This post examines a recent opinion from the Indiana Court of Appeals: Slaybaugh v. State, 2015 WL 5612205 (2015). The court begins by explaining that it was
to review a novel issue in Indiana -- whether a juror, who was apparently not asked about her Facebook usage or friendships, engaged in juror misconduct when she did not disclose during voir dire that a witness's relative was among her expansive list of Facebook friends.
Slaybaugh v. State, supra. You can, if you are interested, read more about how Slaybaugh’s prosecution arose and how he came to be convicted in the news stories you can find here and here.
The Court of Appeals begins its analysis of Slaybaugh’s appeal by explaining that
Kastin E. Slaybaugh appeals his conviction, following a jury trial, for Class B felony rape. After trial, but before sentencing, Slaybaugh filed a motion for mistrial based on alleged juror misconduct. Specifically, Slaybaugh alleged that one of the jurors may have lied during voir dire about not knowing the victim, and he based his allegation on the fact that the victim's sister was one of the juror's Facebook friends. Upon the trial court's order, the parties conducted a deposition of the juror, who testified that she did not recognize the victim's name during voir dire, did not recognize her when she testified, and did not know the victim. The juror also testified that she had more than 1,000 Facebook friends and that she did not personally know all of her Facebook friends.
After holding a hearing and considering the juror's deposition as well as Facebook materials and affidavits submitted, the trial court determined that the juror was truthful in her assertion that she had no knowledge of the victim or her family and denied Slaybaugh's motion for mistrial.
On appeal, Slaybaugh challenges the trial court's denial of his post-trial motion for mistrial, claiming that the trial court erred by determining that the juror truthfully stated that she did not know the victim. Concluding that Slaybaugh failed to show that the juror engaged in misconduct (let alone gross misconduct that likely harmed him) and that his challenge on appeal is nothing more than a request to reweigh the trial court's credibility determination, we affirm the trial court's denial of Slaybaugh's motion for mistrial.
Slaybaugh v. State, supra. Slaybaugh was convicted of violating Indiana Code § 35–42–4–1(a). Slaybaugh v. State, supra.
The court then took up the issue Slaybaugh raised on appeal, i.e., “[w]hether the trial court abused its discretion by denying Slaybaugh's post-trial motion for mistrial based on alleged juror misconduct.” Slaybaugh v. State, supra. It began its analysis by explaining how the prosecution arose:
In January 2014, Slaybaugh was staying in the garage of his friend, Jenelle Bader. . . . On January 16, 2014, Slaybaugh and K.W. were hanging out in the garage. K.W. had known Slaybaugh for approximately seventeen years and had been childhood friends with his younger sister. During that evening, Slaybaugh and K.W. `drank vodka’ and `smoked some spice.’ . . . Bader later went into the garage and observed that K.W. was `[h]eavily’ intoxicated. . . . K.W. passed out, Bader left the garage, and Slaybaugh then had sex with K.W. When Bader returned to the garage approximately thirty minutes later, she found Slaybaugh, naked and sitting at the end of a sofa with a blanket around him. K.W. was unresponsive on the sofa with her pants off and her knees up by her shoulders. Bader then called the police.
The State charged Slaybaugh with Class B felony rape, specifically alleging that Slaybaugh had sexual intercourse with K.W. when she was `unaware that the sexual intercourse was occurring[.]’ . . . The trial court held a jury trial on August 26–27, 2014. During the trial, K.W. testified that she remembered drinking vodka and smoking spice with Slaybaugh, but she did not remember anything else until she woke up in the hospital. The jury found Slaybaugh guilty as charged, and the trial court entered judgment of conviction.
Slaybaugh v. State, supra.
The court then explained how the issue Slaybaugh relied on in his appeal came to light:
The day after the trial and subsequent days thereafter, Slaybaugh's mother, Katina Slaybaugh emailed Slaybaugh's trial counsel, J. Michael Trueblood (`Trueblood’) and his investigator, Bill Tindblom. . . . In her emails, Katina expressed her concern that one of the jurors, Juror # 2767 or Juror K.A. (`the Juror’), may have lied during voir dire about not knowing the victim, K.W. Katina's allegation was based on a search of Slaybaugh's Facebook profile and his list of Facebook `friends.’ Specifically, Katina stated that the Juror was a Facebook friend of one of Slaybaugh's Facebook friends, Zach Anderson, whom she believed to be a step-sibling of K.W. Katina also alleged that the Juror was a Facebook friend of Stephani Anderson, who was a step-sibling of K.W. Katina also emailed screenshots from the Facebook profiles of the Juror, Zach, and Stephani. Tindblom responded to Katina and informed her that Attorney Trueblood would look into the information.
Thereafter, on September 4, 2014, Katina sent a letter to Amy Hutchinson (`Hutchinson’), who was Slaybaugh's defense counsel from another offense. In this letter, Katina complained about Attorney Trueblood's representation of Slaybaugh at trial, and she stated that she thought that the Juror was friends with or related to K.W.'s siblings and that the Juror had committed `possible perjury[ ]’ by claiming that she did not know K.W. . . . Katina also sent a copy of this letter to the trial judge presiding over Slaybaugh's rape case.
Slaybaugh v. State, supra.
The next development came on September 15, 2015, when the trial judge entered an
order (`September 15 Order’), directing Hutchinson and Trueblood to review Katina's letter and file a response with the court within thirty days. On September 17, 2014, Trueblood responded to the trial court's September 15 Order. In his response, Trueblood stated that he had reviewed the emails and Facebook information that Katina had submitted to him and had `determined that there was insufficient credible information to raise an allegation of Juror Misconduct’ because the Juror `swore no knowledge’ of K.W. or any individual identified as a potential witness during voir dire. . . . He also pointed out that the Juror `did not indicate any knowledge’ of K.W. when she took the witness stand and testified at trial. . . . Attached to the response, Trueblood submitted copies of the emails between himself and Katina, the Facebook photographs, and information that she had emailed him.
Thereafter, on September 24, 2014, Slaybaugh, represented by Hutchinson, filed a Motion for a Mistrial Based on Juror Misconduct and to Set Aside the Verdict (`motion for mistrial’). In this motion, `Slaybaugh and his family . . . respectfully move[d] th[e] Court to review the issue of juror misconduct, to conduct a hearing, and to declare a mistrial and set aside the verdict and grant the defendant a new trial.’ . . . The crux of Slaybaugh's motion for mistrial was that the Juror had committed misconduct because she did not reveal during voir dire or at trial that she knew K.W. In support of his motion, Slaybaugh attached the following to his motion: (1) forty-seven pages of screenshots from the Facebook pages of K.W., the Juror, Zach, and Stephani; (2) affidavits from Slaybaugh, his mother, his sister, and a fellow inmate; and (3) a copy of Trueblood's response to the trial court's September 15 Order and the attachments to that response.
Slaybaugh v. State, supra.
Then, on September 25, 2014, the trial judge who had the case held a hearing on
Slaybaugh's motion for mistrial. Thereafter, the trial court ordered the parties to conduct a deposition of the Juror. After the hearing, the trial court, on its own motion, found that Slaybaugh's motion for mistrial contained confidential information and sealed the relevant information. The trial court, however, did not seal the actual motion; submitted legal authority; affidavits from Slaybaugh's sister, mother, and fellow jail inmate; and Attorney Trueblood's response.
On October 8, 2014, Katina sent a letter to the trial court, stating that she was concerned because the Juror was in both Slaybaugh's `circle of friends’ and K.W.'s `circle of friends’ on Facebook. . . . Katina also wrote that she was concerned because her oldest daughter went to school with the Juror from kindergarten to 6th grade. . . .
Slaybaugh v. State, supra.
The next development was that on October 9, 2014, the parties to the litigation
conducted a deposition of the Juror. During the deposition, the Juror testified that she had over 1,000 Facebook friends but that did not personally know all of these people. She testified that she was a realtor and that she had `friended’ most of her 1,000 plus Facebook friends for `networking’ purposes. . . . The Juror also testified that she did not know Stephani or Zach, but she acknowledged that she `could be’ friends with Stephani on Facebook. . . . Additionally, the Juror testified that she did not read all of the posts from her more than 1,000 Facebook friends and she used Facebook to post on her own profile and to `network’ and `post on [her] business page[.]’ . . . The Juror testified that she did not know K.W. before or during trial. She confirmed that she had told the trial court during voir dire that she did not know K.W. She also testified that she did not know K.W. or recognize her when she testified at trial. Finally, the Juror, who went to Lafayette Jefferson High School, stated that she did not know Slaybaugh, who apparently was in a younger class at the high school, and that she had not heard about him.
Slaybaugh v. State, supra.
Five days later, on October 14, the prosecution filed a response to Slaybaugh’s motion
for mistrial and attached a copy of the Juror's deposition. In its response, the State asserted that `the juror has adamantly stated she did not know the victim prior to the trial[ ] and does not know of any connection to her whatsoever[,]’ and `the juror has now sworn twice under oath that she has no knowledge of the victim in this case.’ . . . The State also argued that the trial court should deny Slaybaugh's motion because he had failed to meet his `burden of proving that jury misconduct occurred, that it was a gross violation, and that it probably harmed’ him. . . .
On October 16, 2014, the trial court held a second hearing on Slaybaugh's motion for mistrial. That same day, Slaybaugh filed a motion, requesting the trial court to consider Katina's October 8 letter and a deposition from Amanda Jasper (`Amanda’), who went to school with Slaybaugh and was a Facebook friend of Slaybaugh, K.W., K.W.'s siblings, and the Juror. In this deposition, Amanda testified that, before trial, she saw K.W. and her siblings made `very vague’ comments with `no detail about anything’ that `it was going to be a long road’ and that `they were going to make sure that what happened to her was taken care of.’. . . Amanda also testified that she read Facebook posts about a warrant for Slaybaugh when he was a fugitive and that he was going to trial. However, she did not see whether the Juror had ever commented on the posts.
Thereafter, the trial court denied Slaybaugh's motion for mistrial, finding that `the juror in question truthfully stated that she had no knowledge of the defendant, the victim or the family of either.’ . . . Thereafter, the trial court sentenced Slaybaugh to fifteen years in the Department of Correction.
Slaybaugh v. State, supra.
The Court of Appeals began its analysis of Slaybaugh’s appeal by explaining that he did not “challenge the sufficiency of the evidence supporting his conviction or the propriety of his sentence. Slaybaugh's sole issue is that the trial court abused its discretion by denying his post-trial motion for mistrial based on alleged juror misconduct.” Slaybaugh v. State, supra. It went on to explain that, in this case, it was being
called upon to review an issue of first impression in Indiana—whether a juror, who was apparently not asked about her Facebook usage or friendships, engaged in juror misconduct when she did not disclose during voir dire that the victim's relative, who had a different last name than the victim, was among her expansive list of Facebook friends. Given the prevalence of Facebook and the sheer number of people who use it, it should come as no surprise that a juror's Facebook use would be at the heart of an appeal. While we have numerous cases—both criminal and civil—in which a person's Facebook use (including posts or comments made thereon) has been discussed in terms of an evidentiary issue or just comprising part of the underlying facts, we have not had the opportunity to review the issue at hand.
Slaybaugh v. State, supra.
The Court of Appeals, though, found guidance in a decision from the Kentucky Supreme Court: Sluss v. Commonwealth, 381 S.W.3d 215 (2012). Slaybaugh v. State, supra.
The issue in Sluss was whether two jurors, who were Facebook friends with the mother of the victim in that case, committed juror misconduct did not inform the trial judge that they were Facebook friends with her. Slaybaugh v. State, supra. Like the juror in this case, they told the trial judge they did not know the victim or her family. Slaybaugh v. State, supra. The Kentucky Supreme Court analyzed the juror misconduct issue and found that
`friendships’ on Facebook and other similar social networking websites do not necessarily carry the same weight as true friendships or relationships in the community, which are generally the concern during voir dire. The degree of relationship between Facebook `friends’ varies greatly, from passing acquaintanceships and distant relatives to close friends and family. The mere status of being a `friend’ on Facebook does not reflect this nuance and fails to reveal where in the spectrum of acquaintanceship the relationship actually falls. Facebook allows only one binary choice between two individuals where they either are `friends’ or are not `friends,’ with no status in between.
Indeed, some people have thousands of Facebook `friends,’ as was the case with [the victim's mother], which suggests that many of those relationships are at most passing acquaintanceships. This is further complicated by the fact that a person can become `friends' with people to whom the person has no actual connection. . . . Thus, a Facebook member may be `friends’ with someone in a strictly artificial sense.
Sluss v. Commonwealth, supra.
The Court of Appeals therefore found that
[b]ecause the voir dire process was not transcribed, we do not know for certain if the parties or the trial court questioned the jurors about their Facebook or other social media relationships with any of the potential witnesses. It appears that they did not. The trial court's preliminary instructions, however, have been included in the record. These instructions reveal that the trial court instructed the jurors that if, at any time during the trial, they realized they knew something about the case or knew a witness or the defendant, then they were required to `inform the bailiff privately at [the juror's] earliest opportunity.’ . . . In regard to the use of social media sites, such as Facebook, the trial court instructed the jurors that they were not to talk to anyone about the case, including `posting information, text messaging, email, Internet chat rooms, blogs, or social websites.’ . . .
Here, Slaybaugh alleged that the Juror had engaged in juror misconduct because she did not reveal during voir dire or at trial that she knew the victim. Upon receiving Slaybaugh's motion containing this allegation, the trial court scheduled a hearing and ordered the parties to depose the Juror. The trial court reviewed all supporting documents attached to Slaybaugh's motion and the State's response and determined that the Juror `truthfully stated that she had no knowledge of the defendant, the victim or the family of either.’
Slaybaugh v. State, supra. The court therefore “affirm[ed] the trial court's denial of Slaybaugh's motion for mistrial based on juror misconduct.” Slaybaugh v. State, supra.