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

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. Court of Appeals of Indiana | Memorandum Decision 27A04-1510-CT-1664 | May 25, 2016 Page 1 of 7 [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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