MEMORANDUM DECISION
                                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),                                        Nov 13 2018, 9:34 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                          CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
court except for the purpose of establishing                                       and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Karen M. Heard                                          Curtis T. Hill, Jr.
Vanderburgh County Public Defender                      Attorney General of Indiana
Evansville, Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Sean M. Keith,                                          November 13, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1129
        v.                                              Appeal from the Vanderburgh
                                                        Circuit Court
State of Indiana,                                       The Honorable Kelli E. Fink,
Appellee-Plaintiff                                      Magistrate
                                                        Trial Court Cause No.
                                                        82C01-1712-F6-7614



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018              Page 1 of 12
                                          Case Summary
[1]   Sean Keith represented himself at trial and was convicted of residential entry as

      a Level 6 felony. He now appeals, arguing that the trial court should have

      stricken a biased person from the jury, done more to admonish the jury after

      sustaining an objection, and excluded certain testimony. We affirm.



                            Facts and Procedural History
[2]   On the morning of December 7, 2017, Keith’s sister, Casey, and her fiancé,

      Jerry Thompson, were sitting in their house in Evansville, while their two

      young children slept. While it was still dark outside, Keith came to their house

      and “was freaked out . . . .” Tr. Vol. II p. 53. Casey and Thompson, who was

      best friends with Keith, “got [Keith] calmed down.” Id. At around 7:15 a.m.,

      Casey left for work at KFC, and Keith stayed at the house with Thompson.

      Once Casey left, Keith’s “scaredness came back.” Id. Thompson later said that

      he felt “very intimidated” and asked Keith to leave. Id.


[3]   After Keith left, Thompson texted Casey, “I believe I [am] fixing to die.” Id. at

      54. Thompson also called his friend and neighbor, Brian McDaniel, and told

      him that he needed him to come over and stand-by while he got his children

      ready to go to KFC. Thompson later testified that he wanted “to remove

      [himself] from the situation so that nothing could progress any further.” Id.

      After getting off the phone with Thompson, McDaniel grabbed his handgun

      and went to Thompson’s house.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018   Page 2 of 12
[4]   Once McDaniel arrived, Thompson put a chair under the knob of the front door

      and asked McDaniel to keep an eye out for Keith while he began waking up his

      children and getting them ready to leave. About twenty minutes later, Keith

      knocked on the front door of the house. Thompson removed the chair and

      opened the door. After he saw that it was Keith, Thompson quickly shut the

      door. Almost immediately after Thompson shut the door, the door flew open

      and Keith came inside the house. When Keith entered the house, he appeared

      “shifty . . . [and] aggressive” and had a knife in his hands. Id. at 56. Keith

      asked Thompson, “[I]s this your team[?],” and then raised the knife in the air.

      Id. at 57. Once Keith raised the knife, McDaniel drew his gun, pointed it at

      Keith, and told Keith to leave. Keith backed out the door and left Thompson’s

      house. After Keith left, Thompson, his children, and McDaniel were able to

      get out of the house and headed straight to KFC. On the way, Thompson

      called police and met an officer at a nearby gas station.


[5]   After meeting up with the officer and dropping off the children with Casey at

      KFC, Thompson and McDaniel returned to the house. They were

      accompanied by police because they were unsure where Keith was. Once at the

      house, officers took various pictures of the house, including pictures of the

      damaged door frame. Later, officers located Keith and arrested him. After

      being read his Miranda rights, Keith told officers that “he had tripped out” and

      that “he had had a knife.” Id. at 123.


[6]   On December 12, the State charged Keith with residential entry as a Level 6

      felony. On March 8, 2018 (the day before his trial), Keith asked to represent

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018   Page 3 of 12
      himself at trial because he no longer wanted his appointed attorney to serve as

      his counsel. The trial court advised Keith of the dangers of proceeding pro se

      and inquired into his educational background. Ultimately, the trial court

      granted Keith’s request to represent himself. The next morning, the trial court

      once again warned Keith that even though he was representing himself, he

      would be held to the same standards as attorneys, “including the rules of trial

      procedure and the rules of evidence.” Id. at 4. The trial court also told Keith

      that his “failure to make proper or timely objections will waive any error for

      appeal.” Id. Keith confirmed he understood all the trial court’s warnings and

      that he still wished to represent himself. The trial court then explained the

      process of voir dire, including that Keith would have five peremptory strikes.


[7]   During the State’s voir dire, one of the potential jurors expressed an opinion

      that “so many defendants in our country are under-represented and that

      punishments are so harsh and there are too many incarcerations in regard to

      demographics[.]” Id. at 32. After this opinion was expressed, the following

      colloquy ensued:


                 The State:        . . . Seeing some heads, some. Yes.


                 Juror:1           No I’m not responding to that, I’m responding to
                                   the fact that my son is a law enforcement officer.




      1
          The word “juror” is used in the transcript where the potential juror who was speaking was not identified.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018                    Page 4 of 12
        The State:       Yes.


        Juror:           And has been for 20 years, so I am very pro LEO. I
                         also worked in, I was a nurse in the Marion County
                         Jail for six years, so I might have very skewed
                         opinions on criminal cases, some criminal cases.


        The State:       So, based on your experience and the relationship
                         you have with your son and your career, are you
                         going to be able to be fair and impartial to the State
                         and to Mr. Keith?


        Juror:           I really can’t say that I can be.


        The State:       And that’s an honest answer, that’s all we’re
                         looking for. Anybody else feel that way, not
                         necessarily the law enforcement relationship but
                         perhaps a similar relationship to you. [Juror B.],
                         similar idea that you have opinions about the
                         criminal justice system in general and incarceration
                         and that might skew you one way or the other.


        Juror:           Separate it, yeah.


        The State:       [Juror G.]?


        [Juror G.]:      My brother is incarcerated right now for a very long
                         time so, and I don’t feel a lot of his, the experience
                         in the court for him was very fair on his behalf.


        The State:       So, I’ll ask you the same question that I asked of
                         [Juror B.] and I asked of [Juror H.], are you going to
                         be able to separate that experience from what you
                         hear and see in the courtroom today?
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018   Page 5 of 12
                 [Juror G.]:        I don’t know.


      Id. at 34-35. After the State finished its questioning of the potential jurors,

      Keith thanked the jurors for being there but declined to ask any questions.

      Keith did not use any of his five peremptory strikes or challenge any of the

      potential jurors for cause. See Appellant’s Br. pp. 15-16. After the State

      submitted its peremptory strikes, three potential jurors were stricken, and two

      others were released because they were not needed to empanel the required six-

      person jury.2 Juror B. was seated on the jury, but not Juror G. or Juror H.


[8]   During opening statements, Keith told the jury that “[a] lot of things in these

      police reports I have contradict [themselves], but the witness Jerry Thompson is

      in the back, if he says I did it then I’ll just say I did it, so that’s all I got to say.”

      Tr. Vol. II p. 50. Thompson testified that Keith’s behavior on the morning of

      December 7, 2017, made him feel “very intimidated” and that he “couldn’t see

      [his] best friend’s pupils, [Keith’s] eyes were black solid[.]” Id. at 53.

      Thompson also testified that at the point when Keith’s attitude changed, Keith

      was looking for a firearm. Thompson also said that after Keith left he texted

      Casey that he “believe[d] [he] was fixing to die.” Id. at 54. Keith did not make

      any objections during Thompson’s testimony. McDaniel testified that when

      Thompson called him to come over, Thompson told him that “he thought

      [Keith] was trying to kill him, that [Keith] had come by, walked around the




      2
          For a Level 6 felony, the jury consists of six qualified jurors. Ind. Code § 35-37-1-1.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018              Page 6 of 12
       house in front of [Thompson’s] kids with a knife at his throat.” Id. at 83. Keith

       objected to this statement as irrelevant to “[him] coming in the home.” Id. The

       trial court sustained the objection and asked the State to ask another question.

       Shortly thereafter, the State asked McDaniel why he brought his gun to

       Thompson’s house, and McDaniel responded, “Because [Thompson] said that

       [Keith] had come by with a knife and was threatening to come back and kill

       him.” Id. at 84. Keith objected to this statement as irrelevant to the charge of

       residential entry, and the trial court sustained the objection. After this second

       objection, the trial court told the jury “to disregard the last portion of the

       statement and not to consider it, and that would be the portion of the statement

       indicating the threat to his life.” Id. at 85. At the conclusion of the trial, the jury

       found Keith guilty of residential entry.


[9]    Keith now appeals.



                                 Discussion and Decision
[10]   Keith makes three arguments on appeal. First, Keith contends that the trial

       court should have stricken a biased person from the jury. Second, Keith argues

       that the trial court should have done more to admonish the jury after sustaining

       his objections to McDaniel’s testimony. Third, Keith asserts that the trial court

       should have excluded portions of Thompson’s testimony.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018   Page 7 of 12
                                             I. Biased Juror
[11]   First, Keith argues that Juror B. was the person who said “I can’t really say that

       I can be” when asked if they could be fair and impartial and that the trial court

       therefore should not have allowed Juror B. to sit on the jury. Id. at 34. Keith

       did not use any peremptory strikes to remove Juror B. nor did he challenge her

       for cause. See Appellant’s Br. p. 16. Recognizing that this resulted in a waiver

       of the issue for purposes of appeal, Keith contends that the trial court’s failure

       to strike Juror B. constituted fundamental error. Fundamental error is an

       extremely narrow exception to the waiver rule where the defendant faces the

       heavy burden of showing that the alleged errors are so prejudicial to the

       defendant’s rights as to make a fair trial impossible. Ryan v. State, 9 N.E.3d

       663, 668 (Ind. 2014), reh’g denied. Stated another way, to prevail under our

       fundamental-error analysis, the defendant must show that, “under the

       circumstances, the trial judge erred in not sua sponte raising the issue because

       [the] alleged errors (a) constitute clearly blatant violations of basic and

       elementary principles of due process and (b) present an undeniable and

       substantial potential for harm.” Id. (internal quotations omitted).


[12]   Keith’s argument fails from the start because he has not shown that Juror B.

       was the person who said “I can’t really say that I can be” when asked if they

       could be fair and impartial. Tr. Vol. II p. 34. Keith reasons that Juror B. was

       the person who said “I can’t really say that I can be” because the State

       identified Juror B.’s by name shortly after this statement was made. The State

       argues that Keith has not shown that Juror B. was the person who made the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018   Page 8 of 12
       statement showing bias. The State asserts that Juror B.’s name appears after

       this statement because the State was turning to Juror B. to hear her opinion on

       what it means to be fair and impartial, not because Juror B. had just made the

       statement “I can’t really say that I can be.” See Appellee’s Br. p. 14.


[13]   Looking at where this statement appears in the exchange, the State appears to

       be correct. Here, again, is the entire exchange:


               Juror:           . . . I’m responding to the fact that my son is a law
                                enforcement officer.


               The State:       Yes.


               Juror:           And has been for 20 years, so I am very pro-LEO. I
                                also worked in, I was a nurse in the Marion County
                                Jail for six years, so I might have very skewed
                                opinions on criminal cases, some criminal cases.


               The State:       So, based on your experience and the relationship
                                you have with your son and your career, are you
                                going to be able to be fair and impartial to the State
                                and to Mr. Keith?


               Juror:           I really can’t say that I can be.


               The State:       And that’s an honest answer, that’s all we’re
                                looking for. Anybody else feel that way, not
                                necessarily the law enforcement relationship but
                                perhaps a similar relationship to you. [Juror B.],
                                similar idea that you have opinions about the
                                criminal justice system in general and incarceration
                                and that might skew you one way or the other.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018   Page 9 of 12
                Juror:          Separate it, yeah.


                The State:      [Juror G.]?


                [Juror G.]:     My brother is incarcerated right now for a very long
                                time so, and I don’t feel a lot of his, the experience
                                in the court for him was very fair on his behalf.


                The State:      So, I’ll ask you the same question that I asked of
                                [Juror B.] and I asked of [Juror H.], are you going to
                                be able to separate that experience from what you
                                hear and see in the courtroom today?


                [Juror G.]:     I don’t know.


       Tr. Vol. II pp. 34-35 (emphasis added). Read in context, Keith has failed to

       show that Juror B. made the statement in question because of where and how

       her name came up in the discussion. Keith has failed to establish fundamental

       error.



                                    II. Witness Testimony
[14]   Next, Keith argues that (1) the trial court should have done more to admonish

       the jury after sustaining his objections to portions of McDaniel’s testimony and

       (2) the trial court should have excluded Thompson’s description of Keith’s eyes

       as well as his testimony that he felt intimidated, that Keith was looking for a

       firearm, and that Thompson texted his fiancée that he thought Keith was

       “fixing” to kill him. Appellant’s Br. pp. 18-24. However, Keith did not request

       any additional admonishment regarding McDaniel’s testimony nor did he
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018   Page 10 of 12
       object to Thompson’s testimony. As such, he has waived review of these issues

       for the purposes of appeal. Merritt v. State, 99 N.E.3d 706, 710 (Ind. Ct. App.

       2018). (parties are required to ask for admonishment from the court—not to

       have the court act sua sponte), trans. denied; see also Ind. Evidence Rule 105;

       Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011) (failure to object to the

       admission of evidence at trial normally results in waiver).


[15]   To avoid waiver, Keith would have to establish that the trial court committed

       fundamental error. See Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh’g

       denied. But Keith has not made a fundamental-error argument as to either

       McDaniel’s testimony or Thompson’s testimony. See Appellant’s Br. pp. 16-24.

       In any event, we do not find fundamental error. First, during opening

       statements, Keith told the jury that “if [Thompson] says I did it then I’ll just say

       I did it.” Tr. Vol. II p. 50. Furthermore, there is substantial other evidence,

       unchallenged by Keith, that he was acting erratically and violently. Keith was

       “freaked out” when he first arrived at Thompson’s house and became “scared”

       after Casey left. Id. at 53. Then Keith left Thompson’s house, came back, and

       surprised Thompson, who shut the door immediately after realizing it was

       Keith. Thompson and McDaniel both testified that Keith forcibly opened the

       door to get inside the house. Thompson testified that once Keith was back

       inside the house, Keith appeared “shifty . . . [and] aggressive” and had a knife.

       Id. at 56. Photographs taken after the incident showed damage to the door

       through which Keith entered the house. Finally, after he was arrested Keith

       told officers that he “tripped out” at Thompson’s house and “had a knife.” Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018   Page 11 of 12
       at 123. In light of this evidence, we cannot say that the jury’s exposure to some

       additional evidence of the same sort made “a fair trial impossible.” Ryan, 9

       N.E.3d at 668.


[16]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1129| November 13, 2018   Page 12 of 12
