Legal Research AI

Ward v. State

Court: Indiana Supreme Court
Date filed: 2004-06-30
Citations: 810 N.E.2d 1042
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11 Citing Cases



Attorneys for Appellant                            Attorneys for Appellee
Steven E. Ripstra                                        Steve Carter
Ripstra Law Office                                 Attorney General of
Indiana
Jasper, Indiana
                                             James B. Martin
Lorinda Meier Youngcourt                           Deputy Attorney General
Huron, Indiana                                     Indianapolis, Indiana

____________________________________________________________________________
__

                                   In the
                            Indiana Supreme Court
                      _________________________________

                            No. 74S00-0108-DP-361

Roy Lee Ward,
                                             APPELLANT (DEFENDANT BELOW),

                                     v.

State of Indiana,
                                             Appellee (Plaintiff below).
                      _________________________________

        Appeal from the Spencer Circuit Court, No. 74C01-0107-CF-158
                     The Honorable Wayne A. Roell, Judge
                      _________________________________

                              On Direct Appeal
                      _________________________________

                                June 30, 2004

Rucker, Justice.

                                Case Summary

      As the result of a brutal slaying Roy Lee Ward was convicted of murder
and sentenced to death.  He was also convicted and sentenced to  a  term  of
years for rape and criminal deviate conduct.  In  this  direct  appeal  Ward
raises several issues for our review, one of which is that this case  should
not have been tried in the county where the crimes  were  committed  because
of community bias and pervasive pretrial  publicity.   The  record  supports
this contention.  We are therefore constrained to reverse  and  remand  this
cause for a new trial.

                        Facts and Procedural History

      On the morning of July 11,  2001,  fifteen-year-old  Stacy  Payne  was
present in her Dale, Indiana home.  Also  present  was  her  younger  sister
Melissa who was asleep in her bedroom.   Stacy  was  waiting  to  leave  for
work.  Other members  of  the  family  had  already  left  for  their  jobs.
Pretending that he was searching for a lost dog, Ward approached  the  Payne
residence and convinced Stacy to allow him to enter the  house.   Thereafter
Melissa awoke to the sound of Stacy screaming.  Going  to  the  top  of  the
stairs Melissa saw a man lying on top of Stacy holding  her  down.   Melissa
then ran to her parents’ room and dialed 911.  As she  was  talking  on  the
telephone Melissa could hear her sister saying “please stop.”

      Shortly thereafter  the  Dale  Town  Marshall  arrived  and  saw  Ward
standing in the doorway, covered with perspiration,  and  holding  a  knife.
Drawing his service revolver, the  Marshall  ordered  Ward  to  the  ground.
Ward complied saying, “I didn’t do anything.”  The  Marshall  then  went  to
the kitchen and found Stacy lying on the floor, nude from  the  waist  down,
covered with blood, and her intestines exposed.  Although  conscious,  Stacy
could not speak.  She was taken immediately to the  emergency  room  of  the
Deaconess-St. Joseph Hospital where doctors noted a  laceration  to  Stacy’s
abdomen, a laceration to her back that severed her spine, and  a  laceration
across Stacy’s neck cutting her trachea.  Efforts to save Stacy’s life  were
unsuccessful.   A  subsequent  forensic  examination  revealed  that   Stacy
suffered eighteen blunt force injuries, including injuries found within  the
vaginal vault.

      On July 16, 2001, the State charged Ward with murder, and subsequently
filed a notice of intent to seek the death penalty.  Thereafter,  the  State
filed an amended information to include one count  of  rape  as  a  Class  A
felony and one count of criminal deviate conduct as a Class A felony.
      The Town of Dale, located in southwestern Spencer County, is  a  small
close-knit community.  As of the 2000 census, Spencer  County  had  a  total
population of  20,400.   As  one  local  newspaper  recounted,  “The  brutal
stabbing of a 15-year-old girl last week in  her  own  home  has  left  this
community, as well as surrounding communities, in shock and law  enforcement
officials in  search  of  answers.”   Appellant’s  App.  at  6281.   Another
newspaper reported, “Community reaction is one of  stunned  disbelief  after
the news of 15-year-old Stacy Payne’s murder Wednesday afternoon in her  own
home outside of Dale.  ‘Things like this just don’t happen  in  small  towns
like Dale, Indiana’ is a common  reaction  to  the  news  that  has  parents
hugging their children, locking their doors  and  grieving  with  the  Payne
family.”  Id. at 6295.

      On February 8, 2002, Ward filed a motion for change of venue from  the
county, or in the alternative a motion to draw the jury from another  county
pursuant to section 35-36-6-11 of the Indiana Code.[1]  Although Ward  later
withdrew  the  motion  when  the  trial  court  denied  his  request  for  a
continuance for the purpose of having a survey conducted, Ward  refiled  the
motion on April 11, 2002.  As grounds for the  motion  Ward  alleged  public
outrage, hostility, and prejudicial pretrial publicity.  A  hearing  on  the
motion was conducted May 20, 2002.  The  parties  stipulated  into  evidence
several  exhibits,  including  twenty-five  articles  from  four  local  and
regional newspapers, and either  the  videotape  or  transcript  from  three
local and regional television stations representing  fifteen  news  stories.
Although the news accounts were graphic and detailed,  they  were  generally
accurate.  Many of the accounts however  also  included  details  of  Ward’s
past criminal history that would not have been admissible at trial.[2]   The
evidence at the hearing, including testimony  of  witnesses,  also  revealed
that a vigil was held for  Stacy  at  which  nearly  twelve  hundred  people
attended.  Over five hundred mourners attended her funeral. At the close  of
the hearing, the trial court took Ward’s motion for change  of  venue  under
advisement.  About a  month  before  trial,  at  a  hearing  in  which  Ward
appeared, an angry audience yelled at Ward as he was being escorted  through
the courthouse rotunda;  the  trial  court  admonished  the  crowd  for  its
behavior.

      On October 7, 2002, the jury selection process began.  The trial court
had summoned one hundred twenty-eight prospective jurors.  Outside of  their
presence Ward renewed a number of previous motions and  also  requested  the
court to “grant our Motion for Change of Venue . . .  .”   Tr.  at  4.   The
trial  court  responded,  “All  motions  denied.”    Id.    In   groups   of
approximately thirty to forty, the  prospective  jurors  were  then  brought
into  the  courtroom  where  the  trial  court  gave  them   a   few   brief
instructions. The trial court also gave the  prospective  jurors  a  lengthy
twenty-eight-page questionnaire that had been  previously  tendered  by  the
defense and agreed to by the State.  The prospective  jurors  were  directed
to complete the questionnaire, give it to the bailiff, and return  to  court
the following day.

      The parties began a  two-day  voir  dire  on  October  8,  2002.   The
responses given on the questionnaires revealed the pervasive nature  of  the
pretrial publicity, the extent  of  the  community’s  knowledge  about  this
case, and its understandable  outrage.   Of  the  one  hundred  twenty-eight
prospective jurors summoned, one hundred twenty-two actually  completed  the
questionnaire.   Over  eighty  percent—101—reported  that  he  or  she   had
knowledge about  the  case.   For  example,  one  prospective  juror  wrote,
“unless you live under a rock  you  have  heard  a  lot”  about  this  case.
Appellant’s App. at 3673.  In  response  to  the  question,  “what  did  you
discuss and with  whom?”  another  prospective  juror  said,  “‘with  whom?’
[E]veryone was talking about it – you couldn’t go anywhere!”  Id. at 5192.

      In response to the question: “Based on what you have  read,  seen,  or
heard about this case, have you formed  any  beliefs  as  to  the  guilt  or
innocence   of   Roy   Ward?”   over   sixty-five   percent—84   prospective
jurors—checked “yes.”  When asked to  “please  describe  your  beliefs”  the
responses of the  84  prospective  jurors  ranged  from  “I  think  that  he
probably did it,” id. at 2891, to “hang him instantly, and  he  should  have
been shot on the spot at the scene of the crime.”  Id. at 4456.[3]

      During the course of voir dire  a  total  of  forty-eight  prospective
jurors were removed for cause  either  on  challenge  by  the  defense,  the
State, or sua sponte by the trial court.  The State used sixteen  peremptory
challenges and Ward exhausted all of his.[4]  Ultimately twelve  jurors  and
two alternate jurors were selected and sworn.  On the morning of  the  first
day of trial, Ward renewed his motion for change of venue, which  the  trial
court denied.

      The record shows that of the jurors selected, all but one  had  heard,
seen, or read about this case.  And six of the seated jurors were among  the
over sixty-five percent who checked “yes” to the question  of  whether  they
had formed a  belief  concerning  Ward’s  guilt  or  innocence.   Juror  #14
explained on his questionnaire “He was arrested  at  the  home  just  a  few
minutes after the 911 call.”  Id. at 2914.  Juror #84 wrote, “since  he  was
at the scene he might be the person who done [sic] it.”  Id. at 3611.   When
asked to describe her  beliefs,  Juror  #121  replied,  “It  would  be  very
difficult to form an unbiased opinion.  He was caught at  the  site  with  a
knief [sic] and the sister saw him.  If it were my  own  daughters  I  would
have probably come after him myself.”  Id. at 4019.   When  asked  later  in
her questionnaire whether there was anything that might get in  the  way  of
her being an impartial juror, she checked “Yes” and wrote, “[H]e was  caught
at the site—I feel he’s guilty.”  Id. at 4024.

      Explaining the reasons for her  beliefs,  Juror  #122  responded,  “If
everything that I have heard is true, it will be hard but not impossible  to
believe that he did not do it.”  Id. at 4042.  The daughter  of  juror  #122
attended the same school as the victim.  Id. at 4025.   She  also  commented
on her questionnaire  about  the  “devastation  of  [the]  family”  and  the
“horror of it all” and how the crime was “such a tragedy.”  Id. at 4042.

      When asked on the questionnaire whether she  had  formed  any  beliefs
about Ward’s guilt or innocence, Juror #148 checked “Yes” and  wrote,  “This
man was inside their house.  Her sister saw him and  called  911.   I  would
listen with an opened [sic] mind, but I feel the evidence will be there  and
he  will  be  convicted.”   Id.  at  4433.   She  mentioned  twice  in   her
questionnaire the “pools of blood” that had surrounded the victim.   Id.  at
4432, 4433.  When asked to describe what she had read, seen, or heard  about
this incident this juror responded, “He had entered the house,  stabbed  and
raped her while her sister was upstairs making the 911 call.   That  he  had
been stalking her.  The child was taken  to  Huntingburg  Hospital  and  the
Dr.’s faces were so grim and the workers had to keep wiping up the pools  of
blood from the injuries to this child.”  Id. at 4432.

      Explaining her beliefs as to why she had reached an  opinion  in  this
case, Juror #152 wrote, “When the police enter[ed] the Payne  home  the  man
(Roy Ward) still had the knife in his hand.”  Id. at 4502.
      Other than perfunctory questioning of whether they could be  fair  and
impartial, to which each generally responded “yes”, there was no  voir  dire
examination conducted of these jurors to explore their previously  expressed
belief that Ward was guilty.  There was more extensive questioning of  Juror
#121.  But in the end she was not sure whether she could  return  a  verdict
based solely on the evidence presented at trial.  The following exchange  is
instructive:

           [Prosecuting Attorney]: [Juror #121], do you  believe  that  you
           can set aside what you’ve heard outside the  courtroom  or  read
           outside the courtroom and any  kind  of  preconceived  ideas  or
           notions that you may have and base your decision on the law  and
           evidence that you hear in this courtroom?


           [Juror #121]: I could follow the Judge’s direction on what to do
           and abide by the law, but I also have an opinion.


           [Prosecuting Attorney]: Okay.  And I think that’s – I  would  be
           surprised if people didn’t have opinions.  That’s what we – as a
           society, we bring our opinions with us in everything we do.   We
           all are creatures of habit, creatures of what we  hear,  and  we
           have also our own set of individual  personal  beliefs  that  we
           bring to every issue.  Do you believe that you could  –  let  me
           ask it this way.  Do you believe that your  opinion  would  keep
           you from being fair to the Defendant or the State?


           [Juror #121]: It makes it very difficult, and I’m putting myself
           in that place.


           [Prosecuting Attorney]: Okay.  I understand.


Tr. at 531-32


           [Trial Court]: Are you willing to lay  aside  anything  you  may
           have seen or heard about this case and hold the State of Indiana
           to a burden of proof to [prove] beyond  a  reasonable  doubt  of
           each and every element of each and every crime charged and  base
           a decision solely on what you hear and see in this courtroom[?]


           . . .


           [Juror #121]: It’s – I don’t know; it’s just hearsay from  maybe
           what’s in the paper, but I know that, other  than  just  knowing
           what was on the paper – in the paper and on TV  and  having  two
           daughters of my own and he was at the scene with  the  weapon  I
           feel like would [sic] be very difficult  for  me  to  change  my
           mind.


Id. at 585-86.

      With the twelve jurors and two alternates  thus  selected,  the  guilt
phase of trial was held over four days from October 14 through  October  18,
2002.  Ward did not take the stand in his defense.  However  during  opening
statements  and  closing  arguments,  counsel   conceded   that   Ward   “is
responsible for Stacy Payne’s death . .  .  .”   Id.  at  1103,  2627.   The
contested issues were whether he  knowingly  or  intentionally  killed  her,
raped her, and engaged in criminal  deviate  conduct.   The  jury  convicted
Ward as charged.  The penalty phase of trial began  October  21,  2002,  and
the jury  returned  a  recommendation  of  death.   Following  a  sentencing
hearing, the trial court followed  the  jury’s  recommendation.   The  trial
court  also  sentenced  Ward  to  two  consecutive   fifty-year   terms   of
imprisonment for the rape and criminal deviate  conduct  convictions.   This
direct appeal followed in due course.


                                 Discussion

      “At the heart of the decision on a motion for change of venue  is  the
right to an impartial jury.”  Lindsey v. State, 485 N.E.2d  102,  106  (Ind.
1985).  This right derives from the Sixth Amendment  to  the  United  States
Constitution, as applied to the States by the Fourteenth Amendment, as  well
as Article One, Section Thirteen  of  the  Indiana  Constitution.   “A  fair
trial in a fair tribunal is a basic requirement  of  due  process.”   In  re
Murchison, 349 U.S. 133, 136 (1955).  A juror’s verdict  must  be  impartial
“regardless of the heinousness of the crime charged, the apparent  guilt  of
the offender  or  the  station  in  life  which  he  occupies.”   Morgan  v.
Illinois, 504 U.S. 719, 727 (1992).  In essence “the  right  to  jury  trial
guarantees to the criminally accused a fair trial by a panel  of  impartial,
‘indifferent’ jurors.”  Irvin v. Dowd, 366 U.S. 717, 722  (1961)  (citations
omitted).

      Ward contends “Because of the Horrible Nature of the  Crime,  Pretrial
Publicity, Prospective Jurors’ Knowledge of the Crime  and  Victim  and  the
Venire’s  Expressed,  Overwhelming  Predisposition  to  Convict,  the  Court
Should  Have  Moved  the  Trial  from  Spencer  County,  Indiana.”   Br.  of
Appellant at 25.

      We review a trial court’s denial of a motion for change of  venue  for
an abuse of discretion.  Specht v. State, 734 N.E.2d 239, 241  (Ind.  2000).
An abuse of discretion does not occur  where  voir  dire  reveals  that  the
seated panel was able to set aside preconceived notions of guilt and  render
a verdict based solely on the evidence.  Elsten v. State,  698  N.E.2d  292,
294 (Ind. 1998).  The  defendant  must  demonstrate  the  existence  of  two
distinct elements: (1) prejudicial pretrial publicity and (2) the  inability
of jurors to render an impartial verdict.  Specht, 734 N.E.2d at 241;  White
v. State, 687 N.E.2d 178, 179 (Ind. 1997).  “Prejudicial pretrial  publicity
is that which contains inflammatory material which would not  be  admissible
at the defendant’s trial or contains misstatements  or  distortions  of  the
evidence given at trial.”  Burdine v. State, 515  N.E.2d  1085,  1092  (Ind.
1987).

      In this case the news reports were extensive,  detailed  and  graphic.
However they were  largely  accurate  accounts  of  a  horrific  and  brutal
killing.  On the other hand several of the news  articles  recounted  Ward’s
criminal history.  See supra n.2.  In that  regard  the  articles  contained
inflammatory, inadmissible information.   Thus,  Ward  has  established  the
existence of prejudicial pretrial publicity.  We  acknowledge  however  that
the prejudicial nature of the  pretrial  publicity  is  only  marginally  at
issue here.  Without regard to press accounts of Ward’s criminal  past,  the
critical inquiry is whether overall community bias and prejudice exist  such
that Ward was denied a fair trial.  See Lindsey,  485  N.E.2d  at  106.   In
other words even if Ward had no criminal history or if that history had  not
been reported, we nonetheless would  be  confronted  with  the  question  of
whether jurors were able to render an impartial verdict.  White, 687  N.E.2d
at 179.

      It is not a prerequisite to a fair trial that the  jurors  be  totally
ignorant of the facts involved.  Smith  v.  State,  465  N.E.2d  1105,  1116
(Ind. 1984).  Thus, a juror’s mere exposure to press coverage is not  enough
to support a claim that local prejudice entitles a defendant to a change  of
venue.  Even if potential jurors have been  exposed  to  pretrial  publicity
concerning the defendant’s case that  alone  is  insufficient  to  establish
prejudice unless the defendant can also demonstrate  that  the  jurors  were
unable to set aside any preconceived notions of guilt and render  a  verdict
based on the evidence.  Johnson v. State, 472 N.E.2d 892, 906  (Ind.  1985);
see also Ind. Code § 35-37-1-5(b) (providing that prospective juror  may  be
allowed  to  serve  despite  existence  of  preconceived  notions  of  guilt
stemming from pretrial publicity, so long as the juror states and the  court
concludes that the juror can render a verdict based upon  the  law  and  the
evidence presented).  Essentially, in order to obtain a change of venue  the
defendant bears the burden of showing that community prejudice exists  which
would prevent the defendant from obtaining a fair trial in  that  community.
Clemens v State, 610 N.E.2d 236, 240 (Ind. 1993).

      In this case the pattern of deep and  bitter  hostility  shown  to  be
present  throughout  the  community  was  clearly  reflected  in  the  juror
questionnaires.  In addition,  six  of  the  twelve  jurors  finally  seated
expressed the belief that Ward was guilty.  We do not  doubt  the  sincerity
of the jurors who said they could set aside their preconceived  beliefs  and
render a verdict based on the evidence.  Indeed there is a presumption  that
the juror’s voir dire is truthful.  Brown v.  State,  563  N.E.2d  103,  105
(Ind. 1990).  However, this presumption can be overcome by a  showing  of  a
general  atmosphere  of  prejudice  throughout  the  community.    Id.    As
expressed by the United States Supreme Court:

           In  a  community  where  most  veniremen   will   admit   to   a
           disqualifying  prejudice,  the  reliability   of   the   others’
           protestations may be drawn into question; for it  is  then  more
           probable that they are part of a community deeply hostile to the
           accused, and more likely that they  may  unwittingly  have  been
           influenced by it.


Murphy v. Florida, 421 U.S. 794, 803 (1975).  The  record  establishes  that
the presumption has been  overcome  in  this  case.  Even  more  disturbing,
however, one juror candidly and honestly admitted “I don’t know” when  asked
by the trial court whether she was willing to base a decision solely on  the
evidence presented at trial.  Tr. at 584.  Having previously  expressed  the
belief that Ward was guilty this juror said she felt that “it would be  very
difficult for me to change my mind.”  Id.  This juror’s view alone  requires
that we grant Ward a new trial.  “If even one [partial] juror  is  empaneled
and the death sentence is imposed, the State is disentitled to  execute  the
sentence.”  State v. Dye, 784 N.E.2d 469, 476 (Ind. 2003)  (quoting  Morgan,
504 U.S. at 729).  With  his  life  at  stake,  we  think  the  Constitution
requires that the defendant “be tried in an  atmosphere  undisturbed  by  so
huge a wave of public passion and by a jury other than  one  in  which  [one
half] of the members admit, before hearing any testimony,  to  possessing  a
belief in his guilt.”  Irvin, 366 U.S. at 728.  We conclude  therefore  that
the trial court abused its discretion in failing to grant Ward’s motion  for
change of venue from the county, or in the  alternative  to  draw  the  jury
from another county.  Accordingly, we reverse the trial court on this  issue
and remand this cause for a new trial.

      Judgment reversed and cause remanded.

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.

-----------------------
[1] The statute provides,
      (a) In any criminal proceeding wherein the defendant is  charged  with
      murder or a Class A felony to be tried before a jury in which a motion
      for a change of  venue  from  the  county  is  filed,  the  court  may
      recognize but decline to grant the motion, and order that the jury  be
      drawn from the residents of a county other than the  county  in  which
      the court is located.
      (b) Pursuant to an order under this section, the court may convene  in
      any county in the state for purposes of jury  selection.   The  venire
      may be drawn by the jury commissioners of a court in the jurors’  home
      county, or may be drawn by the court itself by random selection.
      (c) After a jury is selected, the trial shall be held in the county of
      the court’s location.  The verdict of the jury and the judgment  based
      upon it have the same validity and effect as  if  the  jury  had  been
      drawn from the county of the court’s location.

[2] See David Kunz, “Motive missing in teen slaying,” The Herald,  July  13,
2001; Appellant’s App. at 6269 (“Ward had recently been  sentenced  to  jail
in Harrison County Superior Court after pleading guilty  to  harassment  and
public indecency, both misdemeanors.”); David  Kunz,  “Death  penalty  being
sought for Ward,” The Herald, Aug. 3, 2001; Appellant’s App. at 6272  (“Ward
was on probation until April 2004 in connection with a  burglary  conviction
from Cooper County, Mo., records said.”); W. Curt Vincent, “Teen stabbed  to
death,” The Spencer County  Journal-Democrat,  July  19,  2001;  Appellant’s
App. at 6282 (noting Ward’s “long criminal record” which included  at  least
eight prior convictions extending  back  to  1993);  Bryan  Walters,  “Death
penalty sought,” The Journal-Democrat, Aug. 9,  2001;  Appellant’s  App.  at
6284 (“Ward was already on probation in Perry County for  another  crime.”);
Cheryl Hurst, “Investigation  into  murder  of  Dale  girl  continues,”  The
Spencer County Leader, July 19,  2001;  Appellant’s  App.  at  6297  (noting
Ward’s convictions for burglary, harassment, public indecency, forgery,  and
theft); Bonnie Hackman, “Death penalty sought for murder  of  Stacy  Payne,”
The Leader, Aug. 9, 2001; Appellant’s App. at 6299 (noting  the  outstanding
warrant for Ward for  check  deception  and  his  status  on  probation  for
indecent exposure); Cheryl Hurst, “Trial date set for murder of Dale  teen,”
The Leader, Nov. 15,  2001;  Appellant’s  App.  at  6301  (“Ward,  a  repeat
offender, had been released from the judicial  system  time  and  again  for
charges  relating  to  burglary,   check   deception,   harassment,   public
indecency, forgery, theft  and  stalking.”);  Cheryl  Hurst,  “Investigation
into murder  of  Dale  girl  continues,”  Ferdinand  News,  July  18,  2001;
Appellant’s  App.  at  6308  (noting  Ward’s   convictions   for   burglary,
harassment, public indecency, forgery, and theft); Bonnie  Hackmann,  “Death
penalty sought for murder of Stacy Payne,” Ferdinand  News,  Aug.  8,  2001;
Appellant’s App. at 6310 (noting the outstanding warrant for Ward for  check
deception and his status on probation for indecent exposure).
[3] Other representative responses included, “Tie him  up  with  rawhide  in
the desert and let him die slow and painful.”   Appellant’s  App.  at  5169;
“[T]hey should hang him up and start pulling off body parts.”  Id. at  3213;
“[T]hey need to cut off his **** and stick it up his *** and  gut  him  like
he did her.”  Id. at 4709; “[T]he cop should have shot the S.O.B.”   Id.  at
3005; “[S]hould be stoned to death.  [J]ail  would  be  to  [sic]  easy  for
him.”  Id. at 3904; “Death penalty for sure.”  Id. at 3006; “He  is  guilty.
. . . He should not even deserve a trial.”  Id. at  3490;  “[H]e  should  be
given the same punishment that  he  gave  to  the  victim.”   Id.  at  3513;
“[S]hould do to him what he done to her.”  Id. at 3535;  “[Y]ou  would  have
to prove to me Ward did not do the murder.”  Id. at 3863; “[S]hould be  made
to suffer, hang him, shoot him, electric chair, gas chamber.”  Id. at  4594;
“How can he not be guilty[?]”  Id. at 5123.

[4] One of Ward’s claims on appeal  is  that  the  trial  court  abused  its
discretion by refusing  to  dismiss  twelve  prospective  jurors  for  cause
thereby forcing him to exhaust twelve of his twenty  peremptory  challenges.
Because we resolve this case on other grounds, we decline  to  address  this
issue.