Gary Hamiter v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 25 2018, 9:03 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Appellate Division Lee M. Stoy, Jr. Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Gary Hamiter, September 25, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-222 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Helen W. Marchal, Appellee-Plaintiff. Judge Trial Court Cause No. 49G15-1609-F6-36634

Bradford, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-222 | September 25, 2018 Page 1 of 6

Case Summary [1] Following a jury trial, Gary Hamtier was convicted of Class B misdemeanor

disorderly conduct. Hamiter contends that the trial court committed

fundamental error when it failed to instruct the jury that it was not to deliberate

or reach any conclusions prior to the close of evidence before it was dismissed

for a lunch break. Because we conclude that no fundamental error occurred,

we affirm.

Facts and Procedural History [2] In 2016, Hamiter’s daughter was a student at Lawrence Central High School.

On the morning of September 16, 2016, the school held a homecoming pep

rally which included a dance performance. Hamiter attended the pep rally

because his daughter was participating in the performance. After the

performance, Hamiter became involved in a heated dispute with a student who

Hamiter believed had called him a “b****.” Tr. Vol. II pp. 24–25. Hamiter

asked for help from a nearby assistant principal. The assistant principal

directed the student to class and Hamiter to the main office. The assistant

principal asked a different assistant principal, Marlin Sam (“Sam”), to escort

Hamiter to the office. Hamiter was extremely upset and loudly insisted that

something be immediately done to the allegedly offending student. [3] As Sam walked Hamiter to the office, Hamiter tried to quickly walk toward the

student who had insulted him. Sam positioned himself in front of Hamiter and

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told him to keep walking to the office. In response, Hamiter came “chest to

chest” with Sam and “bump[ed]” him, leading Sam to push Hamiter away and

call security. Tr. Vol. II p. 50. [4] Lawrence Police Department Officer Tyler Morgan was sitting outside of the

school in his car when he received the call. When Officer Morgan went inside,

he observed Hamiter trying to walk around Sam while Sam was attempting to

get Hamiter to go into the office. Hamiter was being very loud and hostile

toward Sam. After several failed attempts to get Hamiter to go into the office

on his own, Officer Morgan put Hamiter in handcuffs. Hamiter cooperated as

Officer Morgan put the handcuffs on but was still very agitated. [5] Shortly thereafter, Officer Morgan was joined by another officer, and the two

officers walked Hamiter to a conference room in the main office. (Tr. Vol. II p.

66). Hamiter was still “extremely irate” and continued to insist that something

be done immediately. Tr. Vol. II p. 91. When they reached the conference

room, Hamiter continued to yell and refused to sit down. The yelling prompted

the principal to enter the room to see what was happening. The officers

eventually forced Hamiter into the chair. [6] A meeting was scheduled to occur in the conference room where Hamiter was

being detained, so the officers were asked to take Hamiter across the hall. As

the officers escorted Hamiter into another conference room, Hamiter yelled

loudly, saying he was being abused by the police and begging those nearby to

record a video of what was happening to him. The entire incident lasted almost

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an hour. Hamiter was eventually arrested. On September 17, 2016, Hamiter

was charged with Level 6 felony criminal trespass, Class A misdemeanor

resisting law enforcement, and Class B misdemeanor disorderly conduct. [7] A trial was held on January 10, 2018. At trial and after the jury had been

impaneled, but before the presentation of the evidence, the trial court released

the jury for lunch. Prior to the jury leaving, the trial court read to the jury the

charging information but did not admonish the jury that they were not allowed

to talk about the case with anyone. There was no objection by Hamiter to the

trial court’s failure to admonish the jury. [8] At the end of the State’s presentation of evidence, Hamiter moved for a

judgment on the evidence with regards to the Level 6 felony trespass charge.

The trial court granted his motion. At the conclusion of the trial, the jury found

Hamiter not guilty of Class A misdemeanor resisting law enforcement but

guilty of Class B misdemeanor disorderly conduct. That same day, the trial

court sentenced Hamiter to one hundred and eighty days of incarceration,

suspended one hundred and seventy-six days, and gave Hamiter credit for four

days served.

Discussion and Decision [9] For the first time on appeal, Hamiter argues that the trial court erred by failing

to admonish the jury before lunch. Hamiter contends that the trial court

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committed fundamental error by failing to instruct the jury that it was not to

deliberate or reach any conclusions prior to being given the case.

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 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) (internal citations omitted).

[10] Hamiter argues that he did not receive a fair trial and should receive a new trial

due to the trial court’s failure to admonish the jury. Indiana Code section 35-

37-2-4(a) states:

The court shall admonish the jurors in the preliminary instruction, before separating for meals, and at the end of the day, that it is their duty not to converse among themselves or permit others to converse with them on any subject connected with the trial, or to form or express any opinion about the case until the cause is finally submitted to them.

[11] While we acknowledge that the trial court failed to admonish the jury pursuant

to the letter of Indiana Code section 35-37-2-4(a), we cannot conclude that its

failure amounts to fundamental error for two reasons. First, after lunch, before

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the presentation of evidence, the jurors were given a preliminary instruction

that they were not to form or express an opinion until after the case was given

to them. Second, there has been no showing of harm or that the potential for

harm was substantial. Hamiter points to nothing in the record indicating that

the jury made up its mind during lunch, but before the evidence was presented

to them. Hamiter merely speculates that the jury “may have conversed with

each other or discussed their opinions about it while walking through the

parking lot together[,]” and that “given the uncertainty of the juror’s

unadmonished conduct during . . . lunch, [he] did not receive a fair trial.”

Appellant’s Br. p. 11. The mere possibility that the jury may have conversed or

discussed their opinions regarding Hamiter’s guilt before the presentation of

evidence is insufficient to establish fundamental error. See generally Lyons v.

State, 993 N.E.2d 1192 (Ind. Ct. App. 2013). [12] The judgment of the trial court is affirmed.

Bailey, J., and Mathias, J., concur.

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