Loehrlein v. State, 20S-CR-376, __ N.E.3d __ (Ind., Dec. 9, 2020).

David, J.

Defendant was charged with the murder and attempted murder of his family members. At trial, the issue was not whether he committed the crimes but whether he was sane at the time. The jury rejected his insanity defense and found him guilty.

At issue today is whether one of the jurors committed gross misconduct that probably harmed Defendant, necessitating a new trial. This juror wrote “N/A,” meaning not applicable, in response to questions on her jury questionnaire when those answers should have been a yes. That is, the juror answered not applicable to questions about both her past criminal history and whether she had herself been victim of a crime. However, she had in fact been charged with a crime and had been the victim of domestic abuse. Here we find that the juror did commit gross misconduct but that given the facts and circumstances of this case, including the strong evidence of Defendant’s sanity, it is not likely he was harmed. As such, we affirm the trial court.

Here, L.W. was asked two questions in the juror questionnaire that she provided “N/A” responses to. That is, question number fifteen asked: “HAVE YOU, ANY OF YOUR IMMEDIATE FAMILY MEMBERS, OR A CLOSE FRIEND BEEN CHARGED WITH OR CONVICTED OF A CRIME? IF YES, WHO, WHEN, WHAT & WHERE:” App. Vol. III, p. 31. L.W. answered “N/A.” Id.

Similarly, question number sixteen asked: “HAVE YOU, ANY OF YOUR IMMEDIATE FAMILY MEMBERS, OR A CLOSE FRIEND EVER BEEN A WITNESS OR A VICTIM IN A CRIMINAL MATTER. IF YES, WHO, WHEN, WHAT & WHERE:” Again, L.W. answered “N/A.” Id.

However, L.W. had been charged with domestic battery and she had also been the victim of it. Thus, her responses on the jury questionnaire should have been two yeses. Her explanation could have been worked out during voir dire or even jotted on the questionnaire. Instead, L.W. effectively dodged these questions, noting they did not apply to her when they clearly did.

L.W. compounded her omissions because during her post-trial deposition, she became very defensive when asked why she thought “N/A” was an appropriate response rather than a straightforward “yes.” Like the juror in Dye, it was clear that she did not believe this information was anyone’s business. Indeed, she was worried about her professional reputation in the legal community should anyone learn that she was (wrongfully) charged with domestic battery and was the victim of it. While it is understandable that this is a sensitive area for some potential jurors, responding “N/A” was not the appropriate way to handle this. And unlike the juror in Warner, who just admitted that she answered the questionnaire hastily and blanked out during voir dire, L.W. went to great lengths to defend her answers on the questionnaire during her deposition.

We find L.W.’s conduct even more egregious because she is an attorney who had previously handled some criminal matters and as such, she should have known better. In this regard, her conduct is more egregious than the juror in Warner. Perhaps we would be in a different position had she not been an attorney or even if she was more open and honest during her post-trial deposition. She was not though. Because her answers on the jury questionnaire were cryptic and her demeanor during her posttrial deposition was defensive and evasive, we find that her misconduct was gross.

While we find that L.W. committed gross misconduct, that does not end our analysis of whether Loehrlein is entitled to a new trial. We must now determine whether Loehrlein was probably harmed. We find that under the circumstances of this case, it is unlikely that he was.

The issue during trial wasn’t whether Loehrlein committed the offenses but rather whether he was sane at the time. Although his expert testified that Loehrlein was suffering from a mental disease or defect and could not appreciate the wrongfulness of his actions, she based this opinion on the fact that she believed there was a difference between legal and moral wrong. She conceded he knew what he was doing was legally wrong.

Further, both court appointed experts here testified that Loehrlein was not suffering from a mental disease or defect at the time of the crime and was able to appreciate the wrongfulness of his actions. Finally, although L.W. committed gross misconduct, the one thing she was unequivocal about during her deposition was that she was impartial.

The standard of review also guides us here. Just as we deferred to the trial court’s determinations in [State v. Dye, 784 N.E.2d 469 (Ind. 2003)] and Warner [v. State, 773 N.E.2d 239 (Ind. 2002)], here too we must rely on our trial court to assess the weight of the evidence and credibility of the witnesses. The trial court, having heard the evidence in a post-trial hearing and after presiding over the trial and voir dire denied Loehrlein’s request for a new trial based on juror misconduct. Given the facts and circumstances of this case, we find that the trial court did not abuse its discretion because while L.W. committed gross misconduct, Loehrlein has not demonstrated that this misconduct probably harmed him.

We affirm the trial court.

Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.

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