MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                     Jul 11 2016, 8:26 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
court except for the purpose of establishing                             Court of Appeals
                                                                           and Tax Court

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David K. Payne                                           Gregory F. Zoeller
Braje, Nelson & Janes, LLP                               Attorney General of Indiana
Michigan City, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shawn M. Sobolewski,                                     July 11, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         46A03-1511-CR-2011
        v.                                               Appeal from the LaPorte Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Alevizos,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         46C01-1311-FA-385



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A03-1511-CR-2011 | July 11, 2016          Page 1 of 7
                                Case Summary and Issue
[1]   Following a jury trial, Shawn Sobolewski was convicted of aiding, inducing, or

      causing burglary, a Class A felony, and aiding, inducing, or causing robbery, a

      Class B felony. Sobolewski appeals his convictions, raising the sole issue of

      whether the trial court committed fundamental error in failing to interrogate the

      jury following a display of “improper courtroom decorum.” Brief of Appellant

      at 4. Concluding the trial court handled the matter with due regard to

      Sobolewski’s constitutional rights, we affirm his convictions.



                            Facts and Procedural History
[2]   On July 4, 2013, Sobolewski asked Brandon and Jeremy Montano if they

      would be interested in burglarizing the home of Lisa and Doug Bonin.

      Sobolewski stated the house contained “money and guns” and they would

      arrive while Lisa was at work. Transcript at 354-55. Brandon and Jeremy

      agreed to burglarize the residence and called their friend John Surber.

      Sobolewski drove Brandon, Jeremy, and Surber to the Bonin residence to show

      them its location and then drove them back to his own residence to finalize the

      plan. Later that day, only Brandon, Jeremy, and Surber returned to the Bonin

      residence. When they arrived, Doug was mowing the lawn. Doug spotted the

      men, stopped his tractor, and walked towards them. Brandon knocked Doug to

      the ground and took his keys. The men ordered Doug to close his eyes and

      then led him inside, where they bound his hands and covered his eyes with duct



      Court of Appeals of Indiana | Memorandum Decision 46A03-1511-CR-2011 | July 11, 2016   Page 2 of 7
      tape. They took an iPad, some cash, and at least ten firearms from the

      residence before departing. Sobolewski “got first pick” of the loot. Id. at 380.


[3]   Thereafter, the State charged Sobolewski with two counts of aiding, inducing,

      or causing burglary and two counts of aiding, inducing, or causing robbery.

      During a jury trial held in February 2015, the following exchange took place

      outside the jury’s presence:


              [Court]:                  The bailiff informed me at the break that
                                        some members have indicated that there are
                                        members of the audience who have not been
                                        observing the decorum of the court.
                                        Specifically, yelling bullshit—saying bullshit
                                        and laughing, et cetera, at the testimony.
                                        So . . . he just went and asked the jury, are
                                        you guys hearing anything from the
                                        audience? And he was told—

              [Bailiff]:                And they indicated . . . no—well except for
                                        the old man and the brother calling bullshit
                                        every time a witness is talking. . . .

              [Court]:                  So if they come back in here I’m going to ask
                                        them, do they think they’re doing him any
                                        favors? Because I think it just pisses the jury
                                        off. And I’m going to tell them the next time
                                        they open their mouths in here, I’m going to
                                        kick them out for good. You don’t need that.

              [Defendant]:              No.

              [Court]:                  It’s going to piss them off. You might want
                                        to tell them, hey, I understand, you know.
                                        I’m glad you’re rooting for me, but I don’t

      Court of Appeals of Indiana | Memorandum Decision 46A03-1511-CR-2011 | July 11, 2016   Page 3 of 7
                                  think you’re doing me any good.

        [Defendant]:              Right.

        [Court]:                  All right. Let’s let it be. If it happens again—
                                  hopefully it won’t. Maybe if you see them
                                  come in, maybe [your attorney] back there
                                  can—

        [Attorney]:               Judge, could we have just a minute, and I’ll
                                  go look for them and tell them that. I think
                                  that would be good.

        [Court]:                  I think it’s good for your client.

        [Attorney]:               I[ was] not aware it was going on.

        [Court]:                  Neither was I until I was just informed.

        [Attorney]:               Give me a minute.

        [Court]:                  We’ll wait for [Sobolewski’s attorney] to
                                  come back. I’d hate for a case to be decided
                                  on them just being mad at some of the family
                                  members.

        [Bailiff]:                He can’t find them, Judge. Would you like
                                  me to say something to them if I notice them?

        [Court]:                  No. It would be better if it came from
                                  [Sobolewski] or his attorney.

        [Attorney]:               They’re not around, Judge. I went and
                                  looked.

        [Court]:                  All right.


Court of Appeals of Indiana | Memorandum Decision 46A03-1511-CR-2011 | July 11, 2016   Page 4 of 7
      Id. at 559-62. The record reveals no further instances of disruption.


[4]   The jury found Sobolewski guilty of one count of aiding, inducing, or causing

      burglary and one count of aiding, inducing, or causing robbery. The trial court

      entered judgment of conviction on both counts and ordered Sobolewski serve

      an aggregate sentence of thirty-five years, with thirty years executed in the

      Department of Correction and the remainder suspended to probation. This

      appeal followed.



                                 Discussion and Decision
[5]   Sobolewski suggests “improper courtroom decorum” may have inappropriately

      influenced the jury. He did not ask the trial court to interrogate the jury, nor

      did he move for a mistrial. Nonetheless, he contends the trial court’s failure to

      interrogate the jury on this matter interfered with his right to a fair trial.


                                     I. Standard of Review
[6]   A defendant’s failure to raise an issue at trial waives the issue for review unless

      fundamental error occurred. Treadway v. State, 924 N.E.2d 621, 633 (Ind.

      2010). “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) (citation and internal quotation

      marks omitted). To establish fundamental error, the defendant must show the

      trial court erred in not sua sponte raising the issue because the alleged error

      Court of Appeals of Indiana | Memorandum Decision 46A03-1511-CR-2011 | July 11, 2016   Page 5 of 7
      constitutes a blatant violation of due process. Id. The exception is available

      only in “egregious circumstances.” Halliburton v. State, 1 N.E.3d 670, 678 (Ind.

      2013) (citation omitted).


                          II. Improper Courtroom Decorum
      Article 1, Section 13 of the Indiana Constitution guarantees, in all criminal

      prosecutions, the right to a public trial by an impartial jury. Thus, a biased

      juror must be dismissed. Joyner v. State, 736 N.E.2d 232, 238 (Ind. 2000).

      “[W]hen an event which may improperly influence the jury occurs, ‘the trial

      court should make a determination as to the likelihood of resulting prejudice,

      both upon the basis of the content of the [event] and the likelihood of its having

      come to the attention of any juror.’” Agnew v. State, 677 N.E.2d 582, 584 (Ind.

      Ct. App. 1997) (second alteration in original) (quoting Lindsey v. State, 260 Ind.

      351, 358, 295 N.E.2d 819, 824 (1973)), trans. denied. If the trial court

      determines exposure to the event does not create a substantial risk of prejudice,

      it has no responsibility to interrogate the jurors. Id. If the risk of prejudice is

      substantial, the trial court “should interrogate the jury collectively to determine

      who if anyone has been exposed, and individually interrogate any such jurors

      away from the others.” Caruthers v. State, 926 N.E.2d 1016, 1021 (Ind. 2010).

      “At all stages in this process, the trial court has discretion to take what actions it

      deems necessary and appropriate.” Id.


[7]   In the present case, the bailiff informed the trial court that certain observers

      were “calling bullshit” and laughing during the testimony. Tr. at 560. Neither


      Court of Appeals of Indiana | Memorandum Decision 46A03-1511-CR-2011 | July 11, 2016   Page 6 of 7
       the judge nor defense counsel noticed this behavior as it was occurring, but they

       agreed it was not in Sobolewski’s best interests. Defense counsel attempted to

       speak with the culprits during the break, but they could not be located. The

       record reveals no further instances of disruption.


[8]    We conclude the trial court handled this matter with due regard to Sobolewski’s

       constitutional rights. Although the trial court recognized some potential for

       prejudice, it did not find the risk to be substantial enough to warrant further

       remedial action. The trial court was in the best position to assess the prejudicial

       impact of the disruption and exercised its discretion in addressing the situation.

       The trial court discussed the matter with Sobolewski as soon as it was brought

       to the court’s attention, and at no point did Sobolewski raise the issue of

       interrogating the jury. We do not believe the trial court committed

       fundamental error in failing to interrogate the jury on its own initiative.



                                               Conclusion
[9]    The trial court’s failure to sua sponte interrogate the jury did not constitute

       fundamental error. We therefore affirm.


[10]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1511-CR-2011 | July 11, 2016   Page 7 of 7
