ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Dave Welter Steve Carter
Joshua Brown, Legal Intern Attorney General of Indiana
Jeremy Butler, Legal Intern
Valparaiso University Law Clinic Kelly A. Miklos
Valparaiso, Indiana Deputy Attorney General
Indianapolis, Indiana
In the
Indiana Supreme Court
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No. 64S05-0604-CR-152
JASON RONCO,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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Appeal from the Porter Superior Court, No. 64D04-0309-CM-7966
The Honorable David L. Chidester, Judge
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On Petition to Transfer from the Indiana Court of Appeals, No. 64A05-0505-CR-271
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March 6, 2007
Shepard, Chief Justice.
We adopted Jury Rule 28 to give trial judges more flexibility in dealing with jury
deliberations that come to a standstill. It was premature for the trial court in this case to declare
an impasse after receiving a question of law from the jury during deliberations. On the other
hand, the trial court did appropriately answer the jury’s legal query under Ind. Code § 34-36-1-6.
We affirm.
Facts and Procedural History
The State charged appellant Jason Ronco with battery to law enforcement, resisting law
enforcement, and disorderly conduct.
During jury deliberations following trial, the jury submitted a question to the court about
Final Instruction 23. The instruction explained the two mutually exclusive ways to convict
Ronco of resisting: fleeing (consisting of three elements) or “forcibly resist[ing], obstruct[ing] or
interfer[ing]” (consisting of two elements). Apparently misunderstanding the relationship
between the two types of resisting, the jury asked: “[D]oes the State have to prove [elements] 1
through 3 and 1 through 2 or [elements] 1 through 3 or 1 through 2”? (Id. at 122 (emphasis
added).) The court responded with a note asking the jury to reread the instruction.
One juror indicated that he still did not understand the question and the court’s answer,
that he “felt that [he] needed to hear [the instruction] again,” and that “it was going to be a long
night.” (Id. at 122-23.) Based on this comment, the court declared that the jury had reached an
“impasse” under Jury Rule 28 and directed that they be brought back into the courtroom. The
court reread Final Instructions 22 and 23 only and asked if this resolved the jury’s confusion.
The following dialogue then took place between the court and the foreman:
MR. BUSH: Yea, is it each or is it or?
THE COURT: It is an or. There is [sic] two kinds of fleeing, resisting.
Running or fighting or obstructing or not wanting to be held or handcuffed or
something. There’s [sic] two kinds, they’ve charged both here. Either he’s not
guilty of both, guilty of both, or one but not the other. It’s conjunctive.
MR. BUSH: So it’s not one or the other? He’s guilty of both or one
or the other?
THE COURT: One or the other. There’s [sic] two types of resisting.
They charged both here. And either not guilty of both, guilty of both or guilty of
one and not the other.
(Id. at 125-26.) The jury subsequently found Ronco guilty of resisting law enforcement and
disorderly conduct. Citing double jeopardy concerns, the court entered judgment only for
resisting.
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Ronco argues that the trial court erred when it ruled that the jury had reached an
“impasse” under Rule 28. He also contends that the court erred by not rereading all of the final
jury instructions with Final Instructions 22 and 23, and by commenting further on Final
Instruction 23. 1 The Court of Appeals agreed that the jury had not reached an “impasse.” Ronco
v. State, 840 N.E.2d 368, 373-74 (Ind. Ct. App. 2006). Thus, it held that the trial court did not
have authority to “seek further information or clarification from the jury” or elaborate on Final
Instructions 22 and 23. Id. at 374-75. We granted transfer, vacating the opinion of the Court of
Appeals, and now affirm the trial court.
Jury Rule 28 Intended Only for Genuine Impasse
The traditional rule in Indiana courts regarding jury questions was a stern one. We
obliged courts faced with questions from the jury to reply by rereading all instructions, to avoid
improper influence. See, e.g., Lewis v. State, 424 N.E.2d 107, 111 (Ind. 1981) (“The proper
procedure [for responding to any problem during jury deliberations] is for the court to call the
jury back into open court . . . and to reread all instructions given to them prior to their
deliberations, without emphasis on any of them and without further comment.”).
Under our recently adopted jury rules, Indiana trial courts have greater leeway to
“facilitate and assist jurors in the deliberative process, in order to avoid mistrials.” Tincher v.
Davidson, 762 N.E.2d 1221, 1224 (Ind. 2002). The rule cited here by the trial court, Jury Rule
28, instructs judges on how to proceed when faced with a jury impasse:
If the jury advises the court that it has reached an impasse in its deliberations, the
court may, but only in the presence of counsel, and, in a criminal case the parties,
inquire of the jurors to determine whether and how the court and counsel can
assist them in their deliberative process. After receiving the jurors’ response, if
any, the court, after consultation with counsel, may direct that further proceedings
occur as appropriate.
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Ronco also argues that the trial court improperly admitted evidence obtained during an unlawful police stop.
(Appellant’s Br. at 20.) The Court of Appeals found the evidence of Ronco’s illegal activity separate from the
unlawful stop and, thus, properly admitted. Ronco, 840 N.E.2d at 375-76. We summarily affirm as to this issue.
Ind. Appellate Rule 58(A).
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Ind. Jury Rule 28. As a result of reforms led by Arizona and New York, emulated early on by
this state, procedures such as those found in Jury Rule 28 have found wider acceptance.
National standards now stand for the proposition that such an action by the trial judge “does not
unduly invade the sanctity of jury deliberations or transform the trial judge to the status of fact
finder.” Am. Bar Ass’n, Principles for Juries & Jury Trials 122 (2005). Accord Arizona
Supreme Court Committee on More Effective Use of Juries, Jurors: The Power of 12 § E(49)
(1994), available at http://www.supreme.state.az.us/jury/Jury/jury1l.htm.
Still, Rule 28 confers discretionary authority for “further proceedings” only at moments
of “impasse,” by which is meant something far closer to a deadlocked jury than occurred here.
In this case, jurors simply had a question about the findings necessary to convict Ronco for
resisting law enforcement. A question is not an impasse. Nor does one juror’s “long night”
comment suffice; indication of an impasse must come from the jury’s leader or from the jury as a
whole. It was premature to invoke Rule 28.
On the other hand, the court’s action was proper under Ind. Code § 34-36-1-6, which
gives trial courts some discretion to assist the jury in its deliberations. Section 34-36-1-6
empowers a court to respond to either juror disagreement over testimony or the jury’s desire “to
be informed as to any point of law arising in the case.” The trial court must respond to a jury
question regarding a point of law involved in the case, whereas other questions should prompt
caution lest the judge exercise undue influence. Foster v. State, 698 N.E.2d 1166, 1170 (Ind.
1998).
As a general matter, the policy of greater flexibility in jury management reflected in the
Jury Rules informs actions taken under § 34-36-1-6. In this case, the jury submitted a specific
question of law to the trial court, and Ind. Code § 34-36-1-6 required the court to respond. The
court appropriately answered both the jury’s question and the foreman’s follow-up.
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Conclusion
We affirm the trial court.
Dickson, Sullivan, Boehm, Rucker, JJ., concur.
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