claim of fundamental error in Indiana

2026See Baer v. State, 942 N.E.2d 80, 99 (Ind. 2011) (noting it is “highly unlikely” to prevail on a claim of fundamental error relating to prosecutorial misconduct); Stevens v. State, 691 N.E.2d 412 , 420 n.2 (Ind. 1997); Wilson v. State, 222 Ind. 63, 83 , 51 N.E.2d 848, 856 (1943).

2023The Ryan Court also noted that an appellant “is ‘highly unlikely’ to prevail on a claim of fundamental error relating to prosecutorial misconduct.” Id. (citing Baer v. State, 942 N.E.2d 80, 99 (Ind. 2011)).

2015“A defendant in a post- conviction proceeding may allege a claim of fundamental error only when asserting either (1) ‘[d]eprivation of the Sixth Amendment right to effective assistance of counsel,’ or (2) ‘an issue demonstrably unavailable to the petitioner at the time of his [or her] trial and direct appeal.’” Lindsey v. State, 888 N.E.2d 319, 325 (Ind. Ct. App. 2008) (quoting Canaan v. State, 683 N.E.2d at 235 n. 6 (Ind. 1997) (alteration in original)), trans. denied.

2014A defendant in a post-conviction proceeding may allege a claim of fundamental error only when asserting either (1) “[d]eprivation of the Sixth Amendment right to effective assistance of counsel,” or (2) “an issue demonstrably unavailable to the petitioner at the time of his [or her] trial and direct appeal.” Lindsey v. State, 888 N.E.2d 319, 325 (Ind. Ct. App. 2008) (quoting Canaan v. State, 683 N.E.2d 227 , 235 n. 6 (Ind. 1997)), trans. denied.

2026See Baer v. State, 942 N.E.2d 80, 99 (Ind. 2011) (noting it is “highly unlikely” to prevail on a claim of fundamental error relating to prosecutorial misconduct); Stevens v. State, 691 N.E.2d 412 , 420 n.2 (Ind. 1997); Wilson v. State, 222 Ind. 63, 83 , 51 N.E.2d 848, 856 (1943).

2026See Baer v. State, 942 N.E.2d 80, 99 (Ind. 2011) (noting it is “highly unlikely” to prevail on a claim of fundamental error relating to prosecutorial misconduct); Stevens v. State, 691 N.E.2d 412 , 420 n.2 (Ind. 1997); Wilson v. State, 222 Ind. 63, 83 , 51 N.E.2d 848, 856 (1943).

2020Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010).

2013Id. at 13-14 . 8 When we consider a claim of fundamental error with respect to jury instructions, we look to the jury instructions as a whole to determine if they were adequate.

2008The Indiana Supreme Court has held that when we consider a claim of fundamental error, “we look to the jury instructions as a whole to determine if they were adequate.” Ringham v. State, 768 N.E.2d 893, 898 (Ind.2002), reh’g denied.

2008The Indiana Supreme Court has held that when we consider a claim of fundamental error, "we look to the jury instructions as a whole to determine if they were adequate." Ringham v. State, 768 N.E.2d 893, 898 (Ind.2002), reh'g denied.

2003Wrinkles v. State, 690 N.E.2d 1156, 1171 (Ind.1997) ("A claim of fundamental error is not viable absent a showing of grave peril and the possible effect on the jury's decision," quoting Isom v. State, 651 N.E.2d 1151, 1152 (Ind.1995)).

2003Wrinkles v. State, 690 N.E.2d 1156, 1171 (Ind.1997) ("A claim of fundamental error is not viable absent a showing of grave peril and the possible effect on the jury's decision," quoting Isom v. State, 651 N.E.2d 1151, 1152 (Ind.1995)).

2020“Establishing a claim of fundamental error requires a showing of at least as much prejudice to the defendant as a claim of ineffective assistance of [trial] counsel.” Culver v. State, Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 27 of 36 727 N.E.2d 1062, 1070 (Ind. 2000). “[A] finding that Defendant was not denied the effective assistance of [trial] counsel also establishes that the alleged error was not so prejudicial as to constitute fundamental error.” Id.

2020“Establishing a claim of fundamental error requires a showing of at least as much prejudice to the defendant as a claim of ineffective assistance of [trial] counsel.” Culver v. State, Court of Appeals of Indiana | Memorandum Decision 19A-PC-1299 | March 6, 2020 Page 27 of 36 727 N.E.2d 1062, 1070 (Ind. 2000). “[A] finding that Defendant was not denied the effective assistance of [trial] counsel also establishes that the alleged error was not so prejudicial as to constitute fundamental error.” Id.

2012Further: “[a] defendant in a post-conviction proceeding may allege a claim of fundamental error only when asserting either (1) deprivation of the Sixth Amendment right to effective assistance of counsel, or (2) an issue demonstrably unavailable to the petitioner at the time of his or her trial and direct appeal.” Id. at 325 (quotations and alterations omitted); see also State v. Hernandez, 910 N.E.2d 213, 216 (Ind. 2009) (same).

2012Further: “[a] defendant in a post-conviction proceeding may allege a claim of fundamental error only when asserting either (1) deprivation of the Sixth Amendment right to effective assistance of counsel, or (2) an issue demonstrably unavailable to the petitioner at the time of his or her trial and direct appeal.” Id. at 325 (quotations and alterations omitted); see also State v. Hernandez, 910 N.E.2d 213, 216 (Ind.2009) (same).

2023The Ryan Court also noted that an appellant “is ‘highly unlikely’ to prevail on a claim of fundamental error relating to prosecutorial misconduct.” Id. (citing Baer v. State, 942 N.E.2d 80, 99 (Ind. 2011)).

2020Court of Appeals of Indiana | Memorandum Decision 19A-CR-745 | January 15, 2020 Page 6 of 13 substantial potential for harm” so that “a fair trial [was] impossible.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). [12] In considering a claim of fundamental error with respect to jury instructions, we look to the instructions as a whole to determine if they were adequate.

2020“This exception to the general rule requiring a contemporaneous objection is narrow, providing relief only in ‘egregious circumstances’ that made a fair trial impossible.” Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016). [46] In considering a claim of fundamental error with respect to jury instructions, we look to the instructions as a whole to determine if they were adequate.

2019"This exception to the general rule requiring a contemporaneous objection is narrow, providing relief only in 'egregious circumstances' that made a fair trial impossible." Pattison v. State , 54 N.E.3d 361 , 365 (Ind. 2016). [23] In considering a claim of fundamental error with respect to jury instructions, we look to the instructions as a whole to determine if they were adequate.

2004Hopkins v. State, 782 N.E.2d 988, 991 (Ind.2008) (citing Wrinkles v. State, 690 N.E.2d 1156, 1171 (Ind.1997) ("A claim of fundamental error is not viable absent a showing of grave peril and the possible effect on the jury's decision. ...."), reh'g denied, cert. demied, 525 U.S. 861 , 119 S.Ct. 148 , 142 L.Ed.2d 121 (1998)).

2004"A claim of fundamental error is not viable absent a showing of grave peril and the possible effect on the jury's decision," and "for error to be "fundamental," prejudice to the defendant is required." Hopkins v. State, 782 N.E.2d at 991 (quoting Wrinkles v. State, 690 N.E.2d 1156, 1171 (Ind.1997)).

2020Court of Appeals of Indiana | Memorandum Decision 19A-CR-745 | January 15, 2020 Page 6 of 13 substantial potential for harm” so that “a fair trial [was] impossible.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). [12] In considering a claim of fundamental error with respect to jury instructions, we look to the instructions as a whole to determine if they were adequate.

2014To succeed on a claim of fundamental error, the defendant must establish that, under the circumstances, the trial court erred by not raising the issue sua sponte “because the 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.’” Id. (quoting Benson, 762 N.E.2d at 756 ).

2008This Court asserted “it is through a showing of fundamental error that the post conviction court can bypass an obstacle to reaching the merits of a free standing claim erected by a prior procedural default.” Snider v. State, (1984) Ind., 468 N.E.2d 1037, 1039 .

2002This Court asserted, “it is through a showing of fundamental error that the post conviction court can bypass an obstacle to reaching the merits of a free standing claim erected by a prior procedural default.” Snider v. State, [ 468 N.E.2d 1037, 1039 (Ind.1984) ].

2018Booher, 773 N.E.2d 814 ; see also Baer v. State, 942 N.E.2d 80, 99 (Ind. 2011) (noting it is “highly unlikely” to prevail on a claim of fundamental error relating to prosecutorial misconduct).

2017See Baer v. State, 942 N.E.2d 80, 99 (Ind. 2011) (noting it is “highly unlikely” to prevail on a claim of fundamental error relating to prosecutorial misconduct). [8] To establish prosecutorial misconduct, we must “determine (1) whether the prosecutor engaged in misconduct, 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.” Booher, 773 N.E.2d at 817 (quoting Coleman v. State, 750 N.E.2d 370, 374 (Ind. 2001)).

2004Hopkins v. State, 782 N.E.2d 988, 991 (Ind.2008) (citing Wrinkles v. State, 690 N.E.2d 1156, 1171 (Ind.1997) ("A claim of fundamental error is not viable absent a showing of grave peril and the possible effect on the jury's decision. ...."), reh'g denied, cert. demied, 525 U.S. 861 , 119 S.Ct. 148 , 142 L.Ed.2d 121 (1998)).

2004The post-conviction court also concluded that on direct appeal, we would have found no fundamental error because of the nature of the evidence admitted at Dawson's trial, and it likened this matter to Hopkins v. State, 782 N.E.2d 988, 991 (Ind.2008), where our supreme court rejected a claim of fundamental error on an attempted murder instruction based on the State's overwhelming evidence.

2014Id. at 1176 (citing Price, 591 N.E.2d at 1029 ).

2004See e.g., Price, 591 N.E.2d at 1029 .

2011For example, in Williams v. State, 737 N.E.2d 734 (Ind.2000), our supreme court addressed a post-conviction challenge to an aiding in attempted murder conviction that raised a claim of fundamental error in the jury instructions.

2008Even in cases of “clear Spradlin error,” the Indiana Supreme Court has refused to vacate an attempted murder conviction if “the instructions as a whole sufficiently suggested the requirement of intent to kill.” Williams v. State, 737 N.E.2d 734, 737 (Ind.2000) (citing Ramsey v. State, 723 N.E.2d 869, 873 (Ind.2000)) (holding that “the jury instructions, taken as a whole, sufficiently informed the jury of the State’s burden of proving that the Defendant specifically intended to kill the victim”).

2003The two also differ in that a claim of ineffective assistance of counsel is generally best reserved for post-conviction proceedings, Woods v. State, 701 N.E.2d 1208, 1220 (Ind.1998), and a claim of fundamental error is usually available only on direct appeal, Sanders v. State, 765 N.E.2d 591, 592 (Ind.2002). 6 .

2003In Sanders, 765 N.E.2d at 592 , our Supreme Court held that it was "wrong" for this court to have reviewed a claim of fundamental error in a post-conviction proceeding.

2020Davis v. State, 835 N.E.2d 1102, 1108 (Ind. Ct. App. 2005), trans. denied.

2020Absher v. State, 866 N.E.2d 350, 354 (Ind. Ct. App. 2007). [10] A claim of fundamental error is available only to address egregious circumstances.

2020Id.

2019Brewington , 7 N.E.3d at 974 (because "fundamental error requires a showing of at least as much prejudice to the defendant as a claim of ineffective assistance of counsel," a finding against the former claim establishes a finding against the latter claim) (citing Culver v. State , 727 N.E.2d 1062 , 1070 & n. 7 (Ind. 2000) ); see also United States v. Hamilton , 499 F.3d 734 , 736 (7th Cir. 2007) (applying similar reasoning).

2019See Leatherman v. State, 101 N.E.3d 879, 885 (Ind. Ct. App. 2018) (a party may not present an argument for the first time on appeal, and the failure to present an argument below results in waiver on appeal); see also Cole v. State, 28 N.E.3d 1126, 1136 (Ind. Ct. App. 2015) (when defendant affirmatively states he has “no objection” to proffered evidence, he invites any error in its admission, and a claim of fundamental error may be waived if appellant invited the alleged fundamental error). [20] Second, Williams has waived this claim because he fails to make a cogent argument.

2019Fundamental error is “a clearly blatant violation of basic and elementary principles, and the harm or potential for harm therefrom must be substantial and apparent.” James v. State, 613 N.E.2d 15, 25 (Ind. 1993).

2019See Wingate, 900 N.E.2d at 475 ; App. R. 46(A)(8)(a).

2019Brewington , 7 N.E.3d at 974 (because "fundamental error requires a showing of at least as much prejudice to the defendant as a claim of ineffective assistance of counsel," a finding against the former claim establishes a finding against the latter claim) (citing Culver v. State , 727 N.E.2d 1062 , 1070 & n. 7 (Ind. 2000) ); see also United States v. Hamilton , 499 F.3d 734 , 736 (7th Cir. 2007) (applying similar reasoning).

2019See Leatherman v. State, 101 N.E.3d 879, 885 (Ind. Ct. App. 2018) (a party may not present an argument for the first time on appeal, and the failure to present an argument below results in waiver on appeal); see also Cole v. State, 28 N.E.3d 1126, 1136 (Ind. Ct. App. 2015) (when defendant affirmatively states he has “no objection” to proffered evidence, he invites any error in its admission, and a claim of fundamental error may be waived if appellant invited the alleged fundamental error). [20] Second, Williams has waived this claim because he fails to make a cogent argument.