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Rivera v. State

Supreme Court of Indiana

November 21, 2019

Roberto Cruz Rivera, Appellant(s),
v.
State Of Indiana, Appellee(s).

          Trial Court Case No. 49G15-1708-F6-30973

          PUBLISHED ORDER

          Loretta H. Rush, Chief Justice.

         This matter has come before the Indiana Supreme Court on a petition to transfer jurisdiction, filed pursuant to Indiana Appellate Rules 56(B) and 57, following the issuance of a decision by the Court of Appeals. The Court has reviewed the decision of the Court of Appeals, and the submitted record on appeal, all briefs filed in the Court of Appeals, and all materials filed in connection with the request to transfer jurisdiction have been made available to the Court for review. Each participating member has had the opportunity to voice that Justice's views on the case in conference with the other Justices, and each participating member of the Court has voted on the petition.

         Being duly advised, the Court DENIES the petition to transfer.

          Massa, J., Slaughter, J., and Goff, J., vote to deny transfer.

          David, J., dissents to the denial of transfer with separate opinion in which Rush, C.J., joins.

          David, Justice, dissenting.

         I write separately today not because the defendant is necessarily entitled to relief under the facts and circumstances of this case, but because I believe our Court should provide guidance to the bench and bar on two issues raised in the courts below. Therefore, I respectfully dissent from the denial of transfer in this case.

         First, the record indicates that the jury was sworn at 12:09 p.m. and admonished in Preliminary Instruction 1 not to talk or communicate about the case with anyone else. Fifteen additional preliminary instructions were read before the jury was dismissed for lunch at 12:23 p.m. No admonishment not to converse about the case was given before lunch. In a published decision, the Court of Appeals found "there was no need" to give the jury an admonishment before lunch because "there [were] no intervening proceedings between the reading of the preliminary instructions and the jury being excused for lunch…." Rivera v. State, 127 N.E.3d 1256, 1259 (Ind.Ct.App. 2019). This strikes me as a misstatement of the law.

         Indiana Code section 35-37-2-4(a) contains the following mandate:

The court shall admonish the jurors in the preliminary instruction, before separating for meals, and at the end of the day, that it is their duty not to converse among themselves or permit others to converse with them on any subject connected with the trial, or to form or express any opinion about the case until the cause is finally submitted to them.

(Emphasis added). Thus, if we give this statute its "plain and ordinary meaning," Cooper Indus. v. City of South Bend, 899 N.E.2d 1274, 1283 (Ind. 2009), courts are under an affirmative duty to admonish jurors at three points: (1) in the preliminary instruction, (2) before separating for meals, and (3) at the end of the day. Lake v. State, 565 N.E.2d 332, 334 (Ind. 1991). Our Court has previously emphasized this point, finding that "[t]he reading of the admonishment to the jurors at the prescribed times is mandatory." Id.

         Here, I believe the trial court erred by failing to admonish the jurors before they were dismissed for lunch. While an additional admonishment may have been repetitive given only fourteen minutes had passed between the first preliminary instruction and the lunch break, I do not think this additional admonishment would unduly burden the trial court or the jury. My concern, however, is not wholly rooted in a rigid interpretation of the statute. I also write today with an eye toward future application of the "close enough" interpretation sanctioned by the Court of Appeals below. In my view, the decision by the Court of Appeals impermissibly engrafts language into this statute to allow for an exception-the "no intervening circumstances" exception-that is simply not present in Indiana Code section 35-37-2-4(a).

         While there were no identifiable intervening circumstances that would have caused the jury to forget the admonishment that was given during the preliminary instructions, the natural question now becomes one of time: Fourteen minutes was acceptable in this case, but how long is too long so as to constitute "intervening circumstances" that would lead to reversal? Thirty minutes? An hour? To avoid confusion and misapplication of this precedent, I would draw a bright line rule that tracks the language of Indiana Code section 35-37-2-4(a) and requires that courts give the mandated admonishments at the stated times. ...


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