Oswalt v. State

• Decision Date: 22 October 2014
• Docket Number: No. 35S02–1401–CR–10.,35S02–1401–CR–10.
• Citation: 19 N.E.3d 241
• Parties: Gary Wayne OSWALT, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
• Court: Indiana Supreme Court

19 N.E.3d 241

Gary Wayne OSWALT, Appellant (Defendant)
v.
STATE of Indiana, Appellee (Plaintiff).

No. 35S02–1401–CR–10.

Supreme Court of Indiana.

Oct. 22, 2014.
Rehearing Denied Feb. 18, 2015.

19 N.E.3d 244

Paul Stephen Miller, Fort Wayne, Indiana, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

Opinion

RUSH, Chief Justice.

Under Indiana's “exhaustion rule,” parties may seek appellate review of for-cause challenges to prospective jurors only if they have exhausted their peremptory challenges. But what if they use their last peremptory challenge for its traditional purpose of striking a candidate they consider undesirable, instead of using it to cure the trial court's refusal to strike an allegedly incompetent one for cause? The State argues that doing so violates the exhaustion rule, thus waiving appellate review. We disagree and hold as a matter of first impression that parties satisfy the exhaustion rule the moment they use their final peremptory challenge—regardless of whom they strike. We also hold that if parties fully comply with the exhaustion rule and demonstrate they were unable to remove any prospective juror for lack of peremptories, appellate courts may review denial of any motion to strike for cause, regardless of whether a challenged juror actually served on the jury. Our holding preserves the fundamental policy of the exhaustion rule while recognizing the cherished status of peremptory challenges. Here, Defendant preserved appellate review of three for-cause challenges, but because the trial court was within its discretion to deny all of them, we affirm his conviction.

Facts and Procedural History

Defendant Gary Wayne Oswalt was tried by a jury on multiple counts of child molesting, child solicitation, and possession of child pornography. During voir dire, Oswalt moved to strike several prospective jurors for cause, including Jurors 7 and 13. The trial court denied his motions for both jurors, and in response, Oswalt used two of his peremptory challenges to remove them.

As voir dire continued, the parties reviewed a third panel of prospective jurors. Oswalt wished to strike Juror 28 for cause and use his final peremptory challenge to remove Juror 25 because he was the brother-in-law of another prospective juror, which was not grounds to remove him for cause. When it came time to submit motions to strike, Oswalt simultaneously presented his for-cause and peremptory challenges—an unusual deviation from the standard procedure of making for-cause challenges first, followed by peremptories. The trial court denied Oswalt's motion to remove Juror 28 for cause. But because Oswalt had presented his for-cause and peremptory challenges at the same time, the trial court gave Oswalt the opportunity

19 N.E.3d 245

to switch his final peremptory challenge to Juror 28 instead of Juror 25. Oswalt vacillated on the decision but eventually decided to leave his final peremptory challenge for Juror 25 as he originally intended after stating “I've got a record that says ... I'm out of preempts and I'm not getting who I want.” Juror 25 was removed, and Juror 28 sat on the jury. The jury convicted Oswalt on all counts, and the trial court entered an eighty-four-year aggregate sentence.

Oswalt appealed the trial court's denial of his motions to strike Jurors 7, 13, and 28 for cause. The Court of Appeals found Oswalt had satisfied the exhaustion rule for Jurors 7 and 13 even though they did not serve on the jury but that the trial court acted within its discretion not to remove them both for cause. Oswalt v. State, 995 N.E.2d 685, 700–701 (Ind.Ct.App.2013). Conversely, it held Oswalt had waived appellate review of Juror 28 for failure to exhaust his peremptory challenges—narrowing the scope of appellate review by strictly applying the exhaustion rule to require parties to use even their final peremptory challenge to remove a juror whom the trial court refused to strike for cause. Id. at 701. Because Oswalt failed to use his final peremptory challenge to strike Juror 28, the Court of Appeals reasoned he had waived appellate review. Id. at 701–702. We granted transfer. Ind. Appellate Rule 58(A). We will discuss additional facts as needed.

Standard of Review

Oswalt seeks appellate review of three motions to strike prospective jurors for cause. Our ability to review those claims hinges on two questions of first impression: (1) Does the exhaustion rule require Oswalt to use his final peremptory challenge to remove a juror whom the trial court refused to remove for cause? (2) Even if Oswalt satisfied the exhaustion rule, may we review prospective jurors who never served on the jury? Both questions are pure questions of law because they “ ‘require[ ] neither reference to extrinsic evidence, the drawing of inferences therefrom, nor the consideration of credibility questions for [their] resolution.’ ” Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind.2000) (quoting 4A Kenneth M. Stroud, Indiana Practice § 12.3 at 134 (2d ed. 1990) ). We thus review each question de novo. Id.

Then, if Oswalt is entitled to appellate review of his for-cause challenges, we review the trial court's decision on those challenges for an abuse of discretion. See Merritt v. Evansville–Vanderburgh School Corp., 765 N.E.2d 1232, 1235 (Ind.2002). The trial court has the unique position to observe and “assess the demeanor of prospective jurors as they answer the questions posed by counsel.” Smith v. State, 730 N.E.2d 705, 708 (Ind.2000). “[O]n appeal, we afford substantial deference to the trial judge's decision ... and will find error only if the decision is illogical or arbitrary.” Whiting v. State, 969 N.E.2d 24, 29 (Ind.2012).

Discussion and Decision

I. Impartial Juries and Objections to Prospective Jurors

The Federal and Indiana Constitutions guarantee the right to an impartial jury. Ramirez v. State, 7 N.E.3d 933, 936 (Ind.2014). But selecting impartial juries depends upon the parties' discernment and the trial court's discretion to select a panel of objective and unbiased jurors “who will conscientiously apply the law and find the facts.” Wainwright v. Witt, 469 U.S. 412, 423, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Removing prospective jurors—whether peremptorily or for cause—who cannot perform these tasks is the mechanism parties

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and trial courts use to achieve an impartial jury. Emmons v. State, 492 N.E.2d 303, 305 (Ind.1986).

Peremptory challenges are “an important auxiliary tool” for that purpose. Whiting, 969 N.E.2d at 29. They give parties the nearly unqualified right to remove any prospective juror they wish—restricted only by the parties' finite allotment of challenges and the constitutional ban on racial, gender, and religious discrimination. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (race); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 140–43, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (gender); Highler v. State, 854 N.E.2d 823, 829 (Ind.2006) (religion). “Unlike challenges for cause, the peremptory is often exercised on ‘hunches' and impressions having to do, perhaps, with a prospective juror's habits, associations, or ‘bare looks.’ ” Merritt v. State, 488 N.E.2d 340, 341 (Ind.1986). These “hunches” are difficult if not impossible to explain to a trial court or opposing counsel—which is why parties are “generally not required to explain [their] reasons for exercising a peremptory challenge, and the exercise is not subject to the trial court's control.” Price v. State, 725 N.E.2d 82, 86 (Ind.2000). “Our belief that experienced lawyers will often correctly intuit which jurors are likely to be the least sympathetic, and our understanding that the lawyer will often be unable to explain the intuition, are the very reason we cherish the peremptory challenge.” J.E.B., 511 U.S. at 148, 114 S.Ct. 1419 (O'Connor, J., concurring).

For-cause motions, by contrast, are available to exclude any prospective juror whose “views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath’ ” and thus violate the defendant's Sixth Amendment rights. Witt, 469 U.S. at 423–24, 105 S.Ct. 844 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) ). Similarly, Indiana Code section 35–37–1–5 (2008) and Indiana Jury Rule 17 list many additional bases for removing a prospective juror for cause. Whiting, 969 N.E.2d at 29. A juror who qualifies for removal under these constitutional or statutory criteria may be removed as an “incompetent juror,” while a juror “who is not removable for cause but whom the party wishes to strike” peremptorily is termed “objectionable.” Id. at 30 n. 7. Unlike peremptory strikes, strikes for cause require trial court approval, so parties regularly seek appellate review of unsuccessful for-cause motions. This, in turn, requires them to satisfy the exhaustion rule, which is at the heart of this case.

II. The Exhaustion Rule and Appellate Review of Motions to Strike for Cause ...