MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Jan 18 2018, 9:08 am
Memorandum Decision shall not be regarded as
CLERK
precedent or cited before any court except for the Indiana Supreme Court
Court of Appeals
purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria L. Bailey Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Clint Richardson, January 18, 2018
Appellant-Defendant, Court of Appeals Case No.
49A04-1707-CR-1567
v. Appeal from the Marion Superior
Court.
The Honorable Anne Flannelly,
State of Indiana, Magistrate.
Appellee-Plaintiff. Trial Court Cause No.
49G04-1608-F4-29699
Barteau, Senior Judge
Statement of the Case
[1] Clint Richardson appeals the jury’s determination that he is an habitual
offender. We affirm.
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Issue
[2] Richardson raises one issue, which we restate as: whether the trial court
committed fundamental error while instructing the jury during the habitual
offender phase of the trial.
Facts and Procedural History
[3] On the night of July 28, 2016, Alina Pawchareune was asleep at her rented
house in Indianapolis. She was in a bedroom on the house’s second floor.
When Pawchareune woke up to go to the bathroom, she noted that the light
was on in the hallway, which was unusual. She further noticed a box had been
moved from her bedroom to the hallway. Next, she saw that the door to the
attic, which the landlord had left bolted shut for the last two years, had been
forced open.
[4] Pawchareune woke up her friend Nathan and a housemate. She and Nathan
approached the attic door and heard rustling noises coming from upstairs.
Pawchareune loudly asked if anyone was up there, and she next saw a shirtless
stranger, later identified as Richardson, walking down the attic stairs.
[5] Nathan closed the attic door and held it shut while Pawchareune called 911.
Richardson kicked the door and asked to be let out. Pawchareune and Nathan
ran into a bedroom and locked the door. Pawchareune’s housemate also locked
himself in a bedroom. Pawchareune and Nathan soon heard someone going
downstairs to the ground floor.
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[6] Meanwhile, several police officers were dispatched to the house, including then-
rookie Officer Thomas Thompson and his field training officer, Eric Amos.
Officer Thompson approached the house’s front door and looked through a
large window. He saw a shirtless person, later identified as Richardson,
carrying a television through the house. Officer Thompson identified himself as
a police officer and ordered Richardson to put his hands up and identify
himself. Instead of complying, Richardson walked into a different room, and
the officers lost sight of him. They decided against entering the house, choosing
to set up a cordon instead.
[7] Officer Scott Charleswood arrived separately, parking in an alley behind the
house. He heard rustling from the house’s backyard, so he opened a gate in the
privacy fence and entered the yard. Officer Charleswood saw heavy vegetation
and a small pond as he approached the house. Next, he heard the splash of
footsteps in the pond. Officer Charleswood looked around and saw a shirtless
person, later identified as Richardson, moving toward the rear gate.
[8] Officer Charleswood pointed a gun at Richardson and told him to stop.
Richardson complied, and Officer Thompson walked to their location and put
Richardson in handcuffs. Meanwhile, Officer Amos checked the house for
additional suspects and informed the residents that a suspect was in custody.
[9] Richardson’s pants were wet, and the officers found a television in a corner of
the yard, near a wet footprint. The television belonged to Pawchareune’s
housemate. In addition, the officers searched Richardson and found
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Pawchareune’s wallet. She had previously placed it in the box that she later
found in the hallway.
[10] The State charged Richardson with burglary, a Level 4 felony, and theft with a
prior conviction, a Level 6 felony. The State further alleged Richardson was a
habitual offender. The case was tried in three phases. During phase one, a jury
determined Richardson was guilty of burglary as a Level 4 felony and was
guilty of theft as a Class A misdemeanor. During phase two, Richardson
waived his right to a jury trial on the issue of whether he had a predicate theft
conviction. The court determined he had a predicate theft conviction and was
therefore guilty of theft as a Level 6 felony. Finally, during phase three, the jury
determined Richardson was a habitual offender. The court imposed a sentence,
and this appeal followed.
Discussion and Decision
[11] Richardson argues the trial court erred during the habitual offender phase of the
trial by failing to instruct the jury that, pursuant to Article I, section 19 of the
Indiana Constitution, jurors have the right to determine the law and the facts.
He concedes he did not raise that issue during the habitual offender phase, and
he asks this Court to determine that the omission of the instruction amounted to
fundamental error.
[12] In general, a defendant must object to a deficiency in jury instructions, and
failure to object will result in procedural default of appellate review of the issue.
Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998). An error may be fundamental,
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and thus not subject to procedural default, if the error amounts to a substantial,
blatant violation of basic principles. Id. (quotation omitted). The doctrine of
fundamental error was originally designed and intended to allow only a certain
category of egregious errors to be addressed on the merits on appeal despite a
failure to object at trial. Turner v. State, 682 N.E.2d 491, 497 (Ind. 1997). The
error must be substantial and blatant, and render the trial so unfair as to amount
to a deprivation of defendant’s right to fundamental due process. Evans v. State,
81 N.E.3d 634, 637 (Ind. Ct. App. 2017).
[13] In this case, during phase one of the trial the court instructed the jury, in both
the preliminary and final jury instructions, as follows: “Under the Constitution
of Indiana the jury has the right to determine both the law and the facts. The
Court’s instructions are your best source in determining the law.” Appellant’s
App. Vol. II, pp. 127, 142.
[14] Next, during the habitual offender phase, the court and the parties discussed the
final jury instructions outside the presence of the jury. The court asked
Richardson if he had any proposed final instructions, and he responded that he
did not. The discussion subsequently turned to the trial court’s proposed
Instruction Number 3, as follows:
THE COURT: Instruction Number 3, because you are the
judges of the law and the facts, even where you find that the fact
of the prerequisite prior felony convictions is uncontroverted, you
have the unquestioned right to find that the defendant is not an
habitual offender. Any objection from the defense?
[RICHARDSON]: No objection.
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THE COURT: Any objection from the State?
[THE STATE]: That’s a patterned [sic]? Allowing them to
disavow a prior conviction if they don't approve of it?
THE COURT: I’m handed this as a - as a pattern.
[THE STATE]: This essentially states that even if I prove my
case, they have the right to decide that it - he’s not an habitual
offender.
THE COURT: That’s what it says.
[THE STATE]: I would object to Instruction Number 3.
THE COURT: Okay. I take your objection under advisement.
Tr. Vol. 2, pp. 139-40.
[15] After discussing other instructions, the Court took a brief recess to consider
Instruction Number 3. When proceedings resumed, the Court ruled as follows:
With respect to Court’s final instructions to the jury on Phase 3,
and specifically the State’s objection to Instruction Number 3. I
searched the pattern instruction books and could not find that as
a patterned [sic] instruction. I suspect that it might have been
used in some other trial at some point. But it is clearly saying
that even where you find its uncontroverted, you can ignore it
and you can find that he’s not. And I’m going to grant the
State’s objection. I’m not going to give that instruction because I
don’t see it as a patterned instruction. I think it’s confusing.
Id. at 141-42. The court gave the parties one final opportunity to raise issues
regarding the instructions, and Richardson specifically declined.
[16] During closing argument of the habitual offender phase, Richardson told the
jury as follows: “I’m simply going to remind you that you’re the jury, and you
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have the power to decide. And you can go back there and deliberate and find
him not guilty.” Id. at 156.
[17] Initially, it is unclear whether the court committed an error, let alone
fundamental error. The trial court correctly stated that Instruction Number 3
did not follow the pattern jury instruction. See Indiana Pattern Jury
Instructions-Criminal, No. 1.0300 (Indiana Judges Association 2014) (“Under
the Constitution of Indiana you have the right to determine both the law and
the facts. The Court’s/my instructions are your best source in determining the
law.”).
[18] In any event, any error was not fundamental. The jury had been instructed
about its powers under Indiana Constitution Article I, section 19 during phase
one of the trial, no more than several hours prior to the habitual offender phase.
Further, Richardson reminded the jury during closing arguments of the habitual
offender phase that it had the power to decide whether he was guilty or not
guilty on the facts. In addition, the evidence against Richardson was thorough
and consistent. We conclude the jury was sufficiently informed of the law, and
any error related to Article I, section 19 did not deprive Richardson of
fundamental due process. See Clark v. State, 561 N.E.2d 759, 764 (Ind. 1990)
(failure to instruct jury about Article I section 19 powers during habitual
offender phase of trial was not fundamental error; jurors were instructed on the
issue during phase one of the trial).
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Conclusion
[19] For the reasons stated above, we affirm the judgment of the trial court.
[20] Affirmed.
May, J., and Altice, J., concur.
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Clint Richardson v. State of Indiana (mem. dec.)
Combined Opinion