Court of Appeals of Indiana | Opinion on Rehearing 18A-PC-2681 | September 12, 2019 Page 1 of 6

OPINION ON REHEARING

ATTORNEY FOR APPELLANT

Megan J. Schueler

Ferguson Law

Bloomington, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

I N THE

COURT OF APPEALS OF INDIANA

Jeffrey Archer,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

September 12, 2019

Court of Appeals Case No.

18A-PC-2681

Appeal from the Marion Superior 

Court

The Honorable Marc Rothenberg, 

Judge

The Honorable Amy Barbar, 

Magistrate

Trial Court Cause No.

49G02-1604-PC-16169

Baker, Judge.
Court of Appeals of Indiana | Opinion on Rehearing 18A-PC-2681 | September 12, 2019 Page 2 of 6

[1] Jeffrey Archer has filed a petition for rehearing on our initial decision in this 

case. We grant his petition so that we can correct an error.

[2] In our initial decision, we explored Archer’s argument that appellate counsel 

was ineffective for failing to obtain a copy of the voir dire transcript:

During the post-conviction hearing, appellate counsel testified 

that it was not his policy to review voir dire because what 

transpires then is not evidence. A record on appeal includes “all 

proceedings before the trial court,” Ind. Appellate Rule 2(L), and 

as we have stated, appellate counsel has a duty to thoroughly 

review the entire record of a defendant’s proceedings. Wilson v. 

State, 94 N.E.3d 312, 321 (Ind. Ct. App. 2018). 

But Archer cannot show prejudice from appellate counsel’s error. 

Although Archer contends that he was prejudiced by a 

prospective juror who, after acknowledging that she could not be 

fair and impartial, was selected to serve on the jury, the record 

shows that this prospective juror was dismissed from jury service.

Archer v. State, 18A-PC-2681, slip op. p. 10 (Ind. Ct. App. July 25, 2019).

[3] Archer correctly points out in his petition for rehearing that, despite a seeming 

assumption from both attorneys and the trial court that dismissal would occur, 

the juror was not, in fact, dismissed. And in this case, that is highly 

problematic. During voir dire, Juror Lynch indicated that she had mistakenly 

said on the juror form that she would be able to be fair and impartial:

Defense: Okay. Do you want to change that?

Juror: Maybe I just think where there’s smoke, there’s fire.
Court of Appeals of Indiana | Opinion on Rehearing 18A-PC-2681 | September 12, 2019 Page 3 of 6

Defense: Okay. So if someone’s accused of a crime, they 

probably did it. Is that fair for you?

Juror: I think maybe it is.

Defense: Okay. Would that make—would you agree that 

would probably make you to be (indiscernible) juror 

in a criminal case?

Juror: I think maybe so.

Defense: Okay. . . . [W]ould it be [a] fair statement that 

probably you ought not serve as [a] juror on this 

case?

Juror: May—maybe not.

Defense: Okay. You understand the Court’s going to give 

you instructions that you need to follow his 

instructions and apply the law and be fair? And are 

you telling me that even though he tells you that, it 

may not happen? Yes?

Juror: Yes.

Defense: Okay. Your Honor, challenge for cause.

Appellant’s Am. App. Vol. II p. 121-22. At that point, the trial court held a side 

bar bench conference. The trial court asked the prosecutor whether she would 

have any questions:

Prosecutor: I would just ask for followup (indiscernible).
Court of Appeals of Indiana | Opinion on Rehearing 18A-PC-2681 | September 12, 2019 Page 4 of 6

Court: I’ll probably allow you, but I—you can do followup 

or whatever, and I’ll give you a chance to—I just—I 

think she’s pretty bad. I just—I don’t want to do it 

in front of God and everybody, because I don’t 

want the floodgates to open. Okay?

Defense: Right.

Court: So do you want—you want followups?

Prosecutor: Yes. Thank you, Judge.

Court: Okay. Then I’m going to grant it, but I think—so 

just take it off your thing, we’re not going to excuse 

her.

Id. at 122-23. Archer’s attorney then resumed voir dire, thanking Juror Lynch

for her candor and moving on. Id. at 123. At the conclusion of voir dire, the 

trial court did not include Juror Lynch in the list of jurors to be excused; it did 

include her in the list of jurors to be seated. Id. at 126.

[4] During the post-conviction hearing, trial counsel was asked about his decision 

to leave Lynch on the jury. He explained that he tells clients that in any child 

molesting case, “most people” believe that the accused is guilty based on the 

accusation, so the case starts “in a hole and we need to try to dig out of it.” Tr.

Vol. II p. 93. Although trial counsel did not specifically remember Juror 

Lynch’s comments, he did not doubt that she said them because in “most trials, 

a juror would think that.” Id. 
Court of Appeals of Indiana | Opinion on Rehearing 18A-PC-2681 | September 12, 2019 Page 5 of 6

[5] Notwithstanding trial counsel’s beliefs, “the right to a fair trial before an 

impartial jury is the cornerstone of our criminal justice system.” Whiting v. 

State, 969 N.E.2d 24, 28 (Ind. 2012). And our Supreme Court has held that 

“[t]he presence of even one biased juror on the jury is a structural error 

requiring a new trial.” Id. (citing United States v. Martinez-Salazar, 528 U.S. 304, 

316 (2000)). 

[6] In this case, it is plain that Juror Lynch was biased. She admitted to her bias, 

said that she would be unable to follow the trial court’s instructions to apply the 

law and be fair, and agreed that she should not be seated on the jury. The trial 

court likewise agreed that she was “pretty bad,” though it ultimately decided 

not to excuse her. Appellant’s Am. App. Vol. II p. 122.

[7] Appellate counsel decided to raise the issue of ineffective assistance of trial 

counsel in Archer’s direct appeal. That decision had two consequences. First, 

it means that we cannot consider that issue here. Lowery v. State, 640 N.E.2d 

1031, 1037 (Ind. 1994). 

[8] Second, it means that appellate counsel had an obligation to review the entire 

record of the trial proceedings, including the voir dire transcript. Wilson, 94 

N.E.3d at 321. Had appellate counsel done so, counsel would have seen this

significant, obvious, and strong issue to be raised on appeal. And we believe 

that had appellate counsel raised the issue, we would have ruled in Archer’s 

favor, reversing and remanding for a new trial. 
Court of Appeals of Indiana | Opinion on Rehearing 18A-PC-2681 | September 12, 2019 Page 6 of 6

[9] Archer has established both that appellate counsel was ineffective and that he 

was prejudiced as a result. Under these circumstances, we find that the postconviction court erred by denying Archer’s petition for post-conviction relief.

[10] The judgment of the post-conviction court is reversed and remanded for further 

proceedings.

Najam, J., and Robb, J., concur.