SAUNDRA S. WAHL, Appellant (Defendant),
STATE OF INDIANA, Appellee (Plaintiff)
from the Hamilton Superior Court, No. 29D06-1309-FD-7824. The
Honorable Gail Z. Bardach, Judge. On Transfer from the
Indiana Court of Appeals, No. 29A04-1409-CR-418.
from the Hamilton Superior Court, No. 29D06-1309-FD-7823. The
Honorable Gail Z. Bardach, Judge. On Transfer from the
Indiana Court of Appeals, No. 29A02-1409-CR-625.
FOR APPELLANTS: SAUNDRA S. AND DANIEL P. WAHL, Lawrence D.
Newman, Newman & Newman, P.C., Noblesville, Indiana; Scott L.
Barnhart, Diana B. Smith, Keffer Barnhart LLP, Indianapolis,
FOR APPELLEE:STATE OF INDIANA, Gregory F. Zoeller, Attorney
General of Indiana; Michael G. Worden, Ian A.T. McLean,
Deputy Attorneys General, Indianapolis, Indiana.
Justice. Rush, C.J., and Rucker and David, JJ., concur.
Massa, J., concurs in part and dissents in part with separate
light of the conduct of an alternate juror during jury
deliberations, we reverse the defendants' convictions for
defendants Daniel and Saundra Wahl, a married couple, were
each convicted of Involuntary Manslaughter following the
death of a child on June 20, 2013 at their in-home day care
facility in Hamilton County. Before the defendants were
sentenced, one of the jurors e-mailed the trial judge
describing the conduct of an alternate juror during the
jury's deliberations. Based on the e-mail, the defendants
filed a motion for a mistrial, which the trial court denied.
Following the defendants' sentencing, the defendants
filed a motion to correct error again 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." Appellant's App'x at 117.
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 also denied the
motion to correct error.
defendants appealed, arguing that there was insufficient
evidence to sustain their convictions, that the trial court
erred when it declined to grant a mistrial due to juror
misconduct, that their sentences were inappropriate, and that
the trial court erred in ordering restitution. The Court of
Appeals affirmed in separate opinions. Wahl v.
State, 36 N.E.3d 1147 (Ind.Ct.App. 2015); Wahl v.
State, 36 N.E.3d 1163 (Ind.Ct.App. 2015). We granted
transfer and now consolidate these cases. Finding that the
defendants' motion for mistrial due to juror misconduct
should have been granted, we reverse the
Ramirez v. State, we emphasized that certain juror
misconduct is presumed to prejudice a defendant because
" [a]n impartial jury is the cornerstone of a fair
trial, guaranteed by the Sixth Amendment and Article 1,
Section 13 of our Indiana Constitution." 7 N.E.3d 933,
936 (Ind. 2014). In the present case, the resolution of the
defendants' request for a mistrial based on a claim of
juror misconduct is governed by the following standard:
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
Id. at 939 (internal citations
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. See, e.g., Henri v.
Curto, 908 N.E.2d 196, 200-04 (Ind.
2009); Griffin v. State, 754 N.E.2d 899, 900-01
(Ind. 2001); Hall v.
State, 796 N.E.2d 388, 396
(Ind.Ct.App. 2003), trans. denied.
State argues that the defendants have not carried their
initial burden because the affidavit outlining the alternate
juror's actions is " not permissible evidence for
challenging the verdict" under Indiana Evidence Rule
606(b). Appellee's Br. at 15. Under that rule, "
[d]uring an inquiry into the validity of a verdict . . . a
juror may not testify about any statement made or incident
that occurred during the jury's deliberations . . .
." Ind. R. Evid. 606(b)(1). But one of the rule's
exceptions allows a juror to " testify about whether . .
. an outside influence was improperly brought to bear on any
juror . . . ." Id. at 606(b)(2). As this Court
has held, " an alternate is an 'outside
influence' for purposes of Indiana Evidence Rule
606(b)." Henri, 908 N.E.2d at
203 (citing Griffin, 754 N.E.2d at
903). We find the juror's affidavit admissible to
challenge the verdict.
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." Appellee's
Br. at 13 (citing Griffin, 754
N.E.2d at 903 (" An alternate is not, of course, a
member of the jury . . . ." )). The trial court
correctly instructed the jury that " [t]he alternate
juror will be with you in the jury room but is not permitted
to participate in your deliberations or verdicts."
Appellant's App'x at 66. Here, the alternate juror
" immediately began to involve himself in the
deliberations" including the manipulation of physical
evidence and a DVD. Appellant's App'x. at 117. As the
trial court noted, the " contact between the jurors and
an unauthorized person (the alternate) . . . . did pertain to
the matter before the jury . . . ." Id. at 86.