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Judicial candidate serving as juror was not fundamental error

June 9, 2015

A man convicted of child molesting argued that an attorney and judicial candidate should not have been allowed to serve as a juror on his trial. But he failed to object to her placement on the jury at the time of the trial, and the Indiana Court of Appeals rejected his claim of fundamental error.

Gregory A. Rose was convicted of Class A felony child molesting for pinning down his 10-year-old grandniece and placing his penis inside her private parts; and Class C felony child molesting for putting his hand up her shirt and feeling her breasts. Rose admitted to being a repeat sexual offender and was sentenced to an aggregate term of 55 years in prison.

In Gregory A. Rose v. State of Indiana, 20A03-1409-CR-343, Rose argued that fundamental error occurred when attorney Teresa Cataldo, who was the only candidate for Elkhart Superior Court 3, was selected as a juror and served as jury foreman. She stated she would be able to be fair and impartial and would act as a “normal juror.” Neither party objected to her serving as a juror nor moved to remove her as a juror. Rose’s attorney didn’t object either when it came to light that Cataldo had represented the victim’s mother five years prior in a juvenile paternity case.

The appellate judges rejected Rose’s claim that he effectively received a bench trial because Cataldo sat as a juror. Cataldo said she’d be able to act fairly and impartially and the trial judge chose to credit her statements that she did not remember representing the victim’s mother. In addition, there is no rule, statute or authority that would disqualify an attorney or judge to serve as a juror, Judge Paul Mathias wrote.

The COA found sufficient evidence to support both of Rose’s convictions and that his 55-year sentence is not inappropriate. However, sua sponte, it remanded the matter to the trial court to vacate the separate 10-year repeat sexual offender enhancement and attach it to the Class A felony conviction.

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