Henri v. Curto, 49S02-0812-CV-641.
| Decision Date | 17 June 2009 |
| Docket Number | No. 49S02-0812-CV-641.,49S02-0812-CV-641. |
| Citation | 908 N.E.2d 196 |
| Parties | Susana HENRI, Appellant (Plaintiff and Counter-Defendant below), v. Stephen CURTO, Appellee (Defendant and Counter-Claimant below). |
| Court | Indiana Supreme Court |
Gregory Bowes, Indianapolis, IN, Attorney for Appellant.
Ralph W. Staples, Jr., M. Brady Beyers, Bryan H. Babb, Bose McKinney & Evans LLP, Indianapolis, IN, Attorneys for Appellee.
On Transfer from the Indiana Court of Appeals, No. 49A02-0709-CV-777
Presenting contentions of improper conduct of jury deliberations and insufficient evidence, the plaintiff challenges a jury verdict adverse to her civil damage claim for rape and in favor of the defendant's counterclaim for tortious interference with his university contract as a result of his expulsion. Having granted transfer, we affirm the trial court.
Susana Henri and Stephen Curto were students at Butler University in Indianapolis in March 2004, when they met for the first time at an off-campus party. They drank alcohol, left the party together, went to a dorm room, and engaged in sexual intercourse. Alleging lack of consent, Ms. Henri subsequently sued Mr. Curto, seeking civil damages for rape. Denying the rape allegation, Mr. Curto, who had been temporarily suspended from the university in the aftermath of the incident, counterclaimed for tortious interference with his contract with the university. The parties presented their evidence to a five-women, one-man jury, which found against Ms. Henri on her claim and in favor of Mr. Curto on his counterclaim, awarding him damages of $45,000. Ms. Henri appealed, and a divided panel of the Court of Appeals, issuing three separate opinions, reversed and remanded for a new trial because of errors during the jury's deliberations. Henri v. Curto, 891 N.E.2d 135 (Ind.Ct.App.2008). We granted transfer.
Ms. Henri's appellate claims relate to the following: (1) whether the jury received improper external communications; (2) whether the trial court failed properly to assist the jury at an impasse; and (3) whether sufficient evidence supports Mr. Curto's counterclaim. Mr. Curto's response seeks appellate attorney fees.
Ms. Henri contends that the trial court erred in denying her motion to correct error, which sought a new trial on grounds that (1) the bailiff answered a jury question without first consulting the judge, thus denying counsel the opportunity to participate in deciding how to answer the question; (2) the jury was given an improper answer to its question regarding the need for unanimity; (3) one juror accepted a cell phone call during deliberations; and (4) the alternate juror improperly communicated with the regular jurors during trial and deliberations.
In support of her contentions, Ms. Henri focuses on Indiana Code § 34-36-1-4(d), which states:
The officer in charge of the jury shall not permit any communication to be made to the jury. The officer in charge of the jury shall not communicate with the jury, except:
(1) to ask the jury if it has agreed upon a verdict; or
(2) by order of the court.
The jury in this case consisted of six persons. After the jury verdict was announced, counsel for Ms. Henri polled the jury, and, when separately asked whether he or she agreed with the verdict, each answered, "Yes." Tr. at 654-55. Several days after the trial concluded, one of the jurors (not the jury foreperson) contacted Ms. Henri's attorney and then executed the affidavit upon which the motion to correct error relied. Mr. Curto does not question the appropriateness of our considering the juror's affidavit but responds to the merits of Ms. Henri's appellate claims. We will do likewise.
Among various items in her affidavit, the juror declared that during deliberations, when "it was clear that a majority of the jurors were in favor of a verdict for [Mr. Curto], but I was not," the bailiff was called into the jury room and asked if the decision needed to be unanimous. Appellant's App'x at 46. According to the affidavit, the bailiff left and then returned and "told us the jury would have to keep deliberating until we could reach a unanimous verdict." Id. at 47. The affidavit then reports that, when it became "more certain that I was the only juror who wanted to vote in favor of [Ms. Henri]," the juror privately told the bailiff that the jury was hopelessly deadlocked and asked if she could "get off the jury," to which the bailiff shook her head "no," and deliberations continued. Id.
In a detailed five-page entry, the trial court denied Ms. Henri's motion to correct error. The court's explanation of its decision included its own pertinent factual recollection:
A very short period of time after this panel was charged, the bailiff did convey to me that a juror had a question about the requirement that a verdict had to be unanimous. As they had only been deliberating a short while and that they had been clearly instructed about the need for a unanimous verdict I instructed the bailiff to simply tell the jury to continue their deliberations.
I have no knowledge about this juror requesting to get off the jury, but even if I had, the time they had spent in deliberations was so brief, approximately 20 minutes, that to consider a jury to have been "hopelessly deadlocked" in such a short time would not have been seriously considered and such request would not have been granted.
Id. at 7.1
Ms. Henri contends that the trial court erroneously responded to the juror's question without first informing counsel, requiring reversal of the verdict and a new trial.
When a jury directs a question to the trial court, the "better practice [is] for the judge to [notify] the parties before sending his response to the jury." Rogers v. R.J. Reynolds Tobacco Co., 745 N.E.2d 793, 796 (Ind.2001). If this procedure is not utilized, the resulting judge-to-jury ex parte communication creates a rebuttable presumption of error, but is not per se grounds for reversal. Id. at 795 (citing Grey v. State, 553 N.E.2d 1196, 1198-99 (Ind.1990)). "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." Id. ). One significant factor in determining the effect of an ex parte communication upon the jury's decision-making is whether or not the court's response to the jury contained any new information regarding the facts or law of the case. See, e.g., id.; Marks v. State, 864 N.E.2d 408, 413 (Ind.Ct.App.2007).
In the present case, immediately before jury deliberations began, the court gave its final jury instructions, which included this express directive: 2 Final Instruction No. 16 also informed the jury: "Do not sign any verdict form for which there is not unanimous agreement." Appellant's App'x at 38. The jurors received the final instructions both orally and in writing.
Thus, the trial court's response through the bailiff3 to the jury question regarding the necessity of a unanimous verdict did not introduce any new information regarding the law or the facts of the case nor was it prejudicial to Ms. Henri. Any presumed prejudice resulting from the failure of the trial court to first consult with counsel is therefore rebutted.
Ms. Henri separately argues that the trial court's response to the jurors constitutes reversible error because it created an impression that a hung jury would not be permitted, thus having the effect of improperly coercing a verdict and resulting in an unfair trial.4 This assertion is predicated on the juror affidavit's statement that, when the bailiff returned after being asked if the verdict needed to be unanimous, "she told us the jury would have to keep deliberating until we could reach a unanimous verdict."5 Id. at 46-47.
Assuming that the juror's recollection accurately reflected the bailiff's words, the trial court's oral and written jury instructions nevertheless precisely advised, in relevant part:
It is your duty, as jurors, to consult with one another and to deliberate with the goal of reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous. Do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.
Final Instruction No. 15, see supra n. 2 (emphasis added). Particularly in light of the content of this jury instruction, we are not persuaded that the bailiff's alleged answer to the jury was coercive, or that it resulted in juror coercion or deception, or that it resulted in an unfair trial.
Ms. Henri further challenges the verdict on the ground that one juror's receipt of an in coming mobile telephone call during deliberations created pressure to reach a hasty verdict. This claim is based on the following assertions in the juror's affidavit:
While deliberation was ongoing, the mobile telephone of one juror rang. That juror ... appeared to turn the telephone off. Deliberation continued and her telephone rang again. At that point she left the jury room to get the bailiff. She returned with the bailiff, and the bailiff stood in the doorway of the jury room while [the other juror] took the call. I was able to hear [the other juror] tell the other party to the telephone call that she would...
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