Indecision over peremptory challenge waives defendant’s ability to appeal

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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.  


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  1. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  4. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...