ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE
Stephen Hensleigh Thomas Shannon L. Robinson
Daniel A. Barfield Bloomington, Indiana
Evansville, Indiana
IN THE
SUPREME COURT OF INDIANA
Nina Merritt, Individually and as )
Next Friend and Natural Mother )
of Kristin Alexander, and Kristin )
Alexander, Individually, ) No. 82S01-0102-CV-98
) in the Supreme Court
Appellants (Plaintiffs Below),)
)
v. ) No. 82A01-9912-CV-421
) in the Court of Appeals
EVANSVILLE-VANDERBURGH SCHOOL )
CORPORATION, )
)
Appellee (Defendant Below). )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Robert Pigman, Special Judge
Cause No. 82D03-9712-CT-04354
April 5, 2002
SHEPARD, Chief Justice.
The question is whether a party who unavailingly challenges a
prospective juror for cause and then passes up the chance to use a
peremptory to strike that juror may later seek retrial based on the court’s
failure to grant the challenge for cause. Indiana’s historic reply, like
that of a good many other jurisdictions, has been “no.” After examining
the available alternative policies, we conclude that the present rule
probably does the most to foster fair trials.
Facts and Procedural History
On October 3, 1996, six-year-old Kristin Alexander fell off the
monkey bars and fractured her arm while playing at the Vogel Elementary
School playground in Evansville. Kristin and her mother, Nina Merritt
(collectively “Merritt”), sued Evansville-Vanderburgh School Corporation
(EVSC) claiming negligence for failure to maintain an adequate protective
surface on the playground to prevent such foreseeable injuries. Tom
Bennett, Vogel’s principal, served as EVSC’s representative at trial and
testified on its behalf.
During voir dire, Merritt challenged three prospective jurors
(Cynthia Carneal, Susan Harp, and Sharon Kennedy) for cause because they
had some acquaintance with Bennett and/or worked for the school system.
Each had said during earlier examination that she could reach an impartial
decision in the case. Apparently satisfied that this was true, the trial
judge denied all three challenges.
Merritt used two of her three available peremptories to strike Carneal
and Kennedy. She also struck Steven Bender, who expressed general concern
about excessive litigation but said he could be fair in deciding the case.
Harp served on the jury as the foreperson. The jury returned a verdict in
favor of EVSC.
On appeal, Merritt argued that the trial court erred by not dismissing
Carneal and Harp for cause based on their employment with EVSC. EVSC
argued that Merritt waived this claim by failing to use a peremptory strike
to exclude Harp. A divided Court of Appeals addressed the claim on the
merits and reversed, finding Harp and Carneal “impliedly biased and/or
biased as a matter of law because they were employed by the defendant,
EVSC.” Merritt v. Evansville-Vanderburgh Sch. Corp., 735 N.E.2d 269, 270,
272 (Ind. Ct. App. 2000). We granted transfer. 753 N.E.2d 5 (Ind. 2001).
The threshold question here is whether a party can pass up the
opportunity to remove an incompetent[1] juror and then assert error on
appeal. Because we find the claim of error waived, we do not address
whether the trial court erred by not excusing Carneal and Harp.
Challenges for Cause: The Exhaustion Rule
The trial court has discretion to grant or deny challenges for cause.
Woolston v. State, 453 N.E.2d 965 (Ind. 1983). We will sustain the
decision on appeal unless it is illogical or arbitrary. Id. When a juror
serves who should have been removed for cause, the complaining party is
entitled to a new trial, absent waiver. Haak v. State, 417 N.E.2d 321
(Ind. 1981)
As for when such a complaining party is entitled to seek a new trial,
a claim of error arising from denial of a challenge for cause is waived
unless the appellant used any remaining peremptory challenges to remove the
challenged juror or jurors. Indiana’s long-standing rule, which the Court
of Appeals acknowledged, is also widely recognized in other states.[2]
As we said in Robinson v. State, 453 N.E.2d 280 (Ind. 1983), “Our law
on this issue is well settled. We have consistently held that to preserve
any error the defendant bears the burden of demonstrating that at the time
she challenged the jurors for cause, she had exhausted her peremptory
challenges.”[3] Id. at 282 (emphasis in original) (citing, inter alia,
Rock v. State, 185 Ind. 51, 110 N.E. 212 (1915)). Eventual use of all
peremptory challenges is therefore not enough to satisfy the exhaustion
requirement.
Dissenting in the present case, Chief Judge Sharpnack explained the
rationale for this approach: “[W]here a trial court may have erred in
denying a party’s challenge for cause, and the party can cure such error by
peremptorily removing the apparently biased venireperson, the party should
do so in order to ensure a fair trial and an efficient resolution of the
case.” Merritt, 735 N.E.2d at 272 (Sharpnack, C.J., dissenting) (citation
omitted).[4]
Peremptory strikes “permit litigants to assist the government in the
selection of an impartial trier of fact.” Edmonson v. Leesville Concrete
Co., 500 U.S. 614, 620 (1991). In Ross v. Oklahoma, 487 U.S. 81 (1988),
the U.S. Supreme Court upheld Oklahoma’s exhaustion requirement against a
federal constitutional challenge, describing peremptory strikes as “a means
to achieve the end of an impartial jury” rather than a right of
constitutional dimension. Id. at 88. To obtain reversal under Oklahoma
law, the appellant must properly preserve the right to challenge the
court’s failure to remove a biased juror for cause, and the biased juror
must actually serve. Id. at 85. The Court found “nothing arbitrary or
irrational about [an exhaustion] requirement, which subordinates the
absolute freedom to use a peremptory challenge as one wishes to the goal of
empaneling an impartial jury.” Id. at 90.[5]
Likewise, Justices Scalia and Kennedy recently described the
exhaustion rule as consistent with the history of peremptory challenges in
criminal cases:
[I]t may well be regarded as one of the very purposes of peremptory
challenges to enable the defendant to correct judicial error on the
point [of juror bias]. Indeed, that must have been one of their
purposes in earlier years, when there was no appeal from a criminal
conviction—so that if the defendant did not correct the error by using
one of his peremptories, the error would not be corrected at all.
United States v. Martinez-Salazar, 528 U.S. 304, 319 (2000) (Scalia, J.,
concurring in judgment).
The rule upheld by the U.S. Supreme Court in Ross is more stringent
than our own practice. In Indiana, it is enough to show that an
objectionable juror served because a party was forced to use a peremptory
strike to cure an erroneous denial of a challenge for cause. The appellant
need not prove that the objectionable juror was incompetent, i.e., one who
should have been excused for cause. See Woolston, 453 N.E.2d at 968.[6]
It is sound policy to require litigants to help themselves by using
their peremptory challenges to ensure an impartial jury. Permitting them
to seek a new trial when they had a remedial tool available and chose not
to use it could lead to harsh results.
We can contemplate ready examples. Assume a class C felony battery
case, where the criminal defendant has ten peremptory challenges to use in
selecting a twelve-person jury. After voir dire of the first group of
prospective jurors, the hypothetical defendant challenges one juror for
cause, claiming, say, bias against arrestees. After that challenge is
erroneously denied, the defendant uses all ten peremptory challenges to
strike ten other venire members for any of the infinite variety of reasons
people use peremptories, from readily apparent grounds to the utterly
inchoate. The defendant seeks a new trial, citing the generally applicable
rule that participation of an incompetent juror in a verdict requires
retrial.[7]
While this bright-line rule of reversal is widely embraced, in this
example it would create unwarranted costs and inefficiencies for the
parties, the court system, and citizen jurors. The exhaustion rule solves
this problem by preventing this defendant from complaining on appeal that
service by the challenged juror denied him a fair trial. This seems like
an eminently fair and more sensible result.
We could avoid retrial in this example by adopting a different rule,
such as a case-sensitive analysis of whether the defendant used his
peremptory challenges reasonably, or whether that juror’s bias resulted in
actual, not just potential, prejudice to the defendant.
Such rules would, of course, be slippery slopes. And it seems
unlikely the slope would favor persons who deem themselves deprived of a
fair trial by the presence of an incompetent juror.
Surely such parties are better off with a clear and predictable road
map: you must use any available peremptories to correct erroneous denials
of challenges for cause. If on appeal you then prove both the erroneous
denial and that you were unable to strike another objectionable juror
because you exhausted your peremptories, you are entitled to a new trial,
full stop.[8]
“The object to be attained is an impartial jury, and while the right
of peremptory challenge is an absolute one, it is not, we think, so far so
that it may be exercised under all conditions.” McDonald v. State, 172
Ind. 393, 400, 88 N.E. 673, 676 (1909).[9] We conclude that Indiana’s
moderate position-- requiring an appellant to show that an incompetent or
objectionable juror actually served because she used up her peremptories to
strike a juror she challenged for cause who should have been, but was not,
excused by the court--represents the best balancing of the various private
and public interests at stake.
Applying the Rule
The exhaustion rule is fatal to Merritt’s claim. She had sufficient
peremptory challenges to strike Carneal and Harp when the trial judge
denied her challenges for cause. Had she used peremptory strikes to remove
those two, then made a record of her desire and inability to strike both
Kennedy and Bender as well, her claim that the trial court erred in denying
the challenges for cause would have been available for an appellate
decision on the merits. She did not do so, and the claim is waived.
Conclusion
We affirm the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] We use the term “incompetent” to describe a juror who is removable for
cause. We use “objectionable” for a juror who is not removable for cause,
but whom a party wishes to strike.
[2] See State v. DiFrisco, 645 A.2d 734, 753 n.1 (N.J. 1994), cert. denied,
516 U.S. 1129 (1996) (citing case law from twenty-two other states,
including Indiana, that require the use of peremptories to correct
erroneous denials of challenges for cause).
[3] Of course, trial court judges take various approaches to jury selection
and the timing of challenges for cause and use of peremptories. Some
judges require parties to challenge or strike members of a given panel and
accept those jurors who remain, then move on to voir dire a second panel if
need be. Other judges permit lawyers to go back and strike jurors from
panel one even after a second or third group has been interviewed. We take
the language from Robinson, that a peremptory must be used “at the time she
challenged the jurors for cause,” to mean that the party must use a
peremptory against the challenged juror at whatever moments the trial judge
regularly permits peremptory strikes before jury selection is complete.
[4] Note that for similar reasons Indiana requires appellants to exhaust
their peremptory challenges as a prerequisite to appealing denial of a
motion for change of venue. Grooms v. State, 269 Ind. 212, 216, 379 N.E.2d
458, 461 (1978), cert. denied, 439 U.S. 1131 (1979).
[5] The U.S. Supreme Court recently said in United States v. Martinez-
Salazar, 528 U.S. 304 (2000), that under federal law a defendant is not
required to use a peremptory strike to preserve a challenge-for-cause
denial claim (although if the defendant chooses to do so, he is not
entitled to relief unless a biased juror served). Id. at 307. As Judge
Richard Posner observed in Thompson v. Altheimer & Gray, 248 F.3d 621 (7th
Cir. 2001), this “put[s] the litigant in a heads-I-win-tails-you-lose
position: if he wins a jury verdict, he can pocket his victory, and if he
loses, he can get a new trial.” Id. at 623.
[6] The various state positions on this issue occupy points along a
continuum. For example, New Jersey, like Oklahoma, requires an appellant
to show that an incompetent juror actually served to prevail on a claim of
wrongful denial of a challenge for cause. See DiFrisco, 645 A.2d at 753.
Arkansas, Florida, and Texas all follow a more lenient approach similar to
Indiana’s, and require only that the appellant show that an objectionable
juror served because he used a peremptory strike to correct an erroneous
denial of a for-cause challenge. See Andrews v. State, 675 S.W.2d 636,
638 (Ark. 1984); Gootee v. Clevinger, 778 So. 2d 1005, 1009-10 (Fla. Dist.
Ct. App. 2000), review denied, 794 So. 2d 603 (Fla. 2001); Johnson v.
State, 42 S.W.3d 1, 7 (Tex. Crim. App. 2001). Colorado is even more
generous, requiring only that the appellant show the use of a peremptory
strike to correct an erroneous denial of a challenge for cause and
exhaustion of all available peremptories. See People v. Macrander, 828
P.2d 234, 244 (Colo. 1992).
[7] See, e.g., Block v. State, 100 Ind. 357, 364-65 (Ind. 1885); Haak v.
State, 417 N.E.2d 321, 324 (Ind. 1981); Berkman v. State, 459 N.E.2d 44, 46
(Ind. Ct. App. 1984).
[8] For example, a claim is preserved where a party uses her last
peremptory challenge to cure a trial court’s erroneous denial of a
challenge for cause and establishes for the record that she would have used
that peremptory to strike another juror. See Woolston, 453 N.E.2d at 968
(prejudice not shown where defendant did not desire to challenge only juror
sworn after last peremptory challenge was used to strike another juror for
whom challenge for cause denied).
[9] It is worth noting that the exhaustion rule is not the only limitation
on peremptory challenges. Trial courts may reasonably regulate the manner
of exercising the right of peremptory challenges, such as by requiring the
opposing parties to exercise challenges simultaneously and independently.
Hart v. State, 265 Ind. 145, 153, 352 N.E.2d 712, 717 (1976). In civil
cases all named plaintiffs may be collectively limited to the number of
peremptory challenges allowed by statute to each party, and the same is
true for all joined defendants. See Christensen v. Sears, Roebuck & Co.,
565 N.E.2d 1103, 1105-07 (Ind. Ct. App. 1991) (citing Snodgrass v. Hunt, 15
Ind. 274 (1860)). Similarly, criminal defendants tried jointly may
collectively receive only the same number of challenges that defendants
tried individually would receive. See Lund v. State, 264 Ind. 428, 433,
345 N.E.2d 826, 829 (1976). Like the exhaustion rule, each of these
limitations effectively reduces the number of available peremptory
challenges.