Opinion
23A-CR-2252
05-21-2024
Christopher Lambert, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Benjamen W. Murphy Griffith, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Caroline G. Templeton 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Lake Superior Court The Honorable Sheila M. Moss, Judge Trial Court Cause No. 45D08-2210-CM-5158
ATTORNEY FOR APPELLANT
Benjamen W. Murphy Griffith, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Caroline G. Templeton Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BRADFORD, JUDGE
Case Summary
[¶1] After being involved in an automobile accident, Christopher Lambert was charged with Class A misdemeanor operating a vehicle while intoxicated endangering a person and Class C misdemeanor operating a vehicle while intoxicated. After a jury found him guilty of both counts, the trial court entered a judgment of conviction on the Class A misdemeanor offense. Lambert contends that the trial court abused its discretion in admitting certain evidence and in instructing the jury and that the deputy prosecutor committed prosecutorial misconduct during closing argument. Because Lambert did not object to any of the claimed errors or misconduct at trial, he argues that each was fundamental error. Because we disagree, we affirm.
Facts and Procedural History
[¶2] On October 25, 2022, Lambert rear-ended James Gedda's vehicle at a stoplight in Merrillville. Officer George Fields responded to the scene and, upon approaching Lambert's vehicle, "could smell alcohol coming from the vehicle." Tr. Vol. I p. 30. Lambert "had a hard time trying to find his information[,]" had bloodshot and watery eyes and slurred speech, admitted that he had drank alcohol that night, and failed two field-sobriety tests. Tr. Vol. I p. 43. A third field-sobriety test was stopped out of concerns for Lambert's safety due to his "[v]ery unsteady" nature. Tr. Vol. I p. 56. Officer Fields attempted to conduct a certified breath test on Lambert but, after six attempts, Lambert failed to give a sufficient sample, at one point holding his breath instead of blowing into the tube as instructed by Officer Fields.
[¶3] On October 27, 2022, the State charged Lambert with Class A misdemeanor operating a vehicle while intoxicated endangering a person and Class C misdemeanor operating a vehicle while intoxicated. Officer Fields testified at trial, engaging in the following exchange with the State:
[The State]: Okay. Thank you. So based on [Lambert's] failure of the [horizontal gaze nystagmus ("HGN")] -- HGN test, his failure of the walk, step and turn test and the necessity to terminate the one leg stand test; in your professional opinion that's been cultivated over seven years, was the [Lambert] intoxicated on the night of October 25th, 2022[,] while he was operating a vehicle?
[Officer Fields]: Yes.
[The State]: In your professional opinion, was [Lambert] attempting to skew the results of the chemical test?
[Officer Fields]: Yes.
[The State]: One last time, based on your professional opinion and observations, was [Lambert] operating his vehicle while intoxicated?
[Officer Fields]: Yes.
Tr. Vol. I pp. 88-89. Lambert did not object to this exchange. Lambert testified on his own behalf, claiming that he had not been feeling well at the time of the accident.
[¶4] The trial court instructed the jury that, before it could convict Lambert, it had to find that he had been intoxicated while operating his vehicle. The trial court further instructed the jury that the State bore the "strict and heavy burden" of proving that Lambert was "guilty of the crimes charged" and that the evidence must overcome any reasonable doubt concerning Lambert's guilt. Tr. Vol. I p. 151. The trial court further instructed the jury that "[o]nce the Defendant has testified, the Defendant has no right to refuse to be cross examined. The Defendant must answer questions when directed by the Court to do so. The Defendant -- if the Defendant refuses to answer a question, you may consider that refusal in weighing Defendant's credibility." Tr. Vol. I p. 156. Finally, the trial court instructed the jury that the attorneys' statements "are not evidence." Tr. Vol. I p. 154.
[¶5] During closing argument, the deputy prosecutor argued that
[t]his case turns on whether or not [Lambert] was intoxicated that night. And how do we know that [Lambert] was intoxicated? Well, let's count the ways. Here's a person who thinks he hit something random in the road and didn't even realize that he had hit another vehicle. He's the same person that failed two Field Sobriety Tests. He's the person that admits he was drinking that day. And he got into his vehicle after having drank, and drove. He's the person that smelled like intoxicants. And he's also the person that was acting very erratically that night. And Ladies and Gentlemen of the Jury, he's the person that tried to conceal this wrongful act by intentionally trying to skew the chemical test results, so that he wouldn't be held accountable for his actions. And his claims of illness are just another form of concealment and another way for him to not be
held accountable for his actions that night. Don't be fooled, ladies and gentlemen. Hold him accountable.
Tr. Vol. I p. 160. Lambert did not object to the deputy prosecutor's argument. In his closing argument, Lambert argued that the State had not met its burden of proof and reiterated his claim that he had been ill at the time of the accident, not intoxicated. On rebuttal, the deputy prosecutor argued that
Ladies and Gentlemen of the Jury, an admission to drinking, is just that. He admitted to drinking before he got in his vehicle that day. And he has to be held accountable for the actions that resulted from that.. . . Don't be fooled by the smoke and mirrors that the defense is trying to put out here today.. . . Don't be confused. Don't believe the hype. And don't fall for the smoke and mirrors. What the defense is trying to do today, is pull a rabbit out of the hat. The truth is, [Lambert] needs to be held accountable for his actions.
Tr. Vol. I pp. 166-67. Lambert did not object to the deputy prosecutor's rebuttal argument.
[¶6] The jury found Lambert guilty as charged. On August 23, 2023, the trial court entered judgment of conviction on the Class A misdemeanor offense and sentenced Lambert to a one-year term, with credit for time served and the remainder suspended to probation.
Discussion and Decision
I. The Trial Court did not Abuse its Discretion in Admitting the Challenged Testimony
[¶7] "A trial court has discretion regarding the admission of evidence and its decisions are reviewed only for abuse of discretion." Hall v. State, 177 N.E.3d 1183, 1193 (Ind. 2021). "We will reverse only if the trial court's ruling was clearly against the logic and effect of the facts and circumstances before it and errors affect a party's substantial rights." Id.
[¶8] Indiana Evidence Rule 704(a) provides that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable just because it embraces an ultimate issue." However, "[w]itnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case[.]" Evid. R. 704(b). This is because the jury, not the witness, is responsible for deciding the ultimate issues in a trial, and opinion testimony concerning guilt invades the province of the jury by usurping the jury's right to determine the law and facts. Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). Thus, opinion testimony may include evidence that leads to an incriminating inference, but "must stop short of the question of guilt-because under Rule 704(b) and our constitution, that is one 'ultimate issue' that the jury alone must resolve." Id.
[¶9] Lambert contends that the trial court abused its discretion in admitting Officer Fields's testimony that he had been intoxicated on the night of October 25, 2022. Again, Lambert did not object to the admission of the challenged testimony at trial and therefore must prove that its admission resulted in fundamental error. See Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013) ("Failure to object at trial waives the issue for review unless fundamental error occurred.").
[¶10] 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. In other words, to establish fundamental error, the defendant must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue because alleged errors (a) constitute clearly blatant violations of basic and elementary principles of due process and (b) present an undeniable and substantial potential for harm. The element of such harm is not established by the fact of ultimate conviction but rather depends upon whether the defendant's right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he otherwise would have been entitled. In evaluating the issue of fundamental error, our task in this case is to look at the alleged misconduct in the context of all that happened and all relevant information given to the jury-including evidence admitted at trial, closing argument, and jury instructions-to determine whether the misconduct had such an undeniable and substantial effect on the jury's decision that a fair trial was impossible.
We stress that a finding of fundamental error essentially means that the trial judge erred by not acting when he or she should have. Fundamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error.Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (emphases in original, internal brackets, citations, ellipses, and quotations omitted).
[¶11] Even assuming that the challenged testimony was inadmissible under Evidence Rule 704(b), we cannot say that its admission resulted in fundamental error. As the State points out, the jury was properly instructed on the standard of proof, its role in determining the facts, and how to weigh witness testimony. Moreover, the record contains substantial unchallenged evidence of Lambert's guilt. Officer Fields testified that upon arriving at the scene of the accident, he had smelled "alcohol coming from [Lambert's] vehicle." Tr. Vol. I p. 30. He further testified that Lambert had had "a hard time trying to find his information[,]" had bloodshot and watery eyes and slurred speech, and admitted that he had drunk alcohol that night. Tr. Vol. I p. 43. Officer Fields testified that Lambert had failed two field sobriety tests and a third had been stopped due to concerns for Lambert's safety. Tr. Vol. I p. 43. Additionally, after six attempts, Lambert had failed to give a sufficient breath sample, at one point holding his breath instead of blowing into the tube as instructed by Officer Fields. Officer Fields opined that Lambert had been attempting to skew the results of the chemical test. The evidence was more than sufficient to prove intoxication, even without Officer Fields's testimony to that effect. See Outlaw v. State, 918 N.E.2d 379, 381 (Ind.Ct.App. 2009), opinion adopted, 929 N.E.2d 196 (Ind. 2010) (concluding that evidence of bloodshot eyes, the odor of alcohol on breath, slurred speech, failed sobriety tests, and failure to provide a sufficient breath sample for a certified breathalyzer test is sufficient to prove intoxication). Given the unchallenged evidence of Lambert's guilt, we cannot say that the admission of the challenged evidence resulted in fundamental error.
II. The Trial Court did not Abuse its Discretion in Instructing the Jury
[¶12] Lambert next contends that the trial court abused its discretion in instructing the jury.
[T]he purpose of an instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict. Instructing the jury is generally within the trial court's discretion and is reviewed only for an abuse of that discretion. Instructions are to be read together as a whole and we will not reverse for an instructional error unless the instructions, as a whole, mislead the jury. A defendant is entitled to a reversal if he affirmatively demonstrates that the instructional error prejudiced his substantial rights. Finally, errors in the giving or refusing of instructions are harmless where a conviction is clearly sustained by the evidence and the jury could not properly have found otherwise.Buckner v. State, 857 N.E.2d 1011, 1015 (Ind.Ct.App. 2006) (internal citations omitted).
[¶13] Lambert raises two claims of instructional error: first, the trial court improperly instructed the jury on how to consider his testimony and, second, the trial court failed to instruct the jury on the definition of intoxication. As was the case for Lambert's evidentiary challenge, Lambert did not challenge the trial court's jury instructions and, as a result, must show fundamental error. See Halliburton, 1 N.E.3d at 678 ("Failure to object at trial waives the issue for review unless fundamental error occurred."). "When determining whether an incorrect jury instruction amounts to fundamental error, we look not to the erroneous instruction in isolation, but in the context of all relevant information given to the jury, including closing argument and other instructions." McKinley v. State, 45 N.E.3d 25, 28 (Ind.Ct.App. 2015) (internal quotation omitted), trans. denied. "There is no resulting due process violation where all such information, considered as a whole, does not mislead the jury as to a correct understanding of the law." Id. at 28-29 (internal quotation omitted).
A. Lambert's Testimony
[¶14] Lambert argues that "fundamental error occurred when instructing the jury when the instruction singled out and tended to discredit Lambert." Appellant's Br. p. 13. Again, the trial court instructed the jury that "[o] nce the Defendant has testified, the Defendant has no right to refuse to be cross examined. The Defendant must answer questions when directed by the Court to do so. The Defendant -- if the Defendant refuses to answer a question, you may consider that refusal in weighing Defendant's credibility." Tr. Vol. I p. 156. Lambert asserts that the challenged instruction "based upon all the circumstances constituted a blatant violation of Lambert's rights and denied him a fair trial." Appellant's Br. p. 15.
[¶15] At the outset, we note that we are troubled by the trial court's instruction in so far as it singles out Lambert's testimony. See Sweany v. State, 607 N.E.2d 387, 389 (Ind. 1993) (providing that jury instructions concerning credibility should be general in nature and should not single out any particular witness for closer scrutiny). Indiana Pattern Jury Instruction 13.2500 provides merely that when a defendant testifies, the jury "should judge the testimony of the Defendant as you would the testimony of any other witness." Given that it is "the preferred practice to use the pattern jury instructions[,]" we note that it would have been the better course of action for the trial court to give the pattern jury instruction regarding a defendant's testimony than that given by the court. See Gravens v. State, 836 N.E.2d 490, 493 (Ind.Ct.App. 2005), trans. denied.
The fact that Lambert did not refuse to answer any questions on cross-examination makes the trial court's instruction more puzzling and troublesome.
[¶16] However, even if the challenged instruction was given in error, such error did not constitute fundamental error. With respect to the credibility of witnesses, the trial court instructed the jury as follows:
Credibility of witnesses. You are the exclusive judges of the evidence, which may be either witness testimony or exhibits. In considering the evidence, it is your duty to decide the value you give to the exhibits you receive and the testimony you hear. In determining the value to give a witness's testimony, some factors you may consider are: the witness's ability and opportunity to observe. The behavior of the witness while testifying. Any interest, bias or prejudice the witness may have. Any relationship with people involved in the case. The
reasonableness of the testimony considering the other evidence. Your knowledge, common sense, and life experiences. You should not disregard the testimony of any witness without a reason and without careful consideration. If you find conflicting testimony, you may have to decide which testimony you believe and what testimony you do not believe. You may believe all of what the witness said, or only part of it, or none of it.
Tr. Vol. I pp. 152-53. Lambert neither challenged this instruction at trial nor does so on appeal. The trial court clearly and properly instructed the jury that it was the judge of witness credibility and was charged with making all decisions relating to witness credibility and the weight of the evidence. Reading the instructions as a whole, we cannot say that the instructions misled the jury as to a correct understanding of the law. Thus, the challenged instruction, even if erroneous, did not rise to the level of fundamental error. See McKinley, 45 N.E.3d at 28-29 (providing that an erroneous jury instruction does not rise to the level of fundamental error when the instructions considered as a whole do not mislead the jury as to a correct understanding of the law).
B. Definition of Intoxication
[¶17] Lambert also argues that the trial court committed fundamental error by failing to instruct the jury as to the legal definition of the term intoxication. Specifically, Lambert asserts that the "jury was left to guess and speculate what intoxicated legally meant" and the trial court's failure to provide the jury with a definition of intoxication "was so prejudicial to [him] that he was denied a fair trial." Appellant's Br. pp. 16, 17. We disagree.
[¶18] "The trial court has a duty to give further instructions defining words used in other instructions only if the words are of a technical or legal meaning normally not understood by jurors unversed in the law." Clemons v. State, 83 N.E.3d 104, 108 (Ind.Ct.App. 2017) (internal quotation omitted, emphasis added), trans. denied. "'Intoxicated' means under the influence of: (1) alcohol . . . so that there is an impaired condition of thought and action and the loss of normal control of a person's faculties." Ind. Code § 9-13-2-86. The definition of intoxication is neither so technical in nature nor legally defined in a manner such that a reasonable juror would not normally understand its meaning. We agree with the State that the trial court was not required to include the definition of the term "intoxicated" in its instructions to the jury because laypersons "can be expected to know what intoxication is in the context of an operating while intoxicated case." Appellee's Br. p. 18. Furthermore, Lambert cites to no precedent supporting his claim that it was error, much less fundamental error, for the trial court to refrain from giving an instruction defining intoxication, and we find none. Given that the trial court was not required to instruct the jury on the definition of intoxication, we cannot say that the trial court's failure to do so rendered a fair trial impossible.
Pattern Jury Instruction Number 14.2300, which defines the term intoxication, closely mirrors the statutory definition set forth in Indiana Code section 9-13-2-86 and does not include a technical or legal meaning that would not normally be understood by jurors.
III. The Alleged Prosecutorial Misconduct did not Amount to Fundamental Error
[¶19] Lambert last contends that the deputy prosecutor committed prosecutorial misconduct when she argued in her rebuttal argument for the jury to hold Lambert accountable for drinking and driving. "In reviewing a claim of prosecutorial misconduct properly raised in the trial court, we determine (1) whether misconduct occurred, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected otherwise." Ryan, 9 N.E.3d at 667 (internal quotation omitted). However,
[o]ur standard of review is different where a claim of prosecutorial misconduct has been procedurally defaulted for failure to properly raise the claim in the trial court, that is, waived for failure to preserve the claim of error. The defendant must establish not only the grounds for prosecutorial misconduct but must also establish that the prosecutorial misconduct constituted fundamental error. . . . In evaluating the issue of fundamental error, our task in this case is to look at the alleged misconduct in the context of all that happened and all relevant information given to the jury-including evidence admitted at trial, closing argument, and jury instructions-to determine whether the misconduct had such an undeniable and substantial effect on the jury's decision that a fair trial was impossible.Id. at 667-68 (internal citations and quotations omitted, emphasis in original).
[¶20] Lambert argues that the deputy prosecutor misstated the law in her closing argument because "[i]t is not a crime to drink and then drive. One has to be intoxicated or over the legal limit when driving." Appellant's Br. p. 18. Even if the deputy prosecutor's request for the jury to hold Lambert accountable for drinking and driving could be found to be misconduct, we cannot say that it amounted to fundamental error. As the State points out, the deputy prosecutor's closing argument "made it clear that in the State's view the case turned on whether Lambert was intoxicated." Appellee's Br. p. 20. The deputy prosecutor outlined the evidence supporting a determination that Lambert had been intoxicated at the time of the accident. Thus, when considered as a whole, the context of the deputy prosecutor's argument was clear: the jury should find that the evidence established that Lambert had driven while intoxicated. We conclude that the deputy prosecutor's statement during rebuttal argument, even if erroneous, did not render a fair trial impossible. The alleged prosecutorial misconduct therefore did not amount to fundamental error.
[¶21] The judgment of the trial court is affirmed.
Crone, J., and Tavitas, J., concur.