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Rivera v. State

Court of Appeals of Indiana

June 26, 2019

Roberto Cruz Rivera, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Marion Superior Court The Honorable Helen Marchal, Judge Trial Court Cause No. 49G15-1708-F6-30973

          ATTORNEY FOR APPELLANT Matthew D. Anglemeyer Marion County Public Defender Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana

          VAIDIK, CHIEF JUDGE.

         Case Summary

         [¶1] Under Indiana Code section 35-37-2-4(a), a trial court is required to give the jury an admonishment limiting juror discussions of the case (1) "in the preliminary instruction," (2) "before separating for meals," and (3) "at the end of the day." In this case, the trial court read the preliminary instructions- including the required admonishment-and then immediately excused the jury for lunch without repeating the admonishment. We must decide whether the giving of the admonishment as part of the preliminary instructions was sufficient to satisfy not only the "in the preliminary instruction" requirement of the statute but also the "before separating for meals" requirement. Because the jury was sent to lunch immediately after hearing the preliminary instructions, we hold that it was.

         Facts and Procedural History

         [¶2] In August 2017, the State charged Rivera with Level 6 felony auto theft and Class A misdemeanor theft. A jury trial was held on June 13, 2018. The judge swore in the jurors at 12:09 p.m. and then read sixteen preliminary instructions. Preliminary Instruction 1, which tracks Indiana Pattern Jury Instructions- Criminal 1.0100 (4th ed. 2019) (entitled "Duty of Jurors"), provided, in relevant part:

You are permitted to discuss the evidence among yourselves in the jury room during recesses from trial but only when all jurors and alternates are present. You must not talk or communicate about this case with anyone else. You should keep an open mind. You should not form or express any conclusion or judgment about the outcome of the case until the Court submits the case to you for your deliberations.

         Appellant's App. Vol. II p. 82. The judge also gave Preliminary Instruction 3, which directed the jury "to consider all the instructions together," id. at 85, and Preliminary Instruction 12, which instructed the jury on the credibility of witnesses and the manner of weighing testimony, id. at 94.

         [¶3] At 12:23 p.m., immediately after reading the preliminary instructions, the judge excused the jury for lunch. Tr. p. 23. The judge did not repeat the admonishment limiting juror discussions of the case, and Rivera did not ask for it to be repeated. After the jury returned from lunch, counsel gave opening statements and presented evidence. Counsel then reviewed and approved final instructions, which were read to the jury. The judge did not instruct the jury on the credibility of witnesses and the manner of weighing testimony; however, Final Instruction 1 specifically directed the jury "to consider all of the jury instructions (both preliminary and final) together." Appellant's App. Vol. II p. 101. The jury found Rivera guilty of auto theft but not guilty of theft.

         [¶4] Rivera now appeals.

         Discussion and Decision

         [¶5] Rivera contends that the trial court should have (1) repeated its admonishment limiting juror discussions of the case before excusing the jury for lunch and (2) included final instructions about the credibility of witnesses and the manner of weighing testimony. Rivera concedes that he waived both issues by failing to raise them in the trial court and that he must therefore establish fundamental error on appeal. The doctrine of fundamental error is an extremely narrow exception to the waiver rule that requires the defendant to show ...


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