                                                                           FILED
                                                                       Feb 08 2019, 8:25 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Talisha Griffin                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           Caryn N. Szyper
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Tracie Easler,                                             February 8, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-1371
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Peggy Ryan Hart,
Appellee-Plaintiff.                                        Pro Tempore
                                                           Trial Court Cause No.
                                                           49G10-1707-CM-25008



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1371 | February 8, 2019                           Page 1 of 13
                                 STATEMENT OF THE CASE
[1]   Appellant-Defendant, Tracie Easler (Easler), appeals her conviction for

      operating a vehicle while intoxicated endangering a person, as a Class A

      misdemeanor, Ind. Code § 9-30-5-2(a)&(b).


[2]   We affirm.


                                                     ISSUES
[3]   Easler presents this court with two issues on appeal, which we restate as:


          (1) Whether the trial court abused its discretion when it failed to grant

              Easler’s request to question a member of the venire after the member

              divulged information relevant for the voir dire; and

          (2) Whether the trial court abused its discretion in denying Easler’s request

              to remove a juror for cause.


                       FACTS AND PROCEDURAL HISTORY
[4]   Around 3:00 p.m. on July 6, 2017, emergency medical services (EMS) and

      firefighters were dispatched to 38th Street and Shadeland on a report of an

      unconscious person behind the wheel of an SUV. When the first responders

      arrived at the scene, they found the vehicle still running and in gear as it sat in

      the turn lane. The driver, later identified as Easler, had her head down and

      hands in her lap. Easler remained unresponsive as EMS personnel knocked on

      the window and yelled. While they were trying to gain Easler’s attention, the

      SUV started to roll into the intersection of 38th and Shadeland. Firefighters

      Court of Appeals of Indiana | Opinion 18A-CR-1371 | February 8, 2019       Page 2 of 13
      quickly reacted and broke the driver’s side window; they reached inside the

      vehicle and shifted it into park. Easler regained consciousness and EMS

      personnel helped her out of the vehicle.


[5]   Officer Eric Rosenbaum (Officer Rosenbaum) of the Indianapolis Metropolitan

      Police Department consulted with the EMS personnel and was advised that

      Easler might be impaired. When speaking with Easler, Officer Rosenbaum

      learned that she had just left a funeral and was on her way home. She informed

      the officer that she was having a rough week and had consumed two shots

      earlier that day. While Officer Rosenbaum was speaking with Easler, he

      noticed Easler’s speech was slurred and there was a delay in her responses to his

      questions. He observed that she had glassy, red eyes. Believing Easler to be

      under the influence of alcohol, Officer Rosenbaum contacted a DUI officer.


[6]   Officer Nickolas Smith (Officer Smith), after noticing Easler swaying back and

      forth, administered three field sobriety tests. Easler failed all three tests. Easler

      consented to a blood draw, and forensic testing of her blood revealed that she

      had a blood alcohol concentration of 0.256 to 0.283 grams per 100 milliliters of

      blood.


[7]   On July 7, 2017, the State filed an Information, charging Easler with Count I,

      operating a vehicle while intoxicated endangering a person, as a Class A

      misdemeanor; and Count II, operating a vehicle with an alcohol concentration

      equivalent to .15% or more, as a Class A misdemeanor. On April 30, 2018, the

      trial court conducted a jury trial. Prior to commencing voir dire, the trial court


      Court of Appeals of Indiana | Opinion 18A-CR-1371 | February 8, 2019        Page 3 of 13
      swore in the prospective jurors and informed them of the charges. After voir dire

      was conducted and both parties had exercised their peremptory strikes, six

      individuals were selected to sit on the jury. When the trial court called out the

      six jurors’ names, Juror 4 asked the trial court, “Are those—they’re not going to

      ask us any more questions that are relevant?” (Supplemental Transcript, p. 29).

      The trial court denied that there were more questions and removed the jurors to

      the jury room.


[8]   After an alternate was selected, the trial court informed the parties that Juror 4

      had written a note to the court, which stated,


              A family member was killed by a drunk driver. It was before I
              was born. But altered my family, and my family dynamic. I can
              be a jury member but thought it relevant to disclose.


      (Suppl. Tr. p. 35). After the trial court read the letter, defense counsel asked to

      “bring her out, and question her as to whether she would be fair and impartial.”

      (Suppl. Tr. p. 35). The trial court disregarded defense counsel’s request and

      stated, “Oh, okay. So I just thought I’d share that with you, okay. But I don’t

      think there’s anything else we can do. All right.” (Suppl. Tr. p. 36).


[9]   After the remaining prospective jurors were released and had exited the

      courtroom, the trial court again noted for the record Juror 4’s letter and

      confirmed the seating of an alternate juror. Defense counsel then requested to

      bring up one more thing for the record. The following colloquy occurred:




      Court of Appeals of Indiana | Opinion 18A-CR-1371 | February 8, 2019       Page 4 of 13
        [DEFENSE COUNSEL]: Just in looking at her juror
        questionnaire, there’s parts that discuss victims of crimes and
        what not. [S]he said that her grandmother was the victim of
        murder, but, she did not disclose anything else. So, whether she
        disclosed anything besides the fact that [] violent crimes made her
        partial to the victim—so, and I’m not completely sure, that she
        was completely—forthcoming on her questionnaire. But, that—I
        just wanted to put that on the record.


        [TRIAL COURT]: [] All right, State, what’s going on?


        [STATE]: [M]y response is that I do believe that she was
        forthcoming. Looking at the comment under “Your Ability to
        Serve as a Juror”—her comment was to - - Can you be a fair and
        impartial juror in a criminal trial?” She has stated potentially—
        depends on nature, violent crimes tend to be—tend to make me
        partially a victim because I’ve seen effect in families. [T]his
        echoes her comment to the court; and furthermore, this is
        potentially depends on nature, comma [sic]. I think that’s
        broader than just pending it down to violent crimes. So I think
        there was enough, [], the juror being forthcoming in this
        questionnaire. [A]nd furthermore in the comment to the court,
        she did say that she could be fair and impartial. But that she
        wanted to disclose this so everybody was made aware in
        particular.


        [TRIAL COURT]: Okay. All right. So, I’m not even quite sure
        there was even a motion before this court. Was there a motion?


        [DEFENSE COUNSEL]: Well, I would—I’d ask that she be
        excluded as a juror, but for not being forthcoming on the
        questionnaire in terms of [] being picked.


        [TRIAL COURT]: All right, motion denied. Court finds the
        same, that [] in her questionnaire she said can you be fair and

Court of Appeals of Indiana | Opinion 18A-CR-1371 | February 8, 2019      Page 5 of 13
               impartial. And she said possibly. It depends on the nature [] of
               the offense; and so I mean that’s something that could have been
               explored during voir dire process. And for whatever reason, you
               know, it wasn’t explored to such a fine detail. So, I also think
               that even in my opening remarks I talk about we’re obtaining a
               fair and impartial jury for this particular case. I also [] think
               within the first two (2) minutes of my greeting, I told them, what
               this case was about. [S]o again, I think that’s something that
               could have been explored by the attorneys on voir dire. So,
               court’s going to find that, --and she didn’t say that she couldn’t be
               fair and—she couldn’t be fair. So, therefore, [], she’ll remain as
               Juror Number Four (4). []


       (Suppl. Tr. pp. 37-39).


[10]   At the conclusion of the trial, the jury found Easler guilty as charged; however,

       the trial court merged Count II into Count I and entered judgment of conviction

       on operating a vehicle while intoxicated endangering a person, a Class A

       misdemeanor. On May 14, 2018, the trial court sentenced Easler to 365 days,

       with 120 days executed in the Marion County Community Corrections’ home

       detention and 245 days suspended to supervised probation.


[11]   Easler now appeals. Additional facts will be provided if necessary.


                                DISCUSSION AND DECISION
                                                I. Hearing Request


[12]   “The right to trial before an impartial jury is a cornerstone of our justice

       system.” Whiting v. State, 969 N.E.2d 24, 28 (Ind. 2012). Because “the

       presence of even one biased juror on the jury is structural error requiring a new

       Court of Appeals of Indiana | Opinion 18A-CR-1371 | February 8, 2019       Page 6 of 13
       trial,” Easler maintains that, when confronted with evidence of potential juror

       bias, a trial court should hold a hearing to ensure a defendant’s rights are

       protected. See id. Easler contends that the trial court abused its discretion by

       denying her request to further question Juror 4, when her note to the trial court

       revealed a potential bias. Generally, proof that a juror was biased against the

       defendant or lied on voir dire entitles the defendant to a new trial. Lopez v. State,

       527 N.E.2d 1119, 1130 (Ind. 1988). A defendant seeking a hearing on juror

       misconduct must first present some specific, substantial evidence showing a

       juror was possibly biased. Id. In order to warrant a new trial, there must be a

       showing that the misconduct was gross, and that it probably harmed the

       defendant. Id. The issue of juror misconduct is a matter within the trial court’s

       discretion. Id.


[13]   Pointing to the letter written by Juror 4, Easler interprets the writing as an

       indication of a potential bias and claims that Juror 4 must therefore have

       engaged in juror misconduct by failing to provide full and truthful answers on

       her questionnaire. 1 Easler points out that Juror 4 only stated on her

       questionnaire that her grandmother had been a victim of murder and violent

       crimes made her partial to the victim, but she did not disclose anything else.

       Easler maintains that upon being notified that a member of Juror 4’s family was




       1
         We note that the juror questionnaires are not part of the record on appeal. Easler’s counsel informed this
       court that the bailiff for Court 10 shreds the questionnaires and therefore it was unavailable to become part of
       the record before us. As the trial court referred to the content of Juror 4’s questionnaire during the hearing,
       we will rely on the court’s remarks.

       Court of Appeals of Indiana | Opinion 18A-CR-1371 | February 8, 2019                               Page 7 of 13
       killed by a drunk driver, new concerns arose that the Juror may have been

       referring to her grandmother and had failed to disclose that. Accordingly,

       Easler asserts that she was entitled to a hearing to further explore Juror 4’s

       potential bias.


[14]   In support of her argument that a hearing should have been conducted, Easler

       relies on Stevens v. State, 357 N.E.2d 245 (Ind. 1976), and Barnes v. State, 330

       N.E.2d 743 (Ind. 1975). In Stevens and Barnes, the parties discovered that jurors

       had either inaccurately responded or lied in response to questions in voir dire

       regarding their relationships with certain individuals affiliated with the

       prosecution or the defense. Stevens, 357 N.E.2d at 246; Barnes, 330 N.E.2d at

       325. In Barnes, when asked if a juror had any friends or relatives on the

       prosecutor’s staff, the juror responded, “no.” Barnes, 330 N.E.2d at 325. Later,

       it was discovered that the juror was married to a member of the prosecutor’s

       staff who was involved to a slight degree in Barnes’ trial. Id. The supreme

       court held that if a prospective juror gave inaccurate responses to voir dire

       questions, the defendant may challenge the juror for cause, and the trial court

       shall hold a hearing to determine whether the juror is biased and warranted a

       new trial. Id. at 326. The court explained that, irrespective of the fact that the

       juror might not have been aware of the relationship at the time of the voir dire,

       the potential for future bias remained and therefore a hearing was appropriate.

       Id.


[15]   In Stevens, the trial court conducted a hearing when it was notified that a juror,

       who had denied any previous knowledge of the case during voir dire, had in fact
       Court of Appeals of Indiana | Opinion 18A-CR-1371 | February 8, 2019         Page 8 of 13
       discussed the case with another juror after being sworn in. Stevens, 354 N.E.2d

       at 246. Our supreme court reaffirmed Barnes and concluded that the possibility

       of bias was sufficient to require that the defendant be afforded an opportunity to

       explore the juror’s prejudices so as to challenge for cause if bias existed. Id. at

       402.


[16]   However, in light of our supreme court’s decision in Lopez, decided about a

       decade after Stevens and Barnes, we find Easler’s reliance on the two latter cases

       misplaced. In Lopez, our supreme court held that the hearing requirement of

       Barnes and Stevens is not triggered unless the defendant offers specific,

       substantial evidence showing a juror was possibly biased. Lopez, 527 N.E.2d at

       1130. The Lopez court found that the defendant was not entitled to a hearing on

       a claim of juror misconduct even though the defendant presented evidence that

       a juror knew the defendant prior to trial, had discussed the case with other

       jurors prior to deliberation, and had read newspaper articles about the case

       during trial, but the juror had also stated shortly before deliberations that she

       did not know how she was going to vote. Id. See also Pugh v. State, 52 N.E.3d

       955, 972 (Ind. Ct. App. 2016) (trial court did not abuse its discretion in denying

       defendant’s request to question two jurors he believed may be biased against the

       defendant after the jurors expressed concerns that the defendant was drawing

       pictures of them during trial).


[17]   Turning to the case before us, we conclude that Easler failed to present specific,

       substantial evidence establishing Juror 4’s bias. On her questionnaire,

       completed prior to being brought into the courtroom and becoming familiar

       Court of Appeals of Indiana | Opinion 18A-CR-1371 | February 8, 2019        Page 9 of 13
       with the charges filed against Easler, Juror 4 specified that her grandmother had

       been a murder victim. During voir dire, neither party inquired into the

       statement or asked her any questions pertaining to Easler’s charges. After she

       was elected to sit on the venire and was escorted from the courtroom, Juror 4

       sent the trial court a note in which she volunteered that a family member had

       been killed by a drunk driver but assured the court that she could be a jury

       member despite her family history.


[18]   We cannot equate the incompleteness of Juror 4’s questionnaire with bias.

       While “it is the duty of each juror to answer all questions on voir dire fully and

       truthfully,” Juror 4 completed the questionnaire to the best of her ability.

       McFarland v. State, 390 N.E.2d 989, 992 (Ind. 1979). It was not until she arrived

       in the courtroom and was informed by the trial court about the specific charges

       that she became aware of other relevant information, which she conscientiously

       divulged to the parties in the only way possible at that time. This disclosure,

       coupled with the affirmation that she could remain on the jury despite her

       background, resolved the need for any questioning as the trial court had

       educated the panel that to be a jury member, the person must be free from

       “bias, [and] prejudice[.]” (Tr. p. 14). Accordingly, as the note did not provide

       the specific, substantial evidence of bias required to trigger a hearing under

       Barnes and Lopez, the trial court did not abuse its discretion by declining Easler’s

       request to further question Juror 4.


                                               II. Removal for Cause



       Court of Appeals of Indiana | Opinion 18A-CR-1371 | February 8, 2019      Page 10 of 13
[19]   Next, Easler contends that she was denied the right to a fair trial because the

       trial court abused its discretion in denying her challenge for cause as to Juror 4.

       “Our justice system depends on jurors who appreciate the gravity of the cases

       they are called upon to try, so long as they demonstrate a commitment to

       impartiality and a willingness to dutifully follow the court’s instructions.”

       Oswalt v. State, 19 N.E.3d 241, 250 (Ind. 2014). In Oswalt, our supreme court

       reiterated: “The Federal and Indiana Constitutions guarantee the right to an

       impartial jury” and explained how the mechanism of prospective juror removal

       is used to achieve an impartial jury. Id. at 245-56. Peremptory challenges give

       the parties the nearly unqualified right to remove any prospective juror they

       wish, restricted only by the finite allotment of challenges and the constitutional

       ban on racial, gender, and religious discrimination. Id. at 246. The exercise of

       peremptory challenges is not subject to the trial court’s control, and the party

       making the challenge is not generally required to explain the underlying

       reasons. Id.


[20]   By contrast, for-cause motions are available to exclude jurors whose views

       would prevent or substantially impair the performance of his or her duties as a

       juror in accordance with the instructions given and the oath taken and thus

       violate the defendant’s Sixth Amendment rights. Id. A juror thus removed is

       considered an “incompetent” juror, while a juror not removable for cause but

       stricken at a party’s wish is termed “objectionable.” Id. Strikes for cause

       require trial court approval, so parties may seek appellate review of an

       unsuccessful for-cause motion. Id.


       Court of Appeals of Indiana | Opinion 18A-CR-1371 | February 8, 2019       Page 11 of 13
[21]   Bias may be actual or implied. Actual bias arises when a factual bias for or

       against one of the parties is shown to exist. Smith v. State, 477 N.E.2d 311 (Ind.

       Ct. App. 1985). Implied bias, as is claimed here, is a bias attributable by law to

       a prospective juror, regardless of actual partiality, due to the exercise of a

       relationship between the juror and one of the parties. Alvies v. State, 795 N.E.2d

       493, 499 (Ind. Ct. App. 2003). Because such biases can be difficult to ascertain

       on a paper record, we pay considerable deference to the trial court, who has the

       unique opportunity to “assess the demeanor of prospective jurors as they

       answer the questions posed by counsel.” Oswalt, 19 N.E.3d at 245. We thus

       review the trial court’s ruling on a for-cause challenge for an abuse of

       discretion. Id. Error is found only if the decision is illogical or arbitrary. Id.


[22]   Having exhausted her peremptory challenges, Easler challenged Juror 4 “based

       on her failure to provide full and truthful answers on her questionnaire.”

       (Appellant’s Br. p. 21). Had she timely revealed the information that one of her

       family members had been killed by a drunk driver, Easler alleges that she then

       could have explored any possible bias during voir dire.


[23]   However, the record does not support that Juror 4 deliberately withheld this

       information or provided untruthful information on the questionnaire or during

       voir dire. Rather, the evidence supports that Juror 4 was forthcoming about her

       family history at the earliest opportunity after she learned that the case involved

       a driver who operated a vehicle while intoxicated. Neither party asked any

       questions during voir dire whether the prospective jurors had been victims of

       drunk-driving incidents, or if they knew or were related to anyone who had

       Court of Appeals of Indiana | Opinion 18A-CR-1371 | February 8, 2019       Page 12 of 13
       been a victim. Because Juror 4 disclosed the information voluntarily at her

       earliest opportunity, even after counsel wholly failed to ask any questions

       pertaining to drunk driving, and then assured the parties that she could still be a

       juror, Easler has fallen short of establishing bias, misconduct, or partiality by

       Juror 4. Accordingly, as Easler’s jury was fair and impartial, we affirm her

       conviction.


                                              CONCLUSION
[24]   Based on the foregoing, we conclude that the trial court properly denied

       Easler’s request to question a member of the venire after the member divulged

       information relevant for voir dire, and Easler was convicted by a fair and

       impartial jury.


[25]   Affirmed.


[26]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Opinion 18A-CR-1371 | February 8, 2019      Page 13 of 13
