Harold D. Wallick v. Eric B. Inman, M.D. , 130 N.E.3d 643 ( 2019 )


Menu:
  •                                                                                       FILED
    Aug 07 2019, 8:09 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
    Michael J. Woody                                           Michael E. O’Neill
    Indianapolis, Indiana                                      Michelle P. Burchett
    Schererville, Indiana
    Karl L. Mulvaney
    Nana Quay-Smith
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Harold D. Wallick,                                         August 7, 2019
    Appellant-Plaintiff,                                       Court of Appeals Case No.
    18A-CT-2519
    v.                                                 Appeal from the
    Marion Superior Court
    Eric B. Inman, M.D.,                                       The Honorable
    Appellee-Defendant.                                        Patrick J. Dietrick, Judge
    Trial Court Cause No.
    49D12-1601-CT-847
    Altice, Judge.
    [1]   Harold Wallick brought a medical malpractice action against his
    anesthesiologist, Eric B. Inman, M.D., and a jury rendered a verdict in favor of
    Inman. On appeal, Wallick challenges the jury selection process, arguing that
    the trial court should not have denied six of his for-cause challenges to
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019                              Page 1 of 20
    prospective jurors. He raises two issues that we consolidate and restate as:
    Was the trial court’s decision to deny one or more of the for-cause challenges
    illogical and arbitrary?
    [2]   We affirm.
    Facts & Procedural History
    [3]   In April 2013, Wallick filed a Proposed Complaint with the Indiana
    Department of Insurance alleging that Inman negligently administered general
    anesthesia during a cardiac ablation procedure and that, as a result, Wallick
    suffered a stroke and vision loss. A Medical Review Panel reviewed the
    submissions and decided that Inman met the standard of care in treating
    Wallick. Thereafter, in January 2016, Wallick filed a medical malpractice
    complaint in state court, and the case proceeded to a nine-day jury trial before
    the Honorable Patrick Dietrick in September 2018.
    [4]   After the court’s opening remarks and party introductions, the potential jurors
    took an oath, as required by Ind. Jury Rule 13, to honestly answer each
    question asked by the court or counsel during jury selection. The trial court
    collectively asked the potential jurors a series of questions. For instance, the
    court asked whether any of them was related to or had relationships with any of
    the parties, attorneys, or witnesses, had heard about the case or the claims of
    the parties, had “any bias for or prejudice against any of the parties to this
    case,” or had any preconceived opinions concerning the parties, the case, or its
    outcome. Transcript at 11-12. No one responded in the affirmative. The trial
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019         Page 2 of 20
    court also advised the juror pool that each chosen juror would be required to
    take an oath to “decide this case fairly and impartially without bias or prejudice
    on the evidence received during the trial and in accordance with the instructions
    of the court” and asked if any person felt that he or she could not abide by such
    an oath. 
    Id. at 15.
    None of the potential jurors at issue in this appeal responded
    to the court.
    [5]   Pursuant to J.R. 14(a), requiring the trial court to introduce the case, Judge
    Dietrick informed the jury panel about the nature of the case and issues to be
    decided, stating:
    In this case, Plaintiff Harold Wallick has sued Defendant Eric B.
    Inman, M.D. Mr. Wallick claims that Dr. Iman committed
    malpractice by failing to use the degree of care and skill that a
    reasonably careful, skillful, and prudent anesthesiologist would
    use under the same or similar circumstances. Mr. Wallick
    further claims that Dr. Inman’s conduct was more likely than not
    a responsible cause of Mr. Wallick’s permanent brain injury,
    profound decrease in field of vision, compromised ability to get
    around due to vision loss, and other harms and losses of the
    nature requiring reasonable compensation. Mr. Wallick has the
    burden to prove his claims by a greater weight of the evidence.
    Defendant Eric B. Iman, M.D. denies the Plaintiff’s allegations
    of malpractice. Dr. Inman has no burden to disprove the Plaintiff’s
    claims. In this case, specifically, Dr. Inman contends that he
    acted in accordance with the applicable standard of care in
    providing anesthesia to Mr. Wallick on June 28, 2011. Dr.
    Inman further contends that no action or omission on his part
    was the responsible cause of any of the injuries o[r] damages
    claimed by the Plaintiff. Dr. Inman further disputes the extent
    and severity of the injuries and damages as claimed by the
    Plaintiff. That, ladies and gentlemen, are the issues in this cause.
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019         Page 3 of 20
    The jury in this case will consist of six jurors and two alternates.
    At this time, the attorneys will be allowed to ask questions of
    those persons seated in the jury box as potential jurors. After
    both attorneys have had an opportunity to question the
    prospective jurors, they are permitted to strike or otherwise
    excuse persons from the jury.
    Transcript at 22-23 (emphases added).
    [6]   Wallick’s counsel began questioning of the first panel, which consisted of the
    following fourteen potential jurors: Alcorn, Wynne, Dick, Walters, Harris,
    Mannon, Curtis, Ridner, McCalep, Knox, Bright, Wright, Biddle, and Thrash.
    Among other things, Wallick’s counsel asked whether anyone had feelings
    about medical malpractice cases and whether suing a doctor for money “leaves
    a bad taste[.]” 
    Id. at 26-27.
    He also asked the fourteen seated prospective jurors
    if any of them were leaning toward the doctor’s side before evidence was
    presented. Wallick’s counsel reminded the prospective jurors that this was not
    a criminal case, where the burden of proof was beyond a reasonable doubt, and
    explained that this was a civil case, where the burden of proof is “more likely
    true than untrue; the greater weight of the evidence.” 
    Id. at 58.
    He discussed
    the burden of proof as follows:
    [L]et me ask you about the burden of proof, in the criminal case
    and the judge told you this isn’t a criminal case. In a criminal
    case, the case has to be proven beyond a reasonable doubt.
    Basically, you have to be sure as a juror that the person
    committed the offense or you should find them not guilty. In a
    civil case like this, the burden of proof is more likely true than
    untrue; the greater weight of the evidence, which is 51-49. So I
    competed in powerlifting so I use analogies of the greater weight
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019             Page 4 of 20
    of the evidence, so if you’ve got 1,000 pounds of evidence, then if
    501 pounds is in the patient’s favor then the patient is going to
    win, or 100 pounds 51 to 49. Let’s say, you know, some folks
    think that’s okay if you’re talking about minor injuries, a little
    money, but if the damages are several million dollars or a very
    significant injury, a lot of folks think it’s too easy for a patient to
    come in and only have to prove the case just by the greater
    weight of the evidence. Who feels like the patient – the greater
    weight of the evidence is a little unfair from the doctor’s side?
    The patient should have to prove it by more than 51-49? . . .
    What would you want to see me prove in this case in order to satisfy you
    to find in favor of the patient? Should it be 90-10 or 80-20 or where
    would you start? Or do you think the criminal standard would
    be better, that it would be appropriate for malpractice cases?
    
    Id. at 58-59
    (emphasis added).
    [7]   Wallick’s counsel then began to ask the jurors individually about the burden of
    proof. Juror Wright liked the criminal standard of beyond a reasonable doubt.
    
    Id. at 59.
    Juror Walters did not think 51-49 “is very fair” and felt the case
    needed to be “very strong.” 
    Id. She would
    want the winner to be just under
    beyond a reasonable doubt or around 90%. Juror McCalep also felt that the
    evidence needed to be strong and agreed with Wallick’s counsel when he asked
    if she would require plaintiff to prove his case by 90-95% instead of “51 to 49.”
    
    Id. at 61.
    Juror Biddle felt that the greater weight needed to be more than 51%
    and that the percentage should be 75%. Juror Bright felt 60% was reasonable.
    Juror Curtis felt the “51-49” characterization was arbitrary and that he could
    not award damages for a case that is more likely true than untrue. 
    Id. at 66.
    Wallick’s counsel asked Juror Alcorn if he would want the plaintiff to prove his
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019             Page 5 of 20
    case by more than “the greater weight of the evidence,” and Alcorn said that he
    would want the plaintiff to prove his case by “90-95,” as the greater weight of
    the evidence would not be enough proof to satisfy him. 
    Id. at 71.
    Juror Wynne
    did not feel that “51-49” would be enough for her to find in favor of Wallick
    and felt she would need “[p]robably 75 or over.” 
    Id. at 72.
    Juror Ridner said
    he would want “80-90% at least.” 
    Id. Juror Dick
    said he would need plaintiff
    to prove his case “100%.” 
    Id. at 73.
    Throughout this line of questioning to the
    various potential jurors, Wallick’s counsel would sometimes ask if it was the
    juror’s “final answer.” 
    Id. at 61,
    66-67, 71, 72, 74.
    [8]   Dr. Inman’s counsel asked for and received a sidebar conference, during which
    he stated his intent to ask for a mistrial, arguing:
    What I’ve seen happen over the course over one, two, three, four,
    five, six, seven, eight, nine, ten, out of the fourteen people, this is
    pure and simple jury nullification. This whole percentage, there
    is no law. You’re going to instruct them.
    
    Id. at 74.
    After stating that it had been “waiting for the objection[,]” the trial
    court stated that it would be asking questions and following up with each of the
    potential jurors. 
    Id. The court
    then engaged in the following exchange with
    Wallick’s counsel:
    COURT: [Y]ou make a challenge for cause right now, I’m not
    granting it. I’m going to ask those questions. You don’t instruct
    these jurors. I do.
    COUNSEL: Oh I understand that.
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019           Page 6 of 20
    COURT: . . . You’ve planted it in their minds something that
    you think is going to be an instruction and it’s not going to be an
    instruction. I will instruct them on the burden of proof and if
    they tell me under oath that they can follow my instructions, they
    are not being kicked. Do you understand that?
    COUNSEL: Yes.
    
    Id. at 76.
    [9]   After Wallick’s counsel completed his questioning, the trial court asked
    questions as follow-up to Wallick’s voir dire, including the following:
    [T]he court has a few questions. The first one is to all of you.
    Can you listen attentively to the evidence; can you apply the law
    in obedience to the instructions given to the facts which you find
    may exist and can you reach a verdict which is fair and impartial
    as to each part of this controversy? Does everyone understand
    that? Does everyone understand that question? You’re going to
    get instructions from the court, okay? So [Wallick’s counsel] was
    asking you questions regarding burden of proof and your personal feelings
    on burden of proof and there were percentages thrown out. Does everyone
    remember that line of questioning? The court’s question is this: I’m
    going to instruct you as to what the burden of proof is. So it is the judge
    instructing you on the law. Can you all follow my instructions? Will
    you put aside your personal beliefs as to burden of proof and follow the
    law as I instruct? Can everyone do that? Can anyone not do that?
    
    Id. at 82-83.
    After engaging in dialogue with Juror McCalep, the court again
    asked the seated prospective jurors if they could “put aside personal beliefs to
    certain issues with respect to burden of proof and standard of care and follow
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019               Page 7 of 20
    the instructions I give you[,]” affirmatively asking “is there anyone that can’t do
    that?” 
    Id. at 83.
    The response was silence.
    [10]   Based on the answers each had given regarding burden of proof, and what they
    felt they would need to find in order to find in plaintiff’s favor, Wallick’s
    counsel challenged for cause the following nine of the initial fourteen
    prospective jurors: Alcorn, Wynne, Dick, Curtis, Ridner, McCalep, Wright,
    Biddle, Walters. In a sidebar, the trial court engaged in the following exchange
    with Wallick’s counsel:
    COURT: Without having had instruction from the court, you
    asked them their belief.
    COUNSEL: Right.
    COURT: They stated their beliefs.
    COUNSEL: They told me I would have to prove the case, some
    of them said beyond a reasonable doubt and some of them said
    100%. I mean the burden of – I can’t try the whole case and give
    them all the instructions but the burden of proof in this case is the
    greater weight of the evidence so it’s just 51 to 49. That’s not an
    arbitrary number. That’s the instructions the court is going to
    give.
    COURT: And we’re going to see if these panelists can under
    oath state to the court that they will follow the instructions that I
    give them. Once again-
    COUNSEL: I’m not disputing that they can say that they can
    follow the instructions of the court, but I think the court needs to
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019          Page 8 of 20
    explain to them, you know, you were asked if you could decide
    this case based on the greater weight of the evidence which is-
    COURT: Which has not been defined or put into instructions
    yet.
    ***
    COURT: So if I ask them if- will they follow the instructions
    that I give them when I give them the instructions, not questions
    from counsel during voir dire and they say “Yes,” that’s the
    answer I’m going for.
    COUNSEL: Your Honor, I defined burden of proof-
    ***
    COURT: It’s not your place to define anything to them during
    voir dire, especially not an instruction of the court. The rule of
    law that the court is going to give on the burden of proof in this
    case, it’s not your burden to prove The Indiana Supreme Court
    or jury instructions say –
    ***
    COUNSEL: Your Honor, I am [sic] instructed them
    appropriately on what the burden of proof is.
    COURT: You don’t instruct them. I do.
    
    Id. at 88-90.
    The court then individually asked each one of the nine challenged
    jurors whether they would be able to put aside their personal beliefs and follow
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019           Page 9 of 20
    the instructions as given by the trial court, including but not limited to those
    with respect to the burden of proof. Six answered in the affirmative – Alcorn,
    Walters, Curtis, Ridner, Wright, and Biddle – and the trial court denied
    Wallick’s for-cause challenges to those prospective jurors. Based on answers
    given by Jurors Wynne, Dick, and McCalep, the trial court granted Wallick’s
    request and struck those three for cause, replacing them with Jurors Newton,
    Liput, and Hunter.
    [11]   The trial court gave Wallick’s counsel time to question the new prospective
    jurors, and thereafter, he made for-cause challenges of Jurors Newton and
    Hunter because Juror Newton stated that she would feel more comfortable with
    a beyond-a-reasonable-doubt burden and “would need to know that there was a
    lot of proof[,]” and Juror Hunter said he would need a higher burden of proof
    than the greater weight of the evidence. 
    Id. at 106,
    111-12. The trial court
    conducted follow-up questions, asking each if he or she, upon being instructed
    by the court on the applicable burden of proof, could put aside a personal
    opinion or feeling regarding burden of proof and follow the court’s instruction
    as to the applicable burden of proof. Juror Hunter said he would follow the
    court’s instructions, and Wallick’s for-cause challenge of Hunter was denied.
    Juror Newton did not agree that she could follow the court’s instructions, and
    the trial court granted Wallick’s challenge and struck Newton. With regard to
    the denied challenges, Wallick’s counsel argued to the court in a sidebar that
    “how can they know if they can follow the court’s instruction [when] they don’t
    know what that burden of proof instruction is[,]” to which the trial court
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019        Page 10 of 20
    responded, “They never know until they’re instructed and you’ve given what I
    think is probably an impermissible burden of proof by interjecting percentages
    and yard lines[.]” 
    Id. at 119-20.
    [12]   The court replaced Juror Newton with Gregory and allowed Wallick’s counsel
    to question Gregory, who said he was not fond of attorneys or doctors, suspects
    lawsuits in general are frivolous, and did not want to be there. Wallick made a
    for-cause challenge to Juror Gregory, which the trial court denied. 1
    [13]   Inman’s counsel began his voir dire examination, reminding the potential
    jurors:
    Judge Dietrick is going to read you the legal instructions and tell
    you what the law is. You’re going to take an oath to follow that
    law. That’s kind of a lot of the debate we’ve had today about
    what is the burden of proof and what does that mean. Judge
    Dietrick will tell you that. The facts, you are the judges of the
    facts.
    
    Id. at 126.
    Among other things, Inman’s counsel asked the potential jurors
    whether they thought it was fair to hear all the evidence, i.e., all sides of the
    story, before making a decision and whether they had or knew someone with
    high blood pressure or who had suffered a stroke. He also individually asked
    the prospective jurors – Ridner, Hunter, Knox, Bright, Wright, Biddle, Thrash,
    1
    In a sidebar with counsel, the trial court observed, and we agree, that if “not wanting to be here” constituted
    for cause, “then we would never seat a jury.” Transcript at 124.
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019                                 Page 11 of 20
    Curtis, Mannon, Harris, Walters, Liput, Gregory, and Alcorn – whether each
    could leave sympathy outside the jury room and base the case on the law that
    the judge would give them and the evidence and witness testimony. All replied
    in the affirmative, except for Juror Gregory, who said he did not know if he
    could. Counsel for Inman made no for-cause challenges.
    [14]   Counsel for Wallick renewed his challenge to Juror Gregory for cause, arguing
    that Gregory expressly stated that he did not think he could pay attention to all
    the evidence because he was in an environment that he did not want to be in.
    The trial court asked Juror Gregory if he suffered from any physical or mental
    disability that would prevent him from rendering satisfactory jury service, and
    he replied that he did not. The trial court denied Wallick’s for-cause challenge
    as to Juror Gregory.
    [15]   Thereafter, the parties each made three peremptory strikes. Wallick struck:
    Gregory, Wright, and Ridner; Inman struck: Bright, Curtis, and Knox. The
    jury was comprised of: Alcorn, Liput, Walters, Harris, Mannon, and Hunter.
    Biddle and Thrash were accepted as alternates by Inman, but Wallick renewed
    a motion to strike Biddle for cause, which the court denied. Wallick now
    appeals.
    Discussion & Decision
    [16]   Wallick made twelve for-cause challenges, of which the trial court granted four
    and denied eight. Six of those eight denials are at issue in this appeal. The
    right to a fair trial before an impartial jury is a cornerstone of our criminal
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019         Page 12 of 20
    justice system. Whiting v. State, 
    969 N.E.2d 24
    , 28 (Ind. 2012). A
    constitutionally impartial juror is one who is able and willing to lay aside his or
    her prior knowledge and opinions, follow the law as instructed by the trial
    judge, and render a verdict based solely on the evidence presented in court. 
    Id. “Removing prospective
    jurors – whether peremptorily or for cause – who
    cannot perform these tasks is the mechanism parties and trial courts use to
    achieve an impartial jury.” Oswalt v. State, 
    19 N.E.3d 241
    , 245-46 (Ind. 2014).
    [17]   The trial court has broad discretionary power in regulating the form and
    substance of voir dire examination. Hadley v. State, 
    496 N.E.2d 67
    , 72 (Ind.
    1986). Ind. Trial Rule 47(D) governs the examination of jurors and provides:
    The court shall permit the parties or their attorneys to conduct
    the examination of prospective jurors, and may conduct
    examination itself. The court’s examination may include
    questions, if any, submitted in writing by any party or attorney.
    If the court conducts the examination, it shall permit the parties
    or their attorneys to supplement the examination by further
    inquiry. The court may impose an advance time limitation upon
    such examination by the parties or their attorneys. At the
    expiration of said limitation, the court shall liberally grant
    additional reasonable time upon a showing of good cause related
    to the nature of the case, the quantity of prospective jurors
    examined and juror vacancies remaining, and the manner and
    content of the inquiries and responses given by the prospective
    jurors. The court may prohibit the parties and their attorneys
    from examination which is repetitive, argumentative, or
    otherwise improper but shall permit reasonable inquiry of the
    panel and individual prospective jurors.
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019       Page 13 of 20
    [18]   Peremptory challenges give parties the nearly unqualified right to remove any
    prospective juror they wish, restricted only by the parties’ finite allotment of
    challenges and the constitutional ban on racial, gender, and religious
    discrimination. 
    Oswalt, 19 N.E.3d at 246
    . A peremptory challenge is often
    exercised on “hunches and impressions” and parties generally are not required
    to explain their reasons for exercising a peremptory challenge. 
    Id. For-cause challenges,
    by contrast, are available to exclude any prospective juror whose
    “views would ‘prevent or substantially impair the performance of his duties as a
    juror in accordance with his instructions and his oath.’” 
    Id. (quoting Wainwright
    v. Witt, 
    469 U.S. 412
    , 423 (1985)); see also Gibson v. State, 
    43 N.E.3d 231
    , 239 (Ind. 2015). There are no limits on the number of for-cause
    challenges, but each must be supported by specified reasons that demonstrate
    that, as a matter of law, the venire member is not qualified to serve. 
    Oswalt, 19 N.E.3d at 246
    .
    [19]   Indiana Jury Rule 17 identifies a number of circumstances in which the trial
    court in a civil or criminal case “shall sustain” a challenge for cause, including
    if the prospective juror:
    (3) will be unable to comprehend the evidence and the
    instructions of the court due to any reason including defective
    sight or hearing, or inadequate English language communication
    skills;
    (4) has formed or expressed an opinion about the outcome of the
    case, and is unable to set that opinion aside and render an
    impartial verdict based upon the law and the evidence;
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019        Page 14 of 20
    ***
    (8) is biased or prejudiced for or against a party to the case[.]
    [20]   We afford substantial deference to trial judges regarding the decision to grant or
    deny a challenge for cause, as the trial court has the unique opportunity to
    observe and assess the demeanor of prospective jurors as they answer the
    questions posed by counsel. 
    Oswalt, 19 N.E.3d at 245
    ; 
    Gibson, 43 N.E.3d at 239
    . We will reverse the trial court’s decision on a for-cause challenge “only
    when it is ‘illogical or arbitrary.’” 
    Oswalt, 19 N.E.3d at 245
    (quoting 
    Whiting, 969 N.E.2d at 29
    ); see also Merritt v. Evansville-Vanderburgh School Corp., 
    765 N.E.2d 1232
    , 1235 (Ind. 2002).
    [21]   Here, Wallick asserts that the trial court erred when it denied his for-cause
    challenges to the following six individuals: Alcorn, Gregory, Walters, Ridner,
    Hunter, and Wright. 2 He explains that five of those six “would require Wallick
    to prove his case by more evidence than the law required[,]” and two of the five
    “indicated they were leaning in favor of Inman before hearing any evidence.”
    Appellant’s Brief at 5. The remaining for-cause challenge, as to Juror Gregory,
    was based on Gregory’s voir dire responses – stating that he was not fond of
    attorneys or doctors, hates court, and did not think he could listen to all the
    evidence – which Wallick claims reflects a “stated inability to discharge his
    2
    For clarification, we note that Gregory, Ridner, and Wright were stricken through Wallick’s peremptory
    challenges and did not serve on the jury.
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019                           Page 15 of 20
    duties as a civil juror.” 
    Id. Wallick claims
    that the trial court’s denial of his
    requests to strike those six prospective jurors for cause was illogical and
    arbitrary and denied him a fair trial.
    [22]   We first address the five potential jurors who Wallick claims took the position
    that they would require him to prove his case by more than the law requires,
    that is, more than the greater weight of the evidence. As an initial matter, we
    observe that the questions that Wallick’s counsel posed regarding burden of
    proof were asked in terms of what the person would require/prefer/be
    comfortable with/want to see in order to find for plaintiff, sometimes using
    quantified percentages such as whether the person would be satisfied with a 51-
    to-49 scenario. Because the individuals gave answers indicating that, to find in
    Wallick’s favor, they would prefer or want to see a higher amount of proof,
    some saying something akin to beyond a reasonable doubt, Wallick’s counsel
    asked the court to strike the five for cause. The trial court reminded Wallick’s
    counsel that the individuals had not yet been instructed on the burden of proof
    or what constitutes a “greater weight of the evidence” and that what counsel
    was doing “by interjecting percentages and yard lines” during jury selection was
    not permissible. 
    Id. at 119-20.
    The trial court thereafter individually asked each
    of those five (as well as others) whether he or she could set aside personal
    feelings or beliefs and follow the instructions and law that the court would give,
    including with regard to burden of proof. Each of the five jurors at issue here
    responded in the affirmative.
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019         Page 16 of 20
    [23]   Wallick recognizes on appeal that a trial court has broad discretion to
    rehabilitate jurors and deny for-cause challenges, but asserts that the trial court’s
    attempted “rehabilitation” of the jurors in this case was ineffective and only
    resulted in the individuals giving meaningless, empty promises. Appellant’s Brief
    at 5. Specifically, Wallick claims that the trial court’s inquiry – asking the
    person if he or she could set aside personal biases, beliefs, and prejudices and
    follow instructions as given – simply posed a “magic question” that, if answered
    with a yes, “made the . . . veniremen’s biases and prejudices disappear into thin
    air like they never even existed” and rendered an “otherwise incompetent”
    prospective juror able to serve. 
    Id. at 5,
    7. He claims that “[t]he court’s
    decisions to deny Wallick’s cause challenges . . . based solely on the biased
    jurors’ affirmative responses to the court’s ‘magic question’ were arbitrary and
    illogical” because “the magic question” fails to remove individuals who cannot
    perform the task of impartial deliberations and, instead, merely keeps people on
    the jury who have admitted they are partial and biased. 
    Id. at 15-16.
    [24]   In support, Wallick refers us to various out-of-state cases which either did not
    allow juror rehabilitation “through these types of ‘magical’ questions” or took a
    critical view of it. 
    Id. at 22.
    Wallick urges that “Indiana should establish a rule
    that (1) bars trial courts from engaging in juror rehabilitation by using the
    “magic questions” and (2) requires trial courts’ rehabilitation to focus on
    eliciting reliable testimony for determining the competence of a juror.” 
    Id. at 23-24.
    Assuming without deciding that other jurisdictions do not allow, or take
    a critical view of, such manner of rehabilitation, as Wallick claims, we find that
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019        Page 17 of 20
    Indiana does not preclude it, and we decline his invitation to impose such a
    limitation on a trial court’s substantial deference in jury selection matters.
    [25]   Here, the trial court individually asked each of the five jurors at issue if he or
    she could set aside personal beliefs or opinions and follow the court’s
    instructions that would be given, including with regard to the burden of proof.
    Each answered affirmatively. The trial court observed these jurors, and “we
    will not second guess its determination that they were sincere” in indicating
    they would follow the court’s instructions. See 
    Gibson, 43 N.E.3d at 240
    (affirming trial court’s denial of for-cause challenges to two jurors, one with
    regard to his answers concerning appropriate penalty for murder and another
    regarding her sympathy for elderly or young victims, noting “trial court
    observed these jurors’ assurances of impartiality”). Based on the record before
    us, we find that the trial court did not act illogically or arbitrarily when it denied
    Wallick’s for-cause challenges to the five individuals who initially indicated
    they would want or prefer to see a higher burden of proof than the required
    “greater weight of the evidence” standard applicable in medical malpractice
    cases. See e.g., Timberlake v. State, 
    690 N.E.2d 243
    , 262 (Ind. 2003) (holding no
    error in denying for-cause challenge to prospective juror who initially stated she
    would prefer to hear defendant testify, might have difficulty considering
    mitigation, and might be biased against someone who committed murder, but
    also stated that, though she might not like the law, she would follow the law as
    instructed), cert. denied 
    525 U.S. 1072
    (1999).
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019         Page 18 of 20
    [26]   The sixth and final for-cause challenge that Wallick appeals is that of Juror
    Gregory, who testified that he hated court and was not fond of doctors and
    lawyers. We appreciate the grain of truth in the lighthearted comment that
    Wallick’s counsel made to Gregory: “You dislike both sides equally? You’re
    the perfect juror.” Transcript at 122. Because Juror Gregory also stated that he
    would find it hard to pay attention to all the evidence, counsel for Wallick
    renewed his motion to strike Gregory for cause. The trial court asked Juror
    Gregory if he suffered from any physical or mental disability that would prevent
    him from rendering satisfactory jury service, and he replied that he did not.
    The trial court was within its discretion to deny Wallick’s for-cause challenge to
    Gregory.
    [27]   It cannot be disputed that the trial court in this case gave considerable leeway to
    Wallick’s counsel, allowing over ninety minutes of questioning and then posing
    its own follow-up inquiries to Wallick’s twelve for-cause challenges (nine of the
    fourteen in the initial panel and three of the four replacements). Notably, the
    court struck four potential jurors whose answers reflected that he or she could
    not follow the instructions as given. The trial court devoted a generous amount
    of time to jury selection in order to make sure each person, including those
    challenged for cause, was competent to sit on the jury. We find no abuse of the
    court’s substantial discretion and conclude that the trial court did not act
    illogically or arbitrarily when it denied the six for-cause challenges at issue.
    [28]   Judgment affirmed.
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019         Page 19 of 20
    Kirsch, J. and Vaidik, C.J., concur.
    Court of Appeals of Indiana | Opinion 18A-CT-2519 | August 7, 2019   Page 20 of 20
    

Document Info

Docket Number: Court of Appeals Case 18A-CT-2519

Citation Numbers: 130 N.E.3d 643

Judges: Altice

Filed Date: 8/7/2019

Precedential Status: Precedential

Modified Date: 10/19/2024