Antonio M. Merritt v. State of Indiana , 99 N.E.3d 706 ( 2018 )

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
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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
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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.
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[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
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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.
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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
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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
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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.
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