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.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1122 | November 30, 2018             Page 1 of 8
[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


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1122 | November 30, 2018   Page 2 of 8
      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

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1122 | November 30, 2018   Page 3 of 8
      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:




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1122 | November 30, 2018   Page 4 of 8
              (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. . . .


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1122 | November 30, 2018   Page 5 of 8
      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


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1122 | November 30, 2018   Page 6 of 8
       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.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1122 | November 30, 2018   Page 7 of 8
                                                   Conclusion

[12]   For the foregoing reasons, we affirm Campbell’s murder conviction.


[13]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1122 | November 30, 2018   Page 8 of 8
