundamental due process.” Id.
(quoting Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998)). This
exception to the general rule requiring a contemporaneous
objection is narrow, providing relief only in “egregious
circumstances” that made a fair trial impossible. Halliburton v.
State, 1 N.E.3d 670, 678 (Ind. 2013).
Id.; see also Rosales v. State, 23 N.E.3d 8, 15 (Ind. 2015) (“[T]he mere possibility
of prejudice … from the inaccurate instruction does not justify reversal of [a]
conviction without a showing that [the defendant] incurred actual prejudice.”).
When determining whether a defendant suffered a due process violation based
on an incorrect jury instruction,
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we look to the erroneous instruction not in isolation, but in the
context of all relevant information given to the jury, including
other instructions. We find no due process violation where all
such information, considered as a whole, does not mislead the
jury as to a correct understanding of the law.
Dickenson v. State, 835 N.E.2d 542, 549 (Ind. Ct. App. 2005) (citations omitted),
trans. denied.
[9] Morton maintains that the trial court committed fundamental error by giving
insufficient instructions in preliminary instruction numbers 1 (regarding the
duty of jurors), 2 (regarding the personal knowledge of a juror), and 11
(regarding juror questions and procedure). He also contends that the trial court
fundamentally erred when it failed to repeat preliminary instruction number 8
(regarding credibility of witnesses and weighing evidence) in the final
instructions.
[10] The purpose of jury instructions “is to inform the jury of the law applicable to
the facts without misleading the jury and to enable it to comprehend the case
clearly and arrive at a just, fair, and correct verdict.” Overstreet v. State, 783
N.E.2d 1140, 1163 (Ind. 2003). As an initial matter, we note that all of the
instructions Morton challenges, with the exception of final instruction number
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13, are, verbatim, the Indiana Pattern Criminal Jury Instructions.4 As our
Supreme Court has noted,
The Indiana Pattern Jury Instructions are prepared under the
auspices of the Indiana Judges Association in conjunction with
the Indiana Judicial Conference Criminal and Civil Instruction
Committees. Although they are not formally approved for use,
they are tacitly recognized by Indiana Trial Rule 51(E).
Halliburton v. State, 1 N.E.3d 670, 684 n. 9 (Ind. 2013).
Campbell v. State, 19 N.E.3d 271, 275 n.3 (Ind. 2014). Thus, we have held that it
is the “preferred practice” for trial courts to use the pattern jury instructions.
Gravens v. State, 836 N.E.2d 490, 493 (Ind. Ct. App. 2005) (noting the pattern
instructions have the “apparent approval of the Indiana Supreme Court as
evidenced by the preferred treatment given such instructions in [Indiana Rule of
Trial Procedure 51(E)]”), trans. denied.
[11] Preliminary jury instruction number 1, which recites verbatim the pattern
instruction regarding the use of electronic devices and the prohibition against
doing independent investigation and research, is an accurate statement of the
law and, as such, we cannot say that it in any way misled the jury. Contrary to
Morton’s assertion, the instruction adequately advises the jury members that
4
Preliminary instruction number 1 is Indiana Pattern Criminal Jury Instruction (“pattern instruction”)
number 1.0100; preliminary instruction number 2 is pattern instruction number 1.2700; preliminary
instruction number 7 is pattern instruction number 1.1500; preliminary instruction number 8 is pattern
instruction number 1.1700; and preliminary instruction number 11 is pattern instruction number 1.2200. Vol.
1, Indiana Judges Association, Indiana Pattern Jury Instructions—Criminal, 4th Ed., Sections 1.0100;
1.1500; 1.1700; 1.2200; and 1.2700 (2017). Final instruction number 14 is pattern instruction number
13.0100. Id., Vol. 2, Sec. 13.0100.
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they may not use electronic devices or conduct their own research until their
service as jurors is complete. Morton has failed to show that the giving of this
instruction was fundamental error.
[12] Preliminary instruction number 11 is a verbatim recitation of the pattern
instruction regarding juror questions and the process for asking such questions.
Yet, Morton contends the instruction fails to adequately inform alternate jurors
that they, too, may ask questions. We disagree. This instruction—like all the
instructions—was read to all the jurors, including the alternates, and Morton
has articulated no reason why alternate jurors would believe this specific
instruction did not apply to them, while all other instructions did. Instruction
number 11 is an accurate statement of the law and, as such, we cannot say that
it in any way misled the jury, including the alternates.
[13] Instruction number 2 is a verbatim recitation of the pattern instruction
regarding personal knowledge of the jurors. As Morton points out, the
instruction does not include “the personal knowledge procedure under [Jury]
Rule 24[,]” as required by Jury Rule 20(a)(5).5 However, while instruction
number 2 does not describe the procedures the trial court would employ in the
event a juror notified the court of personal knowledge about the case, the
instruction in no way misstates the law. Rather, it emphasized that jurors must
inform the bailiff privately of such knowledge at the earliest opportunity. And,
5
The Indiana Jury Rules specify what instructions, at a minimum, a trial court must give. See Ind. Jury
Rule 20 (regarding preliminary instructions); J.R. 26 (regarding final instructions).
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of course, when the juror informs the bailiff that the juror has personal
knowledge, that triggers the mandatory procedures discussed in Jury Rule 24;
i.e., the court examines the juror and decides whether the juror must be
excused. Because Morton has failed to show that he incurred actual prejudice
from the giving of instruction number 2, we hold the giving of that instruction
was not fundamental error.
[14] Finally, Morton maintains that the trial court erred when it failed to repeat
preliminary instruction number 8 (regarding credibility of witnesses and
weighing evidence) in the final instructions, citing Indiana Jury Rule 26.
However, it is well-settled that instructions must be considered as a whole and
in relation to each other. E.g., Pattison, 54 N.E.3d at 365. And the trial court
made specific note of this principle in two separate final instructions. The court
gave final instruction 14, which is the pattern instruction stating that the jury
must “consider all of the instructions [both preliminary and final] together.”
Appellant’s App. Vol. II at 162. In addition, the trial court gave the jury final
instruction 13, which emphasized this principal more specifically and
explicitly—noting the preliminary instructions regarding “issues for trial, the
burden of proof, the credibility of witnesses, and the manner of weighing the
evidence … should be considered by you along with the following final
instructions in arriving at your verdict in this case.” Id. at 161. Because the
jury instructions, “considered as a whole, [did] not mislead the jury as to a
correct understanding of the law[,]” Dickenson, 835 N.E.2d at 548-49, the trial
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court did not fundamentally err when it did not repeat preliminary instruction
number 8 in the final instructions.
Conclusion
[15] Morton has failed to show that the trial court fundamentally erred in instructing
the jury.
[16] Affirmed.
Crone, J., and Brown, J., concur.
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