Jodie Meyer v. Elizabeth Cochran (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
May 25 2016, 5:59 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone, IV Benjamin D. Ice
Stone Law Office & Legal Research William A. Ramsey
Anderson, Indiana Barrett McNagny, LLP
Fort Wayne, Indiana
Edward R. Reichert
Nunn Law Office
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jodie Meyer, May 25, 2016
Appellant-Plaintiff, Court of Appeals Case No.
27A04-1510-CT-1664
v. Appeal from the Grant Superior
Court
Elizabeth Cochran, The Honorable Dana J.
Appellee-Defendant. Kenworthy, Judge
Trial Court Cause No.
27D02-1403-CT-19
May, Judge.
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[1] In this personal injury action, plaintiff Jodie Meyer asked for a mistrial and a
new trial after the jury heard references to insurance coverage and the
defendant Elizabeth Cochran’s student loan debt. As Meyer has not
demonstrated the trial court’s admonitions were insufficient to cure any error,
we affirm. 1
Facts and Procedural History
[2] Meyer was driving on an interstate highway when Cochran’s car hit the rear of
Meyer’s car. During jury selection Cochran’s attorney was interviewing a
prospective juror who had been a plaintiff in a personal injury action. The
prospective juror was asked whether anything about that experience would
affect how he viewed the position of either party in this case. He said “No.
When I hear insurance companies, yes.” (Tr. at 115.) Cochran’s counsel then
said “Alright. Well, there’s not an insurance company in this case.” (Id. at
115-16.) In fact, the car Cochran was driving was owned by her parents and
was insured.
[3] Meyer’s counsel objected and the trial court sustained the objection. Meyer’s
counsel asked that the prospective jurors be admonished, and the trial court told
1
Because the errors were cured by the trial court’s admonitions, we need not address whether the trial court
should have permitted Meyer to present 1) evidence of insurance coverage “to counter [Cochran’s] improper
claim an insurance company was not in the case and [Cochran’s] poor-mouthing defense,” (Br. of Appellant
at 5), and 2) evidence of interest on a loan Meyer had to secure to pay for treatment of her injuries. As
explained below, we presume the jury disregarded the challenged statements about insurance and financial
status. The trial court was therefore not obliged to allow Meyer to present her own inadmissible evidence to
“counter” the challenged statements.
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them to “disregard [counsel’s] comment about insurance. In this case, the jury 2
is to not consider whether there was or was not insurance coverage in this case
in coming to a decision, so insurance and whether or not there was any is not
relevant to them, to the issues in this case.” (Id. at 118) (footnote added).
Meyer’s counsel resumed voir dire. He noted a “jury is expected to not to [sic]
consider whether there’s insurance available or at play at all in these types of
cases,” (id.), and again asked the prospective juror whether anything about his
experience as a personal injury plaintiff would affect his ability to be impartial.
The prospective juror said “I don’t think so.” (Id.)
[4] After the collision, Cochran was ticketed for driving at an unsafe speed. She
did not contest the ticket. At trial Meyer’s counsel questioned Cochran about
why she did not contest the ticket. She responded “I had a preconceived notion
that I needed a lawyer, and I’m a student with several thousands of dollars in
debt already.” (Id. at 182.) Meyer’s counsel objected on the ground Cochran’s
statement violated motions in limine submitted by both parties that would
prevent mention of the financial circumstances of the parties.
[5] Meyer asked for a mistrial based on the mention of insurance during voir dire
and the mention at trial of Cochran’s debt. Meyer’s counsel also told the court
2
This happened during voir dire. The jury had not yet been selected.
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Meyer overheard the jury talking in the jury room with the door shut during the
lunch hour and “there was some statement made to the effect of ‘What’s this
with no insurance?’” (Id. at 186.)
[6] The trial court denied a mistrial but admonished the jury. 3 It ordered the jury
to disregard Cochran’s answer and then said:
I’m also going to give you a little bit of instruction. Okay? In
this case, the financial circumstances of the parties is not
admissible and it is not relevant of [sic] the issues that you’re here
to decide. You’re here to decide if there’s one, one party or
another party at fault for the wreck. You’re here to determine
damages if you find someone at fault, but financial circumstances
are not relevant to that issue. Also the existence or nonexistence
of insurance is not admissible and that’s very important that you
understand why. A lot of people are very concerned about the
amount of funding on one side or the other or could be, and that
becomes a red herring. That takes your eye off what the issue in
this case is and the issue here is is there fault, are there damages .
. . throughout the trial you won’t know if either party has
insurance. You won’t know if one is a millionaire. You won’t
know if one is in, in poverty because those issues are just not
relevant here.
(Id. at 197.) The final instructions told the jury it must not consider testimony
that was not admitted into evidence and must not consider or speculate about
3
Meyer’s counsel made an “alternative request” that those portions of the motion in limine concerning
insurance and the parties’ financial status “be not in effect anymore,” (Tr. at 192), because “defendants have
opened the door to insurance in this case and have opened the door to the financial status of both parties.”
(Id.) The court responded it was “not inclined to open the door to additional impermissible evidence based
on the admission of other inadmissible evidence.” (Id. at 192-93.)
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whether either party has insurance. The jury found for Cochran and against
Meyer.
Discussion and Decision
[7] When faced with a circumstance that a defendant believes might warrant a
mistrial, generally the correct procedure is to request an admonition. Isom v.
State, 31 N.E.3d 469, 482 (Ind. 2015), reh’g denied, cert. denied. If counsel is
unsatisfied with the admonition or it is obvious that the admonition will not be
sufficient to cure the error, then counsel may move for mistrial. 4 Id.
[8] A mistrial is an extreme remedy warranted only when a less severe remedy will
not correct the error. Piatek v. Beale, 994 N.E.2d 1140, 1145 (Ind. Ct. App.
2013), aff'd on reh’g, 999 N.E.2d 68 (Ind. Ct. App. 2013), trans. denied. We give
great deference to a trial judge’s discretion in determining whether to grant a
mistrial because the judge is in the best position to gauge the surrounding
4
Meyer alleges error based on the “cumulative effect” of the statement during voir dire about insurance and
Cochran’s testimony at trial about her debt. Any error in either statement was cured by the trial court’s
admonitions.
As for the statement about insurance, we addressed the effect of such a statement during voir dire in Stone v.
Stakes, 749 N.E.2d 1277, 1280 (Ind. Ct. App. 2001), on reh’g, 755 N.E.2d 220 (Ind. Ct. App. 2001), trans.
denied:
It is important to note at this juncture the precise timing of the reference. The reference
was made during voir dire, while the parties were questioning the prospective jurors, and
not made during the trial itself. The trial court is afforded broad discretion in regulating
the form and substance of voir dire examination.
Because voir dire is not part of the trial, Meyer should have moved to strike or discharge the jury panel. See
Hillenburg v. State, 777 N.E.2d 99, 106 (Ind. Ct. App. 2002), trans. denied.
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circumstances of an event and its impact on the jury. Id. When determining
whether a mistrial is warranted, we consider whether the defendant was placed
in a position of grave peril to which she should not have been subjected. Id.
The gravity of the peril is determined by the probable persuasive effect on the
jury’s decision. Id.
[9] A timely and accurate admonition is presumed to cure any error in the
admission of evidence, so reversible error will seldom be found if the trial court
has admonished the jury to disregard a statement made during the proceedings.
Id. The same is true of jury instructions; on appeal we presume the jury
followed the law contained within the trial court’s instruction and applied that
law to the evidence before it. Tipmont Rural Elec. Membership Corp. v. Fischer,
697 N.E.2d 83, 90 (Ind. Ct. App. 1998), reh’g denied, aff’d, 716 N.E.2d 357 (Ind.
1999). And see Kinney v. Butcher, 131 S.W.3d 357, 360 (Ky. Ct. App. 2004)
(absent evidence to the contrary, we must assume the admonition achieved the
desired effect). The Wisconsin Supreme Court applied similar reasoning in
Roehl v. State, 253 N.W.2d 210, 217 (Wis. 1977): “We have frequently said that
possible prejudice to a defendant is presumptively erased from the jury’s
collective mind when admonitory instructions have been properly given by the
court.” As Meyer has not demonstrated either presumption is overcome, we
cannot say denial of a mistrial was error.
[10] We noted in Piatek that there is little Indiana authority addressing in depth
when such a presumption is overcome, but we found guidance in decisions
from other states. In Jones v. State, 100 S.W.3d 1, 4-5 (Tex. App. 2002), pet. for
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discretionary review denied, the court held an instruction to disregard is presumed
to cure error except in extreme circumstances where the evidence is “clearly
calculated to inflame the minds of the jury and is of such a character as to
suggest the impossibility of withdrawing the impression produced on their
minds.” Id. Jones did not overcome the presumption because he presented no
cogent argument demonstrating evidence the State elicited regarding a defense
witness’s prior criminal record “was of such a character that it was impossible
for jurors to withdraw the impression created by the evidence from their
minds.” Id. at 5.
[11] Nor has Meyer, as she has not demonstrated that the references to insurance or
Cochran’s debt were “calculated to inflame the minds of the jury” or that the
jury would be unable to put the references to insurance or Cochran’s debt out of
its “collective mind.” The trial court did not abuse its discretion by denying the
motion for a mistrial.
Conclusion
[12] The trial court’s admonitions cured any error in the admission of statements
about insurance or Cochran’s debt and thus it did not abuse its discretion when
it denied Meyer’s motion for mistrial. We accordingly affirm the trial court.
[13] Affirmed.
Baker, J., and Brown, J., concur.
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