Whiting v. State

CourtSupreme Court of Indiana
Citation969 N.E.2d 24
Docket NumberNo. 38S05–1206–CR–345.,38S05–1206–CR–345.
PartiesTina WHITING, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
Decision Date19 June 2012

969 N.E.2d 24

Tina WHITING, Appellant (Defendant below),
STATE of Indiana, Appellee (Plaintiff below).

No. 38S05–1206–CR–345.

Supreme Court of Indiana.

June 19, 2012.

[969 N.E.2d 26]

Gregory Bowes, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Michael Gene Worden, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 38A05–1008–CR–505

SULLIVAN, Justice.

During voir dire, a prospective juror stated that she could not be fair because she knew the defendant, the defendant's grandmother, the victim's family, and the attorneys. The trial judge denied a joint challenge for cause. The defendant did not strike the juror with any of her available peremptory challenges, and the juror served on the jury. We hold that the defendant's claim of error regarding the denial of the challenge for cause is procedurally defaulted, and thus unavailable for review, because she failed to exhaust her peremptory challenges. We also hold that her claim is not reviewable for fundamental error.


On the night of Sunday, September 7, 2008, the defendant, Tina Whiting, along with Addison Pijnapples and her husband Thomas Smith, Roderick Berry, and Michael Heffern, hatched a plan to rob Shawn Buckner of his prescription narcotics. In pursuit of the plan, Whiting and Pijnapples successfully lured Buckner to Whiting's apartment with promises of a three-way sex act. When Whiting took Buckner to her bedroom, Pijnapples gave a predetermined signal, prompting the three men to come out of hiding and enter Whiting's bedroom, where their attack on Buckner commenced. After punching and kicking Buckner to the point that he was barely moving, the assailants began searching him for drugs, as Whiting yelled, “he's got pills[,] I know he's got pills!” Trial Tr. 52–53. At some point, one of the men “requested a knife so they could finish this”; Whiting retrieved a large knife from her bedroom, but the men declined it. Id. at 469, 471; State's Ex. 87. Although there were no drugs, Smith found twenty dollars in Buckner's sock and told Pijnapples to go buy beer. The group then agreed that the men would drive Buckner, who was still alive, to a bar and leave him in an alley.

Whiting and Pijnapples drove to Ohio to purchase beer and, while en route, discarded several items of Buckner's personal property. Meanwhile, the men began driving, but instead of going to a bar, they drove to a secluded cornfield where they stabbed Buckner in the torso twenty times and nearly severed his penis, using a small knife Smith had taken from Whiting's apartment. Smith then delivered a fatal blow by cutting Buckner's throat to his spine, severing the major blood vessels in his neck. They left the body in the cornfield and returned to the apartment and began cleaning. Whiting and Pijnapples

[969 N.E.2d 27]

returned to the apartment a few minutes later and joined in the cleaning effort, during which they all drank the beer that had been purchased with Buckner's money. A few days later, Smith, Berry, and Pijnapples moved Buckner's body to a shallow grave they had dug, and to mislead investigators further, Whiting taped a note to Buckner's apartment door expressing feigned concern for his well-being. On September 10, the police discovered Buckner's body.

Whiting and her cohorts were each charged in Jay Circuit Court with murder and robbery.1 Whiting and Pijnapples were tried jointly.2 On July 12, 2010, Whiting's and Pijnapples's four-day trial commenced with a full day of jury selection. During voir dire, eventual juror Cynthia Wright explained at a sidebar conference that she had served for many years as a secretary at a local church and in that capacity had become acquainted with Whiting and her grandmother (who had raised Whiting), Pijnapples, Buckner's family, and all of the attorneys.3 In light of this, Juror Wright “stated that she would feel very uncomfortable making a decision that was so important to everyone involved.” Appellant's App. 225; Appellant's Supp. App. 2. Immediately following sidebar, the prosecutor asked Juror Wright if she thought she could provide a fair trial, to which she replied “No I can not.” Voir Dire Tr. 128. Neither Whiting's nor Pijnapples's defense counsel asked Juror Wright any questions about her ability to remain impartial and instead asked only generalized questions about witness credibility and the State's burden of proof. The State moved to strike Juror Wright and two others on the panel for cause; Whiting joined the State's motion. The trial judge dismissed the two others but denied the motion to excuse Juror Wright for cause. At that point, the defense had six peremptory challenges remaining and the State had eight; neither party exercised a peremptory strike to remove Juror Wright, and she was later empaneled and sworn as a regular juror.

Whiting and Pijnapples were each convicted of one count of felony murder, Ind.Code § 35–42–1–1(2) (2008), and one count of Class A felony robbery resulting in serious

[969 N.E.2d 28]

bodily injury, id. § 35–42–5–1. After merging the robbery convictions with the felony murder convictions, the trial court sentenced Whiting and Pijnapples each to 55 years' imprisonment.

On appeal,4 Whiting raised four issues, all of which were rejected by the Court of Appeals. Whiting v. State, No. 38A05–1008–CR–505, 2011 WL 2601426 (Ind.Ct.App. June 30, 2011). First, the court held that Whiting had waived her claim that the trial court erred in denying the challenge for cause because she had not exhausted her peremptory challenges. Id. at *3–4. Second, it held that certain testimony was not impermissible vouching and that, in any event, the issue had been waived. Id. at *5. Third, it held that there was sufficient evidence to support Whiting's conviction. Id. at *6–8. Lastly, the court affirmed her sentence. Id. at *8–10.

Whiting sought transfer, and we heard oral argument on December 15, 2011. We now grant transfer, thereby vacating the decision of the Court of Appeals, Ind. Appellate Rule 58(A), but we address only the juror-bias claim. We summarily affirm the decision of the Court of Appeals in all other respects. App. R. 58(A)(2).


This case tests the limits of State procedural-default rules when the defaulted claim is one of juror bias. The right to a fair trial before an impartial jury is a cornerstone of our criminal justice system. Caruthers v. State, 926 N.E.2d 1016, 1020 (Ind.2010); seeU.S. Const. amend. VI5; Ind. Const. art. I, § 13. In substance, it requires that a criminal defendant be given “a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Jurors need not be totally ignorant of the facts or issues involved in a case; rather, a constitutionally impartial juror is one who is able and willing to lay aside his or her prior knowledge and opinions, follow the law as instructed by the trial judge, and render a verdict based solely on the evidence presented in court. Id. at 722–23, 81 S.Ct. 1639;accord Skilling v. United States, ––– U.S. ––––, 130 S.Ct. 2896, 2912–13, 177 L.Ed.2d 619 (2010); Murphy v. Florida, 421 U.S. 794, 799–800 & n. 4, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Turner v. Louisiana, 379 U.S. 466, 471–73, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). The presence of even one biased juror on the jury is a structural error requiring a new trial. E.g., United States v. Martinez–Salazar, 528 U.S. 304, 316, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000).

To secure an impartial jury, the Sixth Amendment requires that the venire be drawn from a fair cross-section of the community, e.g., Holland v. Illinois, 493 U.S. 474, 480, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990); that the defendant be given an

[969 N.E.2d 29]

adequate opportunity to examine prospective jurors on voir dire, e.g., Morgan v. Illinois, 504 U.S. 719, 729–30, 733–34, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992); and that biased jurors be removed for cause, e.g., Dennis v. United States, 339 U.S. 162, 171–72, 70 S.Ct. 519, 94 L.Ed. 734 (1950). In addition, state law provides defendants with a limited number of peremptory challenges, I.C. § 35–37–1–3; Ind. Jury Rule 18, which they may use to excuse jurors for almost any reason, e.g., Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), overruled in part, Batson v. Kentucky, 476 U.S. 79, 90–98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Although peremptory challenges are not constitutionally mandated, e.g., Rivera v. Illinois, 556 U.S. 148, 129 S.Ct. 1446, 1453–54, 173 L.Ed.2d 320 (2009), they are an important auxiliary tool used to empanel an impartial jury, e.g., Martinez–Salazar, 528 U.S. at 311, 316, 120 S.Ct. 774;Holland, 493 U.S. at 481, 484, 110 S.Ct. 803.

Challenges for cause are the primary means by which biased jurors are struck. There are no limits on the number of for-cause challenges but each “must be supported by specified causes or reasons that demonstrate that, as a matter of law, the venire member is not qualified to serve.” Gray v. Mississippi, 481 U.S. 648, 652 n. 3, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) (citation omitted). Along with the constitutional requirement that biased jurors be struck, state law provides additional grounds for challenging jurors for cause. I.C. § 35–37–1–5; J.R. 17; cf. Byers v. State, 709 N.E.2d 1024, 1026 n. 1 (Ind.1999) (statutory list not exhaustive).

“Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.” United States v. Wood, 299 U.S. 123, 145–46, 57 S.Ct. 177, 81 L.Ed. 78 (1936). It follows that the trial court has “a broad discretion and duty ... to see that the jury as finally selected is subject to no solid basis of...

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