Kevin Alexander Campbell v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 30 2018, 11:17 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bryan M. Truitt Curtis T. Hill, Jr.
Bertig and Associates, LLC Attorney General of Indiana
Valparaiso, Indiana
Monika Prekopa Talbot
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin Alexander Campbell, November 30, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1122
v. Appeal from the Porter Superior
Court
State of Indiana, The Honorable Roger V. Bradford,
Appellee-Plaintiff. Judge
Trial Court Cause No.
64D01-1512-MR-10382
Brown, Judge.
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[1] Kevin Alexander Campbell appeals from his conviction for murder. Campbell
raises one issue which we revise and restate as whether the trial court
committed fundamental error in instructing the jury. We affirm.
Facts and Procedural History
[2] Campbell was in a relationship with Tiara Thomas for fourteen years, and they
had three children together. Campbell and Thomas separated, Thomas began
dating Marqtell Robinson, and Thomas and Robinson began living together in
January 2015. Campbell was ordered to pay child support and argued with
Thomas about the support, what Thomas was doing with the money, and their
children. Before picking up his children to spend the night with him on
November 17, 2015, Campbell asked one of the children to bring a key to
Thomas’s apartment. Campbell picked up the children, Thomas and Robinson
went to dinner together, and Robinson went to work and clocked in at about
10:45 p.m. Thomas and Robinson sent text messages to each other during the
night, and the last text Robinson received from Thomas was at 4:56 a.m. on
November 18, 2015.
[3] Robinson left work at 7:00 a.m. and drove home. When he arrived at the
apartment, he discovered that the apartment door was unlocked. He entered
the bedroom and reached for Thomas’s hand, and a bullet casing fell from her
wrist. Robinson looked around and saw blood on the wall, covers, and bed
sheets. Thomas’s hand was cold but she was still breathing, and Robinson
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called 911. Thomas later died from her injuries, and it was determined that she
had suffered four gunshot wounds including one to her head.
[4] On December 2, 2015, the State charged Campbell with the murder of Thomas.
A ten-day jury trial was held in January 2018. The trial court gave Preliminary
Instruction No. 1 to the jury which provided in part:
Keep an open mind. Do not make a decision about the outcome
of this case until you have heard all the evidence, the arguments
of counsel, and my final instructions about the law you will apply
to the evidence you have heard. . . .
You may discuss the evidence with your fellow jurors during the
trial, but only in the jury room, and only when all of you are
present. Even though you are permitted to have these
discussions[] [y]ou must not make a decision about the outcome
of this case until final deliberations begin. Until you reach a
verdict, do not communicate about this case or your deliberations
with anyone else.
Appellant’s Appendix Volume II at 85. Campbell did not object to the
instructions. Throughout the trial, the court instructed the jury not to discuss
the case except among themselves when they were all present in the jury room.
One of the alternate jurors replaced a juror who had become ill during the trial.
The jury found Campbell guilty of murder as charged, and the court sentenced
him to fifty-five years.
Discussion
[5] Campbell claims there can be no confidence in the verdict because the jurors
were encouraged to discuss and consider the case prior to deliberations. He
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argues that the length of the trial and the fact the jurors, including the alternate
jurors, were encouraged to discuss the evidence deprived him of a fair trial. He
concedes that he did not object to the court’s instruction but argues that it
constituted fundamental error. He states that the Indiana Supreme Court has
held that discussions and deliberations are not the same but argues that the
distinction is one of form and not of substance and contradicts common sense.
The State maintains that no error, let alone fundamental error, occurred and
that the court properly instructed and admonished the jurors that they could
discuss the case among themselves before all the evidence was presented. It
argues the court’s instruction and admonishments were proper under Indiana
Jury Rule 20, and the argument raised by Campbell that jurors should not be
permitted to discuss the case during breaks has already been rejected.
[6] An error is fundamental if it made a fair trial impossible or constitutes a clearly
blatant violation of basic and elementary principles of due process presenting an
undeniable and substantial potential for harm. Durden v. State, 99 N.E.3d 645,
652 (Ind. 2018). These errors create an exception to the general rule that a
party’s failure to object at trial results in a waiver of the issue on appeal. Id.
This exception, however, is extremely narrow and encompasses only errors so
blatant that the trial judge should have acted independently to correct the
situation. Id.
[7] Indiana Jury Rule 20 governs preliminary instructions and provides in part:
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(a) The court shall instruct the jury before opening statements by
reading the appropriate instructions which shall include at least
the following:
*****
(8) that jurors, including alternates, are permitted to
discuss the evidence among themselves in the jury room
during recesses from trial when all are present, as long as
they reserve judgment about the outcome of the case until
deliberations commence. The court shall admonish jurors
not to discuss the case with anyone other than fellow
jurors during the trial.
[8] In Weatherspoon v. State, this Court discussed Jury Rule 20 and observed that
subsection (a)(8) of the rule went into effect on January 1, 2005, and at that
time referenced jurors but not alternate jurors. 912 N.E.2d 437, 440 (Ind. Ct.
App. 2009), trans. denied. We further noted that, “[a]ccording to Chief Justice
Shepard, Jury Rule 20(a)(8)”
is an important step in the process of reforming this state’s jury
system. Besides helping jurors to clarify confusing issues of
evidence when they occur, and helping jurors to follow the
dynamics of trial, allowing jurors to discuss evidence during the
trial treats them as they are: intelligent, responsible adults.
Because so much of the public’s perception of jury service is built
upon anecdotal evidence related by those who have served on
juries, treating jurors as capable adults is important not only for
promoting a better legal result, but in helping to eliminate the
public’s conception of jury service as tedious, belittling, and
pointless.
Allowing jurors to discuss the evidence before deliberations begin
is an important step in reforming the Hoosier jury. . . .
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Id. (citing Randall T. Shepard, Jury Trials Aren’t What They Used to Be, 38 IND.
L. REV. 859, 865 (2005)). We then observed that Jury Rule 20(a)(8) was again
amended on September 10, 2007, effective January 1, 2008, in its current form
to provide that alternate jurors are also permitted to discuss the evidence in the
jury room during recesses from trial when all are present. Id.
[9] We noted that the defendant in Weatherspoon claimed that alternates discussing
the case is the same as alternates deliberating the case, and alternates in Indiana
are not permitted to deliberate. Id. We held:
[T]he Indiana Supreme Court adopted and amended the Jury
Rules, including the recent amendment to Jury Rule 20(a)(8),
which provides that alternate jurors are permitted to discuss the
evidence among themselves in the jury room during recesses
from trial when all are present, as long as they reserve judgment
about the outcome of the case until deliberations commence. We
acknowledge Weatherspoon’s argument that during discussions,
alternate jurors talk about issues of credibility, highlight and
discount certain evidence, and narrow and broaden the issues, all
of which may affect the final judgment or verdict, yet these
discussions are the very discussions that alternate jurors may not
have during deliberations. Nevertheless, our Supreme Court has
unambiguously made a distinction between discussions and
deliberations. We are not at liberty to rewrite the rules
promulgated by our Supreme Court.
Id. at 441. See also Rice v. State, 916 N.E.2d 962, 965-966 (Ind. Ct. App. 2009)
(rejecting the defendant’s argument that alternate jurors should not be permitted
to participate in discussions because discussions are the functional equivalent of
deliberations, agreeing with Weatherspoon that this Court may not rewrite the
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rules promulgated by the Indiana Supreme Court, and holding that the trial
court did not err in instructing the jurors that they were permitted to discuss the
evidence among themselves in the jury room during recesses, but only when all
of them were present, and that they should not form or express any conclusion
or judgment about the outcome in the case until the court submitted the case to
them for deliberations).
[10] Preliminary Instruction No. 1 given by the trial court was not inconsistent with
Jury Rule 20, and in fact the rule expressly required the court to so instruct the
jury. See Jury Rule 20(a). In its Preliminary Instruction No. 1, the court
instructed the jurors that they were permitted to discuss the evidence with their
fellow jurors during the trial but only in the jury room and only when all of
them were present, not to make a decision about the outcome of the case until
final deliberations began, and not to communicate about the case or
deliberations with anyone else.
[11] Based upon the record and Jury Rule 20(a), the trial court did not err in giving
Preliminary Instruction No. 1. We do not find persuasive Campbell’s claim
that he was deprived of a fair trial due to the length of the trial and the fact that
the jurors were permitted to discuss the evidence. Campbell has not met his
heavy burden of showing that the court’s instruction and admonishments to the
jury were prejudicial to his rights so as to make a fair trial impossible. The trial
court did not err in instructing and admonishing the jury as Campbell asserts.
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Conclusion
[12] For the foregoing reasons, we affirm Campbell’s murder conviction.
[13] Affirmed.
Bailey, J., and Bradford, J., concur.
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