Thomas Derrow v. State of Indiana ( 2014 )

Pursuant
Pursuant to Ind.Appellate Rule
to Ind.Appellate Rule 65(D),
65(D),
this Memorandum Decision shall
this Memorandum Decision shall not not be
regarded as precedent
be regarded or cited
as precedent or before
cited
any
before any court except for theof
court except for the purpose Dec 10 2014, 6:55 am
establishing the defense of
purpose of establishing theres judicata,
defense of
collateral estoppel, or the law
res judicata, collateral estoppel, orof the
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law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DORI NEWMAN GREGORY F. ZOELLER
Newman & Newman, P.C. Attorney General of Indiana
Noblesville, Indiana
IAN MCLEAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
THOMAS DERROW, )
)
Appellant-Defendant, )
)
vs. ) No. 29A02-1405-CR-312
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Gail Z. Bardach, Judge
Cause No. 29D06-1307-FD-5628
December 10, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Thomas Derrow appeals his conviction for operating a vehicle with an alcohol
concentration equivalent (“ACE”) of .15 or more with a prior conviction within five
years, a class D felony. Derrow raises one issue, which we revise and restate as whether
the trial court committed fundamental error when it did not remove a juror after Derrow’s
counsel informed the court he had made a mistake in exercising one of Derrow’s
peremptory challenge selections, thereby depriving Derrow of an impartial jury. We
affirm.
FACTS AND PROCEDURAL HISTORY
At approximately 6:00 p.m. on July 14, 2013, Fishers Police Officer Brendon
Buehre observed Derrow’s vehicle weaving within its lane, almost strike a curb when
turning, and then overcorrect. Officer Buehre activated the emergency lights and siren of
his patrol vehicle to initiate a traffic stop. Derrow pulled his vehicle into a Taco Bell
parking lot and proceeded to pull into the drive-through lane. Officer Buehre exited his
patrol vehicle, walked up to Derrow as he was attempting to order food, and instructed
him to pull through and park in the lot. After Derrow parked his vehicle, Officer Buehre
approached and smelled a strong odor of alcohol coming from him, noticed that he
exhibited very poor manual dexterity and fumbled around, and that his eyes were watery
and bloodshot. Officer Buehre instructed him to exit the vehicle and saw that Derrow
was wearing flip-flop sandals and swim trunks which were slightly damp. Officer
Buehre conducted three standardized field sobriety tests, each of which Derrow failed.
After obtaining a search warrant to draw Derrow’s blood, Officer Buehre obtained a
sample of his blood, and, under alcohol analysis results, the toxicology report showed a
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concentration of “.35 (g%).” State’s Exhibit 3. Police discovered an empty 1.75-liter
vodka bottle in Derrow’s vehicle.
In an amended charging information filed in December 2013, the State alleged the
following counts against Derrow: Count I, operating while intoxicated endangering a
person as a class A misdemeanor; Count II, operating a vehicle with an ACE of .15 or
more, a class A misdemeanor; Count III operating while intoxicated endangering a
person with a prior conviction within five years, a class D felony; and Count IV,
operating with an ACE of .15 or more with a prior conviction within five years as a class
D felony. The State also alleged that Derrow was an habitual substance offender.
A jury trial was held on March 11, 2014. During voir dire, the court indicated that
six jurors would be selected. The court asked the prospective jurors, among other
questions, whether: any of them knew the deputy prosecutors, defense counsel, Derrow,
the judge, the other prospective jurors, or the prospective witnesses; they had any
personal knowledge or remembered hearing anything about the case; any of them felt
they tended to be biased for or against the State or a defendant in a criminal case; any felt
they were unable to keep an open mind; any had impairments making it difficult to serve
as jurors; any had previously served as a juror or a witness; any were currently a
defendant in a criminal case or on probation; any felt that testimony of a law enforcement
officer should be given extra weight or the opposite; any had a claim against the State or
Derrow; any had any reservations about the rule of law requiring them to presume
Derrow’s innocence throughout trial; and whether any of their close friends had been the
victim of a crime. The transcript indicates that Juror No. 14 and Juror No. 15 did not
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verbally respond to these questions. Some of the other prospective jurors responded
affirmatively to several of the court’s questions, and the court further questioned those
prospective jurors regarding their responses. When the prospective jurors were asked if
any of them, their immediate families, or their close personal friends ever served as a law
enforcement officer, Juror No. 15 stated that a family friend was a law enforcement
officer for the Cumberland Police. The court asked if Juror No. 15 talked to the officer
about his or her work and if the fact that Juror No. 15 had a friend who was a law
enforcement officer would affect the way Juror No. 15 considered the evidence, and Juror
No. 15 responded “No” to both questions. Transcript at 70.
Following the court’s questions, the prosecutor and defense counsel then asked
additional questions of the prospective jurors. Defense counsel asked for a show of
hands of those prospective jurors who believed a person could be involuntarily
intoxicated, and then said “Okay. A lot of people. Looks like everybody.” Id. at 106.
Juror No. 1 indicated that “someone could put something in your food or drink” and that
the person “would feel the effects of whatever it was that was put in their drinks.” Id. at
106. Defense counsel asked “[d]o you think they could black out and do things they
otherwise wouldn’t do,” and Juror No. 1 replied “[i]f that’s one of the side effects of
whatever was put into their drink, yes.” Id. Defense counsel asked Juror No. 15 “what
do you think about that,” and Juror No. 15 replied “I agree,” and when defense counsel
asked “[d]o you think there’s any other way to become involuntary [sic] intoxicated,”
Juror No. 15 stated “[n]ot that I know of.” Id. at 106-107. Defense counsel asked the
prospective jurors if they had heard of prescription medications that could cause a person
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to sleepwalk, and several prospective jurors indicated they believed that some
medications for sleep aid could cause sleepwalking. Several prospective jurors indicated
they believed a person could possibly drive a car while involuntarily intoxicated. Juror
No. 14 indicated that “[b]lack out to me would be kind of temporary” and “I don’t
believe that it would be prolonged.” Id. at 119. Defense counsel asked Juror No. 14 if it
was unbelievable that a person had no memory of her evening or of eating yogurt, and
Juror No. 14 replied “I believe that she can have that memory – that she won’t remember,
but I don’t believe that she would have been awake the whole time,” that “[s]he may
awake that 10 or 15 minutes when she went downstairs and had the yogurt, then she
would probably go back to sleep,” and that “I don’t believe that she would black out the
entire evening.” Id. at 119-120. Defense counsel asked “[b]ut sleeping and walking and
still be moving around,” and Juror No. 14 said “[t]hat’s correct.” Id. at 120. Defense
counsel asked “[a]nd still not have a memory of doing it. Do you think that’s possible,”
and Juror No. 14 replied “[t]hat’s possible.” Id. After defense counsel questioned Juror
No. 12, who stated that a person should not be texting or chatting while on certain
medications “because you really don’t know what you’re doing,” Juror No. 14 stated: “I
do want to point out that I . . . have a seven year old son, and I do believe that he does
sleepwalk. So, I have found him to move at night where his light is on and just put him
back to bed and he’s fine with it.” Id. at 121-122. Juror No. 14 further stated: “I don’t
think it’s a serious case because he won’t remember the next morning but he’s usually
just in his room playing with his toys, got his light on, and I just tuck him back into the
bed and he’s fine.” Id. at 122. Another prospective juror stated that the juror’s daughter
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would dress for school at 1:30 a.m. and have no recollection the following morning.
Another prospective juror indicated that the juror used to sleepwalk as a child.
Following questioning by the prosecutor and defense counsel, the trial court
stated: “You may bring me both sheets. All right. Don’t anybody leave until I get
through the whole list. The following jurors are excused: Juror Number 1, Juror Number
3, Juror Number 4, Juror Number 15, Juror Number 16, Juror Number 19, and Juror
Number 21.” Id. at 125. The court then asked counsel to approach and stated: “Okay.
(indiscernible-due to noise) stuck with the person, since you both have them left, either
one of you can exercise a peremptory against 25 as an alternate if you want to.” Id. at
125-126. Both the prosecutor and defense counsel replied “I do not,” and the bench
conference ended. Id. at 126. Derrow’s counsel then immediately asked to approach and
stated: “This may be too late, but I made a numerical mistake and Mr. Derrow just – I had
Number 15 and he had vice versa. He wanted 15 and he wanted to strike 14.” Id. at 126.
The court replied: “Fifteen’s gone.” Id. Derrow’s counsel stated: “Okay. I’ll explain to
him that it’s just an error we’ll have to deal with later.” Id.
During opening statements, Derrow’s counsel stated that Derrow was going to
assert the defense of involuntary intoxication. Defense counsel stated that the jury would
hear that Derrow had an issue with insomnia, that his physician gave him a prescription
drug, and that he took the drug for the first time, went to sleep, and woke up bewildered
sitting in a jail cell. Derrow testified at trial that he took the dosage of medication he was
prescribed, that within fifteen or twenty minutes he became very drowsy and fell asleep,
and that the next thing he remembered was waking up in the jail. He indicated he did not
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remember driving, putting his swim trunks back on, having a large bottle of vodka that
was discovered in his vehicle, or drinking anything at the pool that morning before he
went back into his apartment. During final arguments, defense counsel stated that
Derrow was in the car, that he obviously had a lot of alcohol in his system, that he could
not drive the car appropriately, and that is why the police officer stopped him. Defense
counsel argued that Derrow did not act with conscious intent and did not know what he
was doing. He argued that Derrow took his prescription medication, went to sleep in his
pajamas, and later woke up, drank the vodka, and drove his vehicle while involuntarily
intoxicated.
Following the presentation of evidence, the jury returned verdicts of guilty of the
charges under Counts I and II, and Derrow entered a guilty plea with respect to the
charges under Counts III and IV and admitted to being an habitual substance offender.
The court ultimately merged the convictions under Counts I through IV into one
conviction under Count IV for operating a vehicle with an ACE of .15 or more with a
prior conviction within five years as a class D felony. The court sentenced Derrow to
three years, to be served in the Indiana Department of Correction for his conviction under
Count IV, enhanced by three years, executed as a direct commitment to the Hamilton
County Community Corrections work release program, for the habitual substance
offender enhancement.
DISCUSSION
The issue is whether the trial court committed fundamental error when it did not
remove Juror No. 14 from the jury after Derrow’s counsel informed the court he had
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mistakenly exercised one of Derrow’s peremptory challenges to strike Juror No. 15 or
whether Derrow was deprived of an impartial jury. Derrow concedes that he did not
request the trial court to remove Juror No. 14 from the jury. Nevertheless, he asserts that
the trial court committed fundamental error by not allowing his counsel to correct the
mistaken selection, or by failing to sua sponte correct the mistake, and that his
fundamental right to an impartial jury was violated. He argues that, after the court stated
“Fifteen’s gone,” his counsel did not request any relief and “acquiesced to the mistake
and left Derrow without a remedy.” Appellant’s Brief at 10. He argues that his counsel
could have made a motion to remove Juror No. 14 and that the trial judge could have
offered the same relief sua sponte. He also notes that the defense theory was one of
involuntary intoxication and blackout for a prolonged period of time and that Juror No.
14 told everyone during the jury selection process that she would not think that possible,
and he requests a new trial.
The State maintains that parties are not constitutionally entitled to peremptory
challenges, that the transcript of voir dire shows that Derrow’s actual jurors were
qualified, fair-minded and earnest in their desire to follow the law and hold the State to
its burden of proof, and that Derrow had a fair trial. The State also argues that Juror No.
14 was not necessarily a better strategic choice for a peremptory challenge than Juror No.
15 because Juror No. 15 insisted that the only way someone might become involuntarily
intoxicated, blackout, and do things they would not ordinarily do was if a third party
slipped a drug into the person’s drink and that was not the situation claimed by Derrow’s
counsel.
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In his reply brief, Derrow argues that his trial counsel explained that he wanted
Juror No. 15 and wanted to strike Juror No. 14, that his counsel stated he would tell his
client that it would be dealt with later, that it was not dealt with later, and that the court,
the State, and his counsel knew a mistake had been made and there was a juror seated that
Derrow did not want. He argues that “[i]t is pretty clear this issue was not a strategic
decision and it is clear that Derrow’s counsel made a mistake and that was what was
represented to the trial court.” Appellant’s Reply Brief at 1.
“To qualify as a fundamental error, an error must be so prejudicial to the rights of
the defendant as to make a fair trial impossible.” Black v. State, 829 N.E.2d 607, 610
(Ind. Ct. App. 2005) (citing Merritt v. State, 822 N.E.2d 642, 643 (Ind. Ct. App. 2005)
(quoting Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002))), trans. denied. The
fundamental error exception to the waiver rule is an extremely narrow one, “available
only when the record reveals clearly blatant violations of basic elementary principles of
due process, and the harm or potential for harm cannot be denied.” Id. In determining
whether fundamental error occurred with regard to voir dire, we observe that “[t]he
purpose of voir dire is to determine whether a prospective juror can render a fair and
impartial verdict in accordance with the law and the evidence.” Id. (citing Joyner v.
State, 736 N.E.2d 232, 237 (Ind. 2000)). A trial court has broad discretion in controlling
the voir dire of prospective jurors. Id.In Ross v. Oklahoma, the United States Supreme Court stated in part that it
“reject[ed] the notion that the loss of a peremptory challenge constitutes a violation of the
constitutional right to an impartial jury,” that it has “long recognized that peremptory
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challenges are not of constitutional dimension,” and that “[t]hey are a means to achieve
the end of an impartial jury.” 487 U.S. 81, 88, 108 S. Ct. 2273, 2278 (1988) (internal
citations omitted). In addition, “[a]ny claim that the jury was not impartial . . . must
focus not [on the challenged juror who was removed by the peremptory strike], but on the
jurors who actually sat.” Jackson v. Parke, 142 F.3d 439 (7th Cir. 1998) (citing Ross,
487 U.S. at 86) (brackets in original).
The record reveals that the parties submitted their peremptory strike selections to
the trial court and that the court then excused the selected prospective jurors, including
Juror No. 15. The court thanked the seven excused prospective jurors for their service
and instructed the remaining jurors where to sit. After the court noted both parties had
not used all of their peremptory strikes and they could exercise a peremptory challenge
against the alternate juror and the parties declined to do so, Derrow’s counsel approached
the bench and stated he had made a mistake and that Derrow “wanted [Juror No.] 15 and
he wanted to strike [Juror No.] 14.” Transcript at 126. The court stated, “Fifteen’s
gone,” and Derrow counsel stated: “Okay. I’ll explain to him that it’s just an error we’ll
have to deal with later.” Id. According to the court, Derrow had peremptory challenges
remaining. The record shows and Derrow concedes that he did not attempt to exercise
any remaining peremptory challenge or otherwise request that Juror No. 14 be removed
from the jury.
We further note that the responses of Juror No. 14 during voir dire as set forth
above do not demonstrate that the placement of Juror No. 14 on the jury resulted in a
biased jury. Juror No. 14 indicated upon questioning that it was possible that a person
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could temporarily blackout and walk and move around and have no memory of those
actions. Juror No. 14 also had a child who would sleepwalk and not remember his
actions the following morning.
Based upon the record, we conclude that no violation of Derrow’s right to an
impartial jury occurred. Derrow has not demonstrated that the trial court’s failure to sua
sponte dismiss Juror No. 14 resulted in fundamental error or that he was deprived of an
impartial jury. Derrow is not entitled to a new trial.
CONCLUSION
For the foregoing reasons, we affirm Derrow’s conviction for operating a vehicle
with an ACE of .15 or more with a prior conviction within five years, a class D felony.
Affirmed.
BARNES, J., and BRADFORD, J., concur.
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