MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               Jan 29 2016, 8:13 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Suzy St. John                                            Gregory F. Zoeller
Marion County Public Defender                            Attorney General of Indiana
Appellate Division                                       Brian Reitz
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sallye Purnell,                                          January 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1505-CR-440
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Allan Reid,
Appellee-Plaintiff                                       Commissioner
                                                         Trial Court Cause No.
                                                         49F10-1404-CM-21094



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-440 | January 29, 2016      Page 1 of 6
                                             Case Summary
[1]   Sallye Purnell appeals her conviction for class A misdemeanor battery, arguing

      that the trial court abused its discretion by removing a juror who realized during

      trial that she was acquainted with Purnell’s father, who was a key witness for

      Purnell. Finding no abuse of discretion, we affirm.


                                 Facts and Procedural History
[2]   One evening in February 2014, Purnell’s father, Edward Purnell, shoveled a

      parking spot on the side of the street in front of his Indianapolis home. He left

      to go to the grocery store, leaving his ill wife in the care of others. While

      Edward was gone, Tyaira Reynolds parked in the spot that Edward had

      shoveled to drop her daughter off at Glenda Carson’s home, which was across

      the street from Edward’s house. Reynolds left her car running but locked its

      doors.


[3]   Edward returned and parked his car in the street next to Reynolds’s car. He

      knocked on Carson’s door and told Reynolds that she needed to move her car.

      As Reynolds was walking to her car, she saw a woman, later identified as

      Purnell, putting on shoes on Edward’s porch. When Reynolds got to her car,

      she felt someone hit her. Three people, including two women, hit Reynolds

      over twenty times. Reynolds was finally able to get in her car and call 911.

      Reynolds went to the emergency room with a fractured nose and other facial

      injuries.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-440 | January 29, 2016   Page 2 of 6
[4]   The State charged Purnell with class A misdemeanor battery. A jury found

      Purnell guilty as charged. This appeal ensued.


                                     Discussion and Decision
[5]   Purnell contends that the trial court abused its discretion in dismissing Juror D.

      After the State’s case-in-chief, Purnell called Edward to testify. After he

      testified, Juror D submitted a note to the trial court, with several questions:

      whether Edward rode a Harley; whether he was a member of a certain church;

      whether he knew her ex-husband; and whether Edward’s wife’s name was Pat,

      who passed away and who also rode bikes. Appellant’s App. at 132. The note

      also stated that Juror D thought that she and her ex-husband had visited

      Edward’s wife in the hospital. Id. The trial court questioned Edward, who

      answered affirmatively to all Juror D’s questions.


[6]   The trial court brought Juror D into the courtroom outside the presence of the

      other jurors to ask her some questions. Juror D said that she vaguely knew

      Edward and his wife, her ex-husband knew them better, and she did not know

      any of Edward’s children. She also said that she could be fair and objective.

      The State argued that Juror D should be removed “to avoid the possibility of

      faltering” and because Juror D might be concerned with a “potential backlash”

      from Pat’s motorcycle club or hope to “get into graces with this club.” Tr. at

      227-28. Purnell objected to Juror D’s removal. The trial court removed Juror

      D, explaining, “We’ve got to maintain not only neutrality but also the

      appearance of neutrality. So, that being the case I’m going to remove [Juror D]


      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-440 | January 29, 2016   Page 3 of 6
      from the jury. We’ll replace her with [the alternate juror].” Tr. at 228. The

      trial court explained the situation to the jury as follows:

              [Juror D] realized that she had personal knowledge about this
              case. So we talked to her and it seemed, uh, often when we’re
              proceeding not only do we have to keep free and avoid
              improprieties, we have to avoid any possible appearance of
              impropriety. So I’ve made the decision to send [Juror D] home.


      Id. at 230.


[7]   Article 1, Section 13 of the Indiana Constitution guarantees criminal defendants

      the right to a trial by an impartial jury. Caruthers v. State, 926 N.E.2d 1016,

      1020 (Ind. 2010). “[T]herefore, a biased juror must be dismissed.” Id. A

      juror’s bias “may be actual or implied.” Id. Ind. Trial Rule 47(B) provides in

      part, “Alternate 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.” May v. State, 716 N.E.2d 419, 421 (Ind.

      1999). Because a trial court is “‘in the best position to assess the honesty and

      integrity of [a juror and their] ability to perform as a conscientious, impartial

      juror. … our review of the trial court’s decisions in these matters is highly

      deferential.’” Phillips v. State, 22 N.E.3d 749, 757 (Ind. Ct. App. 2015) (quoting

      Morgan v. State, 903 N.E.2d 1010, 1019 (Ind. Ct. App. 2009), trans. denied)

      (brackets in Phillips), trans. denied.
      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-440 | January 29, 2016   Page 4 of 6
[8]   Here, the trial court dismissed Juror D to avoid the appearance of impropriety.

      Juror D visited Edward’s wife, Purnell’s mother (or stepmother), in the

      hospital. Juror D may have only vaguely known Edward, but she seemed to

      know quite a bit about him. Edward was directly involved in the events

      surrounding Purnell’s offense, and he was a key witness in Purnell’s defense.

      Under the circumstances, the trial court’s articulated basis for removing Juror D

      leads us to conclude that it did not abuse its discretion. 1 See Gray v. State, 563

      N.E.2d 108, 111-12 (Ind. 1990) (upholding trial court’s removal of juror where

      juror indicated that she may have worked with Gray’s sister at restaurant).

      Purnell cites no authority for the proposition that a trial court abuses its

      discretion by attempting to avoid an appearance of impropriety.


[9]   As to how her rights to an impartial jury were affected by Juror D’s removal,

      Purnell merely asserts, “Allowing trial courts to strike jurors in the middle of

      trial for no apparent reason is contrary to the guarantees of Article 1, § 13,” and

      “[i]t can also lead to jury panels that unfairly favor one side.” Appellant’s Br. at

      15. We cannot agree that the trial court acted “for no apparent reason,” and

      Purnell does not argue that removing Juror D caused her jury panel to unfairly

      favor the State. “‘Alternate jurors are selected in the same manner as regular

      jurors, have the same qualifications, are subject to the same examination and




      1
        Purnell asserts that the trial court “felt it needed to fabricate reasons for Juror D’s removal.” Appellant’s
      Br. at 14. The trial court informed the jury that Juror D was removed because “she had personal knowledge
      about the case.” Tr. at 230. Purnell maintains that Juror D had no personal knowledge of this case. We
      agree with the State that “in context, ‘the case’ is a broad term encompassing not only the issues and parties
      at hand, but the witnesses and all players in the proceeding.” Appellee’s Br. at 17.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-440 | January 29, 2016               Page 5 of 6
       challenges, and take the same oath and are prepared at all times to replace a

       regular juror.’” King v. State, 508 N.E.2d 1259, 1263 (Ind. 1987) (quoting

       Whitehead v. State, 500 N.E.2d 149, 153 (Ind. 1986)). “[T]he substitution of a

       regular juror with an alternate juror does not support a claim of prejudice.” Id.

       We fail to see what prejudice resulted to Purnell under the circumstances here.


[10]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-440 | January 29, 2016   Page 6 of 6
