ROBB, J.
Pierce raises the threshold issue of whether Hatter’s claim the trial court erred by denying two for-cause challenges is properly preserved, citing the exhaustion rule of Merritt v. Evansville-Vanderburgh Sch. Corp., 765 N.E.2d 1232 (Ind. 2002). There our supreme court held “a claim of error arising from denial of a challenge for cause is waived unless the appellant used any remaining peremptory challenges to remove the challenged juror or jurors.” Id. at 1235. To preserve review of any error, the appellant bears the burden of “demonstrating that at the time she challenged the jurors for cause, she had exhausted her peremptory challenges.” Id. (emphasis and quotation omitted). “Eventual use of all peremptory challenges is therefore not enough to satisfy the exhaustion requirement.” Id. The rationale for the exhaustion rule is: “Where a trial court may have erred in denying a party’s challenge for cause, and the party can cure such error by peremptorily removing the apparently biased venireperson, the party should do so in order to ensure a fair trial and an efficient resolution of the case.” Id. (quotation and alteration omitted).
Here, the trial court denied four of Hatter’s challenges for cause. On two of those jurors – Lantry and Lisher – Hatter used peremptory strikes. On the other two – Holt and Pennington – Hatter did not use a peremptory strike, and both served on the jury. Hatter had three peremptory strikes altogether [footnote omitted] and used his third peremptory strike on Grinstead. The record does not provide a clear chronology of the order in which for-cause challenges and peremptory strikes were made, but Pierce represented at oral argument, and Hatter did not dispute, that the entire panel was available for striking at a single time.6 Thus, Hatter decided to use a peremptory strike on Grinstead, rather than Holt or Pennington, after his for-cause challenges to those jurors had already been denied. [Footnote 6: We note as an aside our concern that application of the exhaustion rule should not turn on the chronological order in which individual jurors happen to be available to be challenged for cause or peremptorily stricken. In the hypothetical scenario where a highly objectionable juror, yet one not challengeable for cause, was preceded in such an order by a juror whom the party deemed less objectionable but nonetheless challengeable for cause, the party would have to, in order to preserve error in the denial of that challenge, use the peremptory strike that he or she otherwise would have used on the more highly objectionable juror. If the order were reversed, however, the party would be able to use that peremptory strike on the more highly objectionable juror, yet still, in the event of exhausting peremptory challenges before coming to the juror challengeable for cause, would be able to preserve error in the denial of that challenge. In order to obviate such a potential for arbitrariness, we encourage trial judges to employ the procedure the trial court apparently utilized here, by making the entire panel available first for for-cause challenges and then for peremptory strikes. Cf. Merritt, 765 N.E.2d at 1235 n.3 (acknowledging “trial court judges take various approaches to jury selection and the timing of challenges for cause and use of peremptories,” but stating that regardless, to preserve any error, “the party must use a peremptory against the challenged juror at whatever moments the trial judge regularly permits peremptory strikes before jury selection is complete”).]
As such, Hatter’s decision to forego using his final peremptory on Holt or Pennington was a failure to comply with the exhaustion rule as to one of those jurors. In other words, even though Hatter did not have enough peremptory strikes to remove both Holt and Pennington, he could have prevented the seating of one or the other. Therefore, Hatter can prevail on his claim of error in the trial court’s denial of his for-cause challenges only by showing both were erroneously denied. See Woods v. State, 134 Ind. 35, 33 N.E. 901, 902, 904 (1893) (stating that, where appellant exhausted all peremptory challenges but one, “if any number of these jurors above one were incompetent . . . it will constitute material error,” and later concluding trial court “erred in overruling appellant’s challenge to at least two of [the challenged jurors]”) (emphasis added); cf. Merritt, 765 N.E.2d at 1238 (holding no claim of error preserved where appellant could have, but did not, use peremptory strikes to remove both allegedly incompetent jurors when the for-cause challenges were denied). For the reasons explained below, we conclude Hatter has not made such a showing.
FRIEDLANDER, J., and KIRSCH, J., concur.