Opinion
23A-CR-2922
06-05-2024
Kurt E. Banter, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Brandon E. Murphy Cannon Bruns & Murphy Muncie, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Jay Superior Court The Honorable Gail M. Dues, Judge Trial Court Cause No. 38D01-2301-F6-16
ATTORNEY FOR APPELLANT
Brandon E. Murphy Cannon Bruns & Murphy Muncie, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BAKER, SENIOR JUDGE
Statement of the Case
[¶1] Kurt Banter was found guilty of possession of methamphetamine, a Level 6 felony, by a five-member jury. On appeal, he asks the Court to reverse his conviction and remand the case for retrial, alleging fundamental error. Concluding there was none, we affirm.
Facts and Procedural History
[¶2] In January 2023, Pennville Town Marshall Jeff Imel observed Banter entering and exiting a refrigerator container on the property of John Bartlett, Banter's employer. Because Banter was on probation at the time, Marshall Imel notified Detective Tony Lennartz and Probation Officer Todd Miller of Banter's whereabouts. The pair traveled to Bartlett's property to complete a compliance check. Bartlett granted them access to the container. Inside, amongst many of Banter's personal items, Detective Lennartz discovered methamphetamine.
[¶3] The State charged Banter with possession of methamphetamine, a Level 6 felony, and possession of marijuana, a Class B misdemeanor. The misdemeanor count was later dismissed. A jury trial was held on November 1, 2023, starting with a jury consisting of six members and no alternates. During the State's case-in-chief, the trial court was notified that one of the jurors was not a resident of Jay County and therefore was ineligible to serve as a juror in Banter's case. The State and Banter agreed to proceed with a five-member jury. The trial court placed Banter under oath, and Banter waived his statutory right to a six-member jury. Banter was ultimately convicted by the five-member jury and sentenced to a 730-day term of incarceration. He now appeals.
Discussion and Decision
[¶4] Banter argues his conviction by a five-member jury is a fundamental error requiring reversal and remand for retrial. The right to a trial by jury in criminal cases is guaranteed by the Sixth Amendment of the United States Constitution and article I, section 13 of the Indiana Constitution. U.S. CONST. amend. VI; IND. CONST. art. 1, § 13. Indiana Code section 35-37-1-1(b) (2014) provides that a defendant charged with a Level 5 felony or higher must be tried by a twelve-member jury unless the parties agree to a lesser number, and a defendant charged with "any other crime," such as a Level 6 felony or a misdemeanor, must be tried by a six-member jury.
[¶5] The State took Banter to trial on a Level 6 felony; thus, he was required to be tried by a six-member jury. During the State's case-in-chief, the trial court was notified that one of the jurors was not a resident of Jay County. The trial court examined the juror, excused him from service, and recessed the trial to confer with the "judicial counsel." Tr. Vol. 2, p. 147. Although the parties, by counsel, stipulated to proceed with a five-member jury, the trial court took the additional step of placing Banter under oath, and the following colloquy ensued:
[COURT]: And sir, you understand that as a defendant in this case, you do have the right to be tried by a six-person jury.
[DEFENDANT]: Yes, ma'am.
[COURT]: And are you telling the Court today that you are willing to go forward and waive your right to a six-person jury and be tried by the five jurors that remain?
[DEFENDANT]: Yes, ma'am.
[COURT]: And Mr. Banter, have you been offered anything of value or been given any promises or enticed in any way to get you to waive your right to be tried by a six-person jury?
[DEFENDANT]: No, ma'am.
[COURT]: Has anyone put you in fear or threatened you or anyone else to get you to agree to being tried by a six-person [sic] jury?
[DEFENDANT]: No, ma'am.
[COURT]: Are you telling me that your waiver to be tried by a six-person jury and your agreement, for lack of a better term, to be tried by a five-person jury, is your own free choice of decision?
[DEFENDANT]: Yes, ma'am.
[COURT]: And to your knowledge, no one else that you've had contact with has been enticed or been given anything of value to somehow get you to agree to it?
[DEFENDANT]: No, ma'am.
[COURT]: And has anyone else that you're in contact with been placed in fear to get you to agree to a five-person jury?
[DEFENDANT]: No, ma'am.
Tr. Vol. 2, pp. 148-49. The trial court found Banter did knowingly or intelligently waive his right to be tried by a six-member jury and agreed to be tried by a five-member jury. The trial court further noted that, prior to going on the record, the parties agreed not to seek an alternate juror.
[¶6] Banter acknowledges that at no time did he object to proceeding with a five-member jury. "'Failure to object at trial waives the issue for review unless fundamental error occurred.'" Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013) (quoting Treadway v. State, 924 N.E.2d 621, 633 (Ind. 2010)). An error is fundamental when there is "'a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.'" Id. (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)).
[¶7] While it is true that Banter did not raise an objection, he also did not remain silent during the trial court's inquiry. A defendant may waive his right to a six-member jury, as granted under Indiana Code section 35-37-1-1(b), and be tried by a five-member jury. Bex v. State, 952 N.E.2d 347, 352 (Ind.Ct.App. 2011), trans. denied. This statutory right waiver derives from the defendant's ability to waive his constitutional right to a trial by jury as a whole. Id. The sufficiency of the waiver is suggested by "a personal colloquy between the trial court and the defendant, much like that which is required when other fundamental rights are implicated, but are being waived." Id. at 353. Specifically, in a felony prosecution, waiver "must be 'knowing, voluntary[,] and intelligent'" and is valid only if personally communicated by the defendant. Horton v. State, 51 N.E.3d 1154, 1158 (Ind. 2016) (quoting Perkins v. State, 541 N.E.2d 927, 928 (Ind. 1989)).
[¶8] Close examination of the colloquy between the trial court and the defendant shows that Banter knowingly, voluntarily, and intelligently waived his statutory right to a six-member jury. Further, Banter's waiver was personally communicated by him, not by his counsel. Thus, the trial court did not commit fundamental error by allowing the case to proceed in front of a five-member jury following Banter's unequivocal waiver of his statutory right.
Conclusion
[¶9] The trial court did not err, and Banter's conviction should be upheld.
May, J., and Foley, J., concur.