Gary Wayne Oswalt v. State of Indiana, 19 N.E.3d 241

Defendant Gary Oswalt was tried and convicted on multiple child-molestation and related charges; aggregate sentence 84 years.
During voir dire Oswalt moved to strike several prospective jurors for cause (notably Jurors 7, 13, and 28); the trial court denied those motions.
Oswalt used peremptory strikes to remove Jurors 7 and 13; later he used his final peremptory on Juror 25 (an objectionable juror), while Juror 28 (whom he had also sought to strike for cause) ultimately sat on the panel.
On appeal the Court of Appeals held Oswalt satisfied exhaustion for Jurors 7 and 13 but waived review of Juror 28 for failing to use his final peremptory to remove that juror specifically.
Indiana Supreme Court granted transfer to resolve (1) whether the exhaustion rule requires using the final peremptory specifically to cure a denied for-cause challenge, and (2) whether appellate review may include jurors who were peremptorily excused and therefore never served.
Court held Oswalt satisfied the exhaustion rule when he used his last peremptory (regardless whom he struck), that appellate review may extend to peremptorily removed jurors when exhaustion is shown and an objectionable/incompetent juror served, but affirmed the denial of strikes for cause as non-abusive of discretion.

Issue	State's Argument	Oswalt's Argument	Held
Does the exhaustion rule require using the final peremptory specifically to remove the juror denied for cause?	Yes — final peremptory must be used to cure the court’s erroneous denial to preserve appellate review.	No — exhaustion is satisfied when the party uses its final peremptory, regardless whom it strikes; parties retain discretion to use peremptories for any reason.	Use of the final peremptory on any juror satisfies exhaustion; no requirement to reserve it exclusively for error correction.
May appellate review include jurors who were peremptorily removed and never sat?	No — review should focus only on jurors who actually served.	Yes — when exhaustion is shown and an objectionable or incompetent juror served, peremptorily removed jurors may be reviewed because using peremptories to cure errors can itself be prejudicial.	Appellate courts may review peremptorily removed jurors if party exhausted peremptories and an incompetent/objectionable juror served (satisfying prejudice requirement).
Did the trial court abuse its discretion in denying strikes for cause as to Jurors 7, 13, and 28?	Argued denials were proper; trial court discretion deference applies.	Argued each juror exhibited bias or incompetence warranting removal for cause.	No abuse of discretion: record showed Juror 28 only discomfort (rehabilitated), Juror 7’s familiarity did not show bias, Juror 13 recanted initial partiality and affirmed ability to be impartial.

Merritt v. Evansville-Vanderburgh Sch. Corp., 765 N.E.2d 1232 (Ind. 2002) (articulates exhaustion rule and prejudice requirement when peremptories are exhausted)
Whiting v. State, 969 N.E.2d 24 (Ind. 2012) (explains preservation of review when peremptory used or peremptories exhausted)
Ward v. State, 903 N.E.2d 946 (Ind. 2009) (emphasized focus on jurors who actually served but not dispositive against reviewing peremptorily removed jurors when exhaustion shown)
Merritt v. State, 488 N.E.2d 340 (Ind. 1986) (discusses requirement to peremptorily remove jurors to preserve review)
Woolston v. State, 453 N.E.2d 965 (Ind. 1983) (prejudice standard for reversible error in jury selection)
Smith v. State, 730 N.E.2d 705 (Ind. 2000) (deference to trial court's demeanor assessments in voir dire)
Price v. State, 725 N.E.2d 82 (Ind. 2000) (explains near-unqualified discretion to exercise peremptory challenges)
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (peremptory challenges are cherished; discrimination limits on use)
Batson v. Kentucky, 476 U.S. 79 (1986) (race-based limits on peremptory strikes)
Wainwright v. Witt, 469 U.S. 412 (1985) (standards for removing jurors for cause)