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South Bend Clinic2/6/2002
th respect to a motion to correct error carries a strong presumption of correctness and will be reversed only for an abuse of discretion. Ingersoll-Rand v. Scott, 557 N.E.2d 679, 683 (Ind. Ct. App. 1990), trans. denied. A defendant who seeks a new trial based upon purported juror misconduct must demonstrate that the misconduct was gross and that it probably harmed the defendant. Griffin v. State, 754 N.E.2d 899, 901 (Ind. 2001). That is, the existence of prejudice must be affirmatively demonstrated. Dawson v. Hummer, 649 N.E.2d 653, 664 (Ind. Ct. App. 1995). Prejudice will not be assumed. Shultz v. State, 417 N.E.2d 1127, 1134 (Ind. Ct. App. 1981).
We also note that a jury's verdict may not be impeached by the testimony of the jurors who returned it. Ward v. St. Mary Med. Ctr. of Gary, 658 N.E.2d 893, 894 (Ind. 1995). An exception to this general rule occurs when there is evidence demonstrating that the jury was exposed to improper, extrinsic material during its deliberations, and when a substantial possibility exists that the verdict was prejudiced by the improper material. Ind.Evidence Rule 606(b)(2); Dawson, 649 N.E.2d at 664.
Here, the record is devoid of any evidence that the jurors' conduct in consulting the dictionary affected their deliberations or resulted in any prejudice to the defendants. Every juror acknowledged that the verdict was based upon the evidence presented at trial and upon the instructions given by the trial judge both at the start and conclusion of the trial. Appellee's App. at 50-67. Moreover, all jurors acknowledged that the definition of "preponderance" that the jury foreman referenced was not discussed during the deliberations, and played no factor in the jury's ultimate verdict. Appellee's App. at 50-67. The information contained in the juror affidavits, absent any consideration as to juror statements as to the impact of the foreman's conduct on the verdict, amply supports the trial court's determination that no misconduct occurred and, therefore, no prejudice resulted to the defendants. As stated in juror Larry Rodino's affidavit, he looked up the meaning of the word "preponderance" in a standard dictionary, and believed that the definition was "superior in weight which was virtually the exact definition that my fellow jurors had explained to me during deliberations." Appellant's App. at 70. Thus, it is significant to note that the dictionary definition of "preponderance" acquired by the jury foreman was a distinction without a difference from that set forth in the preliminary instructions.
Finally, we note that the defendants, in an effort to circumvent the rule establishing that prejudice will not be presumed in this instance, direct us to a number of cases where the alleged error was premised upon ex parte communications with the jurors. In Griffin, our supreme set forth the distinction in instances where ex parte communication between a juror and the court has occurred and those where juror misconduct arose. Specifically, the Griffin court observed that a presumption of prejudice arises only in instances where ex parte communication occurs. Griffin, 754 N.E.2d at 901. The issue of ex parte communications with jurors and the standard that applies to those instances is not at issue here. We therefore reject the defendants' invitation for this court to adopt a "presumption of prejudice" standard in matters involving juror misconduct, and conclude that the trial court properly denied the defendants' motion to correct error in this instance.
Affirmed.
NAJAM, J., and MATTINGLY-MAY, J., concur.
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