                                                                                  FILED
                                                                           Apr 12 2018, 6:28 am

                                                                                  CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                           Curtis T. Hill, Jr.
      Marion County Public Defender Agency                       Attorney General of Indiana
      Indianapolis, Indiana
                                                                 Tyler G. Banks
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Antonio M. Merritt,                                        April 12, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1708-CR-1736
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Lisa F. Borges,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 49G04-1510-MR-38159



      Najam, Judge.


                                         Statement of the Case
[1]   Antonio M. Merritt appeals his convictions for murder, a felony, following a

      jury trial, and his adjudication as a habitual offender. Merritt’s conviction

      followed his second jury trial. At his first trial, one witness testified that she

      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1736 | April 12, 2018                     Page 1 of 8
      witnessed Merritt murder the victim, and another witness testified that he

      observed Merritt shortly after the murder with the murder weapon, but the jury

      resulted in a hung verdict. At his second trial, those two witnesses could not be

      located and did not appear to testify. As a result, the trial court permitted,

      without objection, their statements from the first trial to be submitted to the

      second jury.


[2]   On appeal, Merritt alleges that the trial court committed fundamental error

      when it did not sua sponte admonish the second jury to not speculate about the

      reasons those two witnesses might have been unavailable to testify while their

      prior statements were being read into evidence. We hold that the trial court had

      no obligation to make such an admonishment without a request by one of the

      parties. Thus, we affirm Merritt’s convictions.


                                  Facts and Procedural History
[3]   In October of 2015, Merritt ran a “drug house” out of his residence in

      Indianapolis. Tr. Vol. II at 241. Jordan White and Elizie Wombles frequented

      Merritt’s residence and were friends. In the evening hours of October 21 and

      into the early morning hours of October 22, White, Wombles, and Merritt were

      at Merritt’s residence. Wombles was smoking synthetic marijuana while White

      sold cocaine to visitors. White brought a revolver to the house, but he left it in

      the kitchen.


[4]   About twenty minutes after White had made his last sale of cocaine, Merritt

      “told [White] to give him some” cocaine. Id. at 128. White refused, and

      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1736 | April 12, 2018   Page 2 of 8
      Merritt became “angry.” Id. Merritt went into the kitchen, picked up the

      revolver, and went into the living room. Merritt began to argue with White,

      and Wombles left the room and went into the kitchen. Wombles then “heard a

      gunshot” and “ran out the back door.” Id. at 133. Later, another visitor to the

      house found White dead on the living room floor.


[5]   As Wombles fled the scene, Merritt “intercepted” her on the sidewalk. Id. at

      134. Merritt had the revolver with him and was “threatening to kill” Wombles

      and “her kids.” Id. at 163, 183. Merritt then had Wombles call her stepson,

      Connor Hendricks, to give them a ride to Merritt’s mother’s apartment. In the

      car, Wombles told Connor that Merritt had just shot White. And, at the

      apartment, Wombles called her sister, and her sister told her that White had

      been found dead. Wombles then confronted Merritt and told him, “You killed

      that boy.” Id. at 140.


[6]   Wombles’ friend, Rusell Church, later picked Wombles and Merritt up from the

      apartment. Merritt wanted Church to give him and Wombles a ride to

      Fountain Square in Indianapolis to buy more drugs, and Church agreed.

      Church observed Merritt with “a larger revolver.” Tr. Vol. III at 48. Church

      further observed that two of the revolver’s chambers were empty. On the way

      out of the apartment building, Church observed Merritt sell the revolver to

      another person. En route to Fountain Square, Wombles ran out of the vehicle

      as it was stopped for traffic. Merritt did not pursue her.




      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1736 | April 12, 2018   Page 3 of 8
[7]   On October 27, 2015, the State charged Merritt with White’s murder. At his

      ensuing jury trial, Wombles and Church both testified against Merritt.

      However, the trial resulted in a hung jury.


[8]   Following the hung jury but prior to his retrial, Merritt approached fellow

      inmate Ryan Ivy and offered Ivy $1,000 to kill Wombles. In an ensuing

      conversation with Ivy, Merritt stated:


              there came a point when the guy, the victim, was ready to leave.
              [Merritt] said that . . . [White] had some and I wanted it. So he
              said, I shot him in the back. He said, I shot that nigga in the
              back with my three eight. And he said the bullet bounced around
              inside of him like a ping-pong ball until it hit his heart. He said
              that [Wombles] then went for the back door.


                                                        ***


              He said that[,] after he shot him, he said that she ran to the back
              door. He caught up with her and told her that she could stay
              here with him or—talking about the victim—or go with him. . . .


      Id. at 214-15. Merritt also told Ivy that he “sold the gun” outside his mother’s

      apartment. Id. at 216. Ivy informed the local prosecutor of Merritt’s

      statements.


[9]   Prior to the commencement of Merritt’s second trial, neither Wombles nor

      Church could be located. As a result, the court declared them unavailable.

      During the second jury trial, the State moved to have the prior testimony of

      both Wombles and Church admitted into evidence, which the court permitted


      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1736 | April 12, 2018     Page 4 of 8
       without objection.1 Following the presentation of that testimony, Ivy testified

       that Merritt had attempted to hire Ivy to kill Wombles.


[10]   The jury found Merritt guilty of White’s murder, and the trial court adjudicated

       Merritt to be a habitual offender. The court then entered its judgment of

       conviction and sentenced Merritt to an aggregate term of eighty-five years. This

       appeal ensued.


                                         Discussion and Decision
[11]   Merritt asserts on appeal that the trial court committed fundamental error when

       it did not sua sponte admonish the jury to not speculate about the reasons for the

       unavailability of Wombles and Church. As our Supreme Court has explained:


                A claim that has been waived by a defendant’s failure to raise a
                contemporaneous objection can be reviewed on appeal if the
                reviewing court determines that a fundamental error occurred.
                The fundamental error exception is extremely narrow, and
                applies only when the error constitutes a blatant violation of
                basic principles, the harm or potential for harm is substantial,
                and the resulting error denies the defendant fundamental due



       1
          In having the prior statements read into the record, the court had interns from the Marion County
       Prosecutor’s Office play the role of the prior witnesses by reading their portions of the testimony; the court
       had the deputy prosecutor play the role of the original prosecutor by reading the original prosecution
       questions; the court had Merritt’s attorney play the role of the original defense counsel and read the original
       defense questions; and the court played the role of itself in reading its original statements. Apparently, the
       trial court did not want to give the jury the impression that a prior trial had occurred, even though the court
       had also provided the jury with the written records of the prior statements as exhibits, and the testimony
       made obvious references to a prior trial, such as identifying Merritt in court while he wore a different outfit.
       Moreover, Ivy’s testimony during the second trial made it clear, if it was not already at that point, that a prior
       trial had occurred. We acknowledge the trial court’s concern with informing the jury that a prior trial had
       occurred, but once the court decided to admit the prior statements, the cat was out of the bag. In any event,
       Merritt does not argue on appeal that the admission of the prior statements, or the manner in which those
       statements were orally presented to the jury, was fundamental error.

       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1736 | April 12, 2018                             Page 5 of 8
               process. The error claimed must either make a fair trial
               impossible or constitute clearly blatant violations of basic and
               elementary principles of due process. This exception is available
               only in egregious circumstances.


       Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quotation marks and citations

       omitted). “To prove fundamental error,” the appellant must show “that the

       trial court should have raised the issue sua sponte . . . .” Taylor v. State, 86

       N.E.3d 157, 162 (Ind. 2017).


[12]   Further, fundamental error in the evidentiary decisions of our trial courts is

       especially rare. For example, our Supreme Court has explained that


               an error in ruling on a motion to exclude improperly seized
               evidence is not per se fundamental error. Indeed, because
               improperly seized evidence is frequently highly relevant, its
               admission ordinarily does not cause us to question guilt. That is
               the case here. The only basis for questioning [the defendant’s]
               conviction lies not in doubt as to whether [he] committed these
               crimes, but rather in a challenge to the integrity of the judicial
               process. We do not consider that admission of unlawfully seized
               evidence ipso facto requires reversal. Here, there is no claim of
               fabrication of evidence or willful malfeasance on the part of the
               investigating officers and no contention that the evidence is not
               what it appears to be. In short, the claimed error does not rise to
               the level of fundamental error.


       Brown, 929 N.E.2d at 207.


[13]   Merritt’s argument on appeal is, in essence, that it was obvious from Wombles’

       and Church’s prior statements that they were made during a prior trial and that,

       in light of Ivy’s ensuing testimony during the second trial, without an
       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1736 | April 12, 2018      Page 6 of 8
       admonishment from the court the jury was free to speculate that Merritt had

       caused Wombles’ and Church’s absences, which in turn denied him access to a

       fair and impartial jury. That is, as in Brown, the only basis Merritt presents for

       challenging his convictions lies not in doubt as to whether he committed these

       crimes but, rather, in a challenge to the integrity of the judicial process. See id.

       There is no claim that the evidence against him was not what it appeared to be.

       Thus, “the claimed error does not rise to the level of fundamental error.” Id.


[14]   Further, we cannot agree with Merritt’s argument that the trial court is the

       source of any error that did occur. Our case law has long required the parties to

       request an admonishment from the court—not to have the court act sua sponte—

       if the parties think such an admonishment might be appropriate. E.g.,

       Humphrey v. State, 680 N.E.2d 836, 839-40 (Ind. 1997). Indeed, Indiana

       Evidence Rule 105 expressly requires the parties to object in such

       circumstances, stating:


               If the court admits evidence that is admissible against a party or
               for a purpose—but not against another party or for another
               purpose—the court, on timely request, must restrict the evidence to
               its proper scope and instruct the jury accordingly.


       (Emphasis added.)


[15]   The reason for putting that burden on the parties and not on the trial court is

       obvious: admonishments are double-edged swords. On the one hand, they can

       help focus the jury on the proper considerations for admitted evidence. Id.

       However, on the other hand, they can draw unnecessary attention to

       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1736 | April 12, 2018     Page 7 of 8
       unfavorable aspects of the evidence. See, e.g., McCollum v. State, 582 N.E.2d

       804, 811 (Ind. 1991) (stating that requesting an admonishment “could have

       drawn unnecessary attention” to undesired commentary). The risk calculus

       inherent in a request for an admonishment is an assessment that is nearly

       always best made by the parties and their attorneys and not sua sponte by our

       trial courts.


[16]   And the record here demonstrates that the trial court properly did not interject

       itself on Merritt’s behalf. While Ivy testified that Merritt had attempted to hire

       him to kill Wombles, he provided no such testimony with respect to Church,

       who also could not be located prior to Merritt’s second trial. The trial court

       may well have determined that Merritt’s attorney thought an admonishment

       with respect to the unavailability of both Wombles and Church was not worth

       the risk of drawing unnecessary attention to their absences. We decline to say

       that the trial court here was obliged to interject itself in that assessment on

       Merritt’s behalf. Thus, we affirm Merritt’s convictions.


[17]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1736 | April 12, 2018   Page 8 of 8
