from the Marion Superior Court The Honorable Marc Rothenberg,
Judge The Honorable Amy Barbar, Magistrate Trial Court Cause
Attorney for Appellant Megan J. Schueler Ferguson Law
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana J.T. Whitehead Deputy Attorney General
OPINION ON REHEARING
Jeffrey Archer has filed a petition for rehearing on our
initial decision in this case. We grant his petition so that
we can correct an error.
In our initial decision, we explored Archer's argument
that appellate counsel was ineffective for failing to obtain
a copy of the voir dire transcript:
During the post-conviction hearing, appellate counsel
testified that it was not his policy to review voir dire
because what transpires then is not evidence. A record on
appeal includes "all proceedings before the trial
court," Ind. Appellate Rule 2(L), and as we have stated,
appellate counsel has a duty to thoroughly review the entire
record of a defendant's proceedings. Wilson v.
State, 94 N.E.3d 312, 321 (Ind.Ct.App. 2018).
But Archer cannot show prejudice from appellate counsel's
error. Although Archer contends that he was prejudiced by a
prospective juror who, after acknowledging that she could not
be fair and impartial, was selected to serve on the jury, the
record shows that this prospective juror was dismissed from
Archer v. State, 18A-PC-2681, slip op. p. 10
(Ind.Ct.App. July 25, 2019).
Archer correctly points out in his petition for rehearing
that, despite a seeming assumption from both attorneys and
the trial court that dismissal would occur, the juror was
not, in fact, dismissed. And in this case, that is highly
problematic. During voir dire, Juror Lynch indicated that she
had mistakenly said on the juror form that she would be able
to be fair and impartial:
Defense: Okay. Do you want to change that?
Juror: Maybe I just think where there's smoke,
Defense: Okay. So if someone's accused of a crime, they
probably did it. Is ...