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Archer v. State

Court of Appeals of Indiana

September 12, 2019

Jeffrey Archer, Appellant-Petitioner,
v.
State of Indiana, Appellee-Respondent

          Appeal from the Marion Superior Court The Honorable Marc Rothenberg, Judge The Honorable Amy Barbar, Magistrate Trial Court Cause No. 49G02-1604-PC-16169.

          Attorney for Appellant Megan J. Schueler Ferguson Law Bloomington, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

          OPINION ON REHEARING

          Baker, Judge.

         [¶1] 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.

         [¶2] 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 jury service.

Archer v. State, 18A-PC-2681, slip op. p. 10 (Ind.Ct.App. July 25, 2019).

         [¶3] 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, there's fire.
Defense: Okay. So if someone's accused of a crime, they probably did it. Is ...

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