Justices publish dissent to jury admonishment transfer denial

A split Indiana Supreme Court has denied transfer to a case disputing exactly how many times a trial court is required to give admonishments to a jury, but two justices published a dissent to that decision.

The justices disagreed about whether to hear the case of Roberto Cruz Rivera v. State of Indiana, 18A-CR-02862, with the majority – including justices Mark Massa, Geoffrey Slaughter and Christopher Goff – ultimately voting to deny transfer.

In the case, a Marion Superior Court judge excused Robert Rivera’s jury for lunch almost 15 minutes after reading it the preliminary instructions. An admonishment about limiting juror discussion of the case was not repeated before the jury was excused for lunch, however, and Rivera later argued on appeal of his convictions that the trial court should have repeated the admonishment limiting juror discussion before excusing them.

But the Indiana Court of Appeals determined “there was no need” to give the jury an admonishment before lunch because “there (were) no intervening proceedings between the reading of the preliminary instructions and the jury being excused for lunch … .”

“This strikes me as a misstatement of the law,” Justice Steven David wrote in a dissent to Thursday’s transfer decision, which Chief Justice Loretta Rush joined. In his dissent, David said he wrote separately “not because the defendant is necessarily entitled to relief under the facts and circumstances of this case,” but because he believes the Supreme Court should provide guidance to the bench and bar on issues raised in the lower courts.

If given its “plain and ordinary meaning,” the dissenting justice said courts would have an affirmative duty to admonish jurors at three points under Indiana Code § 35-37-2-4(a): in the preliminary instruction, before separating for meals and at the end of the day.

“Here, I believe the trial court erred by failing to admonish the jurors before they were dismissed for lunch,” David wrote. “While an additional admonishment may have been repetitive given only fourteen minutes had passed between the first preliminary instruction and the lunch break, I do not think this additional admonishment would unduly burden the trial court or the jury.”

However, the dissenting justice noted his decision was forward-looking at the “future application of the ‘close enough’ interpretation sanctioned” by the Indiana Court of Appeals.

“In my view, the decision by the Court of Appeals impermissibly engrafts language into this statute to allow for an exception — the ‘no intervening circumstances’ exception — that is simply not present in Indiana Code section 35-37-2-4(a),” he wrote. Thus, to avoid confusion, David said he would draw a bright line rule that tracks the language of I.C. 35-37-2-4(a) and requires that courts to give the mandated admonishments at the stated times.

“Under this reading, a court either violates the rule or it doesn’t, and here, the trial court failed to comply with the express language of the statute,” he wrote.

Additionally, the dissenting justice said that to solve issues arising from the conflict between Jury Rule 20(a)(8) and I.C. 35-37-2-4(a),  he would find that while the statute still requires jury admonishment at three separate times, the rule “overrides the remaining portion of the statute to provide ‘that jurors, including alternates, are permitted to discuss the evidence among themselves in the jury room during recesses from trial when all are present’ and that ‘[t]he court shall admonish the jurors not to discuss the case with anyone other than fellow jurors during trial.’”

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