MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Oct 04 2017, 10:01 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Megan Shipley                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Darren E. Essett,                                        October 4, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1704-CR-795
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G06-1603-F1-11932



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-795 | October 4, 2017         Page 1 of 7
[1]   Following a jury trial, Darren E. Essett was convicted of attempted murder, a

      Level 1 felony, and found to be a habitual offender. On appeal, Essett argues

      that the trial court committed fundamental error in the manner in which it

      responded to a question from the jury during deliberations.


[2]   We affirm.


                                       Facts & Procedural History


[3]   In February and March of 2016, Essett sent a number of death threats via text

      messages to his ex-wife, Sherrill Essett, and engaged in other intimidating

      behavior toward her, including slashing a tire on her car and telling her he

      would pay to replace it only if she had sex with him. Essett eventually made

      plans to have the tire fixed on March 26, 2016. When Essett arrived at

      Sherrill’s apartment, he became angry and accused her of having another man

      in her apartment. Essett tried to enter Sherrill’s apartment, but she refused to

      let him in. Essett told Sherill, “If I can’t have you, ain’t nobody going to have

      you, bitch. You going to die today.” Transcript at 43. Essett then pulled out a

      knife or box cutter and cut Sherrill’s neck. Sherrill ran into her apartment, and

      Essett got into his truck and drove away. Fortunately, Essett did not sever

      Sherrill’s carotid artery or jugular vein, but it took over 300 stitches to close her

      wound.


[4]   As a result of these events, the State charged Essett with attempted murder, a

      Level 1 felony, and filed a habitual offender allegation. A jury trial commenced

      on February 27, 2017, and at the conclusion of the evidence, the parties agreed

      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-795 | October 4, 2017   Page 2 of 7
      that the jury would be instructed on two lesser-included offenses: Level 3

      felony aggravated battery and Level 5 felony battery causing serious bodily

      injury. The jury was further instructed that “[y]ou must not find the defendant

      guilty of more than one crime for each count and your verdict must be

      unanimous.” Appellant’s Appendix Vol. 2 at 101.


[5]   After jury deliberations began, the following exchange occurred on the record:


              THE COURT: All right. Please be seated. Thank you, lawyers,
              for getting this done in a timely fashion. I will need your cell
              phone or text messages numbers in case the jury has any
              questions. Mr. Essett, the way we will do any questions or things
              from the jury, is if they have a question I will call the lawyers on
              a three-way call and I will tell them what the question is and
              what my purposed [sic] answer is. If everybody agrees on what
              the answer is, I will send the answer back to [the] jury and then
              before we take the verdict I will make a record of all of the
              questions and answers that were given. Now if we don’t agree
              on what the answer is, I will bring everyone, including you, back
              into court. We will go over the question, the purposed [sic]
              answer. Both sides will be able to make argument and then I will
              make the decision as to what goes back. Okay.

              [DEFENSE COUNSEL]: That means that if there is a question,
              I agree with the answer, you won’t even know about it. You will
              be consulted if I don’t like the answer. Is that okay?

              THE COURT: But you will know about it right before we take
              the verdict because I will go through all the questions and all of
              the answers that we agreed to. Okay. [Defense Counsel],
              anything else?

              [DEFENSE COUNSEL]: No, Judge.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-795 | October 4, 2017   Page 3 of 7
      Transcript Vol. 2 at 186-87. The record does not reflect any verbal response from

      Essett, and he did not ask any questions or object to this procedure.


[6]   During the deliberations, the jury submitted the following question to the trial

      court: “If we are deadlocked as to [the] first count, can we move to convict of

      [the] lesser charge or do we have to be unanimous as to acquittal on [the] first

      charge?” Appellant’s Appendix Vol. 2 at 112. The trial court, following the

      procedure outlined above, called the prosecuting attorney and defense counsel

      on a three-way call, and the attorneys agreed that the following written answer

      would be sent to the jury: “Please review your instructions. Whatever verdict

      you reach, it must be unanimous.” Id. When the parties reconvened to hear

      the jury’s verdict, Essett was informed of the jury’s question and the court’s

      response, and he raised no objection to the procedures followed. The jury then

      pronounced its verdict, finding Essett guilty of attempted murder. Essett then

      waived his right to a jury trial on the habitual offender allegation, and following

      a bench trial thereon, was adjudicated as such. Essett was ultimately sentenced

      to a term of forty years, with twenty-six years served in the Department of

      Correction and the remaining fourteen years served on home detention. Essett

      now appeals.


                                          Discussion & Decision


[7]   Essett argues the trial court’s response to the jury’s question constituted an

      improper communication with the jury outside his presence. Although Essett’s

      trial counsel agreed to the trial court’s response, Essett argues that the trial court


      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-795 | October 4, 2017   Page 4 of 7
      was required to obtain a personal waiver on the record of Essett’s right to be

      present for such communications. Essett acknowledges that he did not object

      on this basis below and that he must therefore establish fundamental error to

      prevail on appeal. See Jewell v. State, 887 N.E.2d 939, 940 n.1 (Ind. 2008)

      (explaining that “[t]he fundamental error doctrine is an exception to the general

      rule that the failure to object at trial constitutes a procedural default precluding

      consideration of an issue on appeal”). Our Supreme Court has described the

      fundamental error standard as a “daunting” one, applicable only in the most

      egregious circumstances. Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014). “To

      qualify as fundamental error, ‘an error must be so prejudicial to the rights of the

      defendant as to make a fair trial impossible’ and must ‘constitute a blatant

      violation of basic principles, the harm or potential for harm must be substantial,

      and the resulting error must deny the defendant fundamental due process.’”

      Absher v. State, 866 N.E.2d 350, 355 (Ind. Ct. App. 2007) (quoting Benson v.

      State, 762 N.E.2d 748, 755 (Ind. 2002)). The fundamental error exception is

      extremely narrow and “reaches only errors that are so blatant that the trial

      judge should have taken action sua sponte.” Id.


[8]   Essett argues that he had a constitutional and common-law right to be present

      when the trial court communicated with the jury by providing a written

      response to its question. Essett argues further that his failure to respond

      verbally to the trial court’s and defense counsel’s explanations of the procedure

      that would be used if the jury had questions did not constitute a valid waiver of




      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-795 | October 4, 2017   Page 5 of 7
       those rights. But even if we accept Essett’s argument in this regard, we cannot

       conclude that fundamental error occurred.


[9]    Essett argues that the harm or potential for harm resulting from the trial court’s

       communication with the jury outside his presence is that he was “unable to

       offer any strategic guidance to his counsel in the decision about the response to

       the jury’s question.” Appellant’s Brief at 17. Essett notes that the question of

       whether to request instructions on lesser included offenses was an important

       strategic decision in which he was personally involved, and he argues that his

       input on the trial court’s response to the jury’s question relating to lesser-

       included offenses was therefore critical. He argues further that had he been

       present, he could have requested the trial court to reread all of the instructions

       to avoid putting special emphasis on the importance of reaching a unanimous

       verdict on the lead charge, or he could have asked the court to reread Final

       Instruction 12, which instructed the jury members that they should try to agree

       on a verdict and be open to re-examining their own views and changing their

       minds, but that they should not give up their honest belief only because the

       other jurors disagree or to end deliberations.


[10]   Essett’s arguments that he could have asked the trial court to re-read some or all

       of the final instructions are not particularly convincing in light of the fact that

       the trial court specifically instructed the jury to review all of the final

       instructions. Nor are we convinced that the trial court’s response was

       fundamental error because it placed undue emphasis on the necessity of

       reaching a unanimous verdict on the attempted murder charge. Essett makes

       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-795 | October 4, 2017   Page 6 of 7
       no argument that the response did not accurately restate the final instructions

       the jury had already been given; indeed, Final Instruction 6 specifically

       informed the jury that its verdict “must be unanimous.” Appellant’s Appendix

       Vol. 2 at 101. Furthermore, the final instructions also directed the jury to

       consider all of the instructions together and not to single out any instruction

       and ignore the others. In sum, Essett has not established that the trial court’s

       communication with the jury outside Essett’s presence, but with defense

       counsel’s knowledge and consent, constituted a blatant violation of basic

       principles making a fair trial impossible. See Godby v. State, 736 N.E.2d 252,

       257-58(Ind. 2000) (finding no violation of the federal or state constitutional

       right to be present at all critical stages of trial where a juror was privately

       interviewed by the trial court and counsel outside the defendant’s presence and

       when there was no express notation in the record that the defendant was

       present when the trial court and the attorneys discussed and resolved how to

       respond to the jury’s note advising that they were deadlocked).


[11]   Judgment affirmed.


[12]   Baker, J. and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-795 | October 4, 2017   Page 7 of 7
