Malcolm R. DePriest v. State of Indiana

FILED
Oct 24 2018, 8:09 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott L. Barnhart Curtis T. Hill, Jr.
Brooke Smith Attorney General of Indiana
Keffer Barnhart LLP
Indianapolis, Indiana Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Malcolm R. DePriest, October 24, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1176
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Plaintiff Judge
The Honorable Michael J. Cox,
Magistrate
Trial Court Cause No.
82C01-1712-F4-7397
Crone, Judge.
Case Summary
[1] Malcolm R. DePriest appeals his convictions for level 4 felony unlawful
possession of a firearm by a serious violent felon (“SVF”) and class A
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misdemeanor resisting law enforcement. He argues that the trial court
committed fundamental error by instructing the jury that there would be a
second phase of the trial if the jury found beyond a reasonable doubt that he
knowingly or intentionally possessed a firearm. Finding no error, we affirm.
Facts and Procedural History
[2] On September 28, 2017, an Evansville police officer responded to a report of an
incident in progress involving a man with two guns. The officer saw DePriest
exit a building, get on a bicycle, and ride away. The officer activated his
emergency lights and followed DePriest. DePriest looked back twice at the
officer. The officer briefly activated his siren twice. DePriest started peddling
faster. The officer saw DePriest take a handgun from his waistband and throw
it. DePriest was eventually stopped and arrested, and the handgun was
recovered.
[3] The State charged DePriest with level 4 felony unlawful possession of a firearm
by a SVF and class A misdemeanor resisting law enforcement and alleged that
he was a habitual offender. At trial, the trial court provided the jury with the
following preliminary instruction:
In Count 1, the Defendant is charged with Possession of a
Firearm in Violation of Indiana Code. The trial will be in two (2)
stages. In the first stage, there will be a trial on the issue of
whether the Defendant knowingly or intentionally possessed the
firearm as charged in Count 1. If you find beyond a reasonable
doubt that the Defendant knowingly or intentionally possessed
the firearm as charged in Count 1, there will be a second stage of
the trial. In the second stage, there will be a trial of the issue
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whether the Defendant committed a crime by possessing a
firearm.
Appellant’s App. Vol. 2 at 50. Neither party objected to the instruction.
[4] The jury found that DePriest knowingly or intentionally possessed a firearm
and found him guilty of resisting law enforcement. DePriest admitted that he
was a SVF and a habitual offender. The trial court sentenced DePriest to six
years for unlawful possession of a firearm by a SVF, with a seven-year
enhancement for being a habitual offender and a concurrent one-year sentence
for resisting law enforcement. This appeal ensued.
Discussion and Decision
[5] DePriest asserts that the preliminary instruction on bifurcation constituted
fundamental error. We observe that “[t]he manner of instructing a jury is left to
the sound discretion of the trial court. We will not reverse the trial court’s ruling
unless the instructional error is such that the charge to the jury misstates the law
or otherwise misleads the jury.” Quiroz v. State, 963 N.E.2d 37, 41 (Ind. Ct.
App. 2012) (citation omitted), trans. denied.
[6] Because DePriest failed to object to the jury instruction, he may obtain reversal
only if the instruction constituted fundamental error. See Knapp v. State, 9
N.E.3d 1274, 1281 (Ind. 2014) (“Failure to object at trial waives an issue on
appeal unless the appellant can show fundamental error.”), cert. denied (2015).
The fundamental error exception to the contemporaneous objection rule is
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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. The error claimed must either make a
fair trial impossible or constitute clearly blatant violations of
basic and elementary principles of due process. This exception is
available only in egregious circumstances.
Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (citations and quotation marks
omitted).
[7] Specifically, DePriest contends that the instruction constitutes fundamental
error because “any reference to the second stage is prejudicial and improperly
alludes to the automatic requirement of a second stage and defendant’s prior
criminal history or the possibility that he or she has one.” Appellant’s Br. at
9. We disagree. In Williams v. State, 834 N.E.2d 225 (Ind. Ct. App. 2005),
another panel of this Court upheld a substantively identical instruction that
stated:
The Defendant is charged with Illegal Possession of a Firearm.
The trial of charge [sic] will be in two (2) stages. In the first stage,
there will be a trial on the issue of whether the Defendant
knowingly or intentionally possessed the firearm as charged. If
you find beyond a reasonable doubt that the defendant
knowingly or intentionally possessed the firearm as charged,
there will be a second stage of the trial. In the second stage, there
will be a trial of the issue whether the Defendant committed a
crime by possessing a firearm.
Id. at 228. In concluding that the instruction was proper, the Williams court
reasoned as follows:
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With bifurcation … comes the difficulty of explaining to a jury
why the defendant is facing trial for merely possessing a firearm.
To the extent the trial court’s instruction informed the jury that Williams
was alleged to have possessed the firearm illegally for some reason, such
was likely already the common sense conclusion of the jurors. The
instruction also is clear that there would be a second phase of the
trial if, and only if, the jury first concluded beyond a reasonable
doubt that Williams had knowingly or intentionally possessed a
firearm. It did not, as Williams argues, imply that a second
phase of the trial was inevitable.
…. Here, the trial court circumvented legitimate concerns
regarding fairness by avoiding reference to Williams as a “serious
violent felon” until after the jury had decided whether he had
knowingly or intentionally possessed the AK-47. ….
In sum, we conclude the trial court here struck the proper
balance between advising the jury that Williams had indeed been
charged with a firearm-related crime and avoiding identifying
Williams as a “serious violent felon” from the outset of trial.
Although current precedent does not require trial courts to
bifurcate SVF trials, we believe that the bifurcation procedure
serves the ends of justice in such trials and urge our state’s trial
judges to use this procedure in SVF cases.
Id. at 227-28 (emphasis added).
[8] To the extent DePriest argues that mentioning a second phase of the trial
suggests it is automatic, we reach the same conclusion as the Williams court.
Here, the instruction clearly states that there would be a second phase of the
trial only if the jury first concluded beyond a reasonable doubt that DePriest
knowingly or intentionally possessed a firearm. As to DePriest’s argument that
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the instruction’s reference to a second phase suggests that the defendant has or
might have a criminal history, we disagree. The instruction simply states that in
the second stage the jury would consider whether the defendant committed a
crime by possessing a firearm; there is no mention of any facts or circumstances
or law as to what makes possessing a firearm a crime. We are unpersuaded that
the instruction is prejudicial.
[9] We observe that the Williams court’s reasoning in upholding the instruction and
advocating bifurcation in SVF cases was endorsed by our supreme court in
Russell v. State, 997 N.E.2d 352, 354 (Ind. 2013), which addressed a claim of
improper trial bifurcation rather than the propriety of a jury instruction. In
arguing that bifurcation was improper, Russell argued that “instructing the jury
on the non-existent offense of ‘unlawful possession of a firearm’ was prejudicial
because most jurors would know that possession of a firearm, by itself, is not a
criminal offense [and] jurors would infer a second phase of trial.” Id. The
supreme court concluded that this argument failed “[b]ecause the trial court
instructed the jury to consider whether Russell had ‘unlawfully’ possessed a
firearm and whether Russell was a SVF in two separate phases of trial.” Id. In
reaching this conclusion, the supreme court observed that “this argument was
rejected in Williams v. State, where the Court of Appeals held that by bifurcating
the defendant’s SVF trial so that the jury would consider knowing possession of
a firearm and the defendant’s SVF status separately, the trial court ‘avoid[ed]
identifying [the defendant] as a ‘serious violent felon’ from the outset of trial.’”
Id. (quoting Williams, 834 N.E.2d at 228) (brackets in Russell).
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[10] Based on the foregoing, we conclude that the trial court did not commit error,
let alone fundamental error, in giving the challenged instruction. Therefore, we
affirm.
[11] Affirmed.
Najam, J., and Pyle, J., concur.
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