FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DEBORAH MARKISOHN GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
Indianapolis, Indiana
FILED
Aug 22 2012, 8:54 am
IN THE CLERK
of the supreme court,
COURT OF APPEALS OF INDIANA
court of appeals and
tax court
JORGE HENRIQUEZ, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1201-CR-6
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marc Rothenberg, Judge
Cause No. 49F09-1006-FD-051001
August 22, 2012
OPINION - FOR PUBLICATION
SHARPNACK, Senior Judge
STATEMENT OF THE CASE
Jorge Henriquez appeals his conviction of resisting law enforcement, a Class D
felony. Ind. Code § 35-44-3-3 (2006). We affirm.
ISSUE
Henriquez presents one issue for our review, which we restate as: whether
Henriquez’s constitutional right to a fair and impartial jury was violated by the alleged
improper influence of an alternate juror.
FACTS AND PROCEDURAL HISTORY
In June 2010, Henriquez was charged with resisting law enforcement and failure
to stop after an accident with an unattended vehicle. A jury trial was held in November
2011 only as to the charge of resisting law enforcement. At some point during jury
deliberations, the bailiff informed the court that she heard someone in the jury room say
something to the effect of “you need to be able to live with your decision.” Tr. p. 220.
The bailiff indicated that she believed the voice was that of the alternate juror. The judge
and counsel discussed the appropriate way to deal with the situation, and the alternate
juror was called into the courtroom. The judge instructed the alternate juror that he was
not to take part in the deliberations or influence the jury in any way. The alternate juror
indicated that he understood that he was not to communicate with the jury, and he was
sent back to the jury room.
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Following deliberations, the jury returned a verdict of guilty. Henriquez was
sentenced to 365 days with 357 days suspended, and he was placed on probation for sixty
days. It is from this conviction that he now appeals.
DISCUSSION AND DECISION
Henriquez contends that his constitutional right to a fair and impartial jury was
violated by the failure of the trial court to “adequately ascertain if the alternate [juror] had
engaged in deliberations.” Appellant’s Br. p. 10.
The State observes, and Henriquez concedes, that he did not object to this alleged
error at trial. Thus, Henriquez’s failure to object results in waiver of the issue on appeal.
See Beeler v. State, 959 N.E.2d 828, 830 (Ind. Ct. App. 2011) (stating that issue is waived
for appeal if not objected to at trial), trans. denied. Seeking to avoid procedural default,
Henriquez claims that the trial court’s handling of the situation with the alternate juror
constitutes fundamental error.
The mere fact that error occurred and that it was prejudicial does not satisfy the
fundamental error rule; rather, the doctrine of fundamental error is only available in
egregious circumstances. Dickerson v. State, 957 N.E.2d 1055, 1057 (Ind. Ct. App.
2011), trans. denied. Likewise, it is not enough, in order to invoke this doctrine, to urge
that a constitutional right is involved. Id. To show fundamental error, a defendant must
demonstrate error that caused actual and substantial disadvantage, infecting and tainting
the entire proceeding. Id. In other words, the error must so prejudice the rights of the
defendant as to make a fair trial impossible. Id.
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“A defendant seeking a new trial because of juror misconduct must show that the
misconduct (1) was gross and (2) probably harmed the defendant.” Griffin v. State, 754
N.E.2d 899, 901 (Ind. 2001), clarified on reh’g, 763 N.E.2d 450 (2002). This Court
reviews the trial court’s determination on this issue for an abuse of discretion, with the
appellant having the burden of showing that the misconduct meets the prerequisites for a
new trial. Id.
Henriquez cites Lindsey v. State, 260 Ind. 351, 295 N.E.2d 819 (1973), in support
of his argument. In Lindsey, the local newspaper published an article during Lindsey’s
burglary trial alleging a rape in connection with the burglary, although Lindsey was not
charged with rape; reporting a prior commitment of Lindsey for an attack of another
woman several years earlier, although this information was not in evidence; and reporting
identification of Lindsey from police mug files by the prosecuting witness, although the
witness had testified that she could not identify Lindsey from police photographs.
Lindsey filed a motion for mistrial, which was denied by the trial court. The trial
proceeded to a verdict of guilty, after which the court conducted an examination of the
jury regarding the newspaper article. From this examination it was disclosed that some
of the jurors had had no exposure to the article but that several had had exposure that
varied from mere awareness of the publication to knowledge from having read a portion
of it. In addition, there were two jurors who had read the entire article. Only these two
jurors were questioned regarding whether their exposure had influenced their decision.
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They stated that they were not influenced by the article, and the verdict was permitted to
stand.
On appeal, our Supreme Court held that the failure of the trial court to take
remedial action at the proper time violated Lindsey’s constitutional right to a fair trial.
Id. at 822. The Court stated that upon a suggestion of improper and prejudicial publicity,
the trial court should make a determination as to the likelihood of resulting prejudice
based upon both the content of the publication and the likelihood of a juror having been
exposed to it. Id. at 824. If the risk of prejudice appears substantial, the court should
interrogate the jury as a whole to determine who has been exposed. Id. The Court
further instructed that if there has been no exposure, the trial court should then instruct
upon the hazards of exposure and the necessity of avoiding exposure to extrajudicial
information concerning the case. Id. If any of the jurors have been exposed, they must
be individually interrogated by the court outside the presence of the other jurors to
determine the degree and effect of the exposure; each such juror should then be
individually admonished. Id. After all exposed jurors have been individually
interrogated and admonished, the jury should be assembled and collectively admonished.
Id. Finally, the Court directed that if the defendant deems such action insufficient to
remove the peril, he should move for a mistrial. Id.
Here, Henriquez asserts that, pursuant to the dictates of Lindsey, the alleged
conduct of the alternate juror imposed upon the trial court a duty to determine if the
alternate juror had engaged in deliberations by interrogating the alternate and the regular
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jury members. While we acknowledge the Lindsey Court’s instruction that the trial court
should make a determination as to the likelihood of resulting prejudice when there has
been a suggestion of improper jury influence, see id. at 824, we are also mindful of the
remainder of the Court’s instruction. That is, the trial court is obligated to interrogate the
jury only if the risk of prejudice appears substantial, not merely imaginary or remote. Id.
In Agnew v. State, 677 N.E.2d 582 (Ind. Ct. App. 1997), trans. denied, a panel of
this Court acknowledged the procedure set forth in Lindsey but noted that if the trial
court, within its discretion, determines that the jury’s exposure to prejudicial information
does not raise a substantial risk of prejudice, it has no duty to interrogate the jurors or to
take further remedial action. Id. at 584. The allegedly prejudicial occurrence in Agnew
took place when, during deliberations, the jury asked to review the testimony of both
Agnew and the victim. The jury was brought back into the courtroom to hear the taped
testimony. The victim was also present in the courtroom for the replaying of the
testimony, and she could be heard sobbing and crying during the replaying of Agnew’s
testimony. The trial court subsequently denied both Agnew’s motion for mistrial and
motion to correct error based upon the victim’s conduct and stated that it did not find the
victim’s conduct to be disruptive. Id. In affirming the trial court, this Court noted the
trial court’s determination that the victim’s behavior presented no risk of prejudice. Id.
We find Henri v. Curto, 908 N.E.2d 196 (Ind. 2009), to be instructive as well. In
Henri, it was claimed that the alternate juror used noises and gestures to communicate
with the regular jurors during deliberations and to interrupt deliberations during
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statements favorable to Henri’s case. In addition, during deliberations the alternate juror
paced and got on the floor and began exercising, causing other jurors to laugh. Our
Supreme Court determined that while the alleged behavior of the alternate was
disappointing and immature, it did not rise to the level of gross misconduct that would be
injurious to Henri. Id. at 204.
The facts here are readily distinguishable from those in Lindsey and are more akin
to the facts in Henri. During deliberations in the instant case, the bailiff reported to the
court that she had heard someone in the jury room say, in a “raised voice,” something to
the effect of “you need to be able to live with your decision.” Tr. p. 220. The bailiff
further indicated to the court her belief that the voice she heard was that of the alternate
juror. Upon receiving this information, the court asked the parties how they wanted to
proceed. Defense counsel suggested bringing the jury into the courtroom and reminding
them that the alternate is not to deliberate. Defense counsel also commented that “juries
tend to monitor themselves pretty well” and that if the alternate is trying to deliberate, the
other jurors would stop him or bring it to the court’s attention. Id. at 221. The court then
brought the alternate juror into the courtroom and advised him that he was not to
deliberate, take part in the deliberations, influence the jury, or communicate with the jury
in any way. Further, at the request of defense counsel, the court admonished the alternate
not to speak with the jury about this current communication with the court. The alternate
juror indicated he understood and agreed. Defense counsel raised no objection to the trial
court’s course of action or to the admonishments it gave the alternate juror.
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From these facts it is clear that the trial court, in its proper discretion, determined
that the alternate’s alleged conduct posed only a remote risk of prejudice, if any at all.
Therefore, no full scale inquiry was warranted. We find no abuse of the trial court’s
discretion and, thus, find no error, fundamental or otherwise. Moreover, in seeking a new
trial based upon juror misconduct, Henriquez has not met his burden of showing that the
alleged misconduct was gross and probably injurious to him. See Griffin, 754 N.E.2d at
901.
CONCLUSION
Based upon the foregoing, we conclude that it was not error for the trial court to
not interrogate the jurors or take other remedial action. Henriquez’s claim of
fundamental error fails.
Affirmed.
BAKER, J., and BRADFORD, J., concur.
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