COA affirms conviction over jury lunchtime instruction challenge

If there are no intervening proceedings between the reading of preliminary instructions and a jury being excused for lunch, trial courts are not required to give admonishments required under Indiana Code Section 35-27-2-4(a) more than once, the Indiana Court of Appeals affirmed.

Immediately after a Marion Superior judge read Robert Rivera’s trial jury its preliminary instructions, the judge excused the jury for lunch. Before the break the jury was instructed not to discuss evidence outside of the jury room, to consider all instructions together and about the credibility of witnesses and weighing testimony.

The admonishment about limiting juror discussion of the case was not repeated upon the jury’s return from lunch. Neither was the jury reinstructed about the credibility of witnesses and the manner of weighing testimony. But Final Instruction 1 specifically directed the jury “to consider all of the jury instructions (both preliminary and final) together.”

After Rivera was found guilty of Level 6 felony auto theft, but not Class A misdemeanor theft, he appealed, arguing that the trial court should have repeated its admonishment limiting juror discussions of the case before excusing the jury for lunch. He also argued that it should have included final instructions about the credibility of witnesses and the manner of weighing testimony. 

First, Rivera argued that although the substance admonishment was already covered during the preliminary instruction, the admonishment should have been given a second time before the lunch break.

However, the Indiana Court of Appeals agreed with the state’s argument that the judge “killed two birds with one stone” by meeting both “in the preliminary instruction” and “before separating for meals” requirements of Indiana Code section 35-37-2-4(a) in the single admonishment.

“Where, as here, there are no intervening proceedings between the reading of the preliminary instructions and the jury being excused for lunch, trial courts are not required to give the admonishment required by Section 35-27-2-4(a) a second time,” Chief Judge Nancy Vaidik wrote for the panel.

The panel additionally noted that while the trial court judge instructed the jury on the burden of proof during final instructions, she did not instruct it on the credibility of witnesses and the manner of weighing testimony. Regardless, the appellate panel concluded that the trial court did not commit fundamental error based on Rivera’s failure to establish it.

“The trial lasted one day, so in the same day that the jury decided the case, it heard instructions regarding the credibility of witnesses and the manner of weighing testimony,” Vaidik wrote. Thus, the conviction in Roberto Cruz Rivera v. State of Indiana,18A-CR-2862 was affirmed.

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