Kastin E. Slaybaugh v. State of IndianaKastin E. Slaybaugh v. State of Indiana
Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Statement of the Case
[1] In this case, we are called 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.
[2] Kastin E. Slaybaugh (“Slaybaugh“) appeals his conviction, following a jury trial, for Class B felony rape.1 After trial,
[3] 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.
[4] We affirm.
Issue
Whether the trial court abused its discretion by denying Slaybaugh‘s post-trial motion for mistrial based on alleged juror misconduct.
Facts2
[5] In January 2014, Slaybaugh was staying in the garage of his friend, Jenelle Bader (“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.” (Tr. 73). Bader later went into the garage and observed that K.W. was “[h]eavily” intoxicated. (Tr. 29). K.W. passed out, Bader left the garage, and Slaybaugh then had sex with K.W. When Bader returned to the garage approximately thirty minutеs 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.
[6] 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[.]” (App. 53). 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.
[7] The day after the trial and subsequent days thereafter, Slaybaugh‘s mother, Katina Slaybaugh (“Katina“), emailed Slaybaugh‘s trial counsel, J. Michael Trueblood (“Attorney Trueblood“) and his investigator, Bill Lindblom (“Lindblom“).
[8] Thereafter, on September 4, 2014, Katina sent a letter to Amy Hutchinson (“Attorney 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. (Supp. App. 85). Katina also sent a copy of this letter to the trial judge presiding over Slaybaugh‘s rape case.
[9] On September 15, 2014, the trial court entered an order (“September 15 Order“), directing Attorney Hutchinson and Attorney Trueblood to review Katina‘s letter and file a response with the court within thirty days. On September 17, 2014, Attorney Trueblood responded to the trial court‘s September 15 Order. In his response, Attorney 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 informatiоn 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. (Supp. App. 28). 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. (Supp. App. 28). Attached to the response, Attorney Trueblood submitted copies of the emails between himself and Katina, the Facebook photographs, and information that she had emailed him.
[10] Thereafter, on September 24, 2014, Slaybaugh, represented by Attorney 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.” (Supp. App. 17).3 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 suppоrt 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 Slay-
[11] On September 25, 2014, the trial court 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.5
[12] 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 Fаcebook. (Supp. App. 6). Katina also wrote that she was concerned because her oldest daughter went to school with the Juror from kindergarten to 6th grade.6
[13] On October 9, 2014, the parties conducted a deposition of the Juror. During the deposition, the Juror testified that she had over 1,000 Facebook friends but that she 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. (Supp. Aрp. 12). The Juror also testified that she did not know Stephani or Zach, but she acknowledged that she “could be” friends with Stephani on Facebook. (Supp. App. 13). Additionally, the Juror testified that she did not read all of the posts from her more than 1,000 Facebook friends and that she used Facebook to post on her own profile and to “network” and “post on [her] business page[.]” (Supp. App. 13). 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.7 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.
[14] On October 14, 2014, the State 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 that 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
[15] 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 triаl court to consider Katina‘s October 8 letter and a deposition from Amanda Jasper (Ritchie) (“Amanda“), who went to school with Slaybaugh and who 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 that 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.” (Supp. App. 3). 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.
[16] 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.” (App. 20). Thereafter, the trial court sentenced Slaybaugh to fifteen (15) years in the Department of Correction. Slaybaugh now appeals.
Decision
[17] On appeal, Slaybaugh does 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 does not cite a standard of review for this issue. Instead, he merely challenges the trial court‘s finding that the Juror truthfully stated that she had no knowledge of the victim, K.W., and he asserts that the “Facebook pages negate [the Juror‘s] assertions that she was not familiar with K.W.” (Slaybaugh‘s Br. 5). Relying on Brinkman v. Hovermale, 106 Ind.App. 70, 13 N.E.2d 885 (1938), Slaybaugh contends that the Juror‘s failure to reveal this relationship during voir dire equates to misconduct that will automatically be regarded as prejudicial and entitle him to a new trial.
[18] We agree that, under “certain circumstances, ‘[t]he failure of a juror to disclose a relationship to one of the parties may entitle the prejudiced party to a new trial.‘” Stephenson v. State, 864 N.E.2d 1022, 1055 (Ind.2007) (quoting Godby v. State, 736 N.E.2d 252, 256 (Ind.2000), reh‘g denied) (other citations omitted) (alteration in original), cert. denied. See also Lopez v. State, 527 N.E.2d 1119, 1130 (Ind.1988) (“Generally, proof that a juror was biased against the defendant or lied on voir dire entitles the defendant to a new trial.“). However, “[t]o obtain a new trial based on a claim of juror misconduct, the defendant must demonstrate that the misconduct was gross and likely harmed the defendant.” Stephenson, 864 N.E.2d at 1055. See also Ramirez v. State, 7 N.E.3d 933, 938, 939 (Ind.2014) (referring to the standard of review for juror misconduct as the “probable harm standard” and explaining that a defendant must show that the misconduct was “‘gross and probably harmed’ the defendant“) (quoting Henri v. Curto, 908 N.E.2d 196, 202 (Ind.2009)).8
[19] In this case, we are 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,9 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.
[20] We find guidance, however, from our sister state of Kentucky, which has confronted and addressed this issue of alleged juror misconduct based on a juror‘s list of Facebook friends. In Sluss v. Commonwealth, 381 S.W.3d 215 (Ky.2012), the defendant, after smoking marijuana and taking multiple prescription drugs, crashed his pickup truck into an SUV, killing an eleven-year-old girl and injuring three others. Sluss, 381 S.W.3d at 217. The case was the subject of much publicity, both in the news outlets and on social media websites such as Facebook. Id. at 218. The trial court, therefore, “conducted individual voir dire about the publicity surrounding the case in addition to the usual general voir dire.” Id. at 221. During the general voir dire, the trial court asked the jurors if they knew the victim or the victim‘s family. Id. During the individual voir dire, the trial court asked the jurors if they were Facebook users or had seen anything on Facebook about the case, but it did not directly ask them if they were Facebook friends with the victim‘s mother. Id. A jury convicted the defendant of murder and other offenses, and the trial court sentenced him to life in prison. Id.
[21] After trial, the defendant filed a motion for a new trial, arguing that there was juror misconduct based on two of the jurors’ Facebook friend statuses. Id. at 220-21. He alleged that jury foreperson and another juror may have been friends with the victim‘s mother, and he prеsented screenshots of a Facebook page to show that two people with the same names as the two jurors were among the victim‘s mother‘s 2,000 Facebook friends. Id. at 221. He also presented screenshots of the victim‘s mother‘s Facebook page, which contained information about her child‘s death. Id. The record also showed that these jurors, when asked during voir dire, stated that they did not know the victim or her family or the circumstances of the case. Id. Additionally, one of the jurors had acknowledged during voir dire that she had a Facebook account, while the other denied that she did. Id. The trial court, without holding a hearing or questioning the jurors, denied the defendant‘s motion. Id.
Websites such as Facebook do require a member to affirmatively approve or deny requests to enter into a “friendship.” [ ] Therefore, in order for the jurors to become “friends” with [the victim‘s mother], either [the victim‘s mother] would have been required to approve friendship requests from the jurors, or the jurors would have been required to approve requests from [the victim‘s mother]. In either situation, the “friendship” that the jurors had with [the victim‘s mother] was not happenstance; there was an affirmative act to connect the parties.
But “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 aсtual connection, such as celebrities and politicians. See, e.g., Robbie Woliver, Lady Gaga and her 10 million Facebook friends: celebrity worship syndrome, Psychology Today (July 3, 2010), http://www.psychologytoday.com/blog/alphabet-kids/201007/lady-gaga-and-her-10-million-facebook-friends-celebrity-worship-syndrome (noting that the singer Lady Gaga has “10 million Facebook friends [who] aren‘t really her friends“).[ ] Thus, a Facebook member may be “friends” with someone in a strictly artificial sense.
[23] Id. at 222-23 (footnotes omitted). Based on this reasoning, the Sluss Court held that “a juror who is a ‘Faceboоk friend’ with a family member of a victim, standing alone, is arguably not enough evidence to presume juror bias sufficient to require a new trial.” Id. at 223. It explained that “[a]s with every other instance where a juror knows or is acquainted with someone closely tied to a case, it is the extent of the interaction and the scope of the relationship that is the relevant inquiry.” Id. The Court, however, remanded the case to the trial court “for the limited purpose of conducting a hearing” to determine if the jurors’ voir dire аnswers were false and whether they should have been struck for cause. Id. at 229.
[24] Shortly after Sluss, the Kentucky Supreme Court again addressed the issue of whether a juror‘s Facebook friend status with a victim‘s relative entitled the defendant to a new trial. In McGaha v. Commonwealth, 414 S.W.3d 1 (Ky.2013), as modified (Sept. 26, 2013), the defendant filed a post-trial motion, asserting that a juror‘s failure to disclose her Facebook friend status with the victim‘s wife constituted juror misconduct and entitled him to
[25] We now turn back to addressing the issue in this appeal: whether the Juror‘s failure to disclose during voir dire that the victim‘s sibling was among her expansive list of Facebook friends constitutes juror misconduct that warrants a new trial. Our task of deciding the issue is made slightly more difficult because the voir dire questioning was neither transcribed nor included in the record on appeal. Nevertheless, the Juror‘s deposition reveals that, during voir dire, when asked if she knew any of the witnesses, including K.W., she stated that she did not. Because 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.10 These instructions reveal that the trial court instructed the jurors that if, at any time during the trial, they realized that 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.” (Preliminary Instruction 1.27). 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.” (Preliminary Instruction 1.01).
[26] 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 Slay-
[27] Slaybaugh merely suggests that the evidence reviewed by the trial court—specifically, the Facebook pages submitted with his motion—support a decision opposite that of the trial court. Slaybaugh‘s argument that the trial court abused its discretion by finding that the Juror was truthful during voir dire is nothing more than an invitation to reweigh the evidence and the court‘s credibility determination, which we will not do. Slaybaugh has failed to meet his burden of showing juror misconduct. Indeed, he has failed to show that there was misconduct, let alone gross misconduct. Dickenson v. State, 732 N.E.2d 238, 241 (Ind.Ct.App.2000) (explaining that it is “misconduct for a juror to make false statements in response to questions on voir dire examination“). Further, he would not be entitled to a new trial because he made no showing of likely or probable harm. See, e.g., Stephenson, 864 N.E.2d at 1055 (holding that a juror‘s failure to disclose that he knew the victim‘s sister, who was a witness at trial and was the Sunday school teacher of the juror‘s children, did not entitle the defendant to a new trial because the defendant had failed to рresent “specific evidence” that the juror was biased or that the juror‘s “nondisclosure of this casual connection” had any effect on the juror‘s performance). Accordingly, we affirm the trial court‘s denial of Slaybaugh‘s motion for mistrial based on juror misconduct.
[28] Affirmed.
VAIDIK, C.J., and ROBB, J., concur.