Jennifer Nelson for www.theindianalawyer.com

The Indiana Supreme Court tackled issues of first impression Wednesday involving peremptory challenges and removing jurors for cause. The justices held that parties satisfy the “exhaustion rule” the moment they use their final peremptory challenge – regardless of whom they strike.

Gary Wayne Oswalt was on trial for multiple counts of child molesting, child solicitation and possession of child pornography. During voir dire, he moved to strike jurors 7 and 13 for cause. The trial court denied his motions, so he used two of his peremptory challenges to remove him.

Then he sought to strike Juror 28 for cause and use his final peremptory challenge to remove Juror 25 because he was the brother-in-law of another prospective juror, which is not grounds to remove someone for cause.

He presented his motions simultaneously; the trial court denied the motion to remove Juror 28 for cause, but allowed Oswalt to switch his final peremptory challenge to 28 instead. He decided to leave Juror 28 and strike Juror 25 after stating,”I’ve got a record that says … I’m out of preempts and I’m not getting who I want.”

The Court of Appeals found Oswalt waived appellate review of Juror 28 for failure to exhaust his peremptory challenges.

“We hold that complying with the exhaustion rule neither comes at the cost of a party’s final peremptory challenge nor precludes review of earlier for-cause challenges. Instead, parties satisfy the exhaustion rule the moment they use their final challenge, regardless of whom they strike. We also hold that the parties who satisfy the exhaustion rule should not lose appellate review for doing so. Instead, appellate courts may review jurors whom parties were forced to remove peremptorily when they show that (1) they satisfied the exhaustion rule, and that (2) an incompetent or objectionable juror served on the jury. These conclusions fulfill the purpose of the exhaustion rule, while honoring the parties’ time-honored discretion to use their peremptories as they see fit.

“We conclude that Oswalt’s use of his last peremptory strike satisfied the exhaustion rule, and that we may review his for-cause challenges – not just to Juror 28, but also to Jurors 7 and 13 who did not serve because he struck them peremptorily,” Chief Justice Loretta Rush wrote in Gary Wayne Oswalt v. State of Indiana, 35S02-1401-CR-10. “But we find that the court did not abuse its discretion in denying all three challenges, and we therefore affirm Oswalt’s convictions and sentence. In all other respects, we summarily affirm the Court of Appeals.”

Juror 28 had expressed discomfort at the thought of trying a child molestation case, but never told the court that he could not be fair toward Oswalt. Thus, the trial court’s denial of Oswalt’s motion was within its discretion.

Oswalt did not establish that Juror 7, who said she recognized someone during voir dire and believed the person was related to Oswalt, could not render a fair and impartial decision. Her explanation that she would “rather not have to … be involved in a family problem” falls short of bias or prejudice. Oswalt sought to strike Juror 13 for cause because that juror indicated he assumed that defendants were guilty until proven innocent. But the juror later said he could make a decision after hearing all of the evidence.

Justice Mark Massa concurred in result.

By Lesley Weidenbener
TheStatehouseFile.com

INDIANAPOLIS – Indiana’s unemployment rate dropped slightly in September, even as the state lost jobs overall.

The seasonally adjusted rate stood at 5.7 percent last month, down 0.1 percentage points from August. The rate is significantly lower than one year ago when it stood at 7.3 percent.

The drop comes even as the private sector suffered a decline of 1,900 jobs in the state, led primarily by losses in the leisure and hospitality and the trade, transportation and utilities sectors.

Still, Indiana employers added 6,000 manufacturing jobs, a 1.2 percent increase over the previous month.

The Indiana Department of Workforce Development says that’s the largest one-month increase in manufacturing jobs in a decade and one of the highest in the nation. Since July 200, the low point of employment, the state has added 90,000 manufacturing jobs, which ranks Indiana among the top five in the nation.

By Lesley Weidenbener
TheStatehouseFile.com

INDIANAPOLIS – Gov. Mike Pence said Tuesday he still won’t apply for up to $80 million in preschool funding – despite an extended federal deadline and calls from several education officials.

Gov. Mike Pence signed a bill earlier this year to create a pre-K pilot program as 5-year-old Rosie Chavez and 4-year-old Tre Embry help with the pens that were later given to lawmakers who helped pass the bill. Photo by Lesley Weidenbener, TheStatehouseFile.com
Gov. Mike Pence signed a bill earlier this year to create a pre-K pilot program as 5-year-old Rosie Chavez and 4-year-old Tre Embry help with the pens that were later given to lawmakers who helped pass the bill. Photo by Lesley Weidenbener, TheStatehouseFile.com
Pence said he stands by a decision he made last week not to seek the grant funding, which could have tripled the annual funding for a pre-kindergarten program set to roll out next year in five counties.

The governor’s announcement came after State Board of Education members Gordon Hendry and Tony Walker and state Superintendent of Public Instruction Glenda Ritz issued public pleas for Pence to apply for the money.

“Gov. Pence has repeatedly stated his support for creating a high-quality system for early childhood education for Indiana,” Ritz said. “Now, Indiana needs his actions to back up his words.”

Ritz, Walker and Hendry are all Democrats but the latter two were appointed by Pence to serve on the State Board of Education.

The education reform group Stand for Children Indiana weighed in Tuesday as well. The group’s executive director, Justin Ohlemiller, said the grant “could set the stage for Indiana to potentially become a national leader in early childhood education.”

But Pence issued a statement Tuesday afternoon saying that “federal funding does not guarantee success.”

“This is not about the money,” Pence said. “It’s about our children and we have an obligation to get it right. Our administration will remain focused on the successful launch of the five county pre-k pilot program approved by the Indiana General Assembly earlier this year.”

Pence received criticism last week from some pre-kindergarten supporters for opting against the federal funds but some conservatives – particularly those who dislike federal intervention in schools – are supporting him. On Tuesday, federal officials extended the deadline to Wednesday.

Ritz called the three-year grant “a once in a decade opportunity.” And she said the Indiana Department of Education has spent hundreds of hours working with the Indiana Family and Social Services Administration to get the grant application ready.

“The work is done,” Ritz said. “All the application needs now is Gov. Pence’s signature. I am calling on Gov. Pence to do the right thing for Indiana’s students and families and submit this grant application.”

Indiana is in line to receive as much as $20 million annually from the preschool development grant, according to a notice filed in the Federal Register. The document lists Indiana as one of two states eligible for category one funding.

The state program will be funded with $10 million that Pence found in unused FSSA appropriations and does not have funding secured for future years. The five counties participating in the program were required to come up with matching funds, including some from private donations.

Business and education leaders have asked legislators to pay for an expansion of the program in the two-year budget they’ll write in 2015.

Ohlemiller said Pence needs to “continue his leadership on this critical issue.”

“Early indications are that Indiana has a great shot at success if it does apply,” Ohlemiller said. “That’s why we need to take advantage of this rare second chance to do right by our most vulnerable kids across the state.”

Dave Stafford for www.theindianalawyer.com

A defense attorney’s failure to raise the consecutive sentencing limitation prejudiced his client, the majority of a Court of Appeals panel ruled, reversing denial of post-conviction relief for a man convicted of multiple burglaries. The court remanded for resentencing to trim six years off a 28-year prison term.

In April 2007, Gary A. Gallien and two accomplices drove a stolen vehicle to a Floyds Knobs Goodwill store. They broke in, stealing $71 and a handcart. Minutes later, they drove to nearby Galena, smashing the vehicle into Sammy-O’s Tavern and hauling away an automatic teller machine. Gallien was arrested a short time later.

A Floyd Circuit jury convicted Gallien of two counts of Class C felony burglary, two counts of Class D felony theft and one count of Class D felony receiving stolen property. Gallien was sentenced to an aggregate 28 years in prison – eight years each served consecutively on the burglary counts, enhanced by 12 years for his habitual offender status. He also received a concurrent sentence of three years for receiving stolen property.

Judge Michael Barnes wrote for the majority joined by Judge Elaine Brown that an analysis of whether the burglaries could be described without referring to each other, as the post-conviction court did, was not dispositive of whether the crimes constituted a single episode of criminal conduct, nor was the fact that two businesses were burglarized.

“Instead, we focus on the small distance between the two burglaries, the short amount of time between them, and the apparent scheme that tied them together. Based on that analysis, we conclude that the two burglaries were ‘closely related in time, place, and circumstance,’” Barnes wrote in Gary A. Gallien v. State of Indiana, 22A01-1402-PC-50.

“As a result, the consecutive sentencing limitation of Indiana Code Section 35-50-1-2 is applicable, and the maximum consecutive sentence possible for the two burglaries was ten years rather than the sixteen years imposed by the trial court. Gallien was prejudiced by his appellate counsel’s failure to raise the issue.”

Judge Cale Bradford wrote in dissent he would affirm the post-conviction court.

“It is of note that this court has issued a large number of seemingly inconsistent opinions regarding what constitutes a single episode of criminal conduct, some of which would tend to indicate that Gallien’s actions might be found to constitute a single episode of criminal conduct on appeal. As such, I must agree with the majority that the question of whether Gallien’s actions constituted a single episode of criminal conduct, which would limit his potential sentence to ten years rather than the sixteen imposed by the trial court, was significant and obvious from the face of the record,” Bradford wrote.

“However, even if appellate counsel’s failure to raise this issue on direct appeal amounted to deficient performance, I do not believe that the post-conviction record demonstrates that Gallien established that he was prejudiced by the allegedly deficient performance.”