Nathaniel Wilson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing May 25 2017, 9:31 am
the defense of res judicata, collateral
CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kevin Wild Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nathaniel Wilson, May 25, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1609-CR-1984
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt Eisgruber,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G01-1501-F1-2920
Bradford, Judge.
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Case Summary
[1] On May 24, 2015, following a two-day jury trial, Appellant-Defendant
Nathaniel Wilson was found guilty of numerous counts of Level 1 felony child
molesting and one count of Level 1 felony attempted child molesting. He was
thereafter sentenced to an aggregate forty-year sentence.
[2] In challenging his convictions on appeal, Wilson contends that the trial court
denied him the right to an impartial jury. Concluding otherwise, we affirm.
Facts and Procedural History
[3] At some point during 2014, Wilson engaged in a relationship with Kathleen
Robinson. The relationship progressed to the point that Wilson moved in with
Kathleen and her daughter, C.R., in August of 2014. During the time Wilson
lived with Kathleen and C.R., Wilson worked regular hours while Kathleen
worked longer, more irregular hours. Wilson was often home alone with C.R.
while her mother worked. In January of 2015, C.R. disclosed to her mother
and to friends that Wilson had touched her sexually and engaged in sexual
activity with her from the time he moved in with she and her mom in August of
2014 until January 17, 2015.
[4] On January 27, 2015, Appellee-Plaintiff the State of Indiana (“the State”)
charged Wilson with six counts of Level 1 felony child molesting and one count
of Level 1 felony attempted child molesting. Wilson’s case went to trial on
May 23, 2015. During the voir dire process, an initial jury panel of thirty-one
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individuals was brought into the court room. Two panels of fourteen
prospective jurors each participated in voir dire, from which six were chosen as
jurors.
[5] The remaining three prospective jurors from the original panel were then joined
by five other prospective jurors, all of whom had been excused from a different
court earlier that morning.1 Wilson objected to the addition of the five
prospective jurors to the jury pool from which the jurors hearing his case would
be chosen. The trial court noted Wilson’s objection before continuing the voir
dire process. From those eight prospective jurors, five jurors were chosen.
[6] Additional prospective jurors entered the courtroom, all of whom had also been
excused from a different court earlier that morning. 2 Wilson again objected to
the addition of these prospective jurors to the jury pool from which the jurors
hearing his case would be chosen. The trial court again noted Wilson’s
objection before continuing the voir dire process. One juror and two alternate
jurors were chosen from this group.
[7] Once the jury had been selected, the parties proceeded with Wilson’s trial. The
next day, on May 24, 2015, the jury found Wilson guilty as charged. The trial
1
The record indicates that the trial court did not re-administer the Jury Rule 13 oath to these five prospective
jurors.
2
The record indicates that the trial court did re-administer the Jury Rule 13 oath to these additional
prospective jurors.
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court subsequently imposed an aggregate executed forty-year sentence. This
appeal follows.
Discussion and Decision
[8] In challenging his convictions on appeal, Wilson contends that the trial court
denied him the right to an impartial jury. For its part, the State argues that
Wilson was not denied the right to an impartial jury.
I. Waiver and Fundamental Error
[9] During voir dire, the trial court administered the oath set forth in Indiana Jury
Rule 133 to the original jury pool members. After the parties failed to fill the
jury with members of the original jury pool, two groups of prospective jurors
joined the jury pool from which Wilson’s jury was selected after having been
dismissed from serving on the jury in other courts. The trial court re-
administered the Jury Rule 13 oath to the members of the second group of
additional prospective jurors, but failed to re-administer the Jury Rule 13 oath
to the members of the first group (“the challenged jurors”).
3
Jury Rule 13 provides as follows:
The jury panel consists of those prospective jurors who answered their summons by
reporting for jury service. The judge shall administer the following to the prospective jurors
of the jury panel: “Do you swear or affirm that you will honestly answer any question
asked of you during jury selection?”
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[10] Wilson argues that the trial court erred by failing to give the challenged jurors
the oath set forth in Jury Rule 13. Wilson asserts that “[a] crucial aspect of
[voir dire] is to assure that prospective jurors are being candid and forthright
when responding to questions from the judge or attorneys.” Appellant’s Br. p.
11. As such, he claims that given the trial court’s failure to give the challenged
jurors the Jury Rule 13 oath, there were “no assurance at all that one-fourth of
his jury was even honest in responding to questions asked by counsel on voir
dire because they were never sworn as required by Jury Rule 13.” Appellant’s
Br. p. 15.
[11] Review of the record, however, demonstrates that while Wilson’s counsel
objected to the challenged jurors below, the basis for counsel’s objection was
not that the trial court did not give them the oath required by Jury Rule 13, but
rather that the challenged jurors had already been struck from the jury in other,
unrelated cases, and because they had not been present for the voir dire
proceedings in their entirety, the challenged jurors had not been present for the
questioning of other prospective jurors which had led some of the others to
determine that they could not be fair or impartial. Specifically, defense counsel
made the following objection:
[Defense Counsel]: Just for the record, Judge, I just want to
make an objection to the new jurors that were brought in. My
concern is, number one, they were obviously let go from another
jury by one side or other for some reason but secondly, you
know, they haven’t been able to hear all of the discussions that
we've been having. We’re starting new with those six or how
many ever it is and you know, they -- they didn’t get to hear the
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discussions that we had with all the other jurors which obviously
led to a lot of people coming out with different biases and -- and
reasons that they couldn’t be fair so I just wanted to make that
objection for the record.
[Trial Court]: Okay. That is noted.
Tr. Vol. II, p. 106. Defense counsel repeated this objection when the second
group of additional jurors were brought in. The trial court again noted defense
counsel’s objection before continuing the voir dire process.
[12] It is well-settled that “[a] party may not object on one ground at trial and raise a
different ground on appeal.” White v. State, 772 N.E.2d 408, 411 (Ind. 2002).
When a defendant fails to object to a claimed error at trial, “he must show
fundamental error to prevail” on appeal. State v. Eubanks, 729 N.E.2d 201, 205-
06 (Ind. Ct. App. 2000) (citing Moore v. State, 673 N.E.2d 776, 780 (Ind. Ct.
App. 1996)). Fundamental error requires a defendant to show greater prejudice
than reversible error because no objection has been made. Id. at 205.
[13] To demonstrate fundamental error, the defendant must show that
the error was so prejudicial that he “could not possibly have had
a fair trial” and that the error “pervaded the climate of the
proceedings below, viewed as a whole, depriving the defendant
of any realistic opportunity for a fair hearing.” [Lacey v. State, 670
N.E.2d 1299, 1302 (Ind. Ct. App. 1991)] (citations omitted).
Id. “A fundamental error is a substantial, blatant violation of basic principles of
due process rendering the trial unfair to the defendant.” Id. at 206 (citing Baird
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v. State, 688 N.E.2d 911, 917 (Ind. 1997)). The Indiana Supreme Court has
explained the limited applicability of the fundamental error doctrine, stating:
It is true that we have acknowledged an exception to the waiver
rule in circumstances where the trial court committed
“fundamental error.” But we view this exception as an extremely
narrow one, available only “when the record reveals clearly
blatant violations of basic and elementary principles [of due
process], and the harm or potential for harm [can]not be denied.”
Warriner v. State, 435 N.E.2d 562, 563 (Ind. 1982).
Canaan v. State, 683 N.E.2d 227, 235 n.6 (Ind. 1997).
[14] Again, review of the record reveals that Wilson’s defense counsel did not object
to the inclusion of the challenged jurors in the jury pool for Wilson’s case on
the basis that the trial court erred by failing to give the Jury Rule 13 oath to the
challenged jurors. Wilson, therefore, must demonstrate that the trial court’s
alleged error amounted to fundamental error.
II. The Right to an Impartial Jury
[15] The Federal and Indiana Constitutions guarantee the right to an
impartial jury. Ramirez v. State, 7 N.E.3d 933, 936 (Ind. 2014).
But selecting impartial juries depends upon the parties’
discernment and the trial court’s discretion to select a panel of
objective and unbiased jurors “who will conscientiously apply the
law and find the facts.” Wainwright v. Witt, 469 U.S. 412, 423,
105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). 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. Emmons v. State, 492 N.E.2d 303, 305
(Ind. 1986).
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Peremptory challenges are “an important auxiliary tool” for that
purpose. [Whiting v. State, 969 N.E.2d 24, 29 (Ind. 2012)]. They
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. Batson v. Kentucky, 476 U.S.
79, 89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) (race); J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127, 140-43, 114 S. Ct. 1419, 128
L. Ed. 2d 89 (1994) (gender); Highler v. State, 854 N.E.2d 823, 829
(Ind. 2006) (religion). “Unlike challenges for cause, the
peremptory is often exercised on ‘hunches’ and impressions
having to do, perhaps, with a prospective juror’s habits,
associations, or ‘bare looks.’” Merritt v. State, 488 N.E.2d 340,
341 (Ind. 1986). These “hunches” are difficult if not impossible
to explain to a trial court or opposing counsel—which is why
parties are “generally not required to explain [their] reasons for
exercising a peremptory challenge, and the exercise is not subject
to the trial court’s control.” Price v. State, 725 N.E.2d 82, 86 (Ind.
2000). “Our belief that experienced lawyers will often correctly
intuit which jurors are likely to be the least sympathetic, and our
understanding that the lawyer will often be unable to explain the
intuition, are the very reason we cherish the peremptory
challenge.” J.E.B., 511 U.S. at 148, 114 S. Ct. 1419 (O’Connor,
J., concurring).
For-cause motions, 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’” and thus violate the
defendant’s Sixth Amendment rights. Witt, 469 U.S. at 423-24,
105 S. Ct. 844 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct.
2521, 65 L. Ed. 2d 581 (1980)). Similarly, Indiana Code section
35-37-1-5 (2008) and Indiana Jury Rule 17 list many additional
bases for removing a prospective juror for cause. Whiting, 969
N.E.2d at 29. A juror who qualifies for removal under these
constitutional or statutory criteria may be removed as an
“incompetent juror,” while a juror “who is not removable for
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cause but whom the party wishes to strike” peremptorily is
termed “objectionable.” Id. at 30 n. 7. Unlike peremptory
strikes, strikes for cause require trial court approval, so parties
regularly seek appellate review of unsuccessful for-cause motions.
This, in turn, requires them to satisfy the exhaustion rule[.]
Oswalt v. State, 19 N.E.3d 241, 245-46 (Ind. 2014).
[16] “The exhaustion rule requires parties to peremptorily remove jurors whom the
trial court refuses to strike for cause or show that they ‘had already exhausted
[their] allotment of peremptories’ at the time they request for-cause removal.”
Id. at 246 (quoting Whiting, 969 N.E.2d at 30).
And “even where a defendant preserves a claim by striking the
challenged juror peremptorily,” an appellate court will find
reversible error “only where the defendant eventually exhausts all
peremptories and is forced to accept either an incompetent or an
objectionable juror.” [Whiting, 969 N.E.2d at 30]. The rule
promotes judicial economy: parties should use the tools at their
disposal to cure error and avoid significant costs that will accrue
to the judiciary, the parties, and the citizen jurors. Id. (citing
Merritt, 765 N.E.2d at 1236-37). Failure to comply with the
exhaustion rule results in procedural default.
Id. (emphasis in original).
[17] While we believe that the trial court erred by failing to re-administer the Jury
Rule 13 oath to the challenged jurors, we conclude that Wilson has failed to
establish that such error amounted to fundamental error. First, the record
indicates that Wilson, through counsel, was given the opportunity to and in fact
did question the challenged jurors during the voir dire process. Second, Wilson
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has failed to prove on appeal that he satisfied the exhaustion rule by exhausting
his peremptory challenges or establish that an “objectionable” juror served on
his jury. He neither identifies any particular juror who was objectionable nor
explains why he wished to strike that juror; he simply states that “[h]is ability
through counsel to determine the biases and prejudicial feelings and beliefs of
prospective jurors, and for jurors themselves to recognize and acknowledge
their own in their responses to questioning, have been irreparably damaged and
his rights prejudiced.” Appellant’s Br. p. 16.
[18] In Weisheit v. State, the Indiana Supreme Court held that a defendant’s
conclusory assertion that he was forced to accept biased jurors “is not nearly
enough” to make a showing of reversible error. 26 N.E.3d 3, 13 (Ind. 2015). In
the instant matter, Wilson has presented only a conclusory assertion that he
was forced to accept potentially biased jurors. Wilson has also failed to
demonstrate that he suffered any prejudice as a result of the manner in which
the trial court conducted voir dire proceedings. Given the facts of this case
coupled with the Indiana Supreme Court’s holding in Weisheit, we conclude
that Wilson has failed to establish that he suffered a fundamental error during
the voir dire proceedings. Accordingly, we affirm the judgment of the trial
court.
[19] The judgment of the trial court is affirmed.
Mathias, J., and Altice, J., concur.
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