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.
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