finding of fundamental error in Indiana

2019“A finding of fundamental error essentially means that the trial judge erred . . . by not acting when he or Court of Appeals of Indiana | Memorandum Decision 18A-CR-2573 | May 21, 2019 Page 7 of 12 she should have, even without being spurred to action by a timely objection.” Id. (internal quotation omitted).

2019“A finding of fundamental error essentially means that the trial judge erred . . . by not Court of Appeals of Indiana | Memorandum Decision 19A-CR-15 | July 15, 2019 Page 5 of 9 acting when he or she should have, even without being spurred to action by a timely objection.” Id. (internal quotation omitted).

2017“A finding of fundamental error essentially means that the trial judge erred by not acting when he or she should have.” Whiting v. State, 969 N.E.2d 24, 34 (Ind. 2012). [12] Lawson argues that the trial court erred when it failed to instruct the jury as to her claim of self-defense.

2014Brewington v. State, 7 N.E.3d 946, 974 (Ind.2014); accord Whiting v. State, 969 N.E.2d 24, 34 (Ind.2012) (“A finding of fundamental error essentially means that the trial judge erred ... by not acting when he or she should have.... ”).

2020See Benefield v. State, 945 N.E.2d 791, 805 (Ind. Ct. App. 2011) (holding “where an appellant has failed to prove ineffective assistance of trial counsel, our holding would exclude a finding of fundamental error”).

2018See Allen v. State, 749 N.E.2d 1158, 1168-69 (Ind. 2001) (holding that because claimed errors by trial counsel did not in themselves warrant relief, claims of ineffective assistance of appellate counsel for failure to raise the alleged errors by trial counsel would also fail), cert. denied, 535 U.S. 1061 (2002); Benefield v. State, 945 N.E.2d 791, 805 (Ind. Ct. App. 2011) (holding that where an appellant has failed to prove ineffective assistance of trial counsel, a finding of fundamental error on appeal is excluded).

2020See id. at 208 (finding no fundamental error where Brown failed to contend that he received an unfair trial based on grounds other than the admission of evidence). [19] In this case, Starks failed to object to the admission of the handgun at trial, does not assert fundamental error on appeal, and fails to raise any grounds to support a finding of fundamental error.

2020See, e.g., id. at 208 (explaining that it is not necessary to resolve the issue of whether a search was lawful where the defendant had failed to preserve the issue by failing to object and where there was no fundamental error).

2014In sum, fundamental error is a daunting standard that applies “only in egregious circumstances.” Brown v. State, 799 N.E.2d 1064, 1068 (Ind.2003).

2014In sum, fundamental error is a daunting standard that applies “only in egregious circumstances.” Brown v. State, 799 N.E.2d 1064, 1068 (Ind.2003).

2018“A finding of fundamental error essentially means that the trial judge erred . . . by not acting when he or she should have, even without being spurred to action by a timely objection.” Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014) (internal citation omitted); see also Winston v. State, 165 Ind.App. 369, 376 , 332 N.E.2d 229, 233 (1975) (noting in cases in which fundamental error is found, “the error involved the mistake or misconduct of the trial judge in the exercise of his own affirmative duties”).

2018“A finding of fundamental error essentially means that the trial judge erred . . . by not acting when he or she should have, even without being spurred to action by a timely objection.” Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014) (internal citation omitted); see also Winston v. State, 165 Ind.App. 369, 376 , 332 N.E.2d 229, 233 (1975) (noting in cases in which fundamental error is found, “the error involved the mistake or misconduct of the trial judge in the exercise of his own affirmative duties”).

2018The fundamental error doctrine “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.” Covey v. State, 929 N.E.2d 813, 819 (Ind. Ct. App. 2010). ‘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

2018See Allen v. State, 749 N.E.2d 1158, 1168-69 (Ind. 2001) (holding that because claimed errors by trial counsel did not in themselves warrant relief, claims of ineffective assistance of appellate counsel for failure to raise the alleged errors by trial counsel would also fail), cert. denied, 535 U.S. 1061 (2002); Benefield v. State, 945 N.E.2d 791, 805 (Ind. Ct. App. 2011) (holding that where an appellant has failed to prove ineffective assistance of trial counsel, a finding of fundamental error on appeal is excluded).

2018See Allen v. State, 749 N.E.2d 1158, 1168-69 (Ind. 2001) (holding that because claimed errors by trial counsel did not in themselves warrant relief, claims of ineffective assistance of appellate counsel for failure to raise the alleged errors by trial counsel would also fail), cert. denied, 535 U.S. 1061 (2002); Benefield v. State, 945 N.E.2d 791, 805 (Ind. Ct. App. 2011) (holding that where an appellant has failed to prove ineffective assistance of trial counsel, a finding of fundamental error on appeal is excluded).

2018Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (citation omitted) (emphasis added).

2017Jackson’s citations to Fowler v. State, 900 N.E.2d 770 , 774 .(Ind. Ct. App. 2009), and Peterson v. State, 699 N.E.2d 701, 706 (Ind. Ct. App. 1998), are not supported by cogent argument, and we do not consider them.

2015See Walker v. State, 813 N.E.2d 339 341-42 (Ind. Ct. App. 2004) (“[O]ur conclusion that Walker received effective assistance of counsel necessarily precludes Walker’s right to relief under the theory of fundamental error.”), trans. denied.

2014As such, we further conclude that Ball did not suffer a violation of due process such to warrant a finding of fundamental error.2 See Boesch, 778 N.E.2d at 1279 (providing that 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). 2 Even though we conclude that, in the instant matter, the failure to instruct the jury regarding specific intent did not amount to fundamental error, we note that the better practice in future cases involving a charge of attempted murder would be to include

2013See Cole, 970 N.E.2d at 783 (providing that an alleged error constituted an invited error because the response was elicited by a question by defense counsel and, as a result, could not be fundamental error). 9 cannot say that it was error, much less fundamental error, for the trial court to admit a vague statement by M.C. regarding the nature of her relationship with Klinglesmith.

2012A finding of fundamental error essentially means that the trial judge erred either by not acting when he or she should have, see, e.g., Addison v. State, 962 N.E.2d 1202, 1216-17 (Ind.2012) (finding fundamental error where, among other things, trial court failed to perform its duty under the third step of Batson), or by acting in a manner that grossly exceeded the role of an impartial judge, see, e.g., Kennedy v. State, 258 Ind. 211, 217-18 , 280 N.E.2d 611, 615 (1972) (remanding for a new trial where trial judge assumed role of adversary and vigorously impeached defendant’s expert in front of

2012A finding of fundamental error essentially means that the trial judge erred either by not acting when he or she should have, see, e.g., Addison v. State, 962 N.E.2d 1202, 1216-17 (Ind.2012) (finding fundamental error where, among other things, trial court failed to perform its duty under the third step of Batson), or by acting in a manner that grossly exceeded the role of an impartial judge, see, e.g., Kennedy v. State, 258 Ind. 211, 217-18 , 280 N.E.2d 611, 615 (1972) (remanding for a new trial where trial judge assumed role of adversary and vigorously impeached defendant’s expert in front of

2012A finding of fundamental error essentially means that the trial judge erred either by not acting when he or she should have, see, e.g., Addison v. State, 962 N.E.2d 1202, 1216-17 (Ind.2012) (finding fundamental error where, among other things, trial court failed to perform its duty under the third step of Batson), or by acting in a manner that grossly exceeded the role of an impartial judge, see, e.g., Kennedy v. State, 258 Ind. 211, 217-18 , 280 N.E.2d 611, 615 (1972) (remanding for a new trial where trial judge assumed role of adversary and vigorously impeached defendant’s expert in front of

1999Davis v. State, 598 N.E.2d 1041, 1048 (Ind.1992), cert. denied, 510 U.S. 948 , 114 S.Ct. 392 , 126 L.Ed.2d 340 .