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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: STEVE CARTER Attorney General of Indiana CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana

ATTORNEY FOR APPELLEE: SWARAY E. CONTEH Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
STATE OF INDIANA, Appellant-Plaintiff, vs. DAMON LEWIS, Appellee-Defendant. ) ) ) ) ) ) ) ) )

No. 89A01-0611-CR-508

APPEAL FROM THE WAYNE SUPERIOR COURT The Honorable Gregory A. Horn, Judge Cause No. 89D01-0602-FA-2

September 25, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary The State appeals the order granting the trial court's motion to correct error, in which it vacated Damon Lewis's convictions and habitual substance offender finding and ordered a new trial. We affirm. Issue The issue is whether the trial court abused its discretion in ordering a new trial. Facts and Procedural History The State charged Lewis with class A felony dealing cocaine, class D felony maintaining a common nuisance, and with being a habitual substance offender. A jury trial was held on September 24, 2006. During voir dire, the trial court asked the prospective jurors if any of them knew of any of the officers who would be testifying as witnesses in the present case. Tr. at 13. Several jurors, including Sarah Orcutt, responded in the affirmative. Orcutt stated that she knew Officer William Shake and Officer James Rice of the Richmond Police Department, who were both expected to testify. Id. at 13-14. After the court's initial questions, twelve prospective jurors were brought into the jury box while others, including Orcutt, waited in the back of the courtroom. After the first phase of voir dire, five prospective jurors were excused, and four more took their places, including Orcutt. During the third round of voir dire, Orcutt disclosed that her ex-husband had been involved in the criminal justice system and that he had been treated fairly. Id. at 56. Ultimately, Orcutt was seated and sworn as a juror. During a pretrial recess, the trial court was advised that Orcutt was the daughter of Officer Bradley Berner, a current member of the Richmond Police Department. Lewis's counsel asked that Orcutt be excused from the panel
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or that the court should permit additional questioning of Orcutt. Id. at 109. The State objected to that request, and the trial court sustained the objection. The trial court stated that it would not permit further questions of a juror who had already been seated. Id. The jury found Lewis guilty of class A felony dealing in cocaine and class D felony maintaining a common nuisance. The trial then moved into the habitual substance offender phase. The State offered into evidence the charging information and probable cause affidavit from Lewis's 1997 conviction of dealing in cocaine, which was signed by Officer Berner. Lewis did not object. During a recess, Lewis's counsel advised the court that Orcutt's father, Officer Berner, was the head of the drug task force in 1996. Lewis's counsel was concerned that Orcutt, the jury foreperson, would share the knowledge that she gained from her father's involvement in Lewis's prior conviction with other jurors. Id. at 398. Lewis's counsel asked the court to dismiss the jury panel. The court denied Lewis's request, stating that the voir dire process was fair and that Lewis had waived the issue by not raising it until the habitual substance offender proceeding. Id. at 401. The jury found Lewis to be a habitual substance offender. On October 9, 2006, the trial court filed its own motion to correct error, alleging a due process violation by Orcutt's inclusion as a member of the jury panel. The State filed a response in opposition to the court's motion, to which it attached sundry discovery response notices that had been provided to both the court and Lewis. Included in those exhibits were the documents signed by Officer Berner, which the State used to support the habitual substance offender finding.

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On October 24, 2006, the trial court granted its motion to correct error, vacating the convictions and the habitual substance offender finding and ordering a new trial. In its order, the trial court stated that Lewis was not afforded due process of law. Appellant's App. at 93. The court found that the State did not disclose that its first exhibit to be offered at the habitual substance offender phase would be the information charging Lewis in 1996 with two counts of dealing in cocaine, sworn to as affiant by Orcutt's father, Officer Berner. Id. at 94. The court was convinced that Lewis's due process rights were violated and stated that it was the court's responsibility to ensure a fair trial. Id. at 98. The State now appeals. Discussion and Decision The State alleges that the trial court erred in ordering a new trial. A trial court has wide discretion to correct errors and to grant new trials. State v. Johnson, 714 N.E.2d 1209, 1212 (Ind. Ct. App. 1999). "An abuse of discretion will be found when the trial court's action is against the logic and effect of the facts and circumstances before it and the inferences which may be drawn therefrom." Id. The State asserts that the trial court abused its discretion when it granted a motion to correct error based upon its belief that the State had not informed the court or Lewis of Officer Berner's involvement with Lewis's 1997 conviction. The State correctly points out that it provided various discovery documents to Lewis, including the charging information and probable cause affidavit from Lewis's 1997 conviction, which were signed by Officer

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Berner. As such, both Lewis and the trial court should have been aware of Officer Berner's involvement with the case prior to trial and the habitual offender proceeding. 1 The State alleges that Orcutt's presence on the jury was not improper and that her relationship with a police officer does not excuse her from jury service. The State cites Curtin v. State for the proposition that "[t]he mere fact that a prospective juror is related to or associated with members of the law enforcement community does not constitute cause for disqualification." 903 A.2d 922, 930 (Md. 2006). "The purpose of voir dire is to determine whether a prospective juror can render a fair and impartial verdict in accordance with the law and the evidence. A trial court has broad discretion in controlling the voir dire of prospective jurors." Black v. State, 829 N.E.2d 607, 610 (Ind. Ct. App. 2005), trans. denied. "A biased juror must be removed, for Art. 1,

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