Court of Appeals of Indiana | Memorandum Decision 02A03-1508-PC-1053 | February 2, 2016 Page 1 of 16

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

Kevin R. Hewlate

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Monika Prekopa Talbot

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Raymond A. Warren,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

February 2, 2016

Court of Appeals Cause No.

02A03-1508-PC-1053

Appeal from the Allen Superior

Court

The Honorable John F. Surbeck, 

Jr., Judge

Trial Court Cause No.

02D06-1205-PC-75

Barnes, Judge.
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Case Summary

[1] Raymond Warren appeals the denial of his petition for post-conviction relief 

(“PCR petition”), which challenged his three convictions for Class A felony 

child molesting and one conviction for Class C felony child molesting. We 

affirm.

Issues

[2] Warren raises two issues, which we combine and restate as whether he received 

ineffective assistance of trial and appellate counsel with regard to failing to 

strike a certain juror for cause.

Facts

[3] On November 17, 2010, the State charged Warren with three counts of Class A 

felony child molesting and one count of Class C felony child molesting. During 

voir dire of prospective jurors for Warren’s trial, the trial court removed two 

jurors for cause, one of whom reported having a child who had been molested 

and one of whom reported having been molested herself. During group 

examination of the prospective jurors by the trial court, the following exchange 

occurred:

Q: Can you think of any reason what so ever that you might be 

unable or unwilling to listen to the testimony of the witnesses, 

arguments of the attorneys, information and advice given by way 

of instructions and thereafter reach a fair and impartial and just 

verdict based solely on the evidence and my instructions as to the 

law? Juror number 56?
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JUROR NUMBER 56: As a mom, I’m not sure that I could be 

fair and impartial in this situation where a child has been 

molested. I’m just being honest.

Q: I appreciate that. How about if we just . . . we let that sit for 

a while and counsel have some questions and thank you for your 

candor.

Tr. pp. 21-22. 

[4] The trial court then continued its group questioning of the jury pool, which 

included the following interactions:

Q: If you’re selected to sit on this case will you be unable or 

unwilling to render a verdict solely on the evidence presented at 

trial and the law as I give it to you in my instructions 

disregarding any other ideas, notions or beliefs about the law that 

you may previously have encountered in reaching your verdict.

A: (no response or indication from any prospective juror.)

****

Q: Do any of you believe that the crimes charged in this case is 

one which you regard with such special contempt that you feel 

that any decision you would be required to make would be 

influenced by that contempt?

A: (no response or indication from any prospective juror.)

*****
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Q: Do any of you have opinions or beliefs that you feel you 

cannot discard about the law applicable to the crime charged?

A: (no response or indication from any prospective juror.)

Id. at 24-25.

[5] The prosecutor then began questioning the prospective jurors and directed the 

following to Juror Number 56:

Q: And juror in seat number 2, you had some concerns as a 

mother. Kind of that initial gut response that we talked about 

probably with the charges. What do you think. You kind of 

know your role here and your responsibility is to judge this case 

based on the evidence that you hear today and kind of put other 

things aside and make a decision based on those things. What do 

you think. Do you think you can do that or are you going to be 

back there thinking about other things?

JUROR NUMBER 56: I’m just not sure I’m going to be fair. 

And I believe that he deserves, he deserves fairness and I’m . . .

Q: Okay.

JUROR NUMBER 56: And if I see a child come in here and I’m 

going to be bawling, you know, I’m not going to be doing him 

any good.

Q: And I appreciate very much your candor and you know 

yourself obviously better than we can get to know you in a 

couple of minutes here so I appreciate your letting us know about 

that. . . .
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[6] Id. at 47. The prosecutor then moved on to questioning other prospective 

jurors.

[7] Defense counsel then began his questioning of the jury pool:

Q: Would you all promise me that you will decide the case 

based on the evidence and as much as possible set aside what 

these allegations are. I mean, that’s fair isn’t it?

A: (no response or indication from any prospective juror.)

Q: . . . . You indicated that you might have difficulty in being 

fair and impartial. And could you explain that difficulty. You 

don’t have to get into facts, just explain your attitude a little bit.

JUROR NUMBER 56: I didn’t have a perfect upbringing but I 

had a pretty good upbringing, very receptive parents, loving, 

affectionate. Then I was blessed with two children. I have a 

seventeen year old son and I have a daughter who just turned 

fifteen. And there is so much on TV that I try not to even watch, 

a lot of news or read paper because right now I just don’t want to 

read it. I don’t want to hear about it. I guess I want to live in my 

perfect little world.

Q: And here you are.

A: And here I am.

Q: Actually its folks like you that we would both want here. 

You don’t have an axe to grind and you’ll sit and listen to the 

evidence, so you might be stuck. Then again you might not be. 

But getting back to the fair and impartial, do you believe that 
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Raymond has a right to a fair trial, a hearing and then a 

determination by the jury?

A: I think everyone has.

Q: Everyone, okay. Everyone has that right. Most criminal 

cases are decided by guilty plea. Does that fact that Mr. Warren, 

Raymond, has elected to have a trial, will you hold that against 

him at all? Because you’ve got to be here?

A: Oh absolutely not.

Q: Alright. Okay. Thank you. . . .

Id. at 53-54. Defense counsel had no further interaction with Juror Number 56.

[8] After questioning of the jury pool was complete, the trial court, prosecutor, and 

defense counsel had the following discussion:

Court: Okay. Alright, so want to take 2 for cause. [Apparently 

referring to Juror Number 56 who was seated in seat 2.]

[Defense counsel]: This is not, you already dismissed her.

Court: Oh, so we still have 56?

[Defense counsel]: Yeah. I had her for cause but you discussed 

cause already.

Court: Yeah okay, I understand. Defendant strikes juror 

number 60 in seat 4. 49 in seat 9 and 36 in seat 12. And accept 

the balance?
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[Defense counsel]: Yes.

Court: And State strikes number 101 in seat 5, 49 in seat 9 and 

number 92 in seat 10. And 20 in seat 3. Alright, so we’re going 

to keep 56 in seat 2, right? Everybody settled on that?

[Prosecutor]: Yes.

Court: You okay with that [defense counsel]?

[Defense counsel]: I thought you struck her for cause.

Court: 108.

[Defense counsel]: Yeah, okay, but not 56.

Court: No. She’s the one who says she doesn’t know if she can 

be fair. I know you both talked to her but I just want to be sure 

that we’re all on the right track. We’re all where we want to be.

[Defense counsel]: Yeah.

Court: Okay.

Id. at 66-67. As indicated, Juror Number 56 was seated on the jury.

[9] After trial, Warren was convicted as charged. He then appealed, represented by 

trial counsel, and raised two arguments: whether the trial court erred in 

admitting certain evidence and whether there was sufficient evidence to support 
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his convictions. We rejected Warren’s arguments and affirmed. Warren v. State, 

No. 02A03-1106-CR-325 (Ind. Ct. App. Mar. 14, 2012).

[10] Warren subsequently filed a PCR petition. In it, he alleged that he received 

ineffective assistance of both trial and appellate counsel related to the seating of 

Juror Number 56. Warren’s trial and appellate counsel testified at the PCR 

hearing. Counsel stated that he has tried “many, many child molestation cases 

. . . .” PCR Tr. p. 6. Counsel explained his thought process regarding Juror 

Number 56 as follows:

A: Well, as I recall it’s very difficult in a Child Molestation 

jury selection to get people to be honest. They either want to be 

on the jury, which you really have to watch, or they don’t want 

to be on the jury and state that they’re prejudice [sic] against the 

charge itself. What I thought I was getting in that juror was 

someone who would reflect upon the situation, and call into 

question some of her preconceived beliefs. 

Q: Okay. Now she did not actually express any preconceived 

belief like Mr. Warren was probably guilty ‘cause he was charged 

with that offense or anything like that?

A: No, but I think when you look at the transcript it’s the 

typical situation, my goodness gracious, it’s a Child Molestation 

case and there’s a child here, and it would just be so difficult for 

me to serve.

Q: Okay. So aside from that concern about whether she 

could be fair, did you detect any indication of anything that 

would prevent or substantially impair her performance of duties 

as a juror?
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A: Again, the thing I was impressed most by her was her 

candor as Judge Surbeck was. It appeared to me as though she 

would give me her honest effort because I really thought that we 

had a good shot at Mr. Warren’s case.

Id. at 8-9. Counsel also agreed that his decision not to challenge Juror Number 

56 “was based more on your instincts and your gut more than what she was 

saying[.]” Id. at 10. 

[11] The PCR court denied Warren’s petition. Warren now appeals.

Analysis

[12] A petition seeking post-conviction relief bears the burden of establishing 

entitlement to relief by a preponderance of the evidence. Hollowell v. State, 19 

N.E.3d 263, 268-69 (Ind. 2014). A petitioner appealing the denial of a PCR 

petition is appealing from a negative judgment. Id. at 269. “To prevail on 

appeal from the denial of post-conviction relief, a petitioner must show that the 

evidence as a whole leads unerringly and unmistakably to a conclusion opposite 

that reached by the post-conviction court.” Id. The PCR court also entered 

findings of fact and conclusions of law as required by Indiana Post-Conviction 

Rule 1(6). We will not defer to the post-conviction court’s legal conclusions. 

Id. However, we will reverse a denial of post-conviction relief only if there is a 

showing of clear error, or error that “‘leaves us with a definite and firm 

conviction that a mistake has been made.’” Id. (quoting Ben-Yisrayl v. State, 729 

N.E.2d 102, 106 (Ind. 2000), cert. denied). 
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[13] We first address Warren’s claim that he received ineffective assistance of trial 

counsel for not moving to strike Juror Number 56. “We analyze such claims 

under the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 

S.Ct. 2052 (1984).” Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012). Under that 

test, a defendant “must show (1) that counsel’s performance was deficient based 

on prevailing professional norms; and (2) that the deficient performance 

prejudiced the defense.” Id. (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 

2064). Regarding the performance prong, we accord deference to counsel’s 

strategic and tactical decisions and strongly presume that counsel rendered 

adequate assistance and exercised reasonable professional judgment in all 

significant decision-making. Id. As for the second prong, deficient 

performance is prejudicial if “‘there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different.’” Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). 

[14] “The right to a fair trial before an impartial jury is a cornerstone of our criminal 

justice system.” Whiting v. State, 969 N.E.2d 24, 28 (Ind. 2012). This right 

requires that a defendant be given “‘a fair trial by a panel of impartial, 

“indifferent” jurors.’” Id. (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 

1639, 1642 (1961)). “[A] constitutionally impartial juror is one who is able and 

willing to lay aside his or her prior knowledge and opinions, follow the law as 

instructed by the trial judge, and render a verdict based solely on the evidence 

presented in court.” Id. “The presence of even one biased juror on the jury is a 

structural error requiring a new trial.” Id. 
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[15] Defense counsel undoubtedly plays a vital role in enforcing the constitutional 

right to an impartial jury. However, whether to challenge a particular juror 

generally is a matter of trial tactics. Marsillett v. State, 495 N.E.2d 699, 706 (Ind. 

1986). Parties and trial courts are privy to a number of nonrecord factors in 

assessing a potential juror’s impartiality that cannot be easily reviewed by 

appellate courts, such as “‘the prospective juror’s inflection, sincerity, 

demeanor, candor, body language, and apprehension of duty.’” Whiting, 969 

N.E.2d at 31 (quoting Skilling v. United States, 561 U.S. 358, 386, 130 S. Ct. 

2896, 2918 (2010)). 

[16] The primary case upon which Warren relies is Hughes v. United States, 258 F.3d 

453 (6th Cir. 2001). In Hughes, a prospective juror in a federal theft and illegal 

firearm possession case told the district court during voir dire that she had a 

relative and a couple of acquaintances who worked in law enforcement, and 

that she did not think she could be a fair juror. The juror did not make any 

response to several subsequent questions by the district court to the jury pool as 

a whole regarding their ability to be impartial and fair. Neither the district 

court nor defense counsel further questioned the juror individually, and defense 

counsel did not move to strike her, despite a request from the defendant that he 

do so. 

[17] On appeal of denial of habeas corpus after conviction, the Sixth Circuit held 

that defense counsel’s failure to strike the juror constituted ineffective assistance 

of counsel. The court acknowledged, “A juror’s express doubt as to her own 

impartiality on voir dire does not necessarily entail a finding of actual bias.” 
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Hughes, 258 F.3d at 458. However, the court found that there was a 

“conspicuous lack of response, by both counsel and the trial judge, to [the 

juror’s] clear declaration that she did not think she could be a fair juror.” Id. 

Because “key elements of juror rehabilitation and juror assurances of 

impartiality” were absent in the case, the court found the juror to have been 

actually biased based on her statements to the district court. Id. at 459-60. 

Moreover, the court held that the district court’s collective questions to the jury 

pool, to which the juror failed to respond, was insufficient to rehabilitate the 

juror or to provide sufficient evidence of her impartiality. Id. at 461. Finally, 

the court held that there can be no possible “strategic” reason for allowing an 

actually-biased juror to be seated and such an error is necessarily prejudicial, 

and so concluded that the defendant had received ineffective assistance of trial 

counsel. Id. at 463. 

[18] We acknowledge some similarities between this case and Hughes.

1

 However, 

we emphasize that we are reviewing the performance of Warren’s attorney; the 

question before is not directly presented as to whether Hughes should control 

here. See Woodson v. State, 961 N.E.2d 1035, 1044 (Ind. Ct. App. 2012), trans. 

denied. In analyzing the performance of counsel, we must consider the legal 

precedent available to counsel at the time of trial, direct appeal, or both; counsel 

will not be deemed ineffective for not anticipating or initiating changes in the 

 

1 The State failed to address Hughes in its brief. 
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law. Id. (quoting Sweeney v. State, 886 N.E.2d 1, 8 (Ind. Ct. App. 2008), trans. 

denied). And, we note that decisions of federal circuit courts of appeal are not 

binding on Indiana courts. Jackson v. State, 830 N.E.2d 920, 921 (Ind. Ct. App. 

2005), trans. denied. No Indiana case has ever cited Hughes. It is not abundantly 

clear that counsel for Warren was obligated to discover Hughes and argue its 

application in Indiana, either during trial or on direct appeal. 

[19] Under established Indiana law, we cannot say Warren’s counsel performed 

unreasonably in declining to strike Juror Number 56. Counsel, who has 

extensive experience trying child molestation cases, explained a particular 

dilemma of trying such cases: “They either want to be on the jury, which you 

really have to watch, or they don’t want to be on the jury and state that they’re 

prejudice [sic] against the charge itself.” PCR Tr. p. 8. In other words, child 

molesting is a heinous offense and it can be difficult to find impartial jurors in 

such a case. Prospective jurors who appear too eager to serve on a child 

molestation jury may have ulterior motives for doing so, or conversely may 

believe he or she can avoid jury duty by stating his or her understandable 

prejudice against the charge.

[20] Counsel also explained that he reached a “gut” decision that Juror Number 56 

could be fair and impartial because of her “candor.” Id. at 9, 10. As recognized 

by both the United States and Indiana Supreme Courts, parties are able to gain 

a first-hand impression of prospective jurors that cannot be reflected in a cold 

record on appeal. See Whiting, 969 N.E.2d at 31 (quoting Skilling, 561 U.S. at

386, 130 S. Ct. at 2918). Counsel and the trial court both had personal 
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interaction with Juror Number 56 and both believed she could be fair and 

impartial. We cannot second-guess that determination. 

[21] As far as any comparison with Hughes, the most crucial difference is the 

extensive testimony from counsel describing his experience and thought process 

behind keeping Juror Number 56. There is no mention of any such testimony 

from counsel in Hughes. This insight into counsel’s reasonable tactical thinking

was lacking in Hughes and supports the conclusion that Warren’s counsel was 

not ineffective. See McCullough v. State, 973 N.E.2d 62, 85 (Ind. Ct. App. 2012) 

(holding trial counsel’s failure to call certain witness was explained at PCR 

hearing testimony as being contrary to chosen defense strategy), trans. denied.

[22] It is possible that counsel could have questioned Juror Number 56 more 

extensively to examine her ability to be a fair and impartial juror. Indeed, it 

would have been preferable if, after expressing reservations about her ability to 

be fair and impartial, Juror Number 56 had been individually asked by the trial 

court or counsel if she could nevertheless follow the court’s instructions and 

render a fair verdict based solely on the evidence. However, the fact that more 

could have been done does not mean that it had to be done. See Wisehart v. State, 

693 N.E.2d 23, 46 (Ind. 1998) (holding, “While we agree that trial counsel 

could have probed some of the jurors in more depth to discover their ability to 

be fair and impartial jurors, we do not find such failure to be deficient 

performance.”), cert. denied. Although Juror Number 56 expressed some 

reservations about her ability to serve impartially, she never unequivocally 

expressed that she could not be fair and impartial. She did not respond to 
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several group questions regarding impartiality, and indicated that she 

“absolutely” would not hold Warren’s choice to have a jury trial against him. 

Trial Tr. p. 54. Counsel observed Juror Number 56 up close and interacted 

with her and gauged that she was a candid person who would be a good juror. 

We conclude that counsel’s decision not to strike Juror Number 56 or challenge 

her for cause fell within the broad range of reasonable trial tactics and, 

therefore, Warren did not receive ineffective assistance of trial counsel. 

[23] Warren’s claim with respect to appellate counsel is essentially identical to his 

trial counsel claim. “Ineffective assistance of appellate counsel claims generally 

fall into three basic categories: (1) denial of access to an appeal; (2) waiver of 

issues; and (3) failure to present issues well.” Reed v. State, 856 N.E.2d 1189, 

1195 (Ind. 2006). Warren’s argument is premised upon the failure to raise the 

jury selection issue on direct appeal. To support such an argument, a defendant 

must prove (1) the unraised issues are significant and obvious from the face of 

the record and (2) the unraised issues are “clearly stronger” than the raised 

issues. Id. Ineffective assistance is very rarely found in cases such as this 

because the decision of what issues to raise is one of the most important 

strategic decisions to be made by appellate counsel. Id. at 1196. We have 

already analyzed Warren’s claims regarding Juror Number 56 and Hughes. The 

same reasoning leads us to conclude appellate counsel was not ineffective for 

electing not to raise this issue on direct appeal as opposed or in addition to the 

two issues he did raise.
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Conclusion

[24] The PCR court properly concluded that Warren did not receive ineffective 

assistance of trial or appellate counsel. We affirm the denial of the PCR 

petition.

[25] Affirmed.

Robb, J., and Altice, J., concur.