Court Case No. 49G15-1708-F6-30973
Loretta H. Rush, Chief Justice.
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.
duly advised, the Court DENIES the petition to transfer.
J., Slaughter, J., and Goff, J., vote to deny transfer.
J., dissents to the denial of transfer with separate opinion
in which Rush, C.J., joins.
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.
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.
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.
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).
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. ...