OPINION ON REHEARING                                                          FILED
                                                                        Sep 12 2019, 10:32 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Megan J. Schueler                                          Curtis T. Hill, Jr.
Ferguson Law                                               Attorney General of Indiana
Bloomington, Indiana                                       J.T. Whitehead
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey Archer,                                            September 12, 2019
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           18A-PC-2681
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Marc Rothenberg,
Appellee-Respondent                                        Judge
                                                           The Honorable Amy Barbar,
                                                           Magistrate
                                                           Trial Court Cause No.
                                                           49G02-1604-PC-16169



Baker, Judge.




Court of Appeals of Indiana | Opinion on Rehearing 18A-PC-2681 | September 12, 2019               Page 1 of 6
[1]   Jeffrey Archer has filed a petition for rehearing on our initial decision in this

      case. We grant his petition so that we can correct an error.


[2]   In our initial decision, we explored Archer’s argument that appellate counsel

      was ineffective for failing to obtain a copy of the voir dire transcript:


              During the post-conviction hearing, appellate counsel testified
              that it was not his policy to review voir dire because what
              transpires then is not evidence. A record on appeal includes “all
              proceedings before the trial court,” Ind. Appellate Rule 2(L), and
              as we have stated, appellate counsel has a duty to thoroughly
              review the entire record of a defendant’s proceedings. Wilson v.
              State, 94 N.E.3d 312, 321 (Ind. Ct. App. 2018).


              But Archer cannot show prejudice from appellate counsel’s error.
              Although Archer contends that he was prejudiced by a
              prospective juror who, after acknowledging that she could not be
              fair and impartial, was selected to serve on the jury, the record
              shows that this prospective juror was dismissed from jury service.


      Archer v. State, 18A-PC-2681, slip op. p. 10 (Ind. Ct. App. July 25, 2019).


[3]   Archer correctly points out in his petition for rehearing that, despite a seeming

      assumption from both attorneys and the trial court that dismissal would occur,

      the juror was not, in fact, dismissed. And in this case, that is highly

      problematic. During voir dire, Juror Lynch indicated that she had mistakenly

      said on the juror form that she would be able to be fair and impartial:


              Defense:          Okay. Do you want to change that?


              Juror:            Maybe I just think where there’s smoke, there’s fire.

      Court of Appeals of Indiana | Opinion on Rehearing 18A-PC-2681 | September 12, 2019   Page 2 of 6
        Defense:          Okay. So if someone’s accused of a crime, they
                          probably did it. Is that fair for you?


        Juror:            I think maybe it is.


        Defense:          Okay. Would that make—would you agree that
                          would probably make you to be (indiscernible) juror
                          in a criminal case?


        Juror:            I think maybe so.


        Defense:          Okay. . . . [W]ould it be [a] fair statement that
                          probably you ought not serve as [a] juror on this
                          case?


        Juror:            May—maybe not.


        Defense:          Okay. You understand the Court’s going to give
                          you instructions that you need to follow his
                          instructions and apply the law and be fair? And are
                          you telling me that even though he tells you that, it
                          may not happen? Yes?


        Juror:            Yes.


        Defense:          Okay. Your Honor, challenge for cause.


Appellant’s Am. App. Vol. II p. 121-22. At that point, the trial court held a side

bar bench conference. The trial court asked the prosecutor whether she would

have any questions:


        Prosecutor: I would just ask for followup (indiscernible).

Court of Appeals of Indiana | Opinion on Rehearing 18A-PC-2681 | September 12, 2019   Page 3 of 6
              Court:            I’ll probably allow you, but I—you can do followup
                                or whatever, and I’ll give you a chance to—I just—I
                                think she’s pretty bad. I just—I don’t want to do it
                                in front of God and everybody, because I don’t
                                want the floodgates to open. Okay?


              Defense:          Right.


              Court:            So do you want—you want followups?


              Prosecutor: Yes. Thank you, Judge.


              Court:            Okay. Then I’m going to grant it, but I think—so
                                just take it off your thing, we’re not going to excuse
                                her.


      Id. at 122-23. Archer’s attorney then resumed voir dire, thanking Juror Lynch

      for her candor and moving on. Id. at 123. At the conclusion of voir dire, the

      trial court did not include Juror Lynch in the list of jurors to be excused; it did

      include her in the list of jurors to be seated. Id. at 126.


[4]   During the post-conviction hearing, trial counsel was asked about his decision

      to leave Lynch on the jury. He explained that he tells clients that in any child

      molesting case, “most people” believe that the accused is guilty based on the

      accusation, so the case starts “in a hole and we need to try to dig out of it.” Tr.

      Vol. II p. 93. Although trial counsel did not specifically remember Juror

      Lynch’s comments, he did not doubt that she said them because in “most trials,

      a juror would think that.” Id.



      Court of Appeals of Indiana | Opinion on Rehearing 18A-PC-2681 | September 12, 2019   Page 4 of 6
[5]   Notwithstanding trial counsel’s beliefs, “the right to a fair trial before an

      impartial jury is the cornerstone of our criminal justice system.” Whiting v.

      State, 969 N.E.2d 24, 28 (Ind. 2012). And our Supreme Court has held that

      “[t]he presence of even one biased juror on the jury is a structural error

      requiring a new trial.” Id. (citing United States v. Martinez-Salazar, 528 U.S. 304,

      316 (2000)).


[6]   In this case, it is plain that Juror Lynch was biased. She admitted to her bias,

      said that she would be unable to follow the trial court’s instructions to apply the

      law and be fair, and agreed that she should not be seated on the jury. The trial

      court likewise agreed that she was “pretty bad,” though it ultimately decided

      not to excuse her. Appellant’s Am. App. Vol. II p. 122.


[7]   Appellate counsel decided to raise the issue of ineffective assistance of trial

      counsel in Archer’s direct appeal. That decision had two consequences. First,

      it means that we cannot consider that issue here. Lowery v. State, 640 N.E.2d

      1031, 1037 (Ind. 1994).


[8]   Second, it means that appellate counsel had an obligation to review the entire

      record of the trial proceedings, including the voir dire transcript. Wilson, 94

      N.E.3d at 321. Had appellate counsel done so, counsel would have seen this

      significant, obvious, and strong issue to be raised on appeal. And we believe

      that had appellate counsel raised the issue, we would have ruled in Archer’s

      favor, reversing and remanding for a new trial.




      Court of Appeals of Indiana | Opinion on Rehearing 18A-PC-2681 | September 12, 2019   Page 5 of 6
[9]    Archer has established both that appellate counsel was ineffective and that he

       was prejudiced as a result. Under these circumstances, we find that the post-

       conviction court erred by denying Archer’s petition for post-conviction relief.


[10]   The judgment of the post-conviction court is reversed and remanded for further

       proceedings.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion on Rehearing 18A-PC-2681 | September 12, 2019   Page 6 of 6
