MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 06 2019, 9:31 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Deborah Markisohn Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kevin Jones, May 6, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1320 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Kurt Eisgruber, Appellee-Plaintiff. Judge Trial Court Cause No. 49G01-1609-F3-36200
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 1 of 24 Case Summary and Issue [1] Following an incident with his girlfriend, Kevin Jones was charged with
multiple counts of battery and kidnapping. After a jury was selected and sworn,
but before the trial began, the trial court recessed for a lunch break. As Juror 11
returned from break, he was approached by a member of Jones’ family who
whispered something about self-defense. Juror 11 told the bailiff, who informed
the court and counsel about the contact. Juror 11 also told the other jurors that
he was probably going to be removed as a juror because someone said
something to him but he assured the other jurors “[i]t wasn’t anything bad[.]”
The trial court and counsel questioned Juror 11 about the communication and
ultimately dismissed him. The trial court and counsel also questioned each
remaining juror individually about what they had heard from Juror 11 and what
impact it had on their ability to remain on the jury. After questioning, the State
orally moved for a mistrial and defense counsel joined, but the trial court
denied the motion. The jury found Jones guilty of aggravated battery, battery,
and domestic battery, but not guilty of kidnapping. Jones now appeals and
presents the sole issue of whether the trial court abused its discretion in denying
the State and Jones’ joint motion for a mistrial due to suspected jury taint.
Concluding the trial court did not abuse its discretion, we affirm.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 2 of 24 Facts and Procedural History 1
[2] Jones and Ashley Glover had been in a relationship for “[f]ive years on and
off.” Transcript, Volume II at 115. On September 9, 2016, Jones and Glover
were at Jones’ house and both had been drinking and using drugs. While in the
bedroom, the two got into an argument and Glover got her phone and
attempted to call someone. Jones “snatched the phone out of [Glover’s] hand
and threw it.” Id. at 120. Glover gathered her things and said, “Well, I’m
going to go. I’ll call you. Call me when you cool down.” Id. Jones responded,
“You think you [sic] going to walk out of this door, this will be the last door
you walk out of.” Id. Jones then hit Glover in the face. Glover stood up and
realized she had been cut on her leg and she began to bleed “uncontrollably.”
Id. at 121. She fell to the ground and crawled to the bed to get her phone to call
911. She lost consciousness. The next thing Glover remembered was that
Jones returned to the room, grabbed her arms, and began to drag her to the
porch. She thought he dragged her to the front room and “didn’t know that
[she] was outside . . . until the paramedics came.” Id. at 122. Glover had
injuries to her face and lost a significant amount of blood and was taken by
ambulance to Eskenazi Hospital where she underwent surgery, but ultimately
survived.
1 We held an oral argument on March 19, 2019 at the Hammond Academy of Science and Technology in Hammond, Indiana. We thank the students, faculty, and staff for their hospitality and gracious reception and commend counsel on their effective advocacy.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 3 of 24 [3] On September 14, 2016, the State charged Jones with the following: Count I,
aggravated battery, a Level 3 felony; Count II, kidnapping, a Level 6 felony;
Count III, battery resulting in bodily injury, a Class A misdemeanor; and Count
IV, domestic battery, a Class A misdemeanor. Later, the State added Count V,
aggravated battery, a Level 3 felony, and alleged Jones was an habitual
offender. On May 13, 2018, the State filed a motion to dismiss Count I, which
the trial court granted. See Appellant’s Appendix, Volume II at 107, 17.
[4] A jury trial on the remaining counts began on May 14 and concluded on May
15. Following the voir dire process, a jury was selected, sworn, and recessed for
a lunch break. As Juror 11 returned from lunch, he was approached by a
person who identified himself as a member of Jones’ family and mentioned
something about self-defense. Juror 11 promptly told the bailiff, who in turn
informed the court and counsel about the encounter. After the break, the court
reconvened without the jury and the trial court informed the parties that a juror
had been approached by someone. The trial court stated, “I was going to bring
that juror out, talk to him, see what’s going on and take it from there.” Tr.,
Vol. II at 24. Juror 11 was called in to the courtroom and described the
encounter:
[Juror No. 11]: I was coming into the security and a gentleman just said, he said, “Oh, you’re a juror.” I said, “Yeah, Are you?” “No.” He said, “My uncle’s the Defendant,” and then he kind of under his breath just said, “self- defense (inaudible).” Like something to that effect, kind of . . .
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 4 of 24 [Court]: Okay. And that is the extent of it?
[Juror No. 11]: Yes.
[Court]: Okay. And then you parted ways and you came up here?
[Court]: . . . [D]o you think it will impact your ability to be fair and impartial in this case?
***
[State]: Sir, when you got back, did you talk to any of the other jurors about that?
[Juror No. 11]: Yeah, I did tell the other jurors that I might be dispensed because someone came up and spoke to me, and then I said, “It wasn’t anything bad,” and then they’re like, “No, we don’t want to hear it.” I’m like, “No, that’s not what I’m saying.” I just said, “It wasn’t – I don’t want anybody to be scared.”
[Defense]: Did you happen to tell who said something to you or just state it like that, that someone approached you?
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 5 of 24 [Juror No. 11]: I just said “someone.” That’s it.
Juror No. 11 is removed from the presence of the courtroom[.]
[Court]: Okay, discussions from the State?
[State]: Judge, I think we’re at a mistrial. He told that he was approached and then told all the other jurors what happened, and I think that that – we don’t know how they’re interpreting it. They could interpret it either way. I think regardless, there’s going to be something else in the jury room that’s not evidence.
[Court]: Okay.
[Defense]: I agree, Judge. I mean, I don’t know if it will negatively impact my client. I don’t know if there were other jurors that were in the line that heard or witnessed.
Id. at 25-27. After this discussion, the trial court explained, “I’m in the rare
position I don’t think we’re at a mistrial. I’m willing to individually voir dire
jurors and see what they know, what they don’t know. I think we are in a
position to dismiss this juror, but I don’t know if he’s tainted this whole jury
pool.” Id. at 27.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 6 of 24 [5] Juror 11 was dismissed and escorted back to the jury room to gather his things.
The trial court then called each juror individually into the courtroom to “see
where their minds are and the way they feel about [what Juror 11 told them].”
Id. at 28. Although all the prospective jurors were sworn in at the beginning of
voir dire, the jurors were not placed under oath again during individual
questioning regarding the communication at issue. All jurors were questioned
in the presence of the observers in the gallery.
[6] Juror 1 was informed by the trial court that a juror had been dismissed and
asked if she knew why. She responded, “I just had heard that he had been
spoken to by a family member” but “didn’t catch” whose family. Id. at 29.
Juror 1 stated she was not influenced by this and felt comfortable sitting on the
jury. The trial court cautioned her “not [to] talk about what we’ve just
discussed here . . . until we get going.” Id. at 30. After the juror left, defense
counsel expressed concern, stating “we already have a discrepancy. He said he
didn’t say who approached. [Juror 1] says it was by a family member.” Id.
[7] Juror 2 knew that Juror 11 had been dismissed because “[h]e was spoken to by
the family of the accused[,]” but did not know what was said. Id. at 31. When
asked whether it would impact her ability to serve, she stated “I don’t think so,
no.” Id. at 32. She explained that when Juror 11 came back “[h]e was already
in the room and he just said that he was approached by a family member” and
recalled that every juror was in the room at the time, but she was “not totally
certain.” Id. Juror 2 stated she was comfortable sitting on the jury and the trial
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 7 of 24 court asked that she “not discuss what [they] just talked about with the jurors.”
Id.
[8] When Juror 3 was brought into the courtroom, she did not know a juror had
been dismissed. The trial court asked if she heard Juror 11 say anything to the
jury and she replied that she “didn’t hear anything.” Id. at 33. Juror 3 stated it
would “not really” impact her ability to be fair and impartial and she was
comfortable serving on the jury. Id. Before Juror 3 was removed, the trial court
stated: “Please don’t discuss what we talked about out here with the other
jurors, for now anyway.” Id. After Juror 3 was removed, defense counsel
stated, “as soon as [the court] asked that question, she looked over at us and
then she said she didn’t hear anything, but the other jurors said everybody was
in there.” Id. at 34.
[9] Juror 4 knew a juror has been dismissed because “[s]omeone from the
Defendant’s party, family contacted him[,]” but did not know anything else. Id.
When asked whether “dismissing that juror or what you heard about what was
said or what you know” would impact his ability to be fair and impartial, he
responded “I don’t think so.” Id. Juror 4 was comfortable being a juror in the
case and the trial court “ask[ed] that [he] not discuss with the other jurors what
[he] talked about here.” Id. at 35.
[10] Juror 5 was also aware a juror had been dismissed: “He said a family member
talked to him. He did not tell us why, because I didn’t want to know, because
no one talked to me so I was good.” Id. at 36. Juror 5 stated she was
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 8 of 24 comfortable serving on the jury and the interaction did not impact her ability to
be fair and impartial. The trial court asked that Juror 5 “not discuss what we
talked about here with the rest of the jury.” Id.
[11] Next, Juror 6 was called into the courtroom. Juror 6 stated, “I heard in the jury
room . . . that someone came up and talked to him.” Id. at 37. He continued,
“I didn’t hear exactly what they said. It was a family member of the accused.
He didn’t really say what was said.” Id. Juror 6 stated the incident did not
impact his ability to sit on the jury and he could be fair and impartial. When
the State asked, “[D]oes anything about what you heard make you
uncomfortable sitting on this jury today?,” he responded, “Not markedly . . .
[s]omewhat but not very much.” Id. at 38. The trial court asked what Juror 6
meant when he stated “somewhat[.]” Id. Juror 6 responded, “Well, I mean, I
imagine an incident in my head – an impassioned plea on the part of a family
member, but really, I didn’t really hear much of what happened and I think it
would be pretty easy for me to dismiss that image from my mind during
deliberation.” Id. He believed he could make a decision based on the facts of
the case rather than the “the image in [his] mind.” Id. Juror 6 was removed
from the courtroom without being instructed not to discuss the conversation
with other jurors.
[12] Juror 7 was aware Juror 11 had been dismissed because he was approached
during lunch by a family member but did not know what was said. Juror 7
stated her ability to be fair and impartial was not impacted and she felt
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 9 of 24 comfortable sitting on the jury. Juror 7 was asked not to discuss the
conversation in the courtroom with the other jurors.
[13] Juror 8 knew Juror 11 had been dismissed because “someone approached him”
but he did not know who. Id. at 41. When asked whether he knew what was
said when Juror 11 was approached, Juror 8 stated, “No. We told him, you
know, say no more at that point.” Id. He stated the incident would not impact
his ability to be fair and impartial and he was comfortable sitting on the jury.
The trial court did not admonish Juror 8 not to discuss the conversation.
[14] Juror 9 was called into the courtroom and questioned but did not know that a
juror had been dismissed and had no knowledge of the incident. Juror 9 stated
he could be fair and impartial. Juror 9 was asked not to discuss the
conversation with the other jurors and was then returned to the jury room.
Juror 10 was also unaware a juror had been dismissed, did not hear about the
incident, and said he could be a fair and impartial juror. The trial court stated,
“I ask that you not discuss . . . what we’ve talked about out here with the other
jurors[.]” Id. at 43.
[15] After informing Juror 12 that a juror had been dismissed, Juror 12 guessed the
juror was dismissed because “he had had contact with somebody . . . someone
from the Defendant’s family.” Id. at 43-44. However, Juror 12 did not know
what the individual said to Juror 11 and stated he could be a fair and impartial
juror and was not uncomfortable sitting on the jury. The trial court did not
admonish Juror 12 to refrain from discussing the conversation.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 10 of 24 [16] Alternate Juror 1 was not aware a juror had been dismissed or of the incident.
He stated he could be fair and impartial, and the trial court informed him that
he was officially part of the jury and asked him not to discuss the conversation
with the other jurors. Alternate Juror 2 was the remaining and now only
alternate. When called into the courtroom, she stated that she was aware a
juror had been removed because “somebody talked to him.” Id. at 46. She did
not know what was said but felt she could be a fair and impartial juror and was
comfortable sitting on the jury. Alternate Juror 2 was returned to the jury room
without the trial court asking her not to discuss the conversation.
[17] After each juror was individually questioned, the following colloquy ensued:
[State]: I don’t think that changes my position. . . . [One juror] said that it would make him somewhat uncomfortable and he said he thinks he can set it aside but he still expressed concern.
[Another juror] . . . was looking directly at the Defendant’s family and the entire time she is telling us she didn’t hear anything and didn’t know anything.
I think it’s somewhat unfair to ask these jurors to sit and listen to evidence for two days knowing that someone was approached. I know that would make me uncomfortable, and I definitely wouldn’t probably say that, but I would just have concerns that even if they want to be on this jury and they want to be fair and impartial and they want to say they’re fine with it, it’s still asking them to kind of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 11 of 24 take something back to the jury room with them that’s not in evidence.
And I would be concerned that if the State secured a conviction on this case, it would be a ripe issue for appeal.
[State]: And it would be back here again. And this case is old, I get it. I’m the fourth prosecutor on it. I am so ready to get it over with. [The victim] is so ready to get this over with. I just don’t – [Jones] is ready to get this over with, and I want to make sure that we are giving all parties a fair trial that is deserved.
So that is my record. I would have concerns after this that the jury is going to be focused on other issues.
[Defense]: I agree, Judge. I don’t – regardless of what was stated here as you polled the jury, I believe the jury has been tainted. I don’t think all of the jurors were actually honest about – I mean, some jurors said he told everybody, some jurors said they didn’t hear anything. I know the Court said that’s possible, but they’re all discussing – human nature, they’re discussing the issues, especially being polled.
I think my client is at a disadvantage. You know, while they’re considering hearing the evidence, there may – human nature, be looking out in the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 12 of 24 audience to see if they can read individuals’ [sic] in the audience position, and I just think it’s going to – my client is disadvantaged, is biased, I agree with the State.
And I know my client would, if we are not successful, would be appealing on this very issue, especially because of the record that’s being made. We believe that the pool has been tainted.
[Court]: Okay. All right. Counsel both have made their record. I guess I still stand against it. After talking to all the jurors, I don’t think that the initial was sufficiently egregious to warrant a mistrial. I think talking to the jurors gave me more . . . confidence that those who were aware of it are not disturbed by it.
We’ve had other juries where jurors have been, you know, exposed to various things. I don’t think this rises to those levels. I can’t think of any in particular, but they did not warrant a mistrial. I don’t believe the circumstances under this case as I understand them to be warrant a mistrial.
So I appreciate the argument of counsel, both state and defense. The mistrial is denied and we’ll proceed.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 13 of 24 Id. at 46-49.2 After a recess, the trial court admonished the gallery: “We,
obviously, had an incident involving someone in the gallery. I don’t know if it
was the folks here or someone that’s not here, but you can’t interact with the
jurors. You just can’t do it. It puts everything at jeopardy for no reason. It
usually harms the people you intend to help, so however well-intentioned it
may be, it just can’t be done.” Id. at 50. The State requested the trial court
admonish the jury as well, but the trial court declined the request and stated, “I
think we reviewed it sufficiently with the jury. I may speak to it briefly, but it
will not be in the form of an admonishment.” Id.
[18] The trial commenced. At the end of the first day of trial, the State again
addressed its concern of jury taint: “The entire trial today, through all of the
evidence, the Defendant’s family has been speaking, making comments. If I
can hear it, the jury definitely can. They can see it. Specifically when the Court
is sustaining State’s objections, they are reacting. Given the issues that we have
already had today, I am really concerned at how this is affecting the jury and
that its [sic] not being addressed.” Id. at 161-62. The trial court then addressed
the gallery and asked everyone to keep their thoughts to themselves or they
would be removed.
[19] Following the two-day trial, the jury found Jones guilty of Counts III through
V, namely battery resulting in bodily injury, domestic battery, and aggravated
2 The Chronological Case Summary (“CCS”) indicates that, on May 14, a motion for mistrial was orally and jointly made by defense counsel and the State. See Appellant’s App., Vol. II at 17.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 14 of 24 battery. The jury found Jones not guilty of Count II, kidnapping. On May 24,
the trial court held a sentencing hearing where Jones stipulated that he was an
habitual offender. See Tr., Vol. III at 60. Jones received one year each for
Counts III and IV, to be served concurrently; nine years for Count V,
aggravated battery, to run consecutively to the sentences for Counts III and IV.
The sentence for Count V was enhanced by ten years for the habitual offender
finding for a total of twenty years in the Indiana Department of Correction. See
id. at 73; Appealed Order at 1. Jones now appeals.
Discussion and Decision I. Standard of Review [20] In order to prevail on appeal from the denial of a motion for mistrial, a
defendant must establish that the questioned information or event was so
prejudicial and inflammatory that he or she was placed in a position of grave
peril to which he or she should not have been subjected. Bisard v. State, 26
N.E.3d 1060, 1068 (Ind. Ct. App. 2015), trans. denied. “The gravity of the peril
is determined by the probable and persuasive effect on the jury’s decision.” Id.
A trial court is in the best position to evaluate whether a mistrial is warranted
“because it can assess first-hand all relevant facts and circumstances and their
impact on the jury.” Ramirez v. State, 7 N.E.3d 933, 935 (Ind. 2014). We,
therefore, review a trial court’s decision to deny a motion for a mistrial for an
abuse of discretion. Id. An abuse of discretion occurs when the trial court’s
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 15 of 24 decision is clearly against the logic and effect of the facts and circumstances
before the court. Vaughn v. State, 971 N.E.2d 63, 68 (Ind. 2012).
II. Motion for Mistrial [21] “An impartial jury is the cornerstone of a fair trial, guaranteed by the Sixth
Amendment and Article 1, Section 13 of our Indiana Constitution.” Ramirez, 7
N.E.3d at 936. To preserve impartiality and prevent taint, we prohibit
unauthorized contacts and communications with jurors. Id. “Yet, no trial is
perfect, and we have long held that [w]hile courts have a duty to ensure an
impartial jury . . . jurors need not be absolutely insulated from all extraneous
influences.” Id. (quotation omitted). Therefore, a trial court is entrusted with
the difficult responsibility of determining when extraneous influences become
irreparable taint warranting a new trial. Id. We acknowledge that a mistrial is
“an extreme remedy warranted only when no other curative measure will
rectify the situation.” Bisard, 26 N.E.3d at 1067-68.
[22] Our supreme court recently clarified the proper procedure for trial courts to
follow in instances of juror misconduct. A defendant who moves for a mistrial
due to suspected jury taint is entitled to a presumption of prejudice only upon
showing, by a preponderance of the evidence,3 that: (1) extra-judicial contact or
communications between jurors and unauthorized persons occurred, and (2) the
3 Preponderance of the evidence “simply means the greater weight of the evidence.” Kishpaugh v. Odegard, 17 N.E.3d 363, 373 (Ind. Ct. App. 2014) (internal quotations omitted).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 16 of 24 contact or communications pertained to the matter before the jury. Ramirez, 7
N.E.3d at 939 (citing Currin v. State, 497 N.E.2d 1045, 1046 (Ind. 1986)). Once
a defendant makes these two showings, the burden shifts to the State to rebut
this presumption of prejudice by demonstrating that any contact or
communications were harmless, id., namely that the defendant was convicted
by an impartial jury, Wahl v. State, 51 N.E.3d 113, 116 (Ind. 2016) (noting the
constitutional right to an impartial jury is “so basic to a fair trial its infraction
can never be treated as harmless error.”). If the State does not rebut this
presumption, the trial court is required to grant the defendant a new trial.
Ramirez, 7 N.E.3d at 939. Additionally, our supreme court explained:
Trial courts must immediately investigate suspected jury taint by thoroughly interviewing jurors collectively and individually, if necessary. If any of the jurors have been exposed, he must be individually interrogated by the court outside the presence of the other jurors, to determine the degree of exposure and the likely effect thereof. After each juror is so interrogated, he should be individually admonished. After all exposed jurors have been interrogated and admonished, the jury should be assembled and collectively admonished, as in the case of a finding of “no exposure.” If the imperiled party deems such action insufficient to remove the peril, he should move for a mistrial.
Id. at 940 (quotation omitted).
[23] However, if the defendant fails to meet the two-part showing, the presumption
of prejudice is inapplicable and the trial court must apply the probable harm
standard for juror misconduct, in which a new trial should be granted only if
the misconduct is “gross and probably harmed” the defendant. Id. at 939. In
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 17 of 24 egregious cases, in which juror conduct “fundamentally compromises the
appearance of juror neutrality,” the trial court should skip the two-part test, find
irrebuttable prejudice, and declare a mistrial. Id. “At all times, trial courts have
discretion to decide whether a defendant has satisfied the initial two-part
showing necessary to obtain the presumption of prejudice or a finding of
irrebuttable prejudice.” Id. This standard is applicable whenever a defendant
seeks a mistrial due to suspected jury taint, regardless of when the alleged taint
occurred. Wahl, 51 N.E.3d at 116.
[24] Jones maintains the two-part inquiry has been met here and he was therefore
entitled to a presumption of prejudice. Jones then goes on to argue that because
the State failed to rebut the presumption and “actively sought to establish the
jury was not impartial[,]” it cannot demonstrate harmlessness. Brief of the
Appellant at 30. The State does not challenge that Jones has met the two-part
inquiry. The State repeatedly expressed concern at trial that the jury might not
be impartial due to the extra-judicial communication and moved for a mistrial,
but on appeal it argues that the trial court did not abuse its discretion in denying
the motion for a mistrial because the extra-judicial contact was harmless and
Jones was convicted by an impartial jury. Brief of Appellee at 12. “If the State
is able to demonstrate that a jury was impartial, the presumption of prejudice is
rebutted and the contact or communications can be treated as harmless.” Wahl,
51 N.E.3d at 116.
[25] Our court’s decision in Bisard guides our analysis in this case. During Bisard’s
operating while intoxicated trial, Juror 8-2 conducted an internet search
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 18 of 24 regarding the instruments used to analyze blood samples for alcohol and
reversals in another state. Juror 8-2 shared this information with the other
jurors.
As soon as the trial court learned of Juror 8-2’s misconduct, the court brought Juror 8-2 into the courtroom and inquired into his actions. Juror 8-2 admitted to conducting independent research and informed the court of his findings. The trial court immediately removed Juror 8-2 from the jury and had him escorted from the building. The trial court then summoned the remaining jurors, one at a time, into the courtroom, where the trial court questioned each of them about what they knew of Juror 8-2’s actions. Some of the jurors knew nothing of Juror 8- 2’s conduct. Those jurors who were somewhat aware of what Juror 8-2 had done assured the trial court that they could set aside anything they had heard and decide the case based solely on the evidence they had heard or had seen in the courtroom.
. . . Based on its questioning of the jurors, the jurors’ assurances that they could decide the case on the evidence presented in the courtroom, in conjunction with its assessment of the jurors’ demeanor, the trial court determined that it was “perfectly comfortable” with allowing the jury to begin deliberations. Given the trial court’s assessment that the dismissal of Juror 8-2 removed any taint on the jury, the State was not put in the position to have to present additional evidence demonstrating that Juror 8-2’s conduct was harmless.
26 N.E.3d at 1069. Therefore, the trial court’s dismissal of Juror 8-2 was
sufficient to remove any taint. The State did not dispute that misconduct
occurred or that it pertained to an issue before the jury; therefore, the defendant
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 19 of 24 was entitled to a presumption of prejudice and the burden shifted to the State to
rebut the presumption pursuant to Ramirez. However, the court explained that
based on the trial court’s assessment that the juror’s dismissal removed any
taint, the State was not put in the position of demonstrating additional evidence
that the contact was harmless. Id. Similarly here, the trial court ultimately
determined the extra-judicial communication was essentially harmless and it
did not merit the extreme measure of a mistrial. In fact, the trial court stated it
was confident that the jurors who were aware of the incident were not
influenced by it.
[26] Moreover, the evidence in the record establishes that the jury was impartial.
After Juror 11 was removed, each remaining juror indicated that the incident
would not impact their ability to be impartial and felt comfortable sitting on the
jury. The record also reveals that none of the jurors knew the content of the
communication.
[27] We acknowledge that the trial court did not place the jurors under oath during
questioning, it failed to provide consistent admonishments or in some cases
failed to provide an admonishment altogether, and the individual questioning
transpired in the presence of those in the gallery. The record also establishes
that there were inconsistencies between Juror 11’s statement regarding the
information he relayed to the other jurors and statements by several jurors
about what they heard. Ultimately, however, we must determine whether these
failures of the trial court and inconsistencies between the juror’s statements
warrant a mistrial. We conclude they do not. Although a defendant is
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 20 of 24 constitutionally entitled to a trial by an impartial jury, “no trial is perfect[.]”
Ramirez, 7 N.E.3d at 936. Because the trial court is in the best position to view
the jurors, assess their credibility, and “gauge the surrounding circumstances of
an event and its impact on the jury,” Bisard, 26 N.E.3d at 1069, it is entrusted
with the difficult responsibility of determining when extraneous influences
become irreparable taint warranting a new trial, Ramirez, 7 N.E.3d at 936.
Here, the trial court questioned each juror individually, determined they were
impartial, and confidently denied the parties’ motion for a mistrial. Therefore,
we will not second-guess the trial court’s determination that the “extreme
remedy of a mistrial was unnecessary here.” Woods v. State, 98 N.E.3d 656, 672
(Ind. Ct. App. 2018), trans. denied; see also Bisard, 26 N.E.3d at 1069.
Conclusion [28] Because the trial court properly removed Juror 11 and the remaining jurors
indicated they could be impartial, we conclude that the trial court’s
determination that the extreme remedy of a mistrial was unnecessary is
supported by the record and therefore, was not an abuse of discretion.
Accordingly, we affirm.
[29] Affirmed.
Riley, J., concurs.
Mathias, J., dissents with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 21 of 24 IN THE COURT OF APPEALS OF INDIANA
Kevin Jones, Court of Appeals Case No. 18A-CR-1320 Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.
Mathias, Judge, dissenting.
[30] Because I believe that the trial court abused its discretion by denying the State’s
and Jones’s joint request for a mistrial, I respectfully dissent.
[31] As set forth by the majority, a defendant is entitled to a presumption of
prejudice if he or she shows by a preponderance of the evidence that extra-
judicial contact or communications between jurors and unauthorized persons
occurred and that the contact or communications pertained to the matter before
the jury. Ramirez, 7 N.E.3d at 939 (citing Currin, 497 N.E.2d at 1046). The State
acknowledges on appeal that Jones met this burden, as the evidence clearly
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 22 of 24 shows that one of Jones’s family members contacted Juror 11 and spoke to him
about the case against Jones. It was then the State’s burden to rebut this
presumption of prejudice. Id. But here, the State made no attempt at trial to
meet this burden because it too requested a mistrial.4 And the efforts by the trial
court to ensure that the jury was untainted by the contact fell short of rebutting
this presumption of prejudice.
[32] The trial court rightly dismissed Juror 11, who had been contacted by Jones’s
relative. But when the trial court questioned the remaining jurors, it failed to
place them under oath as required by Indiana Jury Rule 24, and it
inconsistently admonished the jurors with regard to the propriety of discussing
the incident amongst themselves. The trial court also denied the State’s request
to admonish the jury as a whole.
[33] Furthermore, after Juror 11 was removed, five of the remaining jurors gave
what I consider to be only half-hearted assurances as to whether the incident
with Juror 11 would impact their ability to act as jurors. When asked if she felt
comfortable sitting on the jury after the incident with Juror 11, Juror 1 stated, “I
believe so.” Tr. Vol. 2, p. 30. Although Juror 2 stated that the she felt she could
be fair and impartial, when asked if the incident with Juror 11 had an impact on
her, Juror 2 replied, “I don’t think so, no.” Id. at 31–32. Juror 3 stated that the
4 I do not mean to suggest that a trial court must always grant a request for mistrial that is joined by both parties. But the fact that both parties here requested a mistrial indicates that neither party felt that the jury was untainted. And the State made no effort at trial to rebut the presumption of prejudice.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 23 of 24 incident with Juror 11 would “not really” impact her ability to be fair and
impartial. Id. at 33. And when asked if dismissing Juror 11 for the extra-judicial
communications Juror 11 had with Jones’s family member would impact his
ability to be fair and impartial, Juror 4 stated, “I don’t think so.” Id. at 34. And
although Juror 6 stated that the incident would not impact his ability to be fair
and impartial, when asked if the incident made him uncomfortable to be on the
jury, he replied, “Not markedly . . . [s]omewhat but not very much.” Id. at 38.
None of these are exactly unequivocal responses.
[34] After the jurors were individually questioned, the State still maintained the need
for a mistrial, noting that Juror 6 stated that he would be “somewhat”
uncomfortable sitting on the jury and that another juror had been looking at
Jones’s family while being questioned. Id. at 47. The defense noted that there
was also some inconsistency among the remaining jurors as to whether they
had heard Juror 11 tell them what had happened. Still, the trial court decided
not to declare a mistrial.
[35] Given the procedural irregularities governing the questioning of the jurors and
the equivocal responses of several of the jurors regarding the effect the incident
involving Juror 11 had on their ability to comfortably sit as jurors, I must
conclude that the presumption of prejudice was not rebutted. Indeed, as noted,
at trial, the State made no attempt to rebut the presumption because it too
believed a mistrial was required. Accordingly, I would hold that the trial court
abused its discretion by denying the State’s and defense’s joint requests for a
mistrial, and I would reverse Jones’s convictions and remand for a retrial.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1320 | May 6, 2019 Page 24 of 24