Wahl v. State, Nos. 29S04-1510-CR-605 and 29S04-1510-CR-606, ___ N.E.3d ___ (Ind., Mar. 15, 2016).

Dickson, J.

In light of the conduct of an alternate juror during jury deliberations, we reverse the defendants’ convictions for Involuntary Manslaughter. [Footnote omitted.]

… Following the defendants’ sentencing, the defendants filed a motion to correct error … seeking a mistrial and supported by a sworn affidavit on the alternate juror’s participation in deliberations. The affidavit alleged that “after the jury began deliberations, the alternate juror immediately began to involve himself in the deliberations and began taking over the deliberations by leading discussions.” [Record citations omitted throughout.] Even after being informed by other jurors not to participate in the deliberations, the alternate juror manipulated physical evidence (the working parts of a baby gate) and repeatedly replayed a portion of the DVD that was in evidence, with ever-increasing volume, until all jurors were giving it their attention. The trial court … denied the motion to correct error.

….

In Ramirez v. State, we emphasized that * * *:

Defendants seeking a mistrial for suspected jury taint are entitled to the presumption of prejudice only after making two showings, by a preponderance of the evidence: (1) extrajudicial contact or communications between jurors and unauthorized persons occurred, and (2) the contact or communications pertained to the matter before the jury. The burden then shifts to the State to rebut this presumption of prejudice by showing that any contact or communications were harmless.

[7 N.E.3d 933, 939 (Ind. 2014)] (internal citations omitted). [Footnote omitted.] The defendants, however, argue that Ramirez does not apply here because the misconduct in Ramirez occurred during trial, while the misconduct in this case occurred during jury deliberations, not trial. But Ramirez is not limited only to in-trial juror misconduct. Rather, it applies whenever “[d]efendants seek[] a mistrial for suspected jury taint,” regardless of when the alleged jury taint occurred. Id. Furthermore, several of the cases Ramirez examines involve alleged juror misconduct during deliberations. [Citation omitted.]

….

The assertions in the affidavit are sufficient to trigger the Ramirez presumption. In addition to showing both extra-judicial contact and communications between jurors and the alternate juror, it also showed that “the contact or communications pertained to the matter before the jury.” Ramirez, 7 N.E.3d at 939. As the State notes, “communications to the jury by an alternate juror during deliberations have been held to constitute extra-judicial communication.” …

Because the Ramirez presumption of prejudice applies, the burden “shifts to the State to rebut this presumption of prejudice by showing that any contact or communications were harmless.” Ramirez, 7 N.E.3d at 939. …

The State argues that the alternate juror’s participation is harmless because the defendant “fails to demonstrate that a fair trial was unlikely because of the alternate juror’s misconduct.” But once the presumption of prejudice arises, it is the State who must rebut the presumption by showing harmlessness. Here, the State essentially asserts only that the alternate juror’s participation with the jury diminished after being advised by other jurors not to participate, and that the jurors confirmed their verdict was unanimous. [Footnote omitted.] The facts presented in the affidavit do not establish jury impartiality, and the State presents no other grounds to satisfy its burden to show that the jury remained impartial despite the presumed prejudice. The State has thus failed to rebut the presumption of prejudice, and when “the State does not rebut the presumption, the trial court must grant a new trial.” Ramirez, 7 N.E.3d at 939. We reverse the defendants’ convictions and remand for a new trial.

….

Rush, C.J., and Rucker and David, JJ., concur.

Massa, J., concurs in part and dissents in part with separate opinion.

Massa, J., concurring in part and dissenting in part.

As far as we can tell from the incomplete record, the Wahls are getting a new trial because the jury viewed properly admitted evidence sent with them to the jury room, improperly emphasized by an alternate’s words, gestures and facial expressions. And we grant this relief without knowing if deliberations were actually affected. We should know more before ordering this result.

I concurred in result only in Ramirez, believing that … for “garden-variety juror misconduct,” such as “alternate jurors being present in the jury room during deliberations,” the burden should remain with the defendant “to show that the misconduct prejudiced his trial and he is therefore entitled to a new one.” Ramirez v. State, 7 N.E.3d 933, 944 (Ind. 2014) (Massa, J., concurring in result) (citing United States v. Olano, 507 U.S. 725, 730 (1993)). …

… This Court now grants the Wahls a new trial, finding that since this alternate’s misconduct technically satisfied the Ramirez test, [footnote omitted] the burden shifted to the State to present proof positive that the misconduct was harmless (i.e., did not impact jury impartiality), which the State failed to do. And while the majority does not state it expressly, the only possible way for the State to meet that burden would be to subpoena and/or obtain affidavits from the entire jury, individually confirming that they remained impartial during deliberations despite the misconduct. [Citations omitted.] Conversely, it stands to reason that if the burden remained with the defendant to show prejudice based on this misconduct (as is the case in federal court, see Olano, 507 U.S. at 740 (declining to “presume prejudice” based on presence of alternate juror at deliberations)), he would have to present that same testimonial evidence as to the jurors’ lack of impartiality resulting from the misconduct.

Thus at its core, today’s decision holds that when a credible concern arises as to jury impartiality after its service is complete, the only viable remedy is to ask the jurors themselves whether they remained impartial during deliberations. The remainder of our recent bright-line burden-shifting rule only determines whether the State or the defendant bears responsibility for issuing the relevant subpoenas. I therefore believe the Ramirez approach, when applied to this case, merely serves to obfuscate “the ultimate inquiry,” as identified in Olano: “Did the intrusion affect the jury’s deliberations and thereby its verdict?” 507 U.S. at 739. We simply don’t know the answer to that question—and we never will, given today’s mechanistic application of Ramirez to this quite possibly harmless misconduct by the alternate. It’s one thing to apply it when, for instance, a juror uses his phone to “perform[] an internet search on the reliability of blood tests.” See Bisard v. State, 26 N.E.3d 1060, 1069 (Ind. Ct. App.) (applying the Ramirez presumption, though finding it overcome), trans. denied, 32 N.E.3d 238 (Ind. 2015). It’s quite another when an alternate turns on the DVD player and picks up other exhibits in the jury room after being told to be quiet.

Accordingly, I concur in the Court’s decision to reverse the trial court’s denial of the Wahls’ motion for a mistrial, but dissent as to the grant of a new trial. … I would therefore remand for additional hearing on the Wahls’ motion, so that every juror can actually inform the court as to the impact of the alternate juror’s misconduct on their respective impartiality.

 

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