ATTORNEYS FOR APPELLANT
ATTORNEYS FOR APPELLEES
C. Warren Holland Richard D. Wagner Scott Shockley
Michael W. Holland Thomas J. Costakis DeFur, Voran, Hanley,
Holland & Holland Jeffrey C. McDermott Radcliff & Reed
Indianapolis, Indiana Krieg, DeVault, Alexander, Muncie, Indiana
& Capehart, LLP
Morris L. Klapper Indianapolis, Indiana William T. Plesec
Klapper, Isaac & Parish Paul D. Koethe
Indianapolis, Indiana David O. Tittle Kevin D. Boyce
Karl L. Mulvaney Jones, Day, Reavis & Pogue
Nana Quay-Smith Cleveland, Ohio
Bingham, Summers, Welsh,
& Spilman James E. Berger
Indianapolis, Indiana Shook, Hardy & Bacon, LLP
Kansas City, Missouri
APPEAL FROM THE MARION CIRCUIT COURT
The Honorable Kenneth H. Johnson, Judge
Cause No. 49D02-9302-CT-0008
April 18, 2001
Bouye v. State, 699 N.E.2d 620, 628 (Ind. 1998). In deciding whether
the presumption of harm has been rebutted, we evaluate the nature of the
communication to the jury and the effect it might have had upon a
fair determination. Smith v. Convenience Store Distrib. Co., 583 N.E.2d 735, 738
In this case, the jury asked the bailiff whether the judge would allow the jury to hold a press conference after the case was over. The bailiff relayed this question to the judge. The communication from the judge, by way of the bailiff, consisted of an unadorned one-word response: "yes." The answer to the jury's question did not provide any further information regarding the law or facts of the case.
The effect of the communication may be gauged by the reaction of the jury. A short time interval between the judge's comments and the verdict tends to support the presumption of error. See Smith, 583 N.E.2d at 738. In Smith, the jury had been deliberating for almost six hours and had described itself as deadlocked. After the ex parte communication occurred, only ten minutes passed before the verdict was reached. We found that this sudden turn of events suggested "the judge's comments may have had an influence on the verdict." Id. (citing Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (a five minute time period between improper comments and verdict is significant enough to require retrial)).
In the present case, the jury was in its second day of deliberations when it communicated with the judge. After the judge's response, the jury deliberated for seven more hours before reaching a verdict, hardly a sudden turn of events. See Nesvig v. Town of Porter, 668 N.E.2d 1276, 1288 (Ind. Ct. App. 1996)(finding one hour deliberation after improper communication was not a sudden turn of events).
Although it would have been better practice for the judge to have notified the parties before sending his response to the jury, we find that any presumption of error is rebutted by the circumstances. The jury's inquiry involved a matter of trial administration rather than substantive issues pending for its determination. The judge's response was neutral, accurate, and not misleading. Moreover, the ensuing length of deliberations provides a strong indication that the response did not substantially influence the verdict, if at all.
We find no reversible error on this issue. As to all other issues, the Court of Appeals is summarily affirmed. Ind.Appellate Rule 11(B)(3). See footnote The judgment of the trial court is affirmed.
SHEPARD, C.J., and RUCKER, J., concur. SULLIVAN, J., dissenting, would deny transfer.
BOEHM, J., not participating.