Douglas Bragg v. State of Indiana (mem. dec.) ( 2015 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D), this                             Oct 15 2015, 8:33 am
    Memorandum Decision shall not be regarded as
    precedent or cited before any court except for the
    purpose of establishing the defense of res judicata,
    collateral estoppel, or the law of the case.
    
    
    
    ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
    Elizabeth A. Houdek                                       Gregory F. Zoeller
    Indianapolis, Indiana                                     Attorney General of Indiana
                                                              Gary Damon Secrest
                                                              Jonathan R. Sichtermann
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana
    
    
    
                                                 IN THE
        COURT OF APPEALS OF INDIANA
    
    Douglas Bragg,                                           October 15, 2015
    
    Appellant-Defendant,                                     Court of Appeals Case No.
                                                             49A02-1412-CR-878
            v.                                               Appeal from the Marion Superior
                                                             Court.
    State of Indiana,                                        The Honorable Stanley Kroh, Judge
                                                             Pro Tempore.
    Appellee-Plaintiff
                                                             Cause No. 49G03-1401-FA-3694
    
    
    
    
    Riley, Judge.
    
    
    
    
    Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-878 | October 15, 2015     Page 1 of 17
                                           STATEMENT OF THE CASE
    
    [1]   Appellant-Defendant, Douglas Bragg (Bragg), appeals his conviction for
    
          criminal deviate conduct, a Class A felony, Ind. Code § 35-42-4-2 (2012) 1;
    
          sexual battery, a Class C felony, I.C. § 35-42-4-8 (2012); and theft, a Class D
    
          felony, I.C. § 34-43-4-2 (2013).
    
    
    [2]   We affirm.
    
    
                                                             ISSUE
    
    [3]   Bragg raises one issue on appeal, which we restate as: Whether the trial court
    
          abused its discretion when it denied Bragg’s motion to strike a prospective juror
    
          for cause because the juror was a deputy attorney general.
    
    
                                  FACTS AND PROCEDURAL HISTORY
    
    [4]   On January 29, 2014, the State charged Bragg with two Counts of Class A
    
          felony criminal deviate conduct, one Count of Class B felony criminal
    
          confinement, two Counts of Class C felony sexual battery, one Count of Class
    
          C felony intimidation, and one Count of Class D felony theft. On November 5,
    
          2014, the trial court conducted a jury trial.
    
    
    [5]   During the venire, one of the prospective jurors volunteered that he was “not a
    
          law enforcement officer per se” but that he was a “deputy attorney general
    
    
    
    
          1
              This section was repealed by P.L. 158-2013, SEC. 438 and P.L. 214-2013, SEC. 37, eff. July 1, 2014.
    
          Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-878 | October 15, 2015          Page 2 of 17
          [and] a supervisor in [the] appeals division,” working very closely with the
    
          criminal appeals attorneys. (Conf. Transcript p. 45). As such, he felt “a little
    
          uncomfortable about serving as a juror.” (Conf. Tr. p. 45). When questioned
    
          by Bragg that he is “probably leaning towards favoring the State or being biased
    
          by the State,” the prospective juror responded that he had “been doing that for a
    
          long time [and] [s]o there’s a natural tendency probably.” (Conf. Tr. p. 84).
    
          When asked whether he could be fair, the prospective juror noted
    
                  Well, I’m not sure that I would ever say that I couldn’t be entirely fair,
                  but I bring to the table a lengthy experience with these kinds of things.
                  And I’ve represented the State at the – you know, at the Attorney
                  General’s level in many, many things.
          (Conf. Tr. p. 85). When asked by the trial court “assuming you were
    
          throughout here as a juror—throughout the whole trial, and at the end of the
    
          day, you didn’t think the State met the burden of proof, would you be able to
    
          enter a finding of not guilty,” the prospective juror replied, “Yes.” (Conf. Tr. p.
    
          96). He added, however, “I’m just uncomfortable about it from a []
    
          professional [] point of view.” (Conf. Tr. p. 96). After the trial court refused to
    
          strike the prospective juror for cause, Bragg peremptorily struck him.
    
    
    [6]   Later during voir dire, Bragg used his last peremptory challenge and also
    
          requested to remove two other jurors for cause because they “were pretty clear
    
          that they did not want to be on this jury, they did not feel that they could be
    
          fair” even though they did say “that they would follow the instructions.” (Tr.
    
          p. 207). Bragg also requested an additional peremptory challenge because he
    
          believed that “the attorney general should have been struck for cause” so he
    
    
          Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-878 | October 15, 2015   Page 3 of 17
          could have used it to strike another objectionable juror. (Tr. p. 207). After the
    
          trial court rejected the for-cause challenges and denied Bragg’s request for an
    
          additional challenge, Bragg declined to accept the jury venire. The trial court
    
          allowed Bragg to make a record of his denial. At the close of the jury trial, the
    
          jury returned a guilty verdict on one Count of Class A criminal deviate conduct,
    
          one Count of Class C felony battery, and Class D felony theft.
    
    
    [7]   On November 26, 2014, the trial court sentenced Bragg to forty years executed
    
          with ten years suspended and three years probation for criminal deviate
    
          conduct, and two years executed for theft, with sentences to be served
    
          concurrently. The trial court merged the sexual battery charge with the
    
          criminal deviate conduct conviction.
    
    
    [8]   Bragg now appeals. Additional facts will be provided as necessary.
    
    
                                      DISCUSSION AND DECISION
    
    [9]   Bragg contends that he was denied the right to a fair trial because the trial court
    
          abused its discretion in denying his challenge for cause as to the prospective
    
          juror, who is a deputy attorney general and a supervisor in the appeals division.
    
          The decision to grant or deny a challenge for cause to a prospective juror is a
    
          matter within the trial court’s discretion. Kimbrough v. State, 
    911 N.E.2d 621
    ,
    
          628 (Ind. Ct. App. 2009). We will reverse the trial court’s decision only if it is
    
          illogical or arbitrary. Id. Moreover, we afford considerable deference to trial
    
          judges regarding this decision because they see jurors firsthand and are in a
    
          better position to assess a juror’s ability to serve without bias and reach a
    
          Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-878 | October 15, 2015   Page 4 of 17
           decision based on the law. Id. Finally, we note that the purpose of voir dire is to
    
           determine whether the prospective juror can render a fair and impartial verdict
    
           in accordance with the law and evidence. Id.
    
    
    [10]   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.” Oswalt v. State, 
    19 N.E.3d 241
    , 245 (Ind. 2014) (quoting
    
           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).
    
    
    [11]   A juror who is biased either for or against a party may be removed for cause
    
           from a jury panel. I.C. § 35-37-1-5. Bias may be actual or implied. Actual bias
    
           arises when a factual bias for or against one of the parties is shown to exist.
    
           Smith v. State, 
    477 N.E.2d 311
     (Ind. Ct. App. 1985). Implied bias, which is
    
           claimed by Bragg, is a bias attributable by law to a prospective juror, regardless
    
           of actual partiality, due to the existence of a relationship between the juror and
    
           one of the parties. Alvies v. State, 
    795 N.E.2d 493
    , 499 (Ind. Ct. App. 2003).
    
    
    [12]   Our courts have previously inferred bias on the part of relatives of persons
    
           employed by the prosecutor’s office, finding the relative incompetent to serve
    
           on criminal jury panels. Haak v. State, 
    417 N.E.2d 321
     (Ind. 1981); Barnes v.
    
    
           Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-878 | October 15, 2015   Page 5 of 17
           State, 
    330 N.E.2d 743
     (Ind. 1975). In Haak, our supreme court held that
    
           implied bias existed where a prospective juror was married to an attorney who
    
           had accepted a deputy prosecutor’s position in the county where the case was
    
           being tried. Haak, 417 N.E.2d at 322. In Barnes, the court found the
    
           “possibility of bias,” where a juror was married to a second cousin of a member
    
           of the prosecutor’s staff who was slightly involved in the trial. Barnes, 330
    
           N.E.2d at 746-47. This presumption of bias rested upon the assumption that a
    
           deputy prosecutor, by virtue of his employment, would identify so strongly with
    
           the interest of the State he would be unable to fairly adjudge its case against a
    
           defendant. Smith, 477 N.E.2d at 313-14. As our supreme court reasoned in
    
           Block v. State, 
    100 Ind. 357
    , 365 (Ind. 1885), “it is almost impossible, however
    
           incorruptible one may be, not to bend before the weight of interest; and the
    
           power of employer over employee is that of him who clothes and feeds over
    
           him who is fed and clothed.”
    
    
    [13]   Nevertheless, I find this line of cases distinguishable from the situation at hand.
    
           Here, the prospective juror was not a member of—or related to a member of—
    
           the prosecutorial arm of the State that charges and prosecutes criminal actions,
    
           but rather, was employed by a different State agency, i.e., the office of the
    
           attorney general. While the prospective juror, as deputy attorney general,
    
           professed a knowledge of criminal appeals, he was not connected to the
    
           prosecution of the instant case and thus had no “relationship” to “one of the
    
           parties.” See Alvies, 795 N.E.2d at 499.
    
    
    
    
           Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-878 | October 15, 2015   Page 6 of 17
    [14]   Furthermore, by asking its own questions and also allowing both parties to
    
           question the prospective juror, the trial court properly analyzed the alleged bias
    
           and considered the nature of the prospective juror’s presumed bias. Even
    
           though the prospective juror expressed some discomfort “from a professional []
    
           point of view,” he did not assert any bias toward Bragg. (Conf. Tr. p. 96).
    
           Also, I cannot find bias in the prospective juror’s statement that he had a
    
           “probable” “natural tendency” to favor the State. (Conf. Tr. p. 84). See, e.g.,
    
           Oswalt, 19 N.E.3d at 249-50 (our supreme court did not find bias where a juror
    
           expressed discomfort and uttered the statement that he would not want a juror
    
           like himself adjudicating the case). Rather, upon questioning, the prospective
    
           juror affirmed that he could be fair throughout the proceedings and would hold
    
           the State to its burden of proof. The timely disclosure of a juror’s alleged
    
           relationship with a witness or a party, coupled with an assertion that the juror
    
           will remain impartial, adequately protects a defendant’s right to an impartial
    
           jury. McCants v. State, 
    686 N.E.2d 1281
    , 1285 (Ind. 1997). “Our justice system
    
           depends on jurors who appreciate the gravity of the cases they are called upon
    
           to try, so long as they demonstrate a commitment to impartiality and a
    
           willingness to dutifully follow the court’s instructions.” Oswalt, 19 N.E.3d at
    
           250.
    
    
    [15]   Accordingly, because I do not find presumed bias in the case of a prospective
    
           juror who is a deputy attorney general under the circumstances before me, I
    
           cannot conclude that the trial court abused its discretion in denying Bragg’s
    
           challenge for cause.
    
    
           Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-878 | October 15, 2015   Page 7 of 17
                                                   CONCLUSION
    
    [16]   Based on the foregoing, I conclude that the trial court properly denied Bragg’s
    
           motion to strike for cause.
    
    
    [17]   Affirmed.
    
    
    [18]   Bailey, J. concurs in result with separate opinion
    
    
    [19]   Barnes, J. concurs in part and dissents in part with separate opinion
    
    
    
    
           Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-878 | October 15, 2015   Page 8 of 17
                                                      IN THE
               COURT OF APPEALS OF INDIANA
    
           Douglas Bragg,
           Appellant-Defendant,
                                                                   Court of Appeals Case No.
                   v.                                              49A02-1412-CR-878
    
    
           State of Indiana,
           Appellee-Plaintiff
    
    
    
    
           Bailey, Judge, concurring in result.
    
    [20]   I, unlike my colleague Judge Riley, believe that Prospective Juror S should have
    
           been dismissed for cause. However, in my view, Bragg failed to demonstrate
    
           that he was denied an impartial jury, consistent with our supreme court’s
    
           guidance in Weisheit v. State, 
    26 N.E.3d 3
     (Ind. 2015). Thus, I write separately
    
           to explain my reasoning.
    
    
    [21]   “Our justice system depends on jurors who appreciate the gravity of the cases
    
           they are called upon to try, so long as they demonstrate a commitment to
    
           impartiality and a willingness to dutifully follow the court’s instructions.”
    
           Oswalt v. State, 
    19 N.E.3d 241
    , 250 (Ind. 2014). In Oswalt, our supreme court
    
           reiterated: “The Federal and Indiana Constitutions guarantee the right to an
    
           impartial jury” and explained how the mechanism of prospective juror removal
    
           is used to achieve an impartial jury. Id. at 245-46. Peremptory challenges give
    
    
           Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-878 | October 15, 2015   Page 9 of 17
           parties the nearly unqualified right to remove any prospective juror they wish,
    
           restricted only by the finite allotment of challenges 2 and the constitutional ban
    
           on racial, gender, and religious discrimination. Id. at 246. The exercise of a
    
           peremptory challenge is not subject to the trial court’s control, and the party
    
           making the challenge is not generally required to explain the underlying
    
           reasons. Id.
    
    
    [22]   By contrast, for-cause motions are available to exclude jurors whose views
    
           would prevent or substantially impair the performance of his or her duties as a
    
           juror in accordance with the instructions given and the oath taken and thus
    
           violate the defendant’s Sixth Amendment rights. Id. Indiana Code section 35-
    
           37-1-5 and Indiana Jury Rule 17 list additional bases for removing a prospective
    
           juror for cause. Id. A juror removed under these constitutional or statutory
    
           provisions is considered an “incompetent” juror while a juror not removable for
    
           cause but stricken at a party’s wish is termed “objectionable.” Id. Strikes for
    
           cause require trial court approval, and so parties may seek appellate review of
    
           unsuccessful for-cause motions. Id.
    
    
    [23]   We review the decision on a for-cause challenge for an abuse of discretion. Id.
    
           at 245. The trial court is in a unique position to observe and assess the
    
           demeanor of prospective jurors as they answer questions, and thus we afford
    
    
    
    
           2
            Pursuant to Indiana Jury Rule 18(a), a defendant charged with a Class A felony is entitled to ten
           peremptory challenges.
    
           Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-878 | October 15, 2015        Page 10 of 17
           substantial deference to the trial court’s decision. Id. Error is found only if the
    
           decision is illogical or arbitrary. Id.
    
    
    [24]   Reversible error occurs only when the error has prejudiced the defendant. Id. at
    
           249 (citing Woolston v. State, 
    453 N.E.2d 965
    , 968 (Ind. 1983)). When a party
    
           exhausts all peremptories and is forced to accept an objectionable or
    
           incompetent juror, any erroneous for-cause motion is prejudicial because it
    
           deprives the party of a peremptory challenge that could have been used. Id.
    
           ‘“The issue of whether the defendant had an impartial jury must focus on one
    
           or more of the jurors who actually sat and rendered the decision,”’ and thus “at
    
           least one incompetent or objectionable juror must actually have served on the
    
           jury.” Id. (quoting Ward v. State, 
    903 N.E.2d 946
    , 954-55 (Ind. 2009)).
    
    
    [25]   Bragg contends that Prospective Juror S, by virtue of his lengthy advocacy for
    
           the State in criminal matters, was “impliedly biased.” Appellant’s Brief at 5. A
    
           juror’s bias, supporting excusal for cause, may be actual or implied. Joyner v.
    
           State, 
    736 N.E.2d 232
    , 238 (Ind. 2000). “Implied bias” is attributed to a juror
    
           upon a finding of a relationship between the juror and one of the parties,
    
           regardless of actual partiality. Id.
    
    
    [26]   The State argues that Prospective Juror S has a “tenuous” relationship with the
    
           “prosecutorial arm of the State.” Appellant’s Brief at 7. I disagree. Although
    
           Prospective Juror S does not represent the State at the trial court level, he has
    
           long done so at the appeals level. His employment had spanned more than a
    
           decade and, as of the time of trial, he was a supervisor who worked closely with
    
    
           Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-878 | October 15, 2015   Page 11 of 17
           attorneys involved in criminal appeals. The appeals process is frequently a
    
           continuation of the criminal proceedings, as a person convicted of a crime in
    
           Indiana has a right to an appeal pursuant to Article 7, Section 6 of the Indiana
    
           Constitution.
    
    
    [27]   Given the unique circumstances of Prospective Juror S’s employment, a finding
    
           of implied bias would have been warranted. Moreover, Prospective Juror S
    
           arguably expressed actual bias in favor of the State. Although he expressed
    
           willingness to follow instructions, he repeatedly acknowledged his favoritism
    
           and his lengthy role as an advocate for the State in appellate matters. Pursuant
    
           to Indiana Jury Rule 13, prospective jurors are required to swear or affirm that
    
           he or she “will honestly answer any question asked … during jury selection.”
    
           We are not in a position to assess the credibility of a prospective juror. No
    
           challenge was made to the truthfulness of Prospective Juror S’s representations.
    
           As such, we must take Prospective Juror S at his word for purposes of review,
    
           and he should have been excused for cause.
    
    
    [28]   That said, two things must occur in order to obtain a reversal of a conviction
    
           based on a claim of error in a trial court’s denial of a juror challenge for cause.
    
           First, a defendant must exhaust all of his or her peremptory challenges if a
    
           challenge for cause is denied. Oswalt, 19 N.E.3d at 247. Second, a defendant
    
           must show that an incompetent or objectionable juror served on the jury as a
    
           result of a trial court’s erroneous rejection of a for-cause challenge. Id. Near
    
           the end of voir dire, Bragg’s counsel advised the trial court that all his
    
           peremptory challenges had been used. Also, the State does not suggest that
    
           Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-878 | October 15, 2015   Page 12 of 17
           Bragg failed to comply with the exhaustion rule. The first requirement of
    
           Oswalt appears to be satisfied. However, Bragg does not develop an argument
    
           with regard to the second requirement, service by an incompetent or
    
           objectionable juror.
    
    
    [29]   In Weisheit, our supreme court clarified that the appellant who makes a claim
    
           under the Oswalt framework bears the burden of establishing that an
    
           incompetent or objectionable juror served on his jury.
    
                   Though Weisheit satisfied the exhaustion rule by exhausting his
                   peremptory challenges, he does not establish that an “objectionable”
                   juror served on his jury. He neither identified which particular juror(s)
                   were objectionable nor explains why he wished to strike the juror(s);
                   he simply states that in expending all of his peremptory challenges, he
                   “was forced to accept other jurors who, although not necessarily
                   positioned to be challenged for cause, were biased against his evidence
                   in either the guilt phase, the penalty phase, or both.” (Appellant’s Br.
                   at 49.) Under Oswalt his conclusory assertion that he was forced to
                   accept biased jurors is not nearly enough for us to find reversible error.
           26 N.E.3d at 13.
    
    
    [30]   Bragg focuses his appellate argument upon Prospective Juror S’s alleged
    
           incompetence, and the preservation of one peremptory strike. At the same
    
           time, he suggests that an impartial jury would have included neither Juror A or
    
           O. He does not identify a particular juror that he would have eliminated with a
    
           preserved peremptory strike, nor does he request our review of either Juror A or
    
           O. With respect to these jurors, Bragg summarily states: “The presence of both
    
           Juror O and Juror A on Mr. Bragg’s jury and the inability of his counsel to
    
           strike one of them deprived him of an impartial jury and prejudiced him.”
    
    
           Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-878 | October 15, 2015   Page 13 of 17
           Appellant’s Brief at 8. According to our supreme court’s guidance in Weisheit, a
    
           conclusory allegation of forced acceptance of biased jurors is not nearly enough
    
           to support reversal.
    
    
    [31]   For the foregoing reasons, I conclude that Bragg has not established grounds for
    
           reversal of his conviction. I concur in the result reached, that is, the affirmation
    
           of Bragg’s convictions for Criminal Deviate Conduct and Theft. 3
    
    
    
    
           3
             Although the jury found Bragg guilty of one count of Sexual Battery, the trial court did not enter a
           judgment of conviction thereon.
    
           Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-878 | October 15, 2015          Page 14 of 17
                                                      IN THE
               COURT OF APPEALS OF INDIANA
    
           Douglas Bragg,                                           [Add Hand-down date]
    
           Appellant-Defendant,                                     Court of Appeals Cause No.
                                                                    49A02-1412-CR-878
                   v.                                               Appeal from the Marion Superior
                                                                    Court
           State of Indiana,                                        The Honorable Stanley Kroh, Judge
                                                                    Pro Tempore
           Appellee-Plaintiff
                                                                    Trial Court Cause No.
                                                                    49G03-1401-FA-3694
    
    
    
    
           Barnes, Judge, concurring in part and dissenting in part.
    
    [32]   I concur with Judge Bailey’s conclusion that Juror S was subject to removal for
    
           cause because, as a deputy attorney general with responsibility for criminal
    
           appeals, he was at least impliedly biased in favor of the State.
    
    
    [33]   However, I dissent from Judge Bailey’s conclusion that Bragg failed to establish
    
           reversible error in the denial of his for-cause challenge to Juror S. As our
    
           supreme court has succinctly explained, “If on appeal you then prove both the
    
           erroneous denial [of a challenge for cause] and that you were unable to strike
    
           another objectionable juror because you exhausted your peremptories, you are
    
           entitled to a new trial, full stop.” Merritt v. Evansville-Vanderburgh Sch. Corp., 765
    
           Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-878 | October 15, 2015   Page 15 of 
    17 N.E.2d 1232
    , 1237 (Ind. 2002). Moreover, for purposes of the exhaustion rule,
    
           objectionable jurors are deemed to be equally prejudicial to incompetent jurors,
    
           i.e. ones removable for cause; an appellant need not prove that an objectionable
    
           juror was incompetent. Oswalt v. State, 
    19 N.E.3d 241
    , 249 (Ind. 2014) (quoting
    
           Merritt, 765 N.E.2d at 1236 n.6). In Oswalt, counsel for the defendant attempted
    
           to remove Juror 28 for cause, which was denied, but used his last peremptory to
    
           remove Juror 25, not Juror 28, based on his “gut.” Id. at 248. The Oswalt court
    
           held that this satisfied the Merritt exhaustion rule and preserved appellate review
    
           of the denial of the challenge for cause to Juror 28. Id.
    
    
    [34]   In Weisheit v. State, 
    26 N.E.3d 3
     (Ind. 2015), our supreme court addressed a case
    
           in which the defendant failed to specifically identify any juror whom he was
    
           unable to remove because of the exhaustion of peremptories and failed to state
    
           any reason why he wanted to remove any such juror. The court held that the
    
           defendant’s “conclusory assertion that he was forced to accept biased jurors is
    
           not nearly enough for us to find reversible error.” Weisheit, 26 N.E.3d at 13.
    
    
    [35]   My colleague finds this case to be like Weisheit and not Oswalt. I disagree.
    
           Here, trial counsel specifically identified two jurors—Juror O and Juror A–
    
           either of whom she could have struck if she had not had to use a peremptory
    
           challenge on Juror S. Trial counsel noted that both of these jurors had
    
           expressed doubt during voir dire that they could be fair and in presuming that
    
           Bragg was innocent. I believe this specificity satisfies Oswalt.
    
    
    
    
           Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-878 | October 15, 2015   Page 16 of 17
    [36]   “The Federal and Indiana Constitutions guarantee the right to an impartial
    
           jury.” Oswalt, 19 N.E.3d at 245. Peremptory challenges are an important tool
    
           in guaranteeing fair and impartial juries. Id. at 246. Subject to limits such as
    
           prohibiting removal for discriminatory reasons, peremptory challenges to jurors
    
           that counsel or client finds objectionable are more often than not based on
    
           “hunches” that “are difficult if not impossible to explain to a trial court or
    
           opposing counsel . . . .” Id. I do not believe it is a defendant’s burden to
    
           explain in detail why he or she wanted to use a peremptory challenge on a
    
           particular juror. Oswalt identified a “gut” feeling about a particular juror as
    
           being sufficient. Trial counsel here specifically explained why she found Juror
    
           O and Juror A objectionable.
    
    
    [37]   I understand Bragg is accused of committing a very serious and heinous crime.
    
           However, our judicial system is premised on the theory that even the least
    
           pleasing criminal defendant gets a “fair shake.” I do not think that happened
    
           here. The fairness and impartiality of the jury can certainly be called into
    
           question.
    
    
    [38]   I believe Juror S should have been subject to a cause challenge, removed, and
    
           that Bragg has satisfied the exhaustion rule. As such, I believe
    
           his convictions should be reversed, and the cause remanded for a new trial.
    
    
    
    
           Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-878 | October 15, 2015   Page 17 of 17