                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                             May 31 2012, 8:30 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                        CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

MARK SMALL                                           GREGORY F. ZOELLER
Indianapolis, Indiana                                Attorney General of Indiana

                                                     CYNTHIA L. PLOUGHE
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

SUSAN GRUND,                                         )
                                                     )
       Appellant-Petitioner,                         )
                                                     )
               vs.                                   )    No. 52A02-1108-PC-791
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Respondent.                          )


                         APPEAL FROM THE MIAMI CIRCUIT COURT
                        The Honorable William C. Menges, Jr., Special Judge
                                  Cause No. 52C01-0609-PC-2


                                           May 31, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
       Appellant-Petitioner Susan Grund appeals from the post-conviction court’s denial of

her petition for post-conviction relief (“PCR”). As restated, Grund argues that (1) the

doctrine of judicial estoppel prevents the State from making its merits argument in this post-

conviction proceeding and (2) her due process rights to a fair trial were violated when the

prosecutor spoke with some of the jurors from her first trial. We affirm.

                         FACTS AND PROCEDURAL HISTORY

       The Indiana Supreme Court related the facts underlying this case in its disposition of

Grund’s direct appeal:

               In the spring and summer of 1992, Susan and Jim Grund were
       experiencing marital problems. They were arguing frequently, and they were
       seeing a marriage counselor. Although there was some talk of divorce, this
       was not what Susan wanted. Because her husband was a prominent attorney,
       she feared losing custody of the children, and she feared losing Jim’s financial
       support. Thus, Susan needed an alternative solution.
               On the afternoon of July 4, 1992, Susan arrived unexpectedly at the
       home of David Grund, the victim’s son by a previous marriage. She had been
       at the county fairgrounds, and as she returned home, she stopped in, claiming
       to have found a new shortcut home from the fairgrounds. Defendant
       questioned David about a handgun that he had recently purchased. David
       showed her where he kept his 9 mm semi-automatic weapon, and allowed her
       to handle it. Before leaving, defendant noticed that the storm door was broken
       and was secured by a shoestring. Defendant also inquired about where David
       and his girlfriend, Suzane, kept their rottweiler puppy when no one was at
       home.
               Around 2:00 p.m. that day, David and Suzane attended a barbecue at the
       home of Suzane’s parents. Defendant and her husband, along with their two
       children, thirteen-year-old Jacob and seven-year-old Tanelle, arrived around
       4:00 p.m. and stayed until around 6:00 p.m. Shortly before dark, defendant
       telephoned Suzane’s parents to find out if David and Suzane planned to attend
       the fireworks display. She was told that David was not feeling well, so they
       would be staying at Suzane’s parents’ home for a while longer, then they
       would return home. When David and Suzane arrived home around 10:30 p.m.,
       they found that their home had been burglarized. Although cash and jewelry
       were in plain sight, the only thing missing was David’s gun. Meanwhile,

                                              2
Susan had taken her two children and several other boys to see the fireworks.
Unfortunately, when they got there, Susan was unable to find a place to park.
She dropped off the boys and kept Tanelle with her. They rendezvoused at the
ice cream stand shortly after the fireworks were over.
        On August 3, 1992, defendant arranged for Jacob to spend the night
with his cousin, Steven, in the newly acquired family camper. She also
arranged for Steven’s sister, Andrea, to spend the night at her home with
Tanelle. At approximately 10:00 p.m., she left the two boys at the
campground. Now alone, defendant went to obtain beverages for the boys.
About an hour later, she picked up the girls at her mother’s house, and the
three arrived at the camper around 11:15 p.m. She gave the beverages to the
boys and took the girls home.
        Just prior to midnight, defendant called the Miami County emergency
phone number to request an ambulance. She told the dispatcher that she had
found her husband lying on the couch in the bedroom with blood coming out
of his eyes and mouth. Jim Grund was already dead when the emergency
workers arrived. The cause of death was a single gunshot wound to the head.
Although there were no signs of struggle, there were two open suitcases on the
floor with women’s clothing strewn around them, and several dresser drawers
were open with items pulled out. There were no signs of forced entry.
        Detectives found a spent shell casing on the floor and recovered a spent
bullet from the couch in the area where Jim’s head had been. Both appeared to
be from a 9 mm semi-automatic handgun. The detectives were aware that a
similar weapon recently had been stolen from David’s house. The next
morning, they asked David for locations where he might have fired the
weapon. As a result of this questioning, police recovered a bullet from a
telephone pole which was located across the street from David’s former
residence. This bullet and the one recovered from the murder scene had been
fired from the same gun.
        Approximately two weeks after the murder, Susan, Jacob, Tanelle, and
Susan’s mother moved from Peru to Vincennes. On September 3, a former
neighbor informed Susan that police were searching her home in Peru. That
night, she met her sister, Darlene Worden, at a McDonald’s near Indianapolis.
As the two women drove to Peru, Susan confessed that she had killed her
husband. According to defendant, it was supposed to be a double suicide, but
she had been unable to kill herself. She claimed that instead of shooting
himself, Jim made her shoot him so that his will would remain effective.
        When Susan and her sister arrived at Susan’s Peru home, defendant
went directly to the laundry room, and told Darlene that “it” was still there.
When they left the house, Susan was carrying two teddy bears, one of which
had been ripped open across the back. She later admitted that she removed the
gun from the house by hiding it in one of the bears. Susan then returned to

                                       3
       Vincennes. Sometime later, Darlene’s husband brought a bag of cement to her
       in Vincennes.
               Around the beginning of November, Darlene happened to see the
       detective who was investigating the murder. Darlene believed that her mother
       was aware of Susan’s actions, and she feared repercussions, both for herself
       and for her mother. She also believed that the gun was in Susan’s home, and
       she was concerned for the children’s safety. As a result, Darlene told the
       detective about Susan’s confession. Susan was arrested on November 4, 1992.
               The next summer, when Susan’s mother was planning to move back to
       Peru, she found a family heirloom, a large copper kettle, in the attic. It was
       filled with cement. She took it back to Peru and gave it to the police. When
       police broke the cement, they found a 9 mm semi-automatic weapon, the same
       gun which had been stolen from David’s house and used to kill Jim Grund.

Grund v. State, 671 N.E.2d 411, 414-15 (Ind. 1996).

       The State charged Grund with murder, a felony, and her first trial began on September

22, 1993. On October 1, 1993, the trial was declared a mistrial when the jury was unable to

reach a verdict. Following the mistrial, Miami County Prosecutor Wilbur Siders invited all

of the members of the jury to discuss the trial but did not invite Grund’s trial counsel to

participate or advise counsel of his intent to conduct the meeting. Prosecutor Siders

indicated that only those who had voted guilty attended the meeting, nothing of value was

gleaned from it, and nothing he learned from it shaped his approach in the second trial. On

March 16, 1994, a second jury found Grund guilty as charged, and the trial court later

sentenced her to sixty years of incarceration. On direct appeal, the Indiana Supreme Court

affirmed Grund’s conviction and sentence.

       On August 23, 2006, Grund filed a petition for post-conviction relief (“PCR”). On

June 15, 2008, Grund filed a motion to call a member of the second jury as a witness, a

motion related to her claim that the juror had been improperly seated. The State opposed the


                                             4
motion to call the juror as a witness, and, on August 25, 2008, the post-conviction court

denied it. On March 24, 2009, Grund filed an amended PCR petition, adding the claimed

ground of relief that her due process rights had been violated by Prosecutor Siders’s meeting

with jurors from her first trial. On April 30, 2010, the post-conviction court held a hearing

on Grund’s PCR petition. On August 15, 2011, the post-conviction court denied Grund’s

PCR petition, concluding that the meeting with the jurors from her first trial was not

improper, the State had been prejudiced by Grund’s unreasonable delay in filing her PCR

petition, and the doctrine of judicial estoppel did not bar the State from arguing that its

meeting jurors from the first trial was proper.

                                      DISCUSSION

                                 PCR Standard of Review

       Our standard for reviewing the denial of a PCR petition is well-settled:

               In reviewing the judgment of a post-conviction court, appellate courts
       consider only the evidence and reasonable inferences supporting its judgment.
       The post-conviction court is the sole judge of the evidence and the credibility
       of the witnesses. To prevail on appeal from denial of post-conviction relief,
       the petitioner must show that the evidence as a whole leads unerringly and
       unmistakably to a conclusion opposite to that reached by the post-conviction
       court.… Only where the evidence is without conflict and leads to but one
       conclusion, and the post-conviction court has reached the opposite conclusion,
       will its findings or conclusions be disturbed as being contrary to law.

Hall v. State, 849 N.E.2d 466, 468, 469 (Ind. 2006) (internal citations and quotations

omitted).

  I. Whether the State’s Argument is Barred by the Doctrine of Judicial Estoppel

       Grund argues that the doctrine of judicial estoppel should bar the State from being


                                              5
able to argue in this post-conviction proceeding that its meeting with jurors from the first trial

was proper when it opposed her motion to call a juror from the second trial as a witness.

“[J]udicial estoppel prevents a party from asserting a position in a legal proceeding

inconsistent with one previously asserted.” Wabash Grain, Inc. v. Smith, 700 N.E.2d 234,

237 (Ind. Ct. App. 1998), trans. denied.

                Judicial estoppel is not intended to eliminate all inconsistencies; rather,
       it is designed to prevent litigants from playing “fast and loose” with the courts.
       [Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 358 (3rd
       Cir. 1996).] The primary purpose of judicial estoppel is not to protect litigants
       but to protect the integrity of the judiciary. Johnson v. Trust Co. Bank, 223
       Ga. App. 650, 478 S.E.2d 629, 630 (1996), cert. denied.
                The basic principle of judicial estoppel is that, absent a good
       explanation, a party should not be permitted to gain an advantage by litigating
       on one theory and then pursue an incompatible theory in subsequent litigation.
       Id. Judicial estoppel only applies to intentional misrepresentation, so the
       dispositive issue supporting the application of judicial estoppel is the bad-faith
       intent of the litigant subject to estoppel. Burnes v. Pemco Aeroplex Inc., 291
       F.3d 1282, 1286-87 (11th Cir.2002).

Robson v. Tx. E. Corp., 833 N.E.2d 461, 466 (Ind. Ct. App. 2005), trans. denied.

       The threshold question, then, is whether the State’s prior position was inconsistent

with its current argument, and we conclude that it was not. As the State points out, the

purposes for the communication, and the contexts in which they were to occur, were

completely different. In seeking to call a former juror from her second trial as a witness,

Grund was attempting to impeach the juror’s guilty verdict, which is a legitimately

objectionable practice. “It has long been the general rule in this state that the verdict of a jury

may not be impeached by the testimony or affidavit of a juror.” Johnson v. State, 173 Ind.

App. 191, 197, 362 N.E.2d 1185, 1188 (1977). On the other hand, the State attempts in this


                                                6
appeal to defend its communication with members of a completely different jury who reached

no verdict to impeach. Whatever the merits of these positions may be, they are in no way

inconsistent. The State is not barred by the doctrine of judicial estoppel from arguing that its

communication with jurors from Grund’s first trial was proper.

                         II. Whether the State’s Communication with
                        Jurors from Grund’s First Trial was Improper1

                               A. Rule of Professional Conduct 3.5

        Grund contends that Indiana Rules of Professional Conduct prohibited the sort of

communication Prosecutor Siders had with members of the first jury. At the time of Grund’s

first trial, Rule of Professional Conduct 3.5 provided:

        A lawyer shall not:
        (a) seek to influence a judge, juror, prospective juror or other official by
        means prohibited by law;
        (b) communicate ex parte with such person except as permitted by law; or
        (c) engage in conduct intended to disrupt a tribunal.

Ind. Professional Conduct Rule 3.5 (1993).

        By its plain language, Rule 3.5 did not apply to the conduct complained of by Grund.

Rule 3.5 applied to jurors or prospective jurors, not discharged jurors. As we have noted

regarding Rule 3.5 as it existed at the time of Grund’s first trial, “the prohibition against ex

parte communication with a “juror” or “prospective juror” does not extend to a person who


        1
           The State also argues that Grund should not be able to bring this freestanding claim in a post-
conviction proceeding and that the post-conviction court’s conclusion that her claim should be barred by laches
should be affirmed. Keeping in mind our preference for deciding claims on the merits, we choose to reach the
merits of Grund’s claim.




                                                      7
previously served as a juror.” Koo v. State, 640 N.E.2d 95, 104 n.6 (Ind. Ct. App. 1994),

trans. denied. “It is axiomatic that once a person has been excused from jury duty, he or she

is no longer a juror or prospective juror as those terms are used in the Rules.” Id. The Rules

of Professional Conduct did not prevent Prosecutor Siders from contacting the jurors from

Grund’s first trial afterward.2

                                        B. Indiana Case Law

       Grund also claims that Indiana case law supports her argument. We have held,

however, that “[p]ost trial jury contact by attorneys representing either side in litigation is a

common practice in this State and largely rests within the trial court’s broad discretion.”

Koo, 640 N.E.2d at 105. “Such contact should not be discouraged where it is used as a

learning tool to assist counsel in subsequent cases.” Id. There is no indication that

Prosecutor Siders’s contact with former jurors was ever intended to be used as anything other

than a learning tool. Prosecutor Siders testified that he “wanted to know how they perceived

the evidence, what they were missing, what their hangups were, and any suggestions they

had[.]” Appellant’s App. pp. 97-98. We see nothing in the record, and Grund points to


       2
           Rule of Professional Conduct 3.5 currently reads as follows:

       A lawyer shall not:
       (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by
       law;
       (b) communicate ex parte with such a person during the proceeding unless authorized to do so
       by law or court order;
       (c) communicate with a juror or prospective juror after discharge of the jury if:
            (1) the communication is prohibited by law or court order;
            (2) the juror has made known to the lawyer a desire not to communicate; or
            (3) the communication involves misrepresentation, coercion, duress or harassment.
       (d) engage in conduct intended to disrupt a tribunal.


                                                      8
nothing, that would take this case outside the general rule expressed in Koo.

       All of the Indiana cases cited by Grund are easily distinguished. The Indiana Supreme

Court has stated that “[p]ost-trial investigations of jurors should be the exception, not the

rule.” State v. Dye, 784 N.E.2d 469, 477 (Ind. 2003). The Indiana Supreme Court has also

stated that “[w]hile impermissible harm can accrue to defendants when juries are improperly

influenced by extraneous information…, we agree with the post-conviction court that

protection of the jurors’ interests in privacy and repose is ample reason to require some hint

of a problem before granting a motion to disclose the jurors’ names.” Matheney v. State, 688

N.E.2d 883, 894 (Ind. 1997). Dye and Matheney, however, were both cases in which the

defendant sought to communicate with a juror in order to impeach a guilty verdict based on

allegations of jury misconduct. As previously mentioned, “[i]t has long been the general rule

in this state that the verdict of a jury may not be impeached by the testimony or affidavit of a

juror.” Johnson, 173 Ind. App. at 197, 362 N.E.2d at 1188. Prosecutor Siders was not

seeking to impeach a verdict, as none had been rendered. Dye and Matheney are inapposite.

       Grund also points to Matter of Berning, 468 N.E.2d 843 (Ind. 1984), a disciplinary

action in which a prosecutor was publicly reprimanded for sending a letter to jurors who had

acquitted the defendant in a domestic case that read, in part,

       Needless to say, everyone involved in the prosecution of the case was terribly
       upset and shocked at the verdict of not guilty. Marilyn Martin had the difficult
       task of trying to explain to her children why Mr. Martin was able to get away
       with such an act without being punished for it. The victim was in tears
       because the finding of not guilty meant to her that the jury felt that she was a
       liar. The mother of the victim was in tears for the same reason. Even Steve
       Mullins was visibly upset by the finding of not guilty, and he is, in my opinion,
       not the type to let adverse decisions affect him emotionally. However, my

                                               9
       purpose in writing is not to ‘cry over spilled milk’ because we lost the
       decision.
              What I would like to do is get some insight from you as to how I should
       handle domestic violence cases. Our office has been criticized in the past for
       not doing more to help victims of domestic violence and, in particular, women
       who are beaten by their husbands. In the Martin case, we had a situation that
       stemmed from an ex-husband and ex-wife situation. The husband has been
       violent toward Mrs. Martin in the past, and, I’m afraid, will be violent toward
       her in the future. With three eyewitnesses to the event, the State had the
       absolute best possible case it could ever have. We seldom, if ever, have a
       witness to this type of offense other than the victim herself. Therefore, the
       message that I get from your decision as a juror is that I, as the prosecutor in
       this county, should not file domestic-type crimes at all.
              I would really appreciate your contacting me in order to speak with me
       on the telephone or come in to see me in person. The next time that I have a
       woman in my office who claims to be the victim of being battered by her
       husband, I will advise her that I will not file the charge because of my past
       experiences in these types of cases. One of those cases is the Martin case
       where the State had three eyewitnesses to the battery and yet the defendant was
       found not guilty. If I am interpreting your decision incorrectly or I am getting
       the wrong message from your decision, I would really appreciate hearing that
       from you.

Id. at 844. The letter produced reactions “include[ing] irritation, feelings of being harassed,

anger, displeasure and embarrassment [and s]ome felt the letter would influence their future

jury service.” Id. at 844. The problem in Berning was not that the post-trial communication

occurred, it was that the content of the communication was improper. Here, there is not the

slightest indication in the record of criticism, coercion, harassment, or other impropriety on

Prosecutor Siders’s part. Grund’s reliance on Berning is unavailing.

       We acknowledge that some other jurisdictions seem to disfavor post-trial contact

between attorneys and jurors in general. See, e.g., U.S. v. Kepreos, 759 F.2d 961, 967 (1st

Cir. 1985); U.S. v. Moten, 582 F.2d 654, 665-66 (2nd Cir. 1978). It has been observed,

however, that

                                              10
              [c]ourts which have upheld the power of a trial court to prohibit
       posttrial contact between jurors and attorneys have done so in order to (1)
       avoid harassment of jurors, thereby encouraging freedom of discussion in the
       jury room, (2) reduce the number of meritless posttrial motions, (3) eliminate a
       significant source of jury tampering, and (4) increase the certainty of verdicts.

Dale R. Agthe, J.D., Annotation, Propriety of attorney’s communication with jurors after

trial, 19 A.L.R.4th 1209 (1983). While we concede that unrestricted communication

between discharged jurors and counsel could lead to any or all of the evils listed above, none

is implicated in this case. We decline the invitation to adopt a broad policy disfavoring post-

trial contact between jurors and attorneys under such circumstances. We conclude that

Grund has failed to establish that there was anything improper about Prosecutor Siders’s

post-trial contact with jurors from her first trial.

                                        CONCLUSION

       The State is not barred by the doctrine of judicial estoppel from arguing in this post-

conviction proceeding that the State’s contact with jurors from Grund’s first trial was proper.

Moreover, we conclude that Grund has failed to establish that there was anything improper

about the State’s contact with jurors in this case. Grund has failed to establish that she is

entitled to post-conviction relief.

       The judgment of the post-conviction court is affirmed.

VAIDIK, J., and CRONE, J., concur.




                                               11
