Patrick R. Ragains
Jeffrey A. Modisett
Andrew L. Hedges
Anderson, Indiana Attorneys for Appellee
Attorney General of Indiana
Deputy Attorney General
Patrick R. Ragains
Jeffrey A. Modisett
Andrew L. Hedges
MAURICE A. MAY,
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
) Court of Appeals No.
The State charged Defendant with Battery, a Class D felony;See footnote 1 Resisting Law Enforcement, a Class A misdemeanor;See footnote 2 Possession of Cocaine, a Class B felony;See footnote 3 and
Possession of Marijuana, a Class A misdemeanor.See footnote
During voir dire, one of the jurors, Mr. Hoover, indicated that he knew Officer
Ohlheiser, although it appears that they had not seen each other for over fifteen years. At
trial, the State began its case-in-chief by calling Officer Ohlheiser to the stand. Following
an hour or so of direct examination by the State, defense counsel began his cross-
examination of Officer Ohlheiser. Shortly thereafter, the court announced it would recess
for lunch. Before adjourning, the court admonished the jurors not to discuss the case with
anyone. During the lunch break, Officer Ohlheiser walked into a local restaurant, noticed
Juror Hoover, and greeted him. They engaged in small talk which culminated in Juror
Hoover inviting Officer Ohlheiser to his house the following weekend to watch a pay-per-
view boxing match on television.
After reconvening, the State informed the trial judge about the extra-judicial juror communication. The trial judge conducted a hearing outside the presence of the jury, during which Officer Ohlheiser stated that the two had simply exchanged greetings. Not satisfied with this explanation, defense counsel insisted upon questioning Juror Hoover who revealed the full extent of their discussion. Defense counsel objected to the juror's continued presence and asked the court to replace Hoover. The trial court overruled Defendant's
objection and proceeded with the trial. Officer Ohlheiser re-took the stand and continued
with his testimony.
The following morning before witnesses were called, the State offered a solution to
the problem. (R. at 252.) The State asked if the defense would be willing to stipulate that
if [the court] remove[d] Mr. Hoover and . . . replace[d] him with an alternate, that the
parties would agree to an eleven-person jury if for whatever reason they lost one more juror.
Id. Defendant agreed to this compromise. After a short discussion of the matter, however,
the trial judge again refused to replace Juror Hoover and continued the trial.
Defendant was convicted of Battery, Resisting Law Enforcement, Possession of
Cocaine, and Possession of Marijuana. He appealed, claiming that he did not receive a fair
trial by an impartial jury. The Court of Appeals affirmed, holding that the trial court did not
abuse its discretion in refusing to replace the juror.See footnote
May v. State, 697 N.E.2d 70 (Ind. Ct.
In cases alleging juror misconduct involving out-of-court communications with
unauthorized persons, a rebuttable presumption of prejudice exists. Timm v. State, 644
N.E.2d 1235, 1237 (Ind. 1994); Fox v. State, 560 N.E.2d 648, 653 (Ind. 1990) (collecting
cases). Such misconduct must be based on proof, by a preponderance of the evidence, that
an extra-judicial contact or communication occurred and that it pertained to a matter
pending before the jury. Currin v. State, 497 N.E.2d 1045, 1046 (Ind. 1986).
Typically, [t]he trial court [is] in the best position to assess the honesty and integrity of [a juror and their] ability to perform as a conscientious, impartial juror. Harris, N.E.2d
at 525. This is especially true where the trial judge must weigh the nature and extent of a
juror relationship with a party or witness established pre-trial and arising in the normal, and
often inevitable, course of interaction in an employment or community environment. As
such, our review of the trial court's decisions in these matters is highly deferential. See,
e.g., McCants v. State, 686 N.E.2d 1281, 1285 (Ind. 1997) (affirming the trial court's refusal
to grant a mistrial on the basis of jury bias because the State's witness worked at the same
university as a juror); Whatley v. State, 685 N.E.2d 48, 49 (Ind. 1997) (holding that trial
court did not err in refusing to replace a juror when the juror became aware, during trial, that
he may have known the defendant); Harris, 659 N.E.2d at 525 (affirming the trial court's
decision to not replace a juror who revealed she had a happenstance meeting at a gas station
with a State witness the weekend prior to trial); Creek v. State, 523 N.E.2d 425, 427 (Ind.
1988) (affirming the trial court's decision to permit a juror to remain impaneled even though
that juror was employed by the same company and had casual contact with a party or
On the other hand, juror conduct with witnesses occurring contemporaneous to the trial proceeding are of a different character and more directly implicate the public's trust and confidence in our criminal justice system. Under certain circumstances, the extra-judicial juror conduct is so fundamentally harmful to the appearance of the fair and impartial administration of justice, it will be considered prima facie prejudicial to the defendant, irrespective of whether the communication concerned a matter pending before the jury.
Woods v. State, 233 Ind. 320, 119 N.E.2d 558 (1958); Kelley v. State, 555 N.E.2d 140 (Ind.
On two previous occasions, this Court has reversed convictions when a State witness
has socialized with members of the jury on a lunch break, beyond that which was necessary
to be polite. In Woods v. State, police officers serving as State witnesses were fraternizing
with the jury during intermissions and recesses. Even without a showing that the case had
been discussed during these visits, this Court held that reversal was required because the
extra-judicial conduct was prima facie prejudicial to the defendant. 233 Ind. at 324, 119
N.E.2d at 560-61. This Court noted that it would be all too easy for the jury unconsciously
to be influenced as to these matters by a friendly association with the witnesses for the
State. Id. at 323, 119 N.E.2d at 560 (emphasis added).
More recently in Kelley v. State, we found Woods controlled in warranting reversal
of a conviction because the State's only witness socialized with three of the six jurors during
a lunch break. Kelley, 555 N.E.2d at 141. We reversed [d]espite the lack of clear evidence
that the [witness] and the jurors discussed the trial proceedings and despite the three jurors'
assertions that their impartiality was intact. Id. at 142. We quoted Judge Stanley Miller's
unpublished dissent to the Court of Appeals decision in that case, which is worth repeating
in part here:
[T]he complained of conduct in the present case was of such a prejudicial and
inflammatory nature_based on the probable persuasive effect of the conduct on the
jury's ability to assess witness credibility_as to place [the defendant] in a position
of grave peril to which he should not have been subjected . . . .
Id. (first and second alterations in original) (emphasis omitted).
In the instant case, Officer Ohlheiser revealed to the prosecution that a contact with
a juror had taken place during lunch recess. When the trial judge first questioned Ohlheiser
about this communication, he admitted that he had initiated the contact with the juror, but
stated that their conversation had consisted merely of [j]ust, how ya doin', you look good,
haven't seen you in a long time, bye. (R. at 192-93.) Only after defense counsel insisted
upon questioning the juror, was it revealed by Juror Hoover that he was going to show the
pay[-per-]view of the boxing match [that upcoming weekend] and that [Ohlheiser] was
invited to come by the house. (R. at 195.)
As the Court of Appeals observed, Juror Hoover displayed a comradery with the witness and, thus, potential partiality. May, 697 N.E.2d at 72. This lunchtime communication also took place in the middle of Officer Ohlheiser's cross-examination. We find this extra-judicial juror communication to be more than just the mere exchange of pleasantries. In response to a greeting by a primary State witness, a juror openly extended
a social invitation to this witness to gather at the juror's home the weekend immediately
following the trial. This communication was in direct violation of the trial judge's
admonishment to the jurors during the trial [to] not talk to any of the parties, lawyers or
any witnesses. (R. at 197.) Furthermore, this invitation was made in plain view of the
public and possibly in the presence of other jurors.See footnote
Not only was this conduct 'prejudicial and inflammatory [in] nature,' but it no
doubt affected Juror Hoover's 'ability to assess [Ohlheiser's] credibility' as a witness.
Kelley, 555 N.E.2d at 142 (quoting Judge Miller's unpublished dissenting opinion). While
it was, in fact, Juror Hoover who extended the invitation, it was Officer Ohlheiser who had
struck up the initial conversation between two individuals who had not seen each other in
fifteen years. The result was to place [Defendant May] in a position of grave peril to which
he should not have been subjected. Id. The trial judge could have easily remedied the
situation by replacing Hoover with the available alternate juror. Accordingly, we hold that
it was an abuse of discretion to deny Defendant's motion to replace the juror.
SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.
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