MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               Feb 02 2016, 9:12 am

this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana

Kevin R. Hewlate                                         Monika Prekopa Talbot
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Raymond A. Warren,                                       February 2, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         02A03-1508-PC-1053
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         02D06-1205-PC-75



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 02A03-1508-PC-1053 | February 2, 2016     Page 1 of 16
                                             Case Summary
[1]   Raymond Warren appeals the denial of his petition for post-conviction relief

      (“PCR petition”), which challenged his three convictions for Class A felony

      child molesting and one conviction for Class C felony child molesting. We

      affirm.


                                                     Issues
[2]   Warren raises two issues, which we combine and restate as whether he received

      ineffective assistance of trial and appellate counsel with regard to failing to

      strike a certain juror for cause.


                                                     Facts
[3]   On November 17, 2010, the State charged Warren with three counts of Class A

      felony child molesting and one count of Class C felony child molesting. During

      voir dire of prospective jurors for Warren’s trial, the trial court removed two

      jurors for cause, one of whom reported having a child who had been molested

      and one of whom reported having been molested herself. During group

      examination of the prospective jurors by the trial court, the following exchange

      occurred:


              Q: Can you think of any reason what so ever that you might be
              unable or unwilling to listen to the testimony of the witnesses,
              arguments of the attorneys, information and advice given by way
              of instructions and thereafter reach a fair and impartial and just
              verdict based solely on the evidence and my instructions as to the
              law? Juror number 56?


      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-PC-1053 | February 2, 2016   Page 2 of 16
              JUROR NUMBER 56: As a mom, I’m not sure that I could be
              fair and impartial in this situation where a child has been
              molested. I’m just being honest.


              Q: I appreciate that. How about if we just . . . we let that sit for
              a while and counsel have some questions and thank you for your
              candor.


      Tr. pp. 21-22.


[4]   The trial court then continued its group questioning of the jury pool, which

      included the following interactions:

              Q: If you’re selected to sit on this case will you be unable or
              unwilling to render a verdict solely on the evidence presented at
              trial and the law as I give it to you in my instructions
              disregarding any other ideas, notions or beliefs about the law that
              you may previously have encountered in reaching your verdict.


              A: (no response or indication from any prospective juror.)


                                                      ****


              Q: Do any of you believe that the crimes charged in this case is
              one which you regard with such special contempt that you feel
              that any decision you would be required to make would be
              influenced by that contempt?


              A: (no response or indication from any prospective juror.)


                                                     *****



      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-PC-1053 | February 2, 2016   Page 3 of 16
              Q: Do any of you have opinions or beliefs that you feel you
              cannot discard about the law applicable to the crime charged?


              A: (no response or indication from any prospective juror.)


      Id. at 24-25.


[5]   The prosecutor then began questioning the prospective jurors and directed the

      following to Juror Number 56:


              Q: And juror in seat number 2, you had some concerns as a
              mother. Kind of that initial gut response that we talked about
              probably with the charges. What do you think. You kind of
              know your role here and your responsibility is to judge this case
              based on the evidence that you hear today and kind of put other
              things aside and make a decision based on those things. What do
              you think. Do you think you can do that or are you going to be
              back there thinking about other things?


              JUROR NUMBER 56: I’m just not sure I’m going to be fair.
              And I believe that he deserves, he deserves fairness and I’m . . .


              Q: Okay.


              JUROR NUMBER 56: And if I see a child come in here and I’m
              going to be bawling, you know, I’m not going to be doing him
              any good.


              Q: And I appreciate very much your candor and you know
              yourself obviously better than we can get to know you in a
              couple of minutes here so I appreciate your letting us know about
              that. . . .



      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-PC-1053 | February 2, 2016   Page 4 of 16
[6]   Id. at 47. The prosecutor then moved on to questioning other prospective

      jurors.


[7]   Defense counsel then began his questioning of the jury pool:

                Q: Would you all promise me that you will decide the case
                based on the evidence and as much as possible set aside what
                these allegations are. I mean, that’s fair isn’t it?


                A: (no response or indication from any prospective juror.)


                Q: . . . . You indicated that you might have difficulty in being
                fair and impartial. And could you explain that difficulty. You
                don’t have to get into facts, just explain your attitude a little bit.


                JUROR NUMBER 56: I didn’t have a perfect upbringing but I
                had a pretty good upbringing, very receptive parents, loving,
                affectionate. Then I was blessed with two children. I have a
                seventeen year old son and I have a daughter who just turned
                fifteen. And there is so much on TV that I try not to even watch,
                a lot of news or read paper because right now I just don’t want to
                read it. I don’t want to hear about it. I guess I want to live in my
                perfect little world.


                Q: And here you are.


                A: And here I am.


                Q: Actually its folks like you that we would both want here.
                You don’t have an axe to grind and you’ll sit and listen to the
                evidence, so you might be stuck. Then again you might not be.
                But getting back to the fair and impartial, do you believe that



      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-PC-1053 | February 2, 2016   Page 5 of 16
              Raymond has a right to a fair trial, a hearing and then a
              determination by the jury?


              A: I think everyone has.


              Q: Everyone, okay. Everyone has that right. Most criminal
              cases are decided by guilty plea. Does that fact that Mr. Warren,
              Raymond, has elected to have a trial, will you hold that against
              him at all? Because you’ve got to be here?


              A: Oh absolutely not.


              Q: Alright. Okay. Thank you. . . .


      Id. at 53-54. Defense counsel had no further interaction with Juror Number 56.


[8]   After questioning of the jury pool was complete, the trial court, prosecutor, and

      defense counsel had the following discussion:


              Court: Okay. Alright, so want to take 2 for cause. [Apparently
              referring to Juror Number 56 who was seated in seat 2.]


              [Defense counsel]: This is not, you already dismissed her.


              Court: Oh, so we still have 56?


              [Defense counsel]: Yeah. I had her for cause but you discussed
              cause already.


              Court: Yeah okay, I understand. Defendant strikes juror
              number 60 in seat 4. 49 in seat 9 and 36 in seat 12. And accept
              the balance?

      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-PC-1053 | February 2, 2016   Page 6 of 16
              [Defense counsel]: Yes.


              Court: And State strikes number 101 in seat 5, 49 in seat 9 and
              number 92 in seat 10. And 20 in seat 3. Alright, so we’re going
              to keep 56 in seat 2, right? Everybody settled on that?


              [Prosecutor]: Yes.


              Court: You okay with that [defense counsel]?


              [Defense counsel]: I thought you struck her for cause.


              Court: 108.


              [Defense counsel]: Yeah, okay, but not 56.


              Court: No. She’s the one who says she doesn’t know if she can
              be fair. I know you both talked to her but I just want to be sure
              that we’re all on the right track. We’re all where we want to be.


              [Defense counsel]: Yeah.


              Court: Okay.


      Id. at 66-67. As indicated, Juror Number 56 was seated on the jury.


[9]   After trial, Warren was convicted as charged. He then appealed, represented by

      trial counsel, and raised two arguments: whether the trial court erred in

      admitting certain evidence and whether there was sufficient evidence to support




      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-PC-1053 | February 2, 2016   Page 7 of 16
       his convictions. We rejected Warren’s arguments and affirmed. Warren v. State,

       No. 02A03-1106-CR-325 (Ind. Ct. App. Mar. 14, 2012).


[10]   Warren subsequently filed a PCR petition. In it, he alleged that he received

       ineffective assistance of both trial and appellate counsel related to the seating of

       Juror Number 56. Warren’s trial and appellate counsel testified at the PCR

       hearing. Counsel stated that he has tried “many, many child molestation cases

       . . . .” PCR Tr. p. 6. Counsel explained his thought process regarding Juror

       Number 56 as follows:


               A:     Well, as I recall it’s very difficult in a Child Molestation
               jury selection to get people to be honest. They either want to be
               on the jury, which you really have to watch, or they don’t want
               to be on the jury and state that they’re prejudice [sic] against the
               charge itself. What I thought I was getting in that juror was
               someone who would reflect upon the situation, and call into
               question some of her preconceived beliefs.


               Q:      Okay. Now she did not actually express any preconceived
               belief like Mr. Warren was probably guilty ‘cause he was charged
               with that offense or anything like that?


               A:     No, but I think when you look at the transcript it’s the
               typical situation, my goodness gracious, it’s a Child Molestation
               case and there’s a child here, and it would just be so difficult for
               me to serve.


               Q:     Okay. So aside from that concern about whether she
               could be fair, did you detect any indication of anything that
               would prevent or substantially impair her performance of duties
               as a juror?


       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-PC-1053 | February 2, 2016   Page 8 of 16
               A:    Again, the thing I was impressed most by her was her
               candor as Judge Surbeck was. It appeared to me as though she
               would give me her honest effort because I really thought that we
               had a good shot at Mr. Warren’s case.


       Id. at 8-9. Counsel also agreed that his decision not to challenge Juror Number

       56 “was based more on your instincts and your gut more than what she was

       saying[.]” Id. at 10.


[11]   The PCR court denied Warren’s petition. Warren now appeals.


                                                    Analysis
[12]   A petition seeking post-conviction relief bears the burden of establishing

       entitlement to relief by a preponderance of the evidence. Hollowell v. State, 19

       N.E.3d 263, 268-69 (Ind. 2014). A petitioner appealing the denial of a PCR

       petition is appealing from a negative judgment. Id. at 269. “To prevail on

       appeal from the denial of post-conviction relief, a petitioner must show that the

       evidence as a whole leads unerringly and unmistakably to a conclusion opposite

       that reached by the post-conviction court.” Id. The PCR court also entered

       findings of fact and conclusions of law as required by Indiana Post-Conviction

       Rule 1(6). We will not defer to the post-conviction court’s legal conclusions.

       Id. However, we will reverse a denial of post-conviction relief only if there is a

       showing of clear error, or error that “‘leaves us with a definite and firm

       conviction that a mistake has been made.’” Id. (quoting Ben-Yisrayl v. State, 729

       N.E.2d 102, 106 (Ind. 2000), cert. denied).



       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-PC-1053 | February 2, 2016   Page 9 of 16
[13]   We first address Warren’s claim that he received ineffective assistance of trial

       counsel for not moving to strike Juror Number 56. “We analyze such claims

       under the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104

       S.Ct. 2052 (1984).” Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012). Under that

       test, a defendant “must show (1) that counsel’s performance was deficient based

       on prevailing professional norms; and (2) that the deficient performance

       prejudiced the defense.” Id. (citing Strickland, 466 U.S. at 687, 104 S. Ct. at

       2064). Regarding the performance prong, we accord deference to counsel’s

       strategic and tactical decisions and strongly presume that counsel rendered

       adequate assistance and exercised reasonable professional judgment in all

       significant decision-making. Id. As for the second prong, deficient

       performance is prejudicial if “‘there is a reasonable probability that, but for

       counsel’s unprofessional errors, the result of the proceeding would have been

       different.’” Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).


[14]   “The right to a fair trial before an impartial jury is a cornerstone of our criminal

       justice system.” Whiting v. State, 969 N.E.2d 24, 28 (Ind. 2012). This right

       requires that a defendant be given “‘a fair trial by a panel of impartial,

       “indifferent” jurors.’” Id. (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct.

       1639, 1642 (1961)). “[A] constitutionally impartial juror is one who is able and

       willing to lay aside his or her prior knowledge and opinions, follow the law as

       instructed by the trial judge, and render a verdict based solely on the evidence

       presented in court.” Id. “The presence of even one biased juror on the jury is a

       structural error requiring a new trial.” Id.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-PC-1053 | February 2, 2016   Page 10 of 16
[15]   Defense counsel undoubtedly plays a vital role in enforcing the constitutional

       right to an impartial jury. However, whether to challenge a particular juror

       generally is a matter of trial tactics. Marsillett v. State, 495 N.E.2d 699, 706 (Ind.

       1986). Parties and trial courts are privy to a number of nonrecord factors in

       assessing a potential juror’s impartiality that cannot be easily reviewed by

       appellate courts, such as “‘the prospective juror’s inflection, sincerity,

       demeanor, candor, body language, and apprehension of duty.’” Whiting, 969

       N.E.2d at 31 (quoting Skilling v. United States, 561 U.S. 358, 386, 130 S. Ct.

       2896, 2918 (2010)).


[16]   The primary case upon which Warren relies is Hughes v. United States, 258 F.3d

       453 (6th Cir. 2001). In Hughes, a prospective juror in a federal theft and illegal

       firearm possession case told the district court during voir dire that she had a

       relative and a couple of acquaintances who worked in law enforcement, and

       that she did not think she could be a fair juror. The juror did not make any

       response to several subsequent questions by the district court to the jury pool as

       a whole regarding their ability to be impartial and fair. Neither the district

       court nor defense counsel further questioned the juror individually, and defense

       counsel did not move to strike her, despite a request from the defendant that he

       do so.


[17]   On appeal of denial of habeas corpus after conviction, the Sixth Circuit held

       that defense counsel’s failure to strike the juror constituted ineffective assistance

       of counsel. The court acknowledged, “A juror’s express doubt as to her own

       impartiality on voir dire does not necessarily entail a finding of actual bias.”

       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-PC-1053 | February 2, 2016   Page 11 of 16
       Hughes, 258 F.3d at 458. However, the court found that there was a

       “conspicuous lack of response, by both counsel and the trial judge, to [the

       juror’s] clear declaration that she did not think she could be a fair juror.” Id.

       Because “key elements of juror rehabilitation and juror assurances of

       impartiality” were absent in the case, the court found the juror to have been

       actually biased based on her statements to the district court. Id. at 459-60.

       Moreover, the court held that the district court’s collective questions to the jury

       pool, to which the juror failed to respond, was insufficient to rehabilitate the

       juror or to provide sufficient evidence of her impartiality. Id. at 461. Finally,

       the court held that there can be no possible “strategic” reason for allowing an

       actually-biased juror to be seated and such an error is necessarily prejudicial,

       and so concluded that the defendant had received ineffective assistance of trial

       counsel. Id. at 463.


[18]   We acknowledge some similarities between this case and Hughes.1 However,

       we emphasize that we are reviewing the performance of Warren’s attorney; the

       question before is not directly presented as to whether Hughes should control

       here. See Woodson v. State, 961 N.E.2d 1035, 1044 (Ind. Ct. App. 2012), trans.

       denied. In analyzing the performance of counsel, we must consider the legal

       precedent available to counsel at the time of trial, direct appeal, or both; counsel

       will not be deemed ineffective for not anticipating or initiating changes in the




       1
           The State failed to address Hughes in its brief.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-PC-1053 | February 2, 2016   Page 12 of 16
       law. Id. (quoting Sweeney v. State, 886 N.E.2d 1, 8 (Ind. Ct. App. 2008), trans.

       denied). And, we note that decisions of federal circuit courts of appeal are not

       binding on Indiana courts. Jackson v. State, 830 N.E.2d 920, 921 (Ind. Ct. App.

       2005), trans. denied. No Indiana case has ever cited Hughes. It is not abundantly

       clear that counsel for Warren was obligated to discover Hughes and argue its

       application in Indiana, either during trial or on direct appeal.


[19]   Under established Indiana law, we cannot say Warren’s counsel performed

       unreasonably in declining to strike Juror Number 56. Counsel, who has

       extensive experience trying child molestation cases, explained a particular

       dilemma of trying such cases: “They either want to be on the jury, which you

       really have to watch, or they don’t want to be on the jury and state that they’re

       prejudice [sic] against the charge itself.” PCR Tr. p. 8. In other words, child

       molesting is a heinous offense and it can be difficult to find impartial jurors in

       such a case. Prospective jurors who appear too eager to serve on a child

       molestation jury may have ulterior motives for doing so, or conversely may

       believe he or she can avoid jury duty by stating his or her understandable

       prejudice against the charge.


[20]   Counsel also explained that he reached a “gut” decision that Juror Number 56

       could be fair and impartial because of her “candor.” Id. at 9, 10. As recognized

       by both the United States and Indiana Supreme Courts, parties are able to gain

       a first-hand impression of prospective jurors that cannot be reflected in a cold

       record on appeal. See Whiting, 969 N.E.2d at 31 (quoting Skilling, 561 U.S. at

       386, 130 S. Ct. at 2918). Counsel and the trial court both had personal

       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-PC-1053 | February 2, 2016   Page 13 of 16
       interaction with Juror Number 56 and both believed she could be fair and

       impartial. We cannot second-guess that determination.


[21]   As far as any comparison with Hughes, the most crucial difference is the

       extensive testimony from counsel describing his experience and thought process

       behind keeping Juror Number 56. There is no mention of any such testimony

       from counsel in Hughes. This insight into counsel’s reasonable tactical thinking

       was lacking in Hughes and supports the conclusion that Warren’s counsel was

       not ineffective. See McCullough v. State, 973 N.E.2d 62, 85 (Ind. Ct. App. 2012)

       (holding trial counsel’s failure to call certain witness was explained at PCR

       hearing testimony as being contrary to chosen defense strategy), trans. denied.


[22]   It is possible that counsel could have questioned Juror Number 56 more

       extensively to examine her ability to be a fair and impartial juror. Indeed, it

       would have been preferable if, after expressing reservations about her ability to

       be fair and impartial, Juror Number 56 had been individually asked by the trial

       court or counsel if she could nevertheless follow the court’s instructions and

       render a fair verdict based solely on the evidence. However, the fact that more

       could have been done does not mean that it had to be done. See Wisehart v. State,

       693 N.E.2d 23, 46 (Ind. 1998) (holding, “While we agree that trial counsel

       could have probed some of the jurors in more depth to discover their ability to

       be fair and impartial jurors, we do not find such failure to be deficient

       performance.”), cert. denied. Although Juror Number 56 expressed some

       reservations about her ability to serve impartially, she never unequivocally

       expressed that she could not be fair and impartial. She did not respond to

       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-PC-1053 | February 2, 2016   Page 14 of 16
       several group questions regarding impartiality, and indicated that she

       “absolutely” would not hold Warren’s choice to have a jury trial against him.

       Trial Tr. p. 54. Counsel observed Juror Number 56 up close and interacted

       with her and gauged that she was a candid person who would be a good juror.

       We conclude that counsel’s decision not to strike Juror Number 56 or challenge

       her for cause fell within the broad range of reasonable trial tactics and,

       therefore, Warren did not receive ineffective assistance of trial counsel.


[23]   Warren’s claim with respect to appellate counsel is essentially identical to his

       trial counsel claim. “Ineffective assistance of appellate counsel claims generally

       fall into three basic categories: (1) denial of access to an appeal; (2) waiver of

       issues; and (3) failure to present issues well.” Reed v. State, 856 N.E.2d 1189,

       1195 (Ind. 2006). Warren’s argument is premised upon the failure to raise the

       jury selection issue on direct appeal. To support such an argument, a defendant

       must prove (1) the unraised issues are significant and obvious from the face of

       the record and (2) the unraised issues are “clearly stronger” than the raised

       issues. Id. Ineffective assistance is very rarely found in cases such as this

       because the decision of what issues to raise is one of the most important

       strategic decisions to be made by appellate counsel. Id. at 1196. We have

       already analyzed Warren’s claims regarding Juror Number 56 and Hughes. The

       same reasoning leads us to conclude appellate counsel was not ineffective for

       electing not to raise this issue on direct appeal as opposed or in addition to the

       two issues he did raise.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-PC-1053 | February 2, 2016   Page 15 of 16
                                                 Conclusion
[24]   The PCR court properly concluded that Warren did not receive ineffective

       assistance of trial or appellate counsel. We affirm the denial of the PCR

       petition.


[25]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-PC-1053 | February 2, 2016   Page 16 of 16
