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Justices: Jury issues don't require new trial

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The Indiana Supreme Court affirmed a jury award in favor of a man accused of rape in a civil suit, ruling the jury didn't receive improper communications and the trial court didn't err in providing impasse assistance to the jury. The high court also explained how to harmonize several Indiana Trial Rules regarding whether an appellate claim of insufficient evidence may be raised for the first time on appeal.

In Susana Henri v. Stephen Curto, No. 49S02-0812-CV-641, Susana Henri appealed the jury verdict that denied her civil damages for rape and awarded Stephen Curto $45,000 on his counterclaim for tortious interference with his contract with Butler University. The two were students at the university, had too much to drink and had sex. Henri claimed it wasn't consensual and filed her civil suit against Curto.

A juror contacted Henri several days after the trial and executed an affidavit alleging various things, including issues during deliberation and an alternate juror influencing the jurors. This led to Henri's motion to correct error, which was denied by the trial court.

On appeal, the Indiana Court of Appeals reversed and remanded for a new trial because of errors during the jury's deliberations.

But the Supreme Court didn't think there were any errors in the jury deliberations or actions of the jurors to warrant a new trial. Henri argued on appeal the jury received improper external communications and the trial court didn't properly assist them at an impasse.

The jurors received the final instructions in writing and orally that said their verdict must be unanimous, so the trial court's response through the bailiff to a jury question regarding the necessity of a unanimous verdict didn't introduce any new information nor was it prejudicial to Henri, wrote Justice Brent Dickson. Because of those instructions, the bailiff's alleged answer to the jury question that the jury had to keep deliberating until a unanimous verdict was reached wasn't coercive or result in an unfair trial, wrote the justice.

Even though a juror used her cell phone during deliberations after receiving a call and speaking to the bailiff, reversal and a new trial aren't warranted on this issue. The high court did caution trial courts on this issue, suggesting the best practice is to discourage, restrict, prohibit, or prevent access to mobile electronic communication devices during trial proceedings and deliberations.

In addition the alternate juror's noises, gestures, pacing, and exercising may be annoying, but it didn't constitute misconduct that rendered an unfair trial, wrote Justice Dickson.

The Supreme Court also rejected Henri's contention the trial court committed reversible error by failing to respond as required by Indiana Code Section 34-36-1-6 to a juror's assertion of a jury deadlock and her request to be excused from the jury after 20 minutes of deliberating. The juror's declarations don't reveal an error or omission in the final instructions sufficient to trigger the statute's requirement of mandatory action by the trial court, wrote the justice. Also, the juror wasn't the jury foreperson and her private statement to the bailiff wasn't presented on behalf of the whole jury.

The dispute over the sufficiency of the evidence to support Curto's counterclaim led the high court to consider whether an appellate claim of insufficient evidence may be raised for the first time on appeal. In order to harmonize the rules of Trial Rule 59(A) with Rules 50(A)(4) and 59(J), the justices held that such a claim is appropriately preserved during trial if it is properly asserted in a motion for judgment on the evidence filed either before the case is submitted to the jury, after submission and before a verdict is entered, or in a motion to correct error.

"We intend the phrase 'during trial' to require that a claim of insufficient evidence must be preserved by proper presentation to the trial court. Such a challenge may not be initially raised on appeal in civil cases if not previously pre-served in the trial court by either a motion for judgment on the evidence filed before judgment or in a motion to correct error," wrote Justice Dickson.

Henri failed to challenge the sufficiency of evidence supporting the verdict in favor of Curto during trial by a Trial Rule 50 motion for judgment on the evidence, or by the post-trial Rule 59 motion to correct error. As such, the issue is procedurally defaulted.

The high court also denied awarding appellate attorney fees to Curto.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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