ILNews

Indecision over peremptory challenge waives defendant’s ability to appeal

Back to TopCommentsE-mailPrintBookmark and Share

A defense counsel’s courtroom debate over how to use his final peremptory strike prohibited the defendant from appealing the trial court decision to retain a juror who raised concerns about impartiality.

Gary Oswalt appealed his convictions and aggregate 84-year sentence for two counts of child molesting as Class A felonies, child solicitation as a Class D felony, and five counts of possession of child pornography as Class D felonies.  

Oswalt argued the trial court abused its discretion when it refused to remove Juror No. 28 for cause after the defense had exhausted its peremptory strikes. He maintained that juror should have been removed because during questioning the juror told the court he could not be fair and was not comfortable hearing the case.

The state countered Oswalt had not used all his peremptory challenges when the court denied his request to strike Juror No. 28. After the court denied Oswalt’s counsel’s motion to strike, the attorney had an audible conversation over whether to use his last peremptory strike to remove Juror No. 25 or Juror No. 28 before deciding to remove the former.

Therefore, the state concluded, Oswalt waived appellate review because he had not exhausted his peremptory challenge at the time that the court denied his request to strike Juror No. 28 for cause.

In Gary Oswalt v. State of Indiana, 35A02-1208-CR-684, the Indiana Court of Appeals agreed with the state. It found that Oswalt had failed to exhaust his peremptory strikes at the time he tried to remove Juror No. 28.  

However, in a footnote, the Court of Appeals stated it might have ruled differently if the defense had not debated how to use the final peremptory challenge. According to the COA, the record demonstrated that when Oswalt asked the court if he had used his last preempt, the court affirmed.

If this had been the extent of the discussion, the COA stated it would agree that Oswalt had exhausted his peremptory strikes. However, the record went on to show defense counsel then debated how to use his final strike, indicating he was aware he had not used all his peremptory challenges.  

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

  2. As an adoptive parent, I have to say this situation was as shameful as it gets. While the state government opens its wallet to the Simons and their friends, it denied payments to the most vulnerable in our state. Thanks Mitch!

  3. We as lawyers who have given up the range of First amendment freedom that other people possess, so that we can have a license to practice in the courts of the state and make gobs of money, that we agree to combat the hateful and bigoted discrimination enshrined in the law by democratic majorities, that Law Lord Posner has graciously explained for us....... We must now unhesitatingly condemn the sincerely held religious beliefs of religiously observant Catholics, Muslims, Christians, and Jewish persons alike who yet adhere to Scriptural exhortations concerning sodomites and catamites..... No tolerance will be extended to intolerance, and we must hate the haters most zealously! And in our public explanations of this constitutional garbledygook, when doing the balancing act, we must remember that the state always pushes its finger down on the individualism side of the scale at every turn and at every juncture no matter what the cost to society.....to elevate the values of a minority over the values of the majority is now the defining feature of American "Democracy..." we must remember our role in tricking Americans to think that this is desirable in spite of their own democratically expressed values being trashed. As a secular republic the United States might as well be officially atheist, religious people are now all bigots and will soon be treated with the same contempt that kluckers were in recent times..... The most important thing is that any source of moral authority besides the state be absolutely crushed.

  4. In my recent article in Indiana Lawyer, I noted that grass roots marketing -- reaching out and touching people -- is still one of the best forms of advertising today. It's often forgotten in the midst of all of today's "newer wave" marketing techniques. Shaking hands and kissing babies is what politicians have done for year and it still works. These are perfect examples of building goodwill. Kudos to these firms. Make "grass roots" an essential part of your marketing plan. Jon Quick QPRmarketing.com

  5. Hi, Who can I speak to regarding advertising today? Thanks, Gary

ADVERTISEMENT