[Copyrighted Material Omitted]
Appeal from the Huntington Circuit Court, No. 35C01-1104-FA-80. The Honorable Thomas M. Hakes, Judge.
On Petition to Transfer from the Indiana Court of Appeals, No. 35A02-1208-CR-684.
ATTORNEY FOR APPELLANT: Paul Stephen Miller, Fort Wayne, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, Indiana.
Rush, Chief Justice. Dickson, Rucker, and David, JJ., concur. Massa, J., concurs in result.
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
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. ...