Defendant received fair trial despite prejudicial statements in front of jurors, COA affirms

The Court of Appeals of Indiana relied on controlling precedent to affirm a lower court’s ruling that three prospective Cass County jurors could remain fair and impartial even after they heard prejudicial statements made against a defendant in a marijuana dealing case.

The case began on May 11, 2021, when deputies with the Cass County Sheriff’s Department stopped a white Chevrolet Tahoe for speeding. Calvin Burton was in the vehicle’s passenger seat.

Deputies conducted a dog sniff of the car, and the dog alerted them to the presence of drugs. A search of the car revealed a large amount of marijuana.

Burton and the driver were both arrested. Deputies then searched Burton’s home and found a large amount of marijuana and $10,000 in cash.

The state charged Burton with Level 6 felony dealing in marijuana and alleged he was a habitual offender.

A Cass Circuit Court jury trial was held in January 2023.

On the first day of trial, after several rounds of voir dire, five jurors had been selected. The trial court took a break, and the seated jurors were sent to the jury room to wait.

Two of the jurors began speaking, with one saying that he recognized Burton’s name, that Burton had caused “a car wreck 20 years ago that killed a gentleman” and that Burton “should be sitting in prison.”

Upon being alerted to those remarks, the court twice questioned each seated juror individually. One of the jurors, Tim Carmichael, acknowledged he made a statement about Burton’s involvement in a fatal car accident.

Another juror was in the restroom at the time and did not hear the remarks, but the other three jurors all stated they had heard at least some portion of the conversation.

The court and parties agreed to strike Carmichael for cause. Defense counsel also asked the court to strike the three jurors who had heard Carmichael’s remarks for cause.

At that point, Burton could not use peremptory challenges on those three jurors because the trial court was using a voir dire procedure that required the parties to exercise challenges after each round of questioning, and any prospective juror not stricken would be accepted and not subject to further challenge.

The court ultimately denied defense counsel’s motion to strike the jurors for cause and did not allow the use of peremptory challenges. Defense counsel then moved for a mistrial, which was also denied.

Voir dire continued, and seven jurors were eventually empaneled, including the three who had heard Carmichael’s comments.

Following the trial, the jury found Burton guilty as charged and he admitted to being a habitual offender. He was then sentenced to an aggregate of 8½ years in prison.

Burton appealed, contending his constitutional rights to an impartial jury were violated. But the Court of Appeals affirmed, finding no reversible error.

Judge Nancy Vaidik wrote the opinion for the appellate court.

According to Vaidik, in arguing the trial court erred in denying his motion to strike, Burton emphasized the prejudicial nature of Carmichael’s comments, noting he accused Burton of causing someone’s death and stated he “should be sitting in prison.”

The appellate court agreed that those statements were prejudicial.

“The court could have easily stricken these prospective jurors and continued voir dire with the remaining members of the jury panel, or at least allowed Burton to use his peremptory challenges as the State suggested. It did neither,” Vaidik wrote. “Given the constitutional interests at stake here, these would have been better courses of action.”

But the COA also pointed to Kindred v. State, 524 N.E.2d 279 (Ind. 1988), in which the Indiana Supreme Court rejected an impartial jury challenge involving “arguably worse facts.”

In Kindred, during voir dire, a prospective juror stated, in front of other prospective jurors, that she was aware the defendant had previously escaped from jail. The defendant asked the court to strike all those who heard the comment, but the trial court denied the motion.

“Our Supreme Court affirmed this ruling, noting the trial court ‘questioned the prospective jurors regarding the possibility of prejudice, admonished the jurors to put aside preconceived notions, and ascertained the willingness of each to base his decision solely upon evidence presented at trial,’” Vaidik wrote.

The COA determined it was constrained in Burton’s case by Kindred.

“As in Kindred, the trial court here questioned the prospective jurors about Carmichael’s comments and received confirmation from each that they could set aside the comments and render a fair and impartial verdict,” Vaidik wrote. “As such, we find no reversible error.”

Judges L. Mark Bailey and Paul Mathias concurred in Calvin Carl Edward Burton v. State of Indiana, 23A-CR-526.