                                                                 FILED
                                                             Sep 20 2019, 1:57 pm

                                                                 CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court

                          IN THE

   Indiana Supreme Court
             Supreme Court Case No. 19S-CR-324

                       Tracie Easler,
                      Appellant (Defendant),

                               –v–

                     State of Indiana,
                       Appellee (Plaintiff).


       Argued: June 18, 2019 | Decided: September 20, 2019

             Appeal from the Marion Superior Court,
                    No. 49G10-1707-CM-25008
          The Honorable Peggy Ryan Hart, Pro Tempore

    On Petition to Transfer from the Indiana Court of Appeals,
                        No. 18A-CR-1371



                     Opinion by Justice Goff
Chief Justice Rush and Justices David, Massa, and Slaughter concur.
Goff, Justice.

   Deciding issues of great importance under time constraints is but one
burden borne by our trial courts. However, every case is important to the
parties involved and adequate time must be allocated to fairly resolve any
meritorious issues presented. In this case involving charges of operating a
vehicle while intoxicated, a juror—after being selected to serve on the jury
but before being sworn—submitted a note informing the trial court that
one of her family members had been killed by a drunk driver. Defense
counsel requested an opportunity to explore the juror’s potential bias, but
the trial court did not allow further questioning. We conclude that the
information conveyed by the juror to the trial court before the jury was
sworn should have resulted in a hearing to determine whether the
defendant could have properly challenged the juror’s service for cause.
The trial court’s refusal to conduct a hearing was an abuse of discretion.
Further, given the subjective nature of the information conveyed and
concerns about the passage of time and potential juror harassment, we
cannot say that remand for a hearing will ensure the fairness of the
proceedings below. Accordingly, we reverse and remand these
proceedings for a new trial.


Factual and Procedural History
   Based on an incident where emergency personnel found her
unconscious behind the wheel of her SUV, the State charged Defendant
Tracie Easler with two counts of operating a vehicle while intoxicated, and
the case proceeded to a jury trial.

   After assembling the prospective jurors, the trial court introduced the
parties and explained the voir dire process, saying “the objective of the
attorneys here today is to obtain a fair and impartial jury.” Tr. Vol. II, pp.
12–13. See also id. at 12 (“Jurors must be free as humanly possible from
bias, prejudice, sympathy, and must not be influenced by pre-conceived
ideas as to either what the facts are, or what the law is.”). At this point,
the court asked all the potential jurors to stand and promise to answer any
questions honestly during jury selection. The State and defense counsel



Indiana Supreme Court | Case No. 19S-CR-324 | September 20, 2019    Page 2 of 13
then conducted their voir dire examinations of the potential jurors. After
the dust settled, the trial court announced the six-person jury, which
included M.M. (“Juror 4”). Up until this time, Juror 4 had spoken only
two times, answering direct questions from counsel about signs of
intoxication and reasonable doubt. But when she was announced as a
member of the jury, Juror 4 interjected, “Are those—they’re not going to
ask us any more questions that are relevant?” Supp. Tr. Vol. II, p. 29. The
court informed her that questioning was over, and the bailiff escorted the
six newly selected jurors from the room.

   Another set of potential jurors was seated for the court and the parties
to examine and select an alternate juror. Before the court announced who
had been selected, it asked counsel to approach and disclosed a note that
Juror 4 had given to the bailiff. The note read, “a family member was
killed by a drunk driver. It was before I was born, but altered my family
dynamic irreparably. I can be a jury member, but thought it is relevant to
disclose.” Appellant’s App. Vol. II, p. 127. Defense counsel asked if Juror
4 could be brought out and questioned over whether she could be a fair
and impartial juror. Supp. Tr. Vol. II, p. 35. Instead of responding to
defense counsel, the court said, “I just thought I’d share that with you,
okay. But I don’t think there’s anything else we can do.” Id. at 36.
Defense counsel did not otherwise immediately respond to the court’s
dismissal of Juror 4’s note. The court then announced the alternate juror,
had her join the other people selected as jurors, and dismissed the
remaining potential jurors.

   Once all the jurors and potential jurors had left the courtroom, the court
returned to Juror 4’s note to clarify the record. After the court
summarized the note and the disclosure of the note, defense counsel
challenged Juror 4 for cause, arguing that Juror 4 had not been
forthcoming on her juror questionnaire when “she said that her
grandmother was the victim of murder, but . . . did not disclose anything
else.” Id. at 37. The State disagreed, arguing that Juror 4 had been
forthcoming. The State said that on Juror 4’s questionnaire, she had
explained her sympathy for victims of violent crimes as the result of
seeing the effect of those crimes on families. The State also summarized
Juror 4’s note as saying that she could still be a fair and impartial juror,


Indiana Supreme Court | Case No. 19S-CR-324 | September 20, 2019    Page 3 of 13
and it noted that she had voluntarily made the parties aware of her past.
The court denied the motion to remove the juror. The entire jury was then
sworn in as jurors, and it found Easler guilty on both counts.

   Easler appealed, claiming the trial court should have granted a hearing
to discover Juror 4’s possible bias and, separately, should have removed
Juror 4 for cause. The Court of Appeals affirmed the trial court. Easler v.
State, 118 N.E.3d 84, 92 (Ind. Ct. App. 2019). It rejected Easler’s hearing-
request argument because neither “the incompleteness of Juror 4’s
questionnaire” nor the note Juror 4 provided to the court “present[ed]
specific, substantial evidence establishing Juror 4’s bias” that would entitle
Easler to a hearing. Id. at 90 (relying primarily on Lopez v. State, 527
N.E.2d 1119, 1130 (Ind. 1988)). The court explained that “Juror 4
completed the questionnaire to the best of her ability.” Id. Juror 4 took
steps to divulge the information as soon as she could, and “coupled with
the affirmation that she could remain on the jury despite her background,
[she] resolved the need for any questioning.” Id. The Court of Appeals
concluded that the trial court correctly declined to remove Juror 4 for
cause because either party could have asked related questions during voir
dire, and Juror 4 shared her information as soon as possible. Id. at 91–92.

  We granted Easler’s petition to transfer, thereby vacating the Court of
Appeals opinion. Ind. Appellate Rule 58(A).


Standard of Review
   Generally, “[a] trial court has broad discretionary power to regulate the
form and substance of voir dire.” Ward v. State, 903 N.E.2d 946, 955 (Ind.
2009), aff’d on reh’g, 908 N.E.2d 595. This discretion extends to ruling on
requests to question a juror regarding potential bias or misconduct. See
Lopez, 527 N.E.2d at 1130. Error from an abuse of discretion arises in this
context “if the decision is illogical or arbitrary.” Oswalt v. State, 19 N.E.3d
241, 245 (Ind. 2014) (citation omitted).

   Although a trial court exercises its discretion in regulating voir dire,
Easler suggests this Court has not addressed how to secure a hearing if,
after a jury is selected but before the members are officially sworn in as


Indiana Supreme Court | Case No. 19S-CR-324 | September 20, 2019      Page 4 of 13
jurors, new evidence emerges possibly indicating a juror’s bias. This issue
qualifies as a pure question of law, requiring “neither reference to
extrinsic evidence, the drawing of inferences therefrom, nor the
consideration of credibility questions for its resolution.” Bader v. Johnson,
732 N.E.2d 1212, 1216 (Ind. 2000) (citation omitted). This Court reviews
pure questions of law de novo. Id.


Discussion and Decision
   “The right to a fair trial before an impartial jury is a cornerstone of our
criminal justice system” guaranteed by both the United States and Indiana
constitutions. Whiting v. State, 969 N.E.2d 24, 28 (Ind. 2012) (citing U.S.
Const. amend. VI and Ind. Const. art. 1, § 13). “The presence of even one
biased juror on the jury is a structural error requiring a new trial.” Id.
Thus, “the trial court has ‘a broad discretion and duty . . . to see that the
jury as finally selected is subject to no solid basis of objection on the score
of impartiality.’” Id. at 29 (omission in original) (quoting Frazier v. United
States, 335 U.S. 497, 511 (1948)).

  This case implicates these foundational principles by questioning how
counsel can ferret out a potential juror’s possible bias or misconduct when
new information comes to light in the moments between a person being
selected as a juror and the person being sworn in as a juror. Specifically,
this case raises the following question: What is the minimum amount of
new information—in terms of quality and quantity—that would require a
court to hold a hearing to investigate the alleged bias or misconduct? To
answer this question, we first examine our prior cases and determine
whether and to what extent they apply in these contexts. Then, we
analyze the facts of this case in light of the applicable legal standard.




Indiana Supreme Court | Case No. 19S-CR-324 | September 20, 2019     Page 5 of 13
I.    When a party requests to question a juror on
      possible bias, timing matters.

     A. Barnes, Stevens I & II, and Lopez lay the groundwork
        for determining when a hearing should be conducted.
    Our law regarding requests for hearings to question jurors on possible
bias or misconduct has been developed primarily through three cases:
Barnes v. State, 263 Ind. 320, 330 N.E.2d 743 (1975); Stevens v. State (Stevens
I), 265 Ind. 396, 354 N.E.2d 727 (1976), aff’d on reh’g, 265 Ind. 396, 357
N.E.2d 245 (Stevens II); and Lopez v. State, 527 N.E.2d 1119 (Ind. 1988). The
parties’ arguments rely on these important cases, but the parties disagree
as to how these cases impact the outcome here. Before diving into the
parties’ arguments, we find helpful a brief review of each case’s holding
relating to hearings on juror bias or misconduct.

   Barnes is the seminal case regarding hearings into possible juror bias or
misconduct. In Barnes, we laid down the general rule that, when a party
presents new information unavailable during voir dire showing possible
juror bias or misconduct, the party should be able to question that juror on
his or her potential bias and then challenge that juror, if warranted. 330
N.E.2d at 747. See also Haak v. State, 275 Ind. 415, 417 N.E.2d 321, 324
(1981) (“Because the possibility of juror bias had been raised by appellant
Barnes’ allegation, and because there had been no opportunity to discover
this bias at the time the jury was selected, we remanded . . . [for] an
evidentiary hearing.”). Our later cases fill in the gaps of this general rule.

    Stevens I & II built upon Barnes and provided what a hearing into
possible juror bias or misconduct should look like when a party presents
its new information of bias or misconduct during trial. In these situations,
the trial court should conduct a hearing on the matter, outside the
presence of the rest of the jurors, to see (1) if the juror was biased or not
disinterested and (2) if the hearing itself caused the juror to be biased.
Stevens I, 354 N.E.2d at 732. See also Stevens II, 357 N.E.2d at 246
(emphasizing the hearing requirements laid out in Barnes and Stevens I);




Indiana Supreme Court | Case No. 19S-CR-324 | September 20, 2019      Page 6 of 13
McFarland v. State, 271 Ind. 105, 390 N.E.2d 989, 993 (1979) (affirming the
trial court after it held a hearing in line with Stevens I).

   Lopez then, as relevant here, clarified the general rule in Barnes and
described the minimum evidence a party must present in certain contexts
to show possible juror bias or misconduct and receive a hearing. We
stated, “A defendant seeking a hearing on juror misconduct must first
present some specific, substantial evidence showing a juror was possibly
biased.” Lopez, 527 N.E.2d at 1130 (citing Berkman v. State, 459 N.E.2d 44,
46 (Ind. Ct. App. 1984)). See also Guyton v. State, 771 N.E.2d 1141, 1144–45
(Ind. 2002) (relying on Lopez’s “specific, substantial evidence” requirement
in affirming the denial of a post-trial request for a hearing on alleged juror
misconduct). This “specific, substantial evidence” requirement was meant
to prevent hearings on juror bias or misconduct from becoming a tool to
harass jurors who had returned a guilty verdict and been discharged.
Berkman, 459 N.E.2d at 46. Thus, Lopez clarified Barnes regarding what
constitutes a showing of possible juror bias or misconduct when the new
information of possible bias or misconduct comes to light after trial.


   B. The showing required for a hearing under Barnes and
      Stevens I & II before the jury is sworn is less than that
      described in Lopez.
   Having summarized these guiding cases concerning hearings into
possible juror bias, we now address the parties’ arguments, both of which
are centered on Lopez. Easler contends that Lopez does not apply here
because her hearing request was made before the jury was sworn in—not
after trial—and that she should have been given a hearing. On the other
hand, the State argues that the Lopez “specific, substantial evidence”
requirement applies and was not met. Thus, the State concludes, Easler
was not entitled to a hearing on Juror 4’s alleged bias. We agree with
Easler that Lopez does not apply here, and we conclude that the burden to
show a possibility of juror bias or misconduct and thus receive a hearing
under Barnes and Stevens I & II is lower before the jury is sworn in than it
is after trial.




Indiana Supreme Court | Case No. 19S-CR-324 | September 20, 2019    Page 7 of 13
   Lopez’s “specific, substantial evidence” requirement does not apply
here where Easler requested a hearing on Juror 4’s possible bias before she
had been sworn in as a juror. As noted above, the “specific, substantial
evidence” requirement was developed as a bulwark against post-trial
juror harassment. See Berkman, 459 N.E.2d at 46. If jurors who returned a
guilty verdict and were discharged could be hauled back to a hearing
about their alleged bias or misconduct based on mere blanket or
conclusory allegations, there would be a very real risk of juror
harassment. There would also be the potential for a flood of frivolous
collateral attacks on verdicts. These concerns are not the same before the
jury is sworn in. First, asking a juror a few more questions when he or she
is already at the courthouse is much less harassing than bringing him or
her back to the courthouse after completion of his or her jury service.
Second, without a verdict, there would be nothing to collaterally attack
and little reason for harassment. Because the reasons supporting Lopez’s
“specific, substantial evidence” requirement do not apply with the same
force before a jury is sworn, that requirement does not control when a trial
court should hold a hearing on possible bias requested before swearing in
the jury.

    Instead, when a party requests a hearing on possible juror bias or
misconduct after the jury has been selected but before it is sworn in, a trial
court should hold such a hearing if the party provides some relevant
basis, arising outside the normal course of voir dire, that indicates a juror
is possibly biased or possibly committed misconduct. Such a hearing
should comply with the requirements laid out in Barnes and Stevens I & II.
This standard still requires some amount of specificity regarding a
prospective juror’s possible bias rather than a general hunch or feeling.
However, the evidence of possible bias or misconduct need not be
substantial. Instead, the new information need only be relevant to the
juror’s potential bias or misconduct. This standard—set lower than that in
Lopez—recognizes the paramount importance of impartial juries and the
relative ease with which trial courts can correct potential improprieties
before the jury is sworn in. Further, by encouraging hearings in close
cases, this standard helps prevent mistrials or retrials, which would result
if a person’s bias or misconduct were discovered after being sworn in as a


Indiana Supreme Court | Case No. 19S-CR-324 | September 20, 2019    Page 8 of 13
member of the jury. Finally, the requirement that the new information
arise outside the normal course of voir dire—such as from a juror
interrupting the proceedings to alert the court and parties to possible
issues or from a juror’s note—prevents this standard from being used by
parties to bypass a court’s limitations and get a second bite at the voir dire
apple. Thus, to repeat the rule applicable here, if a party requests a
hearing on juror bias or misconduct after the jury is selected but before it
is sworn in and the party provides some relevant basis, arising outside the
normal course of voir dire, that indicates a juror is possibly biased or
possibly committed misconduct, a trial court should hold a hearing to
determine if the juror is biased or committed misconduct.


II. The trial court should have held a hearing when
    Easler requested one in response to Juror 4’s note.

    A. The trial court abused its discretion when it failed to
       conduct a hearing prior to swearing in the jury.
   Turning to the facts of this case, we find that the trial court abused its
discretion when it failed to conduct a hearing regarding Juror 4’s possible
bias after Juror 4 had been selected to serve on the jury but before the
jurors had been sworn in. After the trial court announced that Juror 4 had
been selected to be on the jury, she asked if counsel were going to ask any
more questions, and the trial court said no. While the court and parties
were in the process of selecting an alternate juror and before anyone had
been sworn in as a juror, Juror 4 wrote a note to the court explaining her
prior experience with the impact of drunk driving. Easler asked to
question Juror 4 to see if she could be fair and impartial, but the trial court
did not hold a hearing. Juror 4’s note shows a relevant basis indicating




Indiana Supreme Court | Case No. 19S-CR-324 | September 20, 2019      Page 9 of 13
possible bias. Thus, the trial court should have held a hearing to
determine whether Juror 4 was biased before she was sworn in as a juror. 1

   Juror 4’s note to the trial court provided a relevant basis indicating that
she might be biased. In her note, Juror 4 said that “a family member was
killed by a drunk driver. It was before I was born, but altered my family
dynamic irreparably. I can be a jury member, but thought it is relevant to
disclose.” Appellant’s App. Vol. II, p. 127. This information on Juror 4’s
family history constitutes a relevant basis showing that she might be
biased in cases involving alleged drunk driving—like Easler’s. The State
argues that Juror 4’s statement that she could still be a member of the jury
obviated the need for a hearing, essentially equating this statement with a
promise to be fair and impartial. See Oral Argument at 15:31–15:50.
Although the trial court had previously informed all the prospective
jurors that the goal of voir dire was to obtain a fair and impartial jury,
saying “I can be a jury member” falls short of saying “I will be fair and
impartial.” And, considering the strong language Juror 4 used in her note,
her statement that she could still be a juror does not wipe away the
possibility that she was biased. Thus, Juror 4’s note provided a relevant
basis indicating her possible bias, and the trial court abused its discretion
in not holding a hearing on the matter after Easler requested one.


    B. Under these circumstances, the only adequate remedy is
       a new trial.
   Having found that the trial court abused its discretion when it did not
hold the requested hearing into Juror 4’s possible bias, we now consider
the remedy. Easler contends that she is entitled to a new trial. The State
disagrees, arguing that we should remand for an evidentiary hearing to
fully investigate Juror 4’s possible bias. We agree with Easler and




1We do not find misconduct by Juror 4 in this record. To the contrary, Juror 4 was a
conscientious prospective juror, alerting the court and parties to relevant information as soon
as she could. Therefore, we focus solely on her possible bias.



Indiana Supreme Court | Case No. 19S-CR-324 | September 20, 2019                   Page 10 of 13
conclude that a new trial is the only adequate remedy in this case for three
reasons.

   First, examining Juror 4’s possible bias would require a subjective
assessment of how her family history might have impacted her thoughts
and feelings in a case she knew little about during voir dire. This would
be difficult to explore outside the context and timing of the voir dire
setting. In Thompson v. Gerowitz, our Court of Appeals recognized the
difficulty of making this type of subjective assessment in an after-the-fact
hearing, and it remanded for a new trial. 944 N.E.2d 1, 9–10 (Ind. Ct. App.
2011). Cases involving subjective assessments can be contrasted with
those involving objective assessments of a juror’s bias, where remand for
an evidentiary hearing is more feasible. See Barnes, 330 N.E.2d at 747
(remanding for an evidentiary hearing when the juror’s bias turned on an
objective assessment of the juror’s knowledge of a relationship); Diehl v.
Clemons, 12 N.E.3d 285, 297–98 (Ind. Ct. App. 2014) (remanding for an
evidentiary hearing when the juror’s bias turned, in part, on an objective
assessment of the juror’s memory of a lawsuit). Here, Juror 4’s note
showed that she knew her family history. The only question was what
kind of impact that knowledge might have had on her ability to be fair
and impartial. Since this involves a subjective assessment that would be
difficult to make outside its normal context, a new trial is appropriate.

   Second, the passage of time between when Juror 4 should have been
examined about her possible bias and when she might be asked now
supports remanding for a new trial. If we were to remand for an
evidentiary hearing, Juror 4 would be forced to try to remember her
subjective thoughts and feelings as of the date voir dire took place—
almost a year and a half ago—and speculate as to how, at that time, she
might have been impacted going forward. She would have to do this
while avoiding any impermissible testimony about the jury’s deliberations
and verdict. See Ind. Evidence Rule 606(b); Ward v. St. Mary Medic. Ctr. of
Gary, 658 N.E.2d 893, 894 (Ind. 1995). This would be an impractical, if not
impossible, task.

  Third, holding a new trial avoids potential juror harassment. As noted
above, a concern about potential harassment of jurors after trial provides



Indiana Supreme Court | Case No. 19S-CR-324 | September 20, 2019   Page 11 of 13
the rationale for the requirement in Lopez that a party present “specific,
substantial evidence” of possible bias to receive a hearing. Those same
concerns are not present when a court holds a hearing before swearing in
the jury. Following the State’s suggestion of remanding for an evidentiary
hearing now would introduce the potential for post-trial juror harassment
where it did not exist before. A new trial avoids this result.

   Whether Juror 4 was biased during Easler’s trial involves a subjective
assessment that would be difficult to make outside the context and timing
of the voir dire setting. This difficulty is compounded by the passage of
time since Juror 4’s potential bias should have been examined. And
allowing such an examination to take place now would open the door to
potential post-trial juror harassment. Based on these reasons, a new trial
is the proper remedy in this case. 2


Conclusion
   When a party requests a hearing on possible juror bias or misconduct
after the jury is selected but before it is sworn, a trial court should hold
such a hearing if the party demonstrates some relevant basis, arising
outside the normal course of voir dire, that indicates a juror is possibly
biased or possibly committed misconduct. Here, Juror 4 submitted a note
to the court that provided such a relevant basis indicating that she was
possibly biased, and Easler requested a hearing. However, the trial court
did not hold a hearing. That failure to hold a hearing constitutes an abuse
of discretion. Accordingly, we reverse and remand for a new trial.


Rush, C.J., and David, Massa, and Slaughter, JJ., concur.




2Given our remand for a new trial, we need not address the issues Easler raised surrounding
the trial court’s denial of her for-cause challenge to Juror 4.



Indiana Supreme Court | Case No. 19S-CR-324 | September 20, 2019                Page 12 of 13
ATTORNEYS FOR APPELLANT
Talisha Griffin
Valerie K. Boots
Marion County Public Defender Agency
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Ian McLean
Caryn N. Szyper
Deputy Attorneys General
Indianapolis, Indiana




Indiana Supreme Court | Case No. 19S-CR-324 | September 20, 2019   Page 13 of 13
