Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                            Mar 31 2014, 9:19 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

VICTORIA L. BAILEY                                GREGORY F. ZOELLER
Marion County Public Defender Agency              Attorney General of Indiana
Indianapolis, Indiana
                                                  ERIC P. BABBS
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

CHARLES GOOCH,                                    )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
              vs.                                 )      No. 49A02-1309-PC-781
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Respondent.                       )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Steven R. Eichholtz, Judge
                            Cause No. 49G23-0712-PC-267464



                                        March 31, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                               STATEMENT OF THE CASE

       Charles Gooch brings this rare second direct appeal from his conviction for

dealing in a controlled substance, as a Class B felony. Gooch raises a single issue for our

review, namely, whether the trial court abused its discretion when it removed a juror from

his jury. We affirm.1

                        FACTS AND PROCEDURAL HISTORY

       The facts underlying Gooch’s conviction were stated by this court in his first

direct appeal:

       On December 13, 2007, Special Agent Matthew Hall, an employee of
       United States Immigrations and Customs Enforcement, was on duty at a
       FedEx shipping facility in Indianapolis. He saw a suspicious parcel that
       had been mailed by Jason Brown in Bronx, New York[,] to John Brown at
       an address in Indianapolis. Agent Hall had his drug sniffing dog examine
       the parcel. The dog alerted on the parcel, which indicated that the parcel
       contained illegal narcotics.

              Agent Hall obtained a search warrant for the parcel, opened the
       parcel, and discovered a large quantity of pills that he believed to be
       Ecstasy. Based upon this discovery, Agent Hall obtained an “anticipatory”
       search warrant for the destination address on the parcel. Next, Agent Hall
       changed into a FedEx uniform, assembled a team of police officers, and
       went to the destination address listed on the parcel, which was an
       apartment.

              When Agent Hall entered the apartment building and knocked on the
       apartment door, a man later identified as Gooch answered. Agent Hall
       asked Gooch if he was John Brown, and Gooch said yes. Gooch kept
       looking at the front door to the apartment building and was visibly shaking.
       He would not make eye contact with Agent Hall, who asked him if
       everything was okay. Gooch did not respond, but he took the parcel and
       signed for it. Gooch signed as “Joe” with an illegible last name. Agent

       1
          Because we affirm the trial court’s judgment on the merits of Gooch’s appeal, we need not
consider the State’s argument on cross-appeal or Gooch’s response that the State’s cross-appeal is
improper.


                                                2
       Hall returned to his van, radioed a description of Gooch to his team, and
       drove away from the apartment building.

               Meanwhile, police officer Marc Campbell was watching the front of
       the apartment building from an unmarked car. He saw Agent Hall leave the
       building. A couple of minutes later, Gooch left the building carrying what
       appeared to be a box under his shirt. Officer Campbell got out of his car
       and identified himself as a police officer. Gooch began to run but stopped,
       pulled out the parcel and threw it on the ground, and laid down on the
       ground with his hands out. Subsequent testing of the pills contained in the
       parcel demonstrated that Gooch had received six hundred and ninety-eight
       tablets of Ecstasy.

              The State charged Gooch with dealing in a controlled substance and
       several other offenses. . . .

Gooch v. State, No. 49A02-1004-CR-382, 939 N.E.2d 126, at *1 (Ind. Ct. App. Dec. 7,

2010) (citations to the record omitted).

       During the course of Gooch’s jury trial, Juror Number Nine informed the court

that he and Gooch “share the same barber.” Trial Transcript at 108. The court and the

attorneys then engaged Juror Number Nine in the following colloquy:

       THE COURT: Have a seat there, sir. All right, and you believe that you
       and the defendant have met before at this point?

       JUROR: Yes sir.

       THE COURT: Okay.

       JUROR: I don’t know him personally. But I have seen him.

       THE COURT: Okay. And how have you seen him?

       JUROR: We share the same barber.

       THE COURT: Okay, is that going to affect your ability to be fair and
       impartial here?




                                           3
JUROR: Well, with being the only African-American on the jury, I would
believe it would.

THE COURT: Okay. You don’t think that you can be a fair juror at this
point?

JUROR: Yes, I could be as fair as I could be.

THE COURT: I’m a little confused then?

JUROR: I mean . . . as fair as I could under the situation, Your Honor.

THE COURT: Well, I mean does the fact that you know the defendant
going [sic] to affect your thinking about this case? Has it affected your
thinking?

JUROR: It hasn’t affected my thinking thus far. Knowing the defendant[.
J]ust that the jury selection has.

THE COURT: State, do you have any questions for the juror?

MR. MILLER [for the State]: Yes, Your Honor.

QUESTIONS BY STATE:

Q     Sir, what do you mean that the jury selection has?

A      I am the only African[-]American on the jury. I don’t see that as a
jury of his peers, not me personally.

Q      And do you believe that being the only African-American on the
jury puts special attention on you as a member of the panel?

A     Yes, I do.

Q     In what way?

A     I just believe it does. You would have to be an African-American to
understand that.

Q     I know, sir[,] that’s why I am asking you to explain it. Because the
defendant is African[-]American as well . . .



                                     4
A     Yes.

Q      And do you believe that you being the only African[-]American on
the panel and the defendant being African[-]American and the fact that you
share the same barber could affect you being fair and impartial?

A      I don’t think it could really affect me being fair and impartial, but
what I’m saying is when deliberations go on which things will be said.
They aren’t going to be impartial. I’m more or less going to feel a certain
way, a different way. Being the only African[-]American on the jury.

THE COURT:          Defense?

QUESTIONS BY DEFENSE[:]

Q     Sir, have you ever spoken to Mr. Gooch before?

A      We have [s]aid hello to one another. I didn’t recognize him with his
full beard. Until I really looked at him from my point over here and I
realized that I have seen him.

Q     [W]hen was the last time that you saw Mr. Gooch?

A     Maybe a couple months ago. Maybe six or seven months ago.

A      And you indicated earlier that you did not consider him a friend of
yours . . . .

Q     No . . . .

                                   ***

A     You don’t know anything about his persona[l] life?

A     No.

Q     And he doesn’t know anything about yours?

A     No.

Q      Is the fact that you know Mr. Gooch f[rom] the barber shop put [sic]
you in a position that you can’t give him a fair trial and base your verdict
solely on the evidence and the law as the Judge tells you?


                                     5
       A      I could do that. I could do [t]hat, but could the rest of [t]he jurors do
       that with all of them being white and him being black?

       Q         I understand but . . . you believe you could do that?

       A         Yeah, I could do that.

Id. at 109-13.

       Following that colloquy, the State requested the juror’s removal from the jury. In

particular, the State asserted that

       we expect the evidence that will be presented is that the defendant, at the
       time this juror observed him out in the community[,] had a warrant out for
       his arrest. That he was a fugitive . . . and . . . that [the juror] saw him out in
       public I think would affect his deliberations . . . .

Id. at 113. Gooch’s attorney opposed the juror’s removal. The trial court removed Juror

Number Nine from the jury and replaced him with an alternate juror. Thereafter, the jury

found Gooch guilty of dealing in a controlled substance, as a Class B felony, and the trial

court entered its judgment of conviction accordingly.

       In his first direct appeal, Gooch’s appellate counsel argued that the trial court

abused its discretion when it refused to admit certain testimony into evidence. Gooch’s

counsel also argued that the trial court had deprived him of his right to present a complete

defense to the charges against him. Gooch’s counsel did not challenge the trial court’s

removal of Juror Number Nine, and we affirmed Gooch’s conviction.

       Thereafter, Gooch filed a petition for post-conviction relief, which he later twice

amended. In his second amended petition, Gooch asserted that his counsel’s failure to

raise the removal of Juror Number Nine in Gooch’s direct appeal denied Gooch his



                                                6
constitutional right to effective counsel.   After a hearing, the post-conviction court

concluded that Gooch’s appellate counsel rendered ineffective assistance by not raising

this issue in Gooch’s first direct appeal. As relief, the court permitted Gooch “to a new

appeal on the issue of removal of [J]uror [N]umber 9.” Appellant’s App. at 177. This

second direct appeal ensued.

                           DISCUSSION AND DECISION

      Gooch asserts that the trial court abused its discretion when it replaced Juror

Number Nine with an alternate juror. As our Supreme Court has explained:

      Article I, § VIII of the Indiana Constitution guarantees a defendant’s right
      to an impartial jury; therefore, a biased juror must be dismissed. Indiana
      Trial Rule 47(B) in part provides that “[a]lternate jurors in the order in
      which they are called shall replace jurors who, prior to the time the jury
      returns its verdict, become or are found to be unable or disqualified to
      perform their duties.” Trial courts have broad discretion in determining
      whether to replace a juror with an alternate, and we will only reverse such
      determinations where we find them to be arbitrary, capricious or an abuse
      of discretion. Campbell v. State (1986), Ind., 500 N.E.2d 174, 181;
      Woolston v. State (1983), Ind., 453 N.E.2d 965, 968, reh’g denied. An
      abuse of discretion occurs only if the decision placed the defendant in
      substantial peril. Woolston, 453 N.E.2d at 968.

Harris v. State, 659 N.E.2d 522, 525 (Ind. 1995) (alteration original). “Reviewing courts

are properly resistant to second-guessing the trial judge’s estimation of a juror’s

impartiality, for that judge’s appraisal is ordinarily influenced by a host of factors

impossible to capture fully in the record—among them, the prospective juror’s inflection,

sincerity, demeanor, candor, body language, and apprehension of duty.” Skilling v.

United States, 130 S. Ct. 2896, 2918 (2010); see Morgan v. State, 903 N.E.2d 1010, 1019

(Ind. Ct. App. 2009), trans. denied.    A juror’s bias or prejudice for or against the



                                             7
defendant justifies the removal of that juror. Jackson v. State, 597 N.E.2d 950, 960 (Ind.

1992).

         We disagree with Gooch that the trial court erred when it replaced Juror Number

Nine with an alternate juror. While Gooch asserts that Juror Number Nine was adamant

that he could impartially assess the evidence and the law, his comments to the court and

counsel were in fact more equivocal. He repeatedly expressed concern not over the facts

of the case and the law but in the racial composition of the jury vis-à-vis Gooch. Indeed,

at one point Juror Number Nine expressly stated that he would be only “as fair as [he]

could” in light of the racial composition of the jury. Trial Transcript at 109. The trial

court’s decision to remove Juror Number Nine was neither arbitrary nor capricious.

         Moreover, the trial court replaced Juror Number Nine with an alternate juror. At

no point before the trial court or in this appeal has Gooch suggested that the alternate

juror was incapable of executing his duties and responsibilities as a full member of the

jury. Thus, Gooch cannot demonstrate that the trial court’s decision to replace Juror

Number Nine with the alternate juror resulted in substantial peril to Gooch. Accordingly,

we cannot say that the trial court’s decision to replace Juror Number Nine with the

alternate juror was an abuse of the court’s discretion.

         Affirmed.

BAKER, J., and CRONE, J., concur.




                                              8
