THOMAS v. STATE (2025)

MEMORANDUM DECISION

[1] Julius James Thomas appeals his convictions for murder and armed robbery as a level 3 felony. Thomas argues that the trial court committed fundamental error when it released the jury multiple times without the proper admonishment and erred when it failed to vacate his conviction for armed robbery as a level 3 felony. We affirm.

Facts and Procedural History

[2] On April 22, 2024, the State filed an amended information charging Thomas with: Count I, murder; Count II, robbery resulting in serious bodily injury as a level 2 felony; and Count III, armed robbery as a level 3 felony. Count I alleged that Thomas “did kill another human being, to wit: Kerwin Pollard; while committing or attempting to commit robbery, which is to knowingly take property from another person or the presence of another person by using or threatening the use of force, or by putting another person in fear.”¹ Appellant's Appendix Volume II at 150. Count II alleged that Thomas “did knowingly take clothing and/or a vehicle from Kerwin Pollard or the presence of Kerwin Pollard, by using force or by threatening the use of force; said act resulting in serious bodily injury, to wit: death of Kerwin Pollard.” Id. Count III alleged that Thomas “did knowingly take credit cards and/or clothing and/or a vehicle from Stephanie Szamlewski or the presence of Stephanie Szamlewski, by using force or by threatening the use of force, while armed with a firearm, a deadly weapon.”² Id.

[3] Beginning on August 5, 2024, the court held a seven-day jury trial. After the jury was sworn, the court stated:

During the progress of the trial, there will be times when you will be outside of the courtroom for rest periods and other times when you will be allowed to separate. When you're outside the courtroom, you must not talk about the case with anyone else. Do not talk to any of the parties, the attorneys, or witnesses. Should anyone attempt to talk with you about the trial, you should refuse, and you should report the attempt to the bailiff at your first opportunity.

There may be publicity in newspapers, radio, or television concerning this trial. You should not consider those accounts but should confine your attention only to the court proceedings. Listen attentively to the evidence as it comes from witnesses and reach a verdict solely upon what you see and hear in this court.

You should keep an open mind. You should not form or express an opinion during the trial, and you should reach no conclusion about the case until it is submitted to you for final deliberation. And under those instructions, you'll be permitted to separate from time to time.

As you walk around the campus over the course of the week during the trial, you will definitely see at some point some of the witnesses. You will see the attorneys. None of the attorneys will talk to you, and they won't talk to you about anything, including the letter [sic] or your lunch, because they want to make sure that they're following the Court's instructions. It's not because they're rude. They would be more than willing to talk to you. They're just not allowed to, so just bear that in mind. If anyone should talk to you, let us know. Don't tell your other fellow jurors about it. Tell us about it, and we'll address it if something comes up.

Transcript Volume III at 129-130.

[4] Preliminary Instruction No. 1 stated:

You have been selected as jurors and you are bound by your oath to try this case fairly and honestly.

You are permitted to discuss the evidence among yourselves in the jury room during recesses from trial but only when all jurors and alternates are present. You must not talk or communicate about this case with anyone else. You should keep an open mind. You should not form or express any conclusion or judgment about the outcome of the case until the Court submits the case to you for your deliberations.

You must focus your attention on the court proceedings and reach a verdict solely upon what you see and hear in this court. As jurors, you must not do any independent investigation about the case, and you must not be influenced in any way by information, opinions, or publicly outside the courtroom. Until you have returned a verdict in court, and I have released you from your service, do not talk to any of the parties, their lawyers, any witnesses, or members of the media. If anyone tries to talk about the case in your presence, you should tell the bailiff immediately and privately. During your attendance in the courtroom, during any discussions about the case in the jury room, or during deliberations in the jury room, you shall not use any computers, laptops, cellular telephones or other electronic communication devices unless specifically authorized by the court.

During the trial, there will be periods of time when you will be allowed to separate, such as for recesses, lunch periods, and overnight. At those times, you must not use computers, laptops, cellular telephones, or other electronic communication devices or any other method to:

* investigate, conduct research, or otherwise gather information regarding the case;

* conduct experiments or attempt to gain any specialized knowledge about the case;

* receive assistance in deciding the case from any outside sources;

* read, watch, or listen to anything about the case from any source;

* listen to discussions among or receive information from other people about the case; or

* communicate with any of the parties, their lawyers, any of the witnesses, members of the media, or anyone else about the case, including by posting information, text messaging, e-mailing, or participating in Internet chat rooms, blogs, or social websites which could contain information about the case.

You also must not visit or view the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate. You must also not consume any alcohol or drugs that could affect your ability to hear and understand the evidence.

The reason for these restrictions is to ensure that your decision is based only on the evidence presented during this trial and the Court's instructions on the law.

Appellant's Appendix Volume II at 181-182.

[5] At the end the first day, the court stated, “We're going to be in recess for the evening. Please keep that longer admonishment I gave in mind.” Transcript Volume IV at 15-16. Thomas's counsel did not object or challenge the admonishment. At the end of the second day, the trial court did not give an admonishment, and Thomas's counsel did not object. At the end of the third day, the trial court stated:

All right, we're going to be in recess for the day. So keep that admonishment that I gave you earlier in your mind, keep an open mind, don't form an opinion about the ultimate outcome. Don't talk about the case except when you're all together in the jury room. And don't do any type of independent research or anything like that.

Transcript Volume VI at 154. Thomas's counsel did not object or challenge the admonishment.

[6] At the end of the fourth day, without objection, the court stated, “Keep an open mind. Only discuss the case when you're all together in the jury room. Don't do any type of independent reason [sic] or talk to anyone else about the case.” Transcript Volume VIII at 22. At the end of the fifth day, the court did not admonish the jury, and Thomas's counsel did not object. At the end of the sixth day, the court stated, “Keep an open mind, don't reach any kind of conclusion until it's submitted to you for deliberations. Only discuss the case when you're all together, in the jury room, don't do any type of independent research.” Transcript Volume IX at 249. Thomas's counsel did not object.

[7] The jury found Thomas guilty as charged. The court vacated the conviction for Count II. The court sentenced Thomas to concurrent sentences of sixty-two years for Count I and fifteen years for Count III.

Discussion

I.

[8] Thomas concedes that the trial court's admonishment provided after the jury was sworn and the preliminary instructions contained proper admonishments but argues that the court committed fundamental error when it repeatedly released the jury without the admonishment required by Ind. Code § 35-37-2-4. He acknowledges that he did not object to the lack of admonishments. However, he contends that, “[w]ithout the required admonishment, jurors may well have discussed the case with non-jurors while at home during recesses, or with only some jurors present at lunch or elsewhere,” and “[t]he situation placed the jurors at risk of forming a preconceived notion of guilt from outside individuals who were not even involved in the case.” Appellant's Brief at 22.

[9] Ind. Code § 35-37-2-4 governs admonition by the trial court and provides:

(a) 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.

(b) The jurors may separate when court is adjourned for the day, unless the court finds that the jurors should be sequestered in order to assure a fair trial.

[10] Generally, trial court decisions on instructions and admonishments to the jury are reviewed for an abuse of discretion. Owen v. State, 210 N.E.3d 256, 267 (Ind. 2023), reh'g denied; Gibson v. State, 702 N.E.2d 707, 710 (Ind. 1998), reh'g denied, cert. denied, 531 U.S. 863, 121 S. Ct. 155 (2000). Failure to provide this admonishment, however, does not lead to automatic reversal. Cardosi v. State, 128 N.E.3d 1277, 1284-1285 (Ind. 2019). Instead, a defendant must show he was “harmed by failure of the court to instruct or admonish the jury as to conduct during recess.” Id. at 1285 (quoting Brown v. State, 245 Ind. 604, 608, 201 N.E.2d 281, 283 (1964)). “Although the ‘terms of the statute are mandatory in their call for an admonition of the jurors at specific times, no error is preserved for appeal where there was no objection interposed at the time of the action complained of.’ ” Shields v. State, 248 N.E.3d 1246, 1264 (Ind. Ct. App. 2024) (quoting Lake v. State, 565 N.E.2d 332, 335 (Ind. 1991)), trans. denied.

[11] The fundamental error exception to the contemporaneous objection requirement 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.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)), reh'g denied. To be considered fundamental, the claimed error must make a fair trial impossible. Id. (citing Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009), reh'g denied). Thus, this exception is available only in “egregious circumstances.” Id. (citing Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)).

[12] After the jury was sworn, the trial court provided the jury with an admonishment to keep an open mind and refrain from speaking about the case with anyone when outside the courtroom. Preliminary Instruction No. 1 informed the jury to keep an open mind. Thomas concedes that this admonishment and instruction were proper. Further, Preliminary Instruction No. 10 provided, “Your verdict should be based only on the evidence admitted and the instructions on the law.” Appellant's Appendix Volume II at 202. While the trial court did not admonish the jury prior to every break, the court admonished the jury at the end of the first, third, fourth, and sixth days. Thomas cites no evidence in the record of communications occurring or of any juror making up their mind about the case during the breaks. We cannot say the trial court committed fundamental error. See Cardosi, 128 N.E.3d at 1285 (acknowledging that the trial court, at most, failed to admonish jurors before six meals and at the end of two days during defendant's eight-day trial; observing that the trial court did not strictly adhere to the command of Ind. Code § 35-37-2-4(a); and holding that this deficiency did not amount to fundamental error because defendant had not shown that any harm or potential for harm was substantial).

II.

[13] Thomas argues that the entry of judgment on Counts I and III was erroneous because the robberies charged in Counts II and III arose from a single taking governed by the single larceny rule. He asserts that “[b]ecause both robbery counts stem from the same continuous criminal episode, and because robbery was a lesser-included offense of felony murder, both Counts II and III should have been vacated.” Appellant's Brief at 15 (citing Wadle v. State, 151 N.E.3d 227, 255-256 (Ind. 2020)). He contends that “nothing in Powell v. State, 151 N.E.3d 256 (Ind. 2020), disturbs the application of the single larceny rule.” Id. at 17. He also argues that, “[e]ven assuming the single larceny rule does not control, Powell still mandates the same result.” Id. at 18. He concludes that, “[b]ecause Count III was part of the same offense as Count II – and both were lesser-included offenses of Count I felony murder – Count III should also have been vacated.” Id. at 19 (citing Layman v. State, 42 N.E.3d 972, 980 (Ind. 2015); Wadle, 151 N.E.3d at 257).

[14] The State argues that Thomas's convictions cannot violate the single larceny rule because the rule did not survive Wadle. It contends that Thomas erroneously analyzes his convictions under Powell, Wadle provides the applicable framework, and his convictions do not violate the prohibition against double jeopardy.

[15] The Indiana Supreme Court has held that “[s]ubstantive double jeopardy claims come in two principal varieties: (1) when a single criminal act or transaction violates a single statute but harms multiple victims, and (2) when a single criminal act or transaction violates multiple statutes with common elements and harms one or more victims.” Wadle, 151 N.E.3d at 247. The Court's decision in Powell “implicates the former scenario,” while Wadle “implicates the latter.” Id. Given that Thomas was convicted of Count I, murder, and Count III, armed robbery as a level 3 felony, and his convictions involve the violation of multiple statutes, we apply the analysis in Wadle.

[16] Under Wadle, we start with the statutory language of the offenses and, “[i]f the language of either statute clearly permits multiple punishment, either expressly or by unmistakable implication, the court's inquiry comes to an end and there is no violation of substantive double jeopardy.”³ A.W. v. State, 229 N.E.3d 1060, 1066 (Ind. 2024) (quoting Wadle, 151 N.E.3d at 248 (footnote omitted)). “If the statutory language does not clearly permit multiple punishments, ‘a court must then apply our included-offense statutes to determine statutory intent.’ ”⁴ Id. (quoting Wadle, 151 N.E.3d at 248 (emphasis added in A.W.)). “ ‘If neither offense is an included offense of the other (either inherently or as charged), there is no violation of double jeopardy’ and the analysis ends—full stop.” Id. at 1067 (quoting Wadle, 151 N.E.3d at 248). But if one offense is included in the other, the court must proceed to Step 3. Id. In Step 3, “[i]f a court has found that one offense is included in the other—either inherently or as charged—the court must then (and only then) ‘examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial.’ ” Id. at 1071 (quoting Wadle, 151 N.E.3d at 249 (emphasis added in A.W.)).

[17] We cannot say that Count III, which alleged that Thomas knowingly took credit cards, clothing, or a vehicle from Szamlewski or her presence by using force or by threatening the use of force while armed with a firearm, is an included offense, either inherently or as charged, of Count I, which alleged that Thomas killed Pollard while committing or attempting to commit robbery. Accordingly, we conclude that Thomas's convictions do not violate Wadle. See Pittman v. State, 234 N.E.3d 874, 888 (Ind. Ct. App. 2024) (addressing the defendant's argument that his conviction for felony murder and his three level 3 felony attempted robbery convictions were contrary to the Indiana Supreme Court's analysis in Wadle; observing that the charging information established that the defendant's felony-murder conviction was “based on Ortiz's death, while his three Level 3 felony attempted robbery convictions are for him approaching Ortiz's vehicle with a firearm and attempting to rob the vehicle's three other occupants—Hawkins, Shields, and Miller”; observing that “each of these four convictions involved a different victim”; holding that “ ‘by definition one offense cannot be either a factually or inherently included lesser offense’ of another offense where ‘a separate victim is alleged for each offense’ ” (quoting Woodcock v. State, 163 N.E.3d 863, 875 (Ind. Ct. App. 2021), trans. denied, and citing Ind. Code § 35-31.5-2-168(3) (defining an “[i]ncluded offense” in part as an offense that “differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person”) (emphasis added in Pittman)); and concluding that defendant's argument under Wadle failed), trans. denied; Woodcock, 163 N.E.3d at 875 (discussing Wadle; observing that “where, as here one of the material elements of both offenses is a victim, and a separate victim is alleged for each offense, it would seem by definition one offense cannot be either a factually or inherently included lesser offense of the other”; holding that, “[i]n effect, if there are two separate victims there cannot be a double jeopardy problem as to the offenses they might have in common”; concluding that “[b]ecause neither murder nor battery by a deadly weapon is included in the other either inherently or as charged, [defendant's] convictions do not constitute double jeopardy”; and observing that, according to Wadle, there is therefore no need to further examine the specific facts of the case to determine whether defendant's actions were so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction).

[18] For the foregoing reasons, we affirm Thomas's convictions.

[19] Affirmed.

FOOTNOTES

1.   Count I cited Ind. Code § 35-42-1-1(2), which provides that “[a] person who ․ kills another human being while committing or attempting to commit ․ robbery ․ commits murder, a felony.”

2.   Count III cited Ind. Code § 35-42-5-1(a)(1) which provides that “a person who knowingly or intentionally takes property from another person or from the presence of another person ․ by using or threatening the use of force on any person ․ commits robbery” and “the offense is a Level 3 felony if it is committed while armed with a deadly weapon ․”

3.   This Court has previously held that Wadle engulfed all double jeopardy claims, including those previously arising under the common law. See Morales v. State, 165 N.E.3d 1002, 1007 (Ind. Ct. App. 2021), trans. denied; Jones v. State, 159 N.E.3d 55, 61 (Ind. Ct. App. 2020) (“Wadle and Powell not only overruled the constitutional substantive double jeopardy test in Richardson [v. State, 717 N.E.2d 32 (Ind. 1999)], they also swallowed statutory and common law to create one unified framework for substantive double jeopardy claims—including the continuous crime doctrine.”), trans. denied.

4.   Ind. Code § 35-31.5-2-168 provides that an “Included offense” means an offense that:(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or(3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.

Brown, Judge.

Bailey, J., and Weissmann, J., concur.