Split Supreme Court reinstates convictions based on invited error

Finding any fundamental error was invited, a split Indiana Supreme Court has reinstated a man’s multiple convictions that resulted in a nearly 50-year sentence.

In June 2019, Terrance Trabain Miller was arrested in Logansport following a traffic stop. Miller had heroin, methamphetamine and a handgun in his possession.

The state charged Miller with six offenses, including unlawful possession of a firearm by a serious violent felon in violation of Indiana Code § 35-47-4-5(c). It also alleged Miller was a habitual offender under I.C. 35-50-2-8.

Following trial, where Miller was found guilty of all charges, the state moved to dismiss the serious violent felon charge, telling the Cass Circuit Court it had not proven the armed robbery that was alleged. The trial court granted the motion and Miller admitted his status as a habitual offender and was sentenced to 49 years.

Miller then appealed, arguing Preliminary Instruction 18 was fundamental error because it informed the jury about his prior felony conviction. He also argued the traffic stop violated his Fourth Amendment rights and the trial court should have struck prospective juror T.M. for cause.

In November, the Court of Appeals of Indiana reversed, finding Preliminary Instruction 18 was fundamental error because it informed the jury that Miller had a prior conviction. The COA held the invited-error doctrine did not preclude relief, without addressing Miller’s other arguments.

On transfer, a split Supreme Court affirmed the trial court, rejecting Miller’s challenges to Preliminary Instruction 18, the lawfulness of the stop and the trial court’s refusal to strike T.M. for cause.

First, addressing the jury instruction, the majority concluded Miller invited any error that arose from Preliminary Instruction 18, which precluded relief on direct appeal.

“Assuming Preliminary Instruction 18 was fundamental error, Miller invited it,” Justice Mark Massa wrote. “The instruction was part of his counsel’s explicit ‘strategic decision’ to partially bifurcate the unlawful possession charge, which was certainly permissible. … Miller’s counsel not only affirmed the instruction ‘looks correct,’ he also stated that ‘we are including the statute but not referring to the actual offence (sic), which would be prejudicial.’

“He was very much aware of the potential for prejudice if the jury knew Miller’s criminal history,” Massa continued. “Indeed, he had even filed a motion in limine — which was discussed and granted right after the instruction was discussed and approved — to exclude references during the trial’s first phase to Miller’s previous convictions and incarcerations and the pending habitual offender enhancement. Yet he still requested the instruction as part of his strategy. He ‘did far more than simply fail to object.’”

The justices noted Miller can challenge his counsel’s strategy through a post-conviction relief petition alleging ineffective assistance of counsel.

Next, on the question of whether Miller was lawfully stopped, the COA found the detective had observed two traffic violations before pulling the suspect over, so there was sufficient evidence.

Regarding the juror, the Supreme Court concluded Miller did not comply with the exhaustion rule, which precludes review of the trial court’s refusal to strike T.M. for cause.

“Here, Miller had ten peremptory challenges. He never attempted to use one against T.M., even though he had not exhausted them when the court denied his for-cause challenge,” Massa wrote. “He now asserts that he did not have any available peremptory challenges, because T.M. was in the first round of prospective jurors, and he did not request that the court strike T.M. until after questioning had moved past that round. In other words, he had ‘passed over’ T.M., so his only recourse was a for-cause challenge.

“Even if the court would have deemed Miller’s peremptory challenge late and denied it, Miller still had to try,” Massa continued. “The use of peremptory challenges is subject to the trial court’s ‘reasonable regulation.’ Nagy v. State, 505 N.E.2d 434, 437 (Ind. 1987). Certainly, the court can refuse a belated peremptory challenge, and such refusal might be upheld on appeal. However, an anticipated refusal does not excuse compliance with the exhaustion rule.”

Justices Steven David, Geoffrey Slaughter and Christopher Goff all concurred in the opinion while Chief Justice Loretta Rush concurred in part and dissented in part.

Rush wrote that she would’ve reviewed the fundamental error claim on the jury instruction but concurred with the majority on all other respects.

“We have previously recognized that in cases where ‘either the source of the error or counsel’s motives at trial are less than clear,’ it is imperative that we ‘resolve any doubts against a finding of invited error,’” Rush wrote, citing Batchelor v. State, 119 N.E.3d 550, 558 (Ind. 2019). “. . . Given the gravity of this consequence, we must exercise caution when reviewing for invited error. And if any doubt arises upon review — as it does here — we should proceed with a fundamental-error analysis.

“… Our invited-error doctrine serves an important purpose,” Rush continued. “But we must be careful not to let it transform into a ‘rigid and undeviating judicially declared practice,’ serving only to defeat — not promote — the ends of justice. Hormel v. Helvering, 312 U.S. 552, 557 (1941). Here, with a record lacking any indicia of a reasonable basis for counsel’s assent to Preliminary Instruction 18, we should carefully review Miller’s claim for fundamental error.”

The case is Terrance Trabain Miller v. State of Indiana, 22S-CR-59.