Massa, J.
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The State charged Gibson with murder and being a habitual offender [in the killing of 75-year-old Christine Whitis, his late mother’s friend]. In seeking the death penalty, it charged four aggravators: an intentional killing (1) while committing criminal deviate conduct involving defendant’s mouth and victim’s sex organ, (2) while committing criminal deviate conduct involving penetration by an object, (3) while on probation, and (4) dismembering the victim. [Citation omitted; record citations omitted throughout.] During the investigation, police discovered two other murder victims whom Gibson admitted killing and which the State initially included as aggravators. But, before the trial began, the Court ordered all references to those two other cases be excluded.
There was substantial pretrial publicity about the case; thus, although the crime occurred in Floyd County and was tried there, the parties agreed the jury pool would come from Dearborn County. Jury selection spanned four days, and the court conducted voir dire in two phases: during the first phase, fifty potential jurors reported in the morning and fifty more in the afternoon. They were questioned in groups of five—and often individually—on hardship, publicity, and the death penalty. Those not dismissed reported back for the second phase during which they were placed in the jury box, twelve at a time, so that both sides could speak with them and submit strikes.
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During the first day of the first phase of voir dire, one potential juror informed the court he overheard another potential juror, who was seated near him in the waiting room, tell four or five people in a “whispery” voice that “the accused has murdered three women.” In response, Judge Orth went into the waiting room where the fifty-person venire panel was waiting, and admonished, “As a potential juror, you are strictly prohibited from doing any investigation about this case or speaking about this case, including to other prospective jurors.” She asked the potential jurors to raise their hands if they heard someone say something about the case; six did so.
Concerned the entire panel had been tainted, Gibson moved to dismiss all fifty potential jurors for discussing inadmissible evidence. The trial court denied that motion, finding it more appropriate to “poll and talk to everyone individually.” In groups of five, the potential jurors were asked whether they learned anything about the case outside of what they had been told by the court or had gleaned from the questionnaire; if any of the five responded affirmatively, they were questioned individually. Many of the jurors informed the court they had visited the website of—or listened to—a local radio station, which covered Gibson’s crimes extensively. All potential jurors who reported hearing Gibson was accused of multiple murders were immediately excused for cause. Nevertheless, Gibson renewed his motion to dismiss the entire panel.
On appeal, Gibson concedes the trial court extensively interrogated potential jurors about their exposure to pretrial publicity, but he argues they weren’t adequately admonished nor would it be possible to “purge” their knowledge of the “serial killer” allegations against Gibson. Thus, he says, the entire panel should have been dismissed or the court should have sua sponte declared a mistrial. In seeking such relief, Gibson relies on Lindsey v. State, which held that if a sworn jury is exposed to prejudicial out-of-court material, the exposed jurors should be individually interrogated and admonished, but where the court believes “the peril to be substantial and uncurable,” it should declare a mistrial. 260 Ind. 351, 358, 295 N.E.2d 819, 824 (1973).
Here, however, we are not dealing with an empaneled jury, but potential jurors whose preconceived ideas and biases were thoroughly examined by the parties during voir dire. Indeed, it was through their meticulous questioning that any potential jurors who were aware of the other murders were excluded. As for those who responded they lacked any outside knowledge of the case, we presume they answered truthfully. Brown v. State, 563 N.E.2d 103, 105 (Ind. 1990). Because Gibson points to no sworn juror [footnote omitted]—and we find none—who should have been disqualified due to exposure to pretrial publicity, we see no error.
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Rush, C.J., Dickson, Rucker, and David, JJ., concur.
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The State charged Gibson with murder and being a habitual offender [in the killing of 75-year-old Christine Whitis, his late mother’s friend]. In seeking the death penalty, it charged four aggravators: an intentional killing (1) while committing criminal deviate conduct involving defendant’s mouth and victim’s sex organ, (2) while committing criminal deviate conduct involving penetration by an object, (3) while on probation, and (4) dismembering the victim. [Citation omitted; record citations omitted throughout.] During the investigation, police discovered two other murder victims whom Gibson admitted killing and which the State initially included as aggravators. But, before the trial began, the Court ordered all references to those two other cases be excluded.
There was substantial pretrial publicity about the case; thus, although the crime occurred in Floyd County and was tried there, the parties agreed the jury pool would come from Dearborn County. Jury selection spanned four days, and the court conducted voir dire in two phases: during the first phase, fifty potential jurors reported in the morning and fifty more in the afternoon. They were questioned in groups of five—and often individually—on hardship, publicity, and the death penalty. Those not dismissed reported back for the second phase during which they were placed in the jury box, twelve at a time, so that both sides could speak with them and submit strikes.
….
During the first day of the first phase of voir dire, one potential juror informed the court he overheard another potential juror, who was seated near him in the waiting room, tell four or five people in a “whispery” voice that “the accused has murdered three women.” In response, Judge Orth went into the waiting room where the fifty-person venire panel was waiting, and admonished, “As a potential juror, you are strictly prohibited from doing any investigation about this case or speaking about this case, including to other prospective jurors.” She asked the potential jurors to raise their hands if they heard someone say something about the case; six did so.
Concerned the entire panel had been tainted, Gibson moved to dismiss all fifty potential jurors for discussing inadmissible evidence. The trial court denied that motion, finding it more appropriate to “poll and talk to everyone individually.” In groups of five, the potential jurors were asked whether they learned anything about the case outside of what they had been told by the court or had gleaned from the questionnaire; if any of the five responded affirmatively, they were questioned individually. Many of the jurors informed the court they had visited the website of—or listened to—a local radio station, which covered Gibson’s crimes extensively. All potential jurors who reported hearing Gibson was accused of multiple murders were immediately excused for cause. Nevertheless, Gibson renewed his motion to dismiss the entire panel.
On appeal, Gibson concedes the trial court extensively interrogated potential jurors about their exposure to pretrial publicity, but he argues they weren’t adequately admonished nor would it be possible to “purge” their knowledge of the “serial killer” allegations against Gibson. Thus, he says, the entire panel should have been dismissed or the court should have sua sponte declared a mistrial. In seeking such relief, Gibson relies on Lindsey v. State, which held that if a sworn jury is exposed to prejudicial out-of-court material, the exposed jurors should be individually interrogated and admonished, but where the court believes “the peril to be substantial and uncurable,” it should declare a mistrial. 260 Ind. 351, 358, 295 N.E.2d 819, 824 (1973).
Here, however, we are not dealing with an empaneled jury, but potential jurors whose preconceived ideas and biases were thoroughly examined by the parties during voir dire. Indeed, it was through their meticulous questioning that any potential jurors who were aware of the other murders were excluded. As for those who responded they lacked any outside knowledge of the case, we presume they answered truthfully. Brown v. State, 563 N.E.2d 103, 105 (Ind. 1990). Because Gibson points to no sworn juror [footnote omitted]—and we find none—who should have been disqualified due to exposure to pretrial publicity, we see no error.
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Rush, C.J., Dickson, Rucker, and David, JJ., concur.