Court of Appeals of Indiana | Memorandum Decision 49A02

- 1708

- CR

- 1738 | April 24, 2018 Page 1 of 9



### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
A TTORNEY FOR A PPELLANT Matthew D. Anglemeyer Marion County Public Defender Appellate Division Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA
Anthony Morton , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. A pril 24, 2018 Court of Appeals Ca se No. 49A02

- 1708

- CR

- 1738 Appeal from the Marion Superior Court The Honorable Lisa F. Borges, Judge Trial Court Cause No. 49G04

- 1605

- F1

- 19983

Bailey , Judge .Court of Appeals of Indiana | Memorandum Decision 49A02

- 1708

- CR

- 1738 | April 24, 2018 Page 2 of 9 

# 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 murde r, 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. T he tr ial 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 n umber 1); the procedure to follow if they have person al knowledge of the case (instruction n umber 2); and juror questions and the procedure for asking them (instruction n umber 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.Court of Appeals of Indiana | Memorandum Decision 49A02

- 1708

- CR

- 1738 | April 24, 2018 Page 3 of 9

I I at 142

- 44, 158. In addition, the trial court gave the jury preliminary instructions regarding the burden of proof and reasonab le doubt (instruction number 7 ), and the credibility of wi tnesses and weighing evidence (i nstruct ion

n umber 8 ). I

d . at 1 54

- 55

.
[5] At the conclusion of the trial, the trial court gave the jury t wo final instructions admonishing th em to consider the instructions

— preliminary and final

— as a whole (instruction n umbers 13 and 14). Id . at 161

- 62. In addition, the trial court once again gave the instruction regarding burden of proof and reasonabl e doubt (i n struction n umber 21 ). Id . at 169

.
[6] No alternat e jurors w ere directed to serve, and t he 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. Mort on admitted to the allegation that he is a habitual offender. On July 13, 2017, the tr i a l 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.



# Di scussion 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.Court of Appeals of Indiana | Memorandum Decision 49A02

- 1708

- CR

- 1738 | April 24, 2018 Page 4 of 9

2013). We determine whether the instruction states the law correctly, whether it is supported by record evidence, and whether its substance is covere d 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 instruction s.
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 pr inciples’ 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 contemporane ous 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 pos sibility of pre judice ... from the inaccurate instruction does not justify reversal of [a]

conv iction without a showing that [the defendant] incurred actual prejudice. ”). When determining whether a defendant suffered a due process violation based on an incorrect jury inst ruction,Court of Appeals of Indiana | Memorandum Decision 49A02

- 1708

- CR

- 1738 | April 24, 2018 Page 5 of 9

we look to the erroneous instruction not in isolation, but in the context of all relevant information given to the jury, including other i nstructions. We find no due process violation where all such information, considered as a whole, does not mi slead the jury as to a correct understanding of the law.
Dickenson v. State , 835 N.E.2d 542, 5 49 (Ind. Ct. App. 2005) (citations omitted), trans. denied

.
[9] Morton maintains that the trial court committed fundamental error by giving insufficient instruct io ns in preliminary instruction numbers 1 ( regarding the d uty of j urors ), 2 ( regarding the p erso nal knowledge of a j uror ), and 11 ( regarding juror questions and p rocedure ). 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 misle ading 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 a ll of the instructions Morton challenges , w ith th e exception of final instruction numberCourt of Appeals of Indiana | Memorandum Decision 49A02

- 1708

- CR

- 1738 | April 24, 2018 Page 6 of 9

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 conjunct ion 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)

. Campbel l 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 [Indian a Rule of Trial Procedure 51(E)] ” ) , trans. denied

.
[11] Prelimi nary jury i n struction n umber 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

. Contrar y to Morton’s assertion, the instruction adequately advises the jury members that

4 Preliminary instruction n umber 1 is Indiana Pattern Criminal Jury Instruction (“patter n instruction”) number 1.0100; preliminary instruction n umber 2 is patt ern instruction number 1.2700; preliminary instruction n umber 7 is pattern instruction number 1.1 500; preliminary instruction n umber 8 is pattern instruction number 1.1700; and preliminary instruction n umber 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 n um ber 14 is pattern instruction number 13.0100. Id ., Vol. 2, Sec. 13.0100.Court of Appeals of Indiana | Memorandum Decision 49A02

- 1708

- CR

- 1738 | April 24, 2018 Page 7 of 9

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 wa s fundamental error.

[12] Preliminary i nstruction n umber 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 juror s that they, too, may ask questions. We disagree. T his 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

n umber 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 n umber 2 is a verbatim recitation of the patte rn instruction regarding personal know ledge of the jurors. A s 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 procedure s the trial court would employ in the
event a juror notified the court of personal knowledg e about the case, the instruction in no way misstates the law. Rather, it emphasized that jurors must inform the bailiff privately of such kno wledge 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 ins tructions).Court of Appeals of Indiana | Memorandum Decision 49A02

- 1708

- CR

- 1738 | April 24, 2018 Page 8 of 9

of course, when the juror informs the bailiff that the juror has personal knowledge , th at triggers the mandatory proce dures 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 n umber 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 rel ation 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 “conside r 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

— n oting the preliminary in structions 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 trialCourt of Appeals of Indiana | Memorandum Decision 49A02

- 1708

- CR

- 1738 | April 24, 2018 Page 9 of 9

court did not fundamentally e rr when it did not repeat p reliminary instruction

n umber 8 in the final instructions.



# Conclusion

[15] Morton has failed to show that the trial court fundamentally erred in instructing the jury.

[16] Affirmed.

C rone, J., and Brown, J., concur

.