Rush, David dissent in denial of appeal after joint mistrial request rejected

A man’s conviction in a domestic battery case after both defense and prosecution asked for a mistrial because a relative of the defendant communicated with a juror outside court will stand after the Indiana Supreme Court in a 3-2 decision chose not to hear the appeal. Chief Justice Loretta Rush and Justice Steven David published a dissent, believing the defendant had been prejudiced and was entitled to a new trial.

Justices Christopher Goff, Mark Massa and Geoffrey Slaughter formed the majority that declined to hear the appeal in Kevin Duane Jones v. State of Indiana, 18A-CR-01320. Jones was convicted in Marion Superior Court of aggravated battery, battery and domestic battery.

A divided Indiana Court of Appeals affirmed in a May memorandum decision, in which Judge Paul Mathias dissented. The Court of Appeals majority of judges Margret Robb and Patricia Riley found sufficient evidence supported the trial court’s ruling that the “extreme remedy” of mistrial was unnecessary, and that its ruling was not an abuse of discretion.

The Indiana Supreme Court’s denial of transfer, while affirming Jones’ conviction, also creates a significant split at the highest level of the state judiciary on the question of whether Indiana trial courts must declare a mistrial in potential jury-tampering cases when the state does not object. David wrote in the dissent joined by Rush that they agreed with Mathias’ analysis that a mistrial was required under Ramirez v. State, 7 N.E.3d 933, 934 (Ind. 2014).

“Today, we are confronted with the rare case in which both the State and Defendant agreed the right to an impartial jury was imperiled based on unauthorized contact between a juror and a member of the Defendant’s family,” David wrote.

Specifically, according to the record, a juror recounted that he was approached by a man who identified himself as Jones’ nephew who then “kind of under his breath just said, ‘self-defense … .’ Like something to that effect, kind of … .”

“After assessing the situation, the trial court denied a joint request for a mistrial and moved forward with the proceedings. The question pending transfer before our Court is whether the trial court erred when it took this action. Answering that question in the affirmative, I would find that the trial court acted contrary to our Court’s precedent in Ramirez v. State when it failed to order a mistrial,” David wrote.

Ramirez holds that a defendant is entitled to a rebuttable presumption of prejudice when he can show such contact and communication with a juror occurred and that the communication pertained to the matter before the court. David wrote that Ramirez also held, ““[i]f the State does not rebut the presumption, the trial court must grant a new trial.”

“… Here, the Defendant made the requisite showing (1) that a member of the Defendant’s family made unauthorized contact with a juror, and (2) the communication — something about self–defense —pertained to a matter before the jury. Under Ramirez, this created a presumption of prejudice. … At this point, the State bore the burden to rebut this presumption by showing the contact or communication was harmless. … But that did not happen in this case; in fact, the opposite occurred. The State was the first to notify the court that a mistrial was warranted. The State also protested the manner whereby the court spoke to each juror individually. Even after each juror was interviewed, the State’s position didn’t change:  A mistrial was the appropriate curative remedy.

“…I am sympathetic that trial courts are given discretion to decide whether defendants have met the two-part showing enunciated in Ramirez and whether a mistrial is the appropriate course of action,” David wrote. “I also believe the trial court acted with the correct instinct to question each juror individually about his or her knowledge of and exposure to the information Juror 11 revealed. … But on this record, I believe the trial court should have granted a mistrial because Defendant properly established the presumption of prejudice and the State did not rebut that presumption.”