text:
    In the Matter of William J. RAWLS, Respondent.
    No. 49S00-0908-DI-355.
    Supreme Court of Indiana.
    April 13, 2012.
   PUBLISHED ORDER FINDING RESPONDENT IN CONTEMPT OF COURT, IMPOSING FINE, AND DIRECTING IMPRISONMENT

On November 12, 2010, the Court entered an order disbarring Respondent, effective December 27, 2010. See Matter of Rawls, 936 N.E.2d 812 (Ind.2010).

The Commission filed a Verified Motion for Rule to Show Cause on January 6, 2012, alleging that Respondent engaged in the following acts in violation of his disbarment: On February 28, 2011, he appeared in the court office of Marion Superior Court 1, Civil Division, requested a file from the court clerk, completed an appearance form on behalf of another attorney, signed the attorney’s name on the appearance form, and placed the initials “BW” next to the signature. Witnesses were Magistrate Victoria M. Ransberger and Bailiff Ben Bryant.

The Court entered an Order to Show Cause on January 13, 2012, directing Respondent to show cause in writing, within 15 days of service why he should not be held in contempt for violating Admission and Discipline Rule 23(26)(b) by maintaining a presence or occupying an office where the practice of law is conducted after his disbarment. Respondent was served with the order by certified mail on or before January 24, 2012. It has been over 15 days since Respondent was served with the Order to Show Cause, and Respondent has not responded.

In the absence of any response from Respondent contesting the Commission’s charges, we conclude that Respondent violated his duties as a disbarred attorney by maintaining a presence or occupying an office where the practice of law is conducted.

This Court has inherent and statutory authority to punish contempt of court by fine and imprisonment. See Matter of Mittower, 693 N.E.2d 555, 559 (Ind.1998). In determining an appropriate punishment, the Court considers, among other factors, any continuing risk to the public or profession. See id.

We find Respondent guilty of indirect criminal contempt of this Court and conclude that the defiance of this Court’s authority as evidenced by Respondent’s contemptuous conduct warrants a fíne of $500.00 and imprisonment for a period of seven (7) days.

The Court therefore ORDERS that Respondent be sentenced to a term of imprisonment for a period of seven (7) days, without the benefit of good time. The Sheriff of the Supreme Court of Indiana is directed to take Respondent into custody and turn him over to the Indiana Department of Correction. In carrying out this order, the Sheriff of the Supreme Court of Indiana may seek the assistance of the Indiana State Police and any other law enforcement officer, and any such law enforcement officer shall provide the requested assistance.

The Court further ORDERS that Respondent be fined the sum of $500.00. Respondent shall remit this amount within 60 days of the date of this order to the Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court.

The Clerk of this Court is directed to forward notice of this order to Respondent by personal service or by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk is directed to forward a copy of this Order to the Disciplinary Commission; to the Sheriff of the Supreme Court of Indiana, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur, except MASSA, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of James D. NAFE, Jr., Respondent.
    No. 71S00-1201-DI-31.
    Supreme Court of Indiana.
    April 19, 2012.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

On January 20, 2012, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission’s investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court’s order to show cause. The Commission has filed a “Request for Ruling and to Tax Costs.”

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(f)(3), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2) the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is already under a suspension order entered in Cause No. 71S00-1111-DI-663. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10)(f)(5), that Respondent reimburse the Disciplinary Commission $522.76 for the costs of prosecuting this proceeding.

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of James D. NAFE, Jr., Respondent.
    No. 71S00-1111-DI-663.
    Supreme Court of Indiana.
    May 15, 2012.
   PUBLISHED ORDER CERTIFYING TERMINATION OF NONCOOPERATION SUSPENSION

Pursuant to Indiana Admission and Discipline Rule 23(10)(f), this Court suspended Respondent from the practice of law in this State for failing to cooperate with the Disciplinary Commission concerning a grievance filed against Respondent. On May 2, 2012, the Executive Secretary of the Disciplinary Commission filed a “Certification of Compliance,” stating that Respondent has now cooperated with its investigation. Pursuant to Admission and Discipline Rule 23(10)(f)(3), Respondent’s suspension from the practice of law terminated as of the date the certification was filed. The Commission reports that Respondent has paid the costs assessed against him in this case.

The Court therefore ORDERS that Respondent’s suspension from the practice of law for failure to cooperate in this case be shown as terminated as of May 2, 2012, and that Respondent be shown as reinstated to the practice of law in this state if no other suspension is in effect.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.


text:
    In the Matter of Kjell P. ENGEBRETSEN, Respondent.
    No. 06S00-1106-DI-346.
    Supreme Court of Indiana.
    May 25, 2012.
   PUBLISHED ORDER CONVERTING SUSPENSION FOR NONCOOPERATION WITH THE DISCIPLINARY PROCESS TO INDEFINITE SUSPENSION

On September 2, 2011, pursuant to Indiana Admission and Discipline Rule 23(10)(f), this Court suspended Respondent from the practice of law in this State for failing to cooperate with the Disciplinary Commission concerning a grievance filed against Respondent. The Disciplinary Commission has now moved to convert Respondent’s suspension to an indefinite suspension from the practice of law pursuant to Admission and Discipline Rule 23(10)(f)(4). Respondent has not responded to the Commission’s motion to convert the current suspension.

The Court finds that more than six months have passed since Respondent was suspended due to noncooperation with the disciplinary process. Accordingly, the Court concludes that Respondent’s suspension should be converted to an indefinite suspension from the practice of law pursuant to Admission and Discipline Rule 23(10)(f)(4).

IT IS THEREFORE ORDERED that Respondent’s current suspension from the practice of law for failure to cooperate with the disciplinary process is converted to an indefinite suspension, effective immediately. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). To be readmitted to the practice of law in this State, Respondent must cure the causes of all suspensions in effect and successfully petition this Court for reinstatement pursuant to Admission and Discipline Rule 23(4) and (18).

The Clerk of this Court is directed to forward notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys; to the Disciplinary Commission; and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Julia E. DIMICK, Respondent.
    No. 49S00-1107-DI-455.
    Supreme Court of Indiana.
    May 25, 2012.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: A couple holding themselves out as husband and wife were plaintiffs in a trade defamation suit, which settled for $10,000. After their attorneys withdrew, the husband asked attorney “SAB” to assist in completing the settlement. When the paperwork was completed, the $10,000 was applied to a debt the husband owed to SAB on an unrelated matter. SAB believed that the husband and wife had discussed that matter and that the wife had no objection to this payment.

The wife later filed for divorce. SAB entered his appearance for the husband and moved to dismiss, alleging the parties were not lawfully married. While the divorce proceeding was still pending (it was eventually dismissed), the wife retained Respondent regarding a potential claim against SAB for the handling of the settlement funds. Respondent sent SAB a letter alleging professional misconduct, including having a conflict of interest barring him from representing the husband, lack of candor, and conversion of the settlement funds. The letter gave SAB a “window of opportunity” to resolve the matter. Respondent stated that if she did not hear from him within that time, “I will file [the wife’s] claims with the Indiana Disciplinary Commission and in state court.” Thus, the letter implied that Respondent would file a grievance against SAB unless SAB made a settlement offer.

The parties cite no facts in aggravation. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; and (2) Respondent was cooperative with the Commission.

Violation: The parties agree that by using the threat of reporting professional misconduct to obtain a settlement proposal in a prospective civil action, Respondent violated Indiana Professional Conduct Rule 8.4(d), which prohibits engaging in conduct prejudicial to the administration of justice.

Discipline: The parties propose the appropriate discipline is a public reprimand. The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent’s misconduct.

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In the Matter of Antolin J. REIBER, Respondent.
    No. 49S00-1107-DI-461.
    Supreme Court of Indiana.
    June 5, 2012.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: Count 1. In May 2006, a client paid Respondent an advance payment of $1,000, to represent her in a custody dispute. When the client terminated the representation the following month, Respondent offered to return the client’s file but refused to refund any part of the payment. The client eventually obtained a judgment against Respondent for $750 for unearned fees. Respondent satisfied the judgment in December 2011. Respondent failed to respond to the Commission’s request for a response to the client’s grievance until this Court entered a show cause order against him.

Count 2. A different client, who was separated from her husband, retained Respondent in 2009 to assist her regarding a protective order against a third party. After the attorney-client relationship was formed, Respondent began a sexual relationship with her and did not withdraw from representing her. In February 2010, he terminated both his sexual and attorney-client relationship with the client. Respondent failed to cooperate in a timely manner with the Commission’s investigation of the client’s former husband’s grievance against Respondent. Respondent has contacted the Judges and Lawyers Assistance Program (“JLAP”), has scheduled a psychiatric evaluation, and is willing to enter into a JLAP monitoring agreement.

Other facts. The parties cite the following facts in aggravation: (1) The client in Count 2 was vulnerable when he began his sexual relationship with her; (2) Respondent acted selfishly to satisfy his own emotional desires; and (3) Respondent committed multiple offenses.

The parties cite in mitigation the fact that Respondent has not been disciplined previously for misconduct. The Court notes, however, that Respondent has the following history of noncooperation with the Commission:

49SO0-1007-DI-37O: Show cause petition filed 7/14/10. Dismissed with costs 8/23/10.
49S00-1107-DI-435: Show cause petition filed 7/19/11. Dismissed with costs 8/24/11.
49S00-1109-DI-550: Show cause petition filed 9/13/11. Dismissed with costs 11/10/11.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.16(d): Failure to refund an unearned fee promptly upon termination of representation. (Count 1)
1.8(j): Engaging in a sexual relationship with a client unless it began prior to the representation. (Count 2)
1.16(a)(1): Failure to withdraw from representation when the representation will result in violation of the Rules of Professional Conduct or other law. (Count 2)
8.1(b): Failure to respond in a timely manner to the Commission’s demands for information. (Counts 1 and 2)

Discipline: The parties propose the appropriate discipline is a six-month suspension without automatic reinstatement. The Court, having considered the submissions of the parties, now approves the agreed discipline.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than six months, without automatic reinstatement, beginning July 17, 2012. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements • for reinstatement of Admission and Discipline Rule 23(4). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur, except DAVID, J., who respectfully dissents, stating.

While I have no objection to the length of the suspension I prefer to impose as a condition of reinstatement that the Respondent undergo an assessment as determined by JLAP and complete any counseling as recommended by JLAP, prior to the application for reinstatement.


text:
    In the Matter of Jacob A. ATANGA, Respondent.
    Nos. 49S00-1111-DI-664, 49S00-1201-DI-23, 49S00-1202-DI-90.
    Supreme Court of Indiana.
    June 5, 2012.
   PUBLISHED ORDER CONVERTING SUSPENSION FOR NONCOOPERATION WITH THE DISCIPLINARY PROCESS TO INDEFINITE SUSPENSION AND DISMISSING OTHER SHOW CAUSE PROCEEDINGS AS MOOT

In Cause No. 49S00-1111-DI-664 (“Case 664”), this Court issued an order on November 22, 2011, directing Respondent to show cause why he should not be suspended for failure to cooperate with the Commission. The Commission filed a “Request for Ruling and to Tax Costs” on January 6, 2012, asserting Respondent still had not cooperated. On February 15, 2012, the Court entered an order of suspension for noncooperation and taxing costs, stating that “this suspension shall continue until further order of this Court, provided there are no other suspensions then in effect.” (Emphasis in original.)

In Cause No. 49S00-1201-DI-23 (“Case 23”), this Court issued an order on January 20, 2012, directing Respondent to show cause why he should not be suspended for failure to cooperate with the Commission with a different investigation. The Commission filed a “Request for Ruling and to Tax Costs” on February 7, 2012, asserting Respondent still had not cooperated.

In Cause No. 49S00-1202-DI-90 (“Case 90”), the Court entered a show cause order on February 22, 2012, directing Respondent to show cause why he should not be suspended for failure to cooperate with the Commission with yet another investigation.

The Commission filed a “Certification of Compliance and Objection to Reinstating Respondent to the Practice of Law” in each case, certifying that Respondent has now cooperated with the Commission’s investigation of the charges at issue but objecting to lifting the suspension based on Respondent’s disciplinary history, including noncooperation with the Commission and failure to obey the Court’s show cause orders. Respondent has filed answers to the Commission’s objections to reinstatement, requesting that his noncooperation suspension be lifted.

Respondent’s disciplinary history since July 2010 is summarized below:

49S00-1007-D1-367: Show cause petition filed 7/13/10. Dismissed with costs after compliance 8/5/10.
49S00-1012-D1-679: Show cause petition filed 12/20/10. Dismissed with costs after compliance 2/17/11.
49S00-1105-D1-290: Show cause petition filed 5/18/11. Suspended for noncooperation 8/19/11. Reinstated on certificate of compliance 9/27/11.
49S00-1106-D1-343: Show cause petition filed 6/15/11. Suspended for noncooperation 8/19/11. Reinstated on certificate of compliance 10/12/11.
49S00-11 ll-DI-664: Show cause petition filed 11/15/11. Suspended for noncooperation 2/15/12.
49S00-1201-DI-23: Show cause petition filed 1/17/12. Show cause order entered 1/20/12.
49S00-1202-DI-90: Show cause petition filed 2/14/12. Show cause order entered 2/22/12.

“It shall be the duty of every attorney against whom a grievance is filed ... to cooperate with the Commission’s investigation. ...” Admis. Disc. R. 23(10)(e). The Commission has been forced to seek this Court’s assistance seven times in less than two years to obtain Respondent’s cooperation with its investigations. The Court has rarely encountered a disciplinary history that displays such disregard for the disciplinary process as Respondent’s.

Respondent asks the Court to reinstate him based on his belated cooperation with the Commission in Cases 664, 23, and 90. The Commission requests that Respondent’s non-cooperation suspension in Case 664 be converted to an indefinite suspension and that Respondent be required to go through the reinstatement procedure set forth by Admission and Discipline Rule 23(4) and (18).

To assist in resolution of this matter, the Court entered an order on April 10, 2012, instructing the parties to file a joint status report on the procedural status of each underlying grievance at issue in all the show cause proceedings against Respondent since July 13, 2010. The deadline for filing was May 11, 2012. The order stated “If the parties are unable to agree on a joint status report, each party shall submit a separate status report on or before this date.”

The Commission filed a status report on May 10, 2012, detailing the status of eleven grievances underlying the seven show cause proceedings at issue. An accompanying letter to this Court’s Administration Office states that Respondent did not respond to the Commission’s attempts to secure his participation in preparing the report. Respondent has not filed a separate status report, nor has he acknowledged in any way the Court’s order for a status report.

Under these unique and egregious circumstances, the Court concludes that Respondent’s noncooperation suspension in Case 664 should be converted to an indefinite suspension from the practice of law pursuant to Admission and Discipline Rule 23(10X0(4).

IT IS THEREFORE ORDERED that Respondent’s current suspension from the practice of law in Cause No. 49S00-1111-DI-664. for failure to cooperate with the disciplinary process is converted to an indefinite suspension, effective immediately. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). To be readmitted to the practice of law in this State, Respondent must cure the causes of all suspensions in effect and successfully petition this Court for reinstatement pursuant to Admission and Discipline Rule 23(4) and (18).

The Court DISMISSES Cause No. 49S00-1201-BI-23 and Cause No. 49S00-1202-DI-90 as moot in light of Respondent’s indefinite suspension entered in Case 664.

If Respondent seeks reinstatement to the practice of law, the issues raised in all three cases will be addressed in the reinstatement process. The order requiring Respondent to pay costs in Case 664 shall remain in effect. Any claim by the Commission for costs in Cases 23 and 90 will be addressed in the reinstatement process.

The Clerk of this Court is directed to forward notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys; to the Disciplinary Commission; and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s web-' site, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


text:
    In re Failure to Satisfy Costs in Lawyer Disciplinary Cases of Louis W. DENNEY, et al., Respondents.
    No. 94S00-1203-MS-149.
    Supreme Court of Indiana.
    June 5, 2012.
   PUBLISHED ORDER REINSTATING LOUIS W. DENNEY TO THE PRACTICE OF LAW

On March 8, 2012, the Indiana Supreme Court Disciplinary Commission filed a “Petition for Suspension of Certain Attorneys for Failure to Satisfy Costs Ordered in Connection with Certain Proceedings under Indiana Admission and Discipline Rule 23,” asserting each of the Respondents failed to pay costs assessed in a disciplinary action by the due date of the attorney’s annual registration fee (October 1), in violation of the requirements of Indiana Admission and Discipline Rules 23(10X0(5), 23(16), and (2)(b).

On May 25, 2012, this Court entered an order suspending from the practice of law in Indiana several attorneys, including Louis W. Denney, effective ten days after the order was entered. Louis W. Denney now files an application for reinstatement, reporting that he has paid in full the amount owed in unpaid costs and the $200 reinstatement fee owed under Admission and Discipline Rule 23(16). The Commission and the Clerk’s office have confirmed that he has paid the amounts owing.

Being duly advised, the Court GRANTS the application and REINSTATES Louis W. Denney to the practice of law in Indiana effective immediately.

The Court directs the Clerk to forward a copy of this Order to Louis W. Denney, to the Indiana Supreme Court Disciplinary Commission, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.


text:
    In the Matter of Kristin D. MILLER, Respondent.
    No. 49S00-1202-DI-96.
    Supreme Court of Indiana.
    June 6, 2012.
   PUBLISHED ORDER SUSPENDING RESPONDENT FROM THE PRACTICE OF LAW IN INDIANA FOR NONCOOPERATION

On February 22, 2012, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission’s investigation of a grievance filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court’s order to show cause. The Commission has filed a “Request for Ruling and to Tax Costs.”

Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10)(f)(3), this suspension shall continue until: (1) the Executive Secretary of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation; (2) the investigation or any disciplinary proceedings arising from the investigation are disposed of; or (3) until further order of this Court, provided there are no other suspensions then in effect. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10)(f)(5), that Respondent reimburse the Disciplinary Commission $511.18 for the costs of prosecuting this proceeding.

The Clerk of this Court is directed to give notice of this order to Respondent by certified mail, return receipt requested, at the address reflected in the Roll of Attorneys. The Clerk of this Court is further directed to give notice of this order to the Disciplinary Commission and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


author: SULLIVAN, Justice.

text:
    Tina WHITING, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 38S05-1206-CR-345.
    Supreme Court of Indiana.
    June 19, 2012.

      Gregory Bowes, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Michael Gene Wor-den, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
   SULLIVAN, Justice.

During voir dire, a prospective juror stated that she could not be fair because she knew the defendant, the defendant’s grandmother, the victim’s family, and the attorneys. The trial judge denied a joint challenge for cause. The defendant did not strike the juror with any of her available peremptory challenges, and the juror served on the jury. We hold that the defendant’s claim of error regarding the denial of the challenge for cause is procedurally defaulted, and thus unavailable for review, because she failed to exhaust her peremptory challenges. We also hold that her claim is not reviewable for fundamental error.

Background

On the night of Sunday, September 7, 2008, the defendant, Tina Whiting, along with Addison Pijnapples and her husband Thomas Smith, Roderick Berry, and Michael Heffern, hatched a plan to rob Shawn Buckner of his prescription narcotics. In pursuit of the plan, Whiting and Pijnapples successfully lured Buckner to Whiting’s apartment with promises of a three-way sex act. When Whiting took Buckner to her bedroom, Pijnapples gave a predetermined signal, prompting the three men to come out of hiding and enter Whiting’s bedroom, where their attack on Buckner commenced. After punching and kicking Buckner to the point that he was barely moving, the assailants began searching him for drugs, as Whiting yelled, “he’s got pfflst,] I know he’s got pills!” Trial Tr. 52-53. At some point, one of the men “requested a knife so they could finish this”; Whiting retrieved a large knife from her bedroom, but the men declined it. Id. at 469, 471; State’s Ex. 87. Although there were no drugs, Smith found twenty dollars in Buckner’s sock and told Pijnap-ples to go buy beer. The group then agreed that the men would drive Buckner, who was still alive, to a bar and leave him in an alley.

Whiting and Pijnapples drove to Ohio to purchase beer and, while en route, discarded several items of Buckner’s personal property. Meanwhile, the men began driving, but instead of going to a bar, they drove to a secluded cornfield where they stabbed Buckner in the torso twenty times and nearly severed his penis, using a small knife Smith had taken from Whiting’s apartment. Smith then delivered a fatal blow by cutting Buckner’s throat to his spine, severing the major blood vessels in his neck. They left the body in the cornfield and returned to the apartment and began cleaning. Whiting and Pijnapples returned to the apartment a few minutes later and joined in the cleaning effort, during which they all drank the beer that had been purchased with Buckner’s money. A few days later, Smith, Berry, and Pijnapples moved Buckner’s body to a shallow grave they had dug, and to mislead investigators further, Whiting taped a note to Buckner’s apartment door expressing feigned concern for his well-being. On September 10, the police discovered Buckner’s body.

Whiting and her cohorts were each charged in Jay Circuit Court with murder and robbery. Whiting and Pijnapples were tried jointly. On July 12, 2010, Whiting’s and Pijnapples’s four-day trial commenced with a full day of jury selection. During voir dire, eventual juror Cynthia Wright explained at a sidebar conference that she had served for many years as a secretary at a local church and in that capacity had become acquainted with Whiting and her grandmother (who had raised Whiting), Pijnapples, Buckner’s family, and all of the attorneys. In light of this, Juror Wright “stated that she would feel very uncomfortable making a decision that was so important to everyone involved.” Appellant’s App. 225; Appellant’s Supp. App. 2. Immediately following sidebar, the prosecutor asked Juror Wright if she thought she could provide a fair trial, to which she replied “No I can not.” Voir Dire Tr. 128. Neither Whiting’s nor Pijnapples’s defense counsel asked Juror Wright any questions about her ability to remain impartial and instead asked only generalized questions about witness credibility and the State’s burden of proof. The State moved to strike Juror Wright and two others on the panel for cause; Whiting joined the State’s motion. The trial judge dismissed the two others but denied the motion to excuse Juror Wright for cause. At that point, the defense had six peremptory challenges remaining and the State had eight; neither party exercised a peremptory strike to ■remove Juror Wright, and she was later empaneled and sworn as a regular juror.

Whiting and Pijnapples were each convicted of one count of felony murder, Ind. Code § 35-42-1-1(2) (2008), and one count of Class A felony robbery resulting in serious bodily injury, id. § 35^42-5-1. After merging the robbery convictions with the felony murder convictions, the trial court sentenced Whiting and Pijnapples each to 55 years’ imprisonment.

On appeal, Whiting raised four issues, all of which were rejected by the Court of Appeals. Whiting v. State, No. 38A05-1008-CR-505, 2011 WL 2601426 (Ind.Ct.App. June 30, 2011). First, the court held that Whiting had waived her claim that the trial court erred in denying the challenge for cause because she had not exhausted her peremptory challenges. Id. at *3-4. Second, it held that certain testimony was not impermissible vouching and that, in any event, the issue had been waived. Id. at *5. Third, it held that there was sufficient evidence to support Whiting’s conviction. Id. at *6-8. Lastly, the court affirmed her sentence. Id. at *8-10.

Whiting sought transfer, and we heard oral argument on December 15, 2011. We now grant transfer, thereby vacating the decision of the Court of Appeals, Ind. Appellate Rule 58(A), but we address only the juror-bias claim. We summarily affirm the decision of the Court of Appeals in all other respects. App. R. 58(A)(2).

Discussion

This case tests the limits of State procedural-default rules when the defaulted claim is one of juror bias. The right to a fair trial before an impartial jury is a cornerstone of our criminal justice system. Caruthers v. State, 926 N.E.2d 1016, 1020 (Ind.2010); see U.S. Const. amend. VI; Ind. Const. art. I, § 13. In substance, it requires that a criminal defendant be given “a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Jurors need not be totally ignorant of the facts or issues involved in a case; rather, 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. at 722-23, 81 S.Ct. 1639; accord Skilling v. United States, — U.S. —, 130 S.Ct. 2896, 2912-13, 177 L.Ed.2d 619 (2010); Murphy v. Florida, 421 U.S. 794, 799-800 & n. 4, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Turner v. Louisiana, 379 U.S. 466, 471-73, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). The presence of even one biased juror on the jury is a structural error requiring a new trial. E.g., United States v. Martinez-Salazar, 528 U.S. 304, 316, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000).

To secure an impartial jury, the Sixth Amendment requires that the venire be drawn from a fair cross-section of the community, e.g., Holland v. Illinois, 493 U.S. 474, 480, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990); that the defendant be given an adequate opportunity to examine prospective jurors on voir dire, e.g., Morgan v. Illinois, 504 U.S. 719, 729-30, 733-34, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992); and that biased jurors be removed for cause, e.g., Dennis v. United States, 339 U.S. 162, 171-72, 70 S.Ct. 519, 94 L.Ed. 734 (1950). In addition, state law provides defendants with a limited number of peremptory challenges, I.C. § 35-37-1-3; Ind. Jury Rule 18, which they may use to excuse jurors for almost any reason, e.g., Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), overruled in part, Batson v. Kentucky, 476 U.S. 79, 90-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Although peremptory challenges are not constitutionally mandated, e.g., Rivera v. Illinois, 556 U.S. 148, 129 S.Ct. 1446, 1453-54, 173 L.Ed.2d 320 (2009), they are an important auxiliary tool used to empanel an impartial jury, e.g., Martinez-Salazar, 528 U.S. at 311, 316, 120 S.Ct. 774; Holland, 493 U.S. at 481, 484, 110 S.Ct. 803.

Challenges for cause are the primary means by which biased jurors are struck. There are no limits on the number of for-cause challenges but each “must be supported by specified causes or reasons that demonstrate that, as a matter of law, the venire member is not qualified to serve.” Gray v. Mississippi, 481 U.S. 648, 652 n. 3, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) (citation omitted). Along with the constitutional requirement that biased jurors be struck, state law provides additional grounds for challenging jurors for cause. I.C. § 35-37-1-5; J.R. 17; cf. Byers v. State, 709 N.E.2d 1024, 1026 n. 1 (Ind.1999) (statutory list not exhaustive).

“Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.” United States v. Wood, 299 U.S. 123, 145-46, 57 S.Ct. 177, 81 L.Ed. 78 (1936). It follows that the trial court has “a broad discretion and duty ... to see that the jury as finally selected is subject to no solid basis of objection on the score of impartiality.” Frazier v. United States, 335 U.S. 497, 511, 69 S.Ct. 201, 93 L.Ed. 187 (1948). Accordingly, the trial judge has the inherent authority and responsibility to dismiss biased jurors for cause, either sua sponte or upon counsel’s motion, and is afforded broad discretion in making these decisions; and on appeal, we afford substantial deference to the trial judge’s decision respecting a challenge for cause and will find error only if the decision is illogical or arbitrary. E.g., Ward v. State, 908 N.E.2d 595, 597 (Ind.2009); Woolston v. State, 453 N.E.2d 965, 967 (Ind.1983); cf. Skilling, 130 S.Ct. at 2918, 2923 (“manifest error”); Reynolds v. United States, 98 U.S. 145, 156, 25 L.Ed. 244 (1878) (same).

Whiting contends that the trial judge erred by not excusing Juror Wright for cause and, as a result, that she was denied her right to a fair trial before an impartial jury. The State counters that this claim is procedurally defaulted, and thus unavailable for review, because Whiting chose not to remove Juror Wright with one of her peremptory strikes. In response, Whiting acknowledges failing to exhaust her peremptory challenges but claims that the so-called “exhaustion rule” should not apply in criminal trials; alternatively, she claims that Juror Wright’s service on the jury constituted fundamental error, thereby excusing any procedural default.

I

Indiana law is well settled. To preserve for appeal a claim that the trial judge erred in denying a challenge for cause, the defendant must demonstrate that he or she either used a peremptory-challenge to remove the challenged juror or had already exhausted his or her allotment of peremptories. E.g., Merritt v. Evansville-Vanderburgh Sch. Corp., 765 N.E.2d 1282, 1235 (Ind.2002); Robinson v. State, 453 N.E.2d 280, 282 (Ind.1983); Monserrate v. State, 265 Ind. 153, 157, 352 N.E.2d 721, 723 (1976). It is not sufficient that peremptories are eventually exhausted if such challenges were available when the for-cause challenge was denied but the juror was not struck. E.g., Merritt, 765 N.E.2d at 1235.

An appellate court will review a trial court’s denial of a challenge for cause only if the defendant complies with the exhaustion rule. E.g., id. at 1235; Sutton v. State, 237 Ind. 305, 307, 145 N.E.2d 425, 426 (1957) (per curiam). But, even where a defendant preserves a claim by striking the challenged juror peremptorily, reversible error occurs only where the defendant eventually exhausts all per-emptories and is forced to accept either an incompetent or an objectionable juror. E.g., Merritt 765 N.E.2d at 1235, 1237.

It is undisputed that Whiting failed to comply with the exhaustion rule. She was given ten peremptory challenges to select regular jurors, I.C. § 35 — 37—1—3(b); J.R. 18(a)(2), and an additional one to select the alternate jurors, J.R. 18(c)(1), though she was required to use them collectively with Pijnapples, I.C. § 35-37-l-3(d); J.R. 18(a). When the motion to remove Juror Wright for cause was denied, the trial judge informed the defense that it had six peremptory challenges remaining, and Whiting chose not to strike Juror Wright peremptorily. Moreover, the defense used only nine of its ten peremptory challenges in selecting the regular jury. Whiting has therefore forfeited any claim that the trial judge erred in not removing Juror Wright for cause.

A

The exhaustion rule is sound policy. In Merritt, Chief Justice Shepard, writing for a unanimous Court, explained that permitting litigants “to seek a new trial when they had a remedial tool available and chose not to use it could lead to harsh results.” 765 N.E.2d at 1236. These results include significant costs and inefficiencies for the parties, the court, and the citizen jurors who will have served for nothing. Id. at 1237. It also may compromise the ability of the subsequent jury to serve its purpose — “to decide the factual question of the defendant’s guilt or innocence,” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (citation omitted) — because, by the time the defendant’s new trial begins, witnesses may have died or moved, memories may have faded, and other evidence may have been lost. Furthermore, empaneling a second jury may be more difficult, particularly in a small community, because any pretrial publicity will invariably highlight the prejudicial fact that the defendant has once been convicted. Cf. Irvin, 366 U.S. at 725-27, 81 S.Ct. 1639; Ward v. State, 810 N.E.2d 1042 (Ind.2004). These issues are compounded when the number of jury trials conducted annually is taken into account. See Indiana Judicial Service Report: 2010, at 13 (2011) (1,510 jury trials in 2010).

It is true that these costs are incurred any time an appellate court sets aside a jury verdict and remands for a new trial. But, unlike with other types of error, litigants in this context have been provided with a means to cure the alleged error at the outset. It seems “eminently fair and more sensible” to require parties to use their available peremptory challenges cu-ratively than to impose these significant, preventable costs and inefficiencies on the justice system and the public. Merritt, 765 N.E.2d at 1237; cf. United States v. Boyd, 86 F.3d 719, 722 (7th Cir.1996) (Easterbrook, J.) (defendant cannot “plant an error and grow a risk-free trial”). This is particularly so given that one of the principal purposes of the defendant’s per-emptories is to aid the government in empaneling an impartial jury. E.g., Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991).

An additional policy reason supports the exhaustion rule. “Reviewing courts are properly resistant to second-guessing the trial judge’s estimation of a juror’s impartiality, for that judge’s appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record— among them, the prospective juror’s inflection, sincerity, demeanor, candor, body language, and apprehension of duty.” Skilling, 130 S.Ct. at 2918 (citing Reynolds, 98 U.S. at 156-57). Clearly, “the in-the-moment voir dire affords the trial court a more intimate and immediate basis for assessing a venire member’s fitness for jury service.” Id. Like the trial judge, the parties are privy to such nonrecord factors. If the trial court refuses to remove the juror for cause and the defendant chooses not to remove the juror peremptorily, then there is a fairly strong indication that the parties who viewed the whole picture did not consider the juror sufficiently biased to warrant removal. Cf. Holland, 493 U.S. at 484, 110 S.Ct. 803 (“Peremptory challenges, by enabling each side to exclude those jurors it believes will be most partial toward the other side, are a means of ‘eliminatfing] extremes of partiality on both sides,’ thereby ‘assuring the selection of a qualified and unbiased jury.’” (first emphasis added) (citations omitted)). It is therefore difficult for an appellate court to justify holding otherwise on the basis of the cold record, which presents only a small part of the whole picture. Cf. Skilling, 130 S.Ct. at 2924 n. 32 (noting that juror was not so biased as to warrant peremptory challenge by defense counsel); United States ex rel. Darcy v. Handy, 351 U.S. 454, 463, 76 S.Ct. 965, 100 L.Ed. 1331 (1956) (“The failure of petitioner’s counsel to exhaust the means provided to prevent the drawing of an unfair trial jury from a community allegedly infected with hysteria and prejudice against petitioner, while not dispositive, is significant.” (citation omitted)). But cf. Thompson v. Altheimer & Gray, 248 F.3d 621, 622-23 (7th Cir.2001) (Posner, J.) (explaining that “[b]ias is only one factor in deciding whether to challenge a juror” and, thus, it “doesn’t follow” that a litigant’s failure to strike a juror peremptorily necessarily means that he or she “can’t really think that [the juror] was biased” (emphasis in original)).

B

Much of Whiting’s argument to avoid the exhaustion rule is premised on her contention that a claim of structural error cannot be proeedurally defaulted. But the Supreme Court observed long ago, “No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” Ya kus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (citations omitted). For this reason, courts may “refuse to consider a constitutional objection even though a like objection had previously been sustained in a case in which it was properly taken.” Id. (citation omitted). The policies justifying proper preservation of nonstructural claims apply with equal force to structural claims. E.g., Freytag v. Commissioner, 501 U.S. 868, 894-901, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring in part and concurring in judgment). Thus, almost any claim, structural or not, can be forfeited through procedural default. E.g., Peretz v. United States, 501 U.S. 923, 936-37, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991); Freytag, 501 U.S. at 892-901, 111 S.Ct. 2631; Wainwright v. Sykes, 433 U.S. 72, 84-85, 90-91, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

More to the point here, in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), the Supreme Court rejected a constitutional challenge to Oklahoma’s exhaustion rule, which is more stringent than Indiana’s, Merritt, 765 N.E.2d at 1236. In Ross, the trial judge had erroneously denied a challenge for cause, and the petitioner, complying with Oklahoma’s exhaustion rule, had removed the juror with a peremptory challenge. The Court rejected the petitioner’s arguments that Oklahoma’s exhaustion rule violated his rights to an impartial jury and due process by requiring him to use a peremptory challenge curatively. Ross, 487 U.S. at 83-91, 108 S.Ct. 2273. Rejecting the due process argument, the Court observed that “there is nothing arbitrary or irrational about [an exhaustion] requirement, which subordinates the absolute freedom to use a peremptory challenge as one wishes to the goal of empaneling an impartial jury.” Id. at 90, 108 S.Ct. 2273. Ross differs from the present case in that the defendant there did strike the challenged juror with a peremptory challenge. But, in discussing the defendant’s Sixth Amendment claim, the Court noted that “[h]ad [the juror] sat on the jury that ultimately sentenced petitioner to death, and had petitioner properly preserved his right to challenge the trial court’s failure to remove [the juror ] for cause, the sentence would have to be overturned.” Id. at 85, 108 S.Ct. 2273 (emphasis added) (citation omitted). Thus, the Court approved Oklahoma’s rule with the understanding that a defendant’s failure to comply would result in procedural default.

Whiting also claims that applying the exhaustion rule in criminal cases is “too harsh,” particularly when there are multiple defendants. But it is difficult to see the harshness in requiring a defendant to use a peremptory challenge in accordance with one of the traditional reasons for its existence. See, e.g., Martinez-Salazar, 528 U.S. at 319, 120 S.Ct. 774 (Scalia, J., concurring in judgment) (“The resolution of juror-bias questions is never clear cut, and it may well be regarded as one of the very purposes of peremptory challenges to enable the defendant to correct judicial error on the point. Indeed, that must have been one of their purposes in earlier years, when there was no appeal from a criminal conviction — so that if the defendant did not correct the error by using one of his peremptories, the error would not be corrected at all.” (emphasis in original) (internal citation omitted)). On the contrary, the exhaustion rule arguably is more protective of the defendant’s right to an impartial jury because it requires counsel to strike a juror who it believes should have been struck for cause rather than allowing the juror to serve and gambling that a conviction will be set aside on appeal under a highly deferential standard of review.

Moreover, we see no difference between the right to jury impartiality in civil and criminal trials — impartiality is a basic principle of due process, whether it is life, liberty, or property that is at stake. See, e.g., McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (considering juror impartiality in civil case); Thompson, 248 F.3d at 624 (“Martinez-Salazar was a criminal case, but we cannot think of any difference which that would make.”). We also fail to perceive any harshness in applying the rule where multiple defendants are required to exercise peremptory challenges collectively. In point of fact, the exhaustion rule should be more readily satisfied when multiple defendants are drawing from the same stock of peremptory challenges. It is also worth noting that Indiana has required exhaustion of peremptory challenges in criminal trials for well over 100 years. E.g., Voght v. State, 145 Ind. 12, 19, 43 N.E. 1049,1052 (1896).

C

In sum, Whiting’s claim of error regarding the trial court’s refusal to dismiss Juror Wright for cause is procedurally defaulted. We continue to adhere to the exhaustion rule in both civil and criminal cases because of the sound policy supporting it. And Whiting’s challenges to its soundness and validity in criminal cases do not withstand scrutiny.

II

Whiting seeks to escape procedural default by invoking our fundamental-error doctrine. Her argument that we should review her procedurally defaulted claim for fundamental error has some persuasive force. After all, “[a] fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). That said, our examination of the case law reveals no cases in which we have applied the fundamental-error doctrine to excuse procedural default under the exhaustion rule, and it appears that neither this Court nor the Court of Appeals has even considered applying the fundamental-error exception in this context.

It is not surprising that there is no precedent in this regard. When default occurs under the exhaustion rule, the defendant has objected to a juror and the trial judge has rendered a decision based on counsel’s arguments and what the judge has observed during voir dire. This circumstance is inconsistent with the underlying premise of fundamental-error review because, at bottom, the fundamental-error doctrine asks whether the error was so egregious and abhorrent to fundamental due process that the trial judge should or should not have acted, irrespective of the parties’ failure to object or otherwise preserve the error for appeal. A finding of fundamental error essentially means that the trial judge erred either by not acting when he or she should have, see, e.g., Addison v. State, 962 N.E.2d 1202, 1216-17 (Ind.2012) (finding fundamental error where, among other things, trial court failed to perform its duty under the third step of Batson), or by acting in a manner that grossly exceeded the role of an impartial judge, see, e.g., Kennedy v. State, 258 Ind. 211, 217-18, 280 N.E.2d 611, 615 (1972) (remanding for a new trial where trial judge assumed role of adversary and vigorously impeached defendant’s expert in front of jury). Here, the claim is not that the trial judge failed to act even though not being asked to do so but that he made the wrong decision after being asked to act. And there is no basis in the record for claiming that the judge acted in a grossly prejudicial manner when he denied the challenge.

Moreover, applying the fundamental-error exception in this context would both weaken the exhaustion rule and utilize fundamental error not as a “narrow exception” but as the general rule. This provides no incentive for counsel to exercise peremptory challenges curatively and would drastically upset the careful balance drawn by the exhaustion rule. The exception would swallow the rule.

Finally, not reviewing for fundamental error in this context does not necessarily end the matter. Whiting and other similarly situated defendants may seek relief through a claim of ineffective assistance of trial counsel under the well-established standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Effective trial counsel preserves claims to be considered on appeal and in federal habeas proceedings.” Martinez v. Ryan, — U.S. —, 132 S.Ct. 1309, 1317-18, 182 L.Ed.2d 272 (2012) (citations omitted). Thus, a colorable claim can be made that a lawyer’s decision not to preserve the issue for appeal by using a peremptory strike to remove the challenged juror constitutes ineffective assistance of counsel if the juror was actually biased, provided, of course, that counsel had no valid strategic reason for declining to exercise the peremptory.

Although fundamental-error and ineffective-assistance-of-counsel claims are different, they often yield the same result. McCorker v. State, 797 N.E.2d 257, 262-63 & n. 5 (Ind.2003). In this context, it is sensible to require the defendant to bring the claim as one of ineffective assistance of trial counsel because it provides the incentive to exhaust peremptory challenges that is lacking under the fundamental-error doctrine.

Conclusion

In sum, we hold that Whiting’s juror-bias claim is procedurally defaulted because she failed to exhaust her peremptory challenges. We also hold that a procedural default under the exhaustion rule is not amenable to fundamental-error review. Accordingly, we affirm Whiting’s conviction for felony murder and summarily affirm her sentence. We remand to the trial court so that it can correct the abstract of judgment to reflect that Whiting was convicted of felony murder under Indiana Code section 35-42-1-1(2).

DICKSON, C.J., and RUCKER, DAVID, and MASSA, JJ., concur.

      . Whiting's and the others’ motions for a change of judge were denied, and those decisions were affirmed. Smith v. State, No. 38A05-0812-CR-720, 2009 WL 2611367 (Ind.Ct.App. Aug.26, 2009).

      . Berry and Smith pled guilty, and Heffern was convicted by a jury shortly before Whiting’s trial. Smith v. State, No. 38A04-1008-CR-478, 2011 WL 2277150 (June 8, 2011), vacated in part on reh’g, 2011 WL 3861425 (Ind.Ct.App. Sept. 1, 2011), trans. denied; Heffern v. State, No. 38A05-1007-CR-462, 2011 WL 1565999 (Ind.Ct.App. Apr. 26, 2011). trans. denied; Trial Tr. 24-25.

      . This sidebar conference was not transcribed, so Whiting's appellate counsel filed a Motion to Certify a Statement of the Evidence under Indiana Appellate Rule 31, along with a Verified Statement of the Evidence from Whiting's trial counsel. The trial court subsequently issued an order in which it certified some of trial counsel's statements but declined to certify, others, and only this order constitutes part of the record. See Ind. Appellate Rule 31(C). Whiting argues that Appellate Rule 31(D) requires us to consider both trial counsel's verified statement and the trial court's certification. But Rule 31(D) does not apply here because the issue is not what the trial judge said or did but what Juror Wright and counsel said or did. To accept Whiting's position that Rule 31(D) applies any time "a party's assertion of the missing evidence differs from the trial court’s,” Appellant’s Reply Br. 3, would negate the certification requirement of Rule 31(C). Cf. Morse v. State, 274 Ind. 652, 413 N.E.2d 885, 886 (1980) ("This Court will not determine what occurred at trial based on statements contained in a motion.” (citations omitted)). Here, only the evidence certified by the trial court is part of the record.

      . This appeal concerns only Whiting. In a separate appeal, the Court of Appeals affirmed Pijnapples's conviction against a sufficiency-of-the-evidence challenge. Pijnapples v. State. No. 38A05-1008-CR510, 2011 WL 4104853 (Ind.Ct.App. Sept. 15, 2011), trans. denied. But the court remanded the case to the trial court so that it could correct the abstract of judgment to reflect that Pijnapples had been convicted of felony murder instead of intentional murder. Id. at *2 n. 2. The abstract of judgment for Whiting's conviction contains the same error. We thus remand the case so that the trial court can correct the abstract of judgment to reflect judgment of conviction for felony murder under Indiana Code section 35-42-1-1(2).

      . The Sixth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Additionally, the Due Process Clause independently requires jury impartiality. E.g., Morgan v. Illinois, 504 U.S. 719, 726-28, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992).

      . The rule applies in both civil and criminal cases, so it may not always be a defendant seeking to challenge a trial court's denial of a for-cause challenge. See, e.g., Merritt, 765 N.E.2d at 1234, 1237-38.

      . An "incompetent” juror is one who is removable for cause, while an "objectionable” juror is one who is not removable for cause but whom the party wishes to strike. Id. at 1234 n. 1.

      . The main exception is a claim that the court lacks subject-matter jurisdiction, which can be raised at any point during the proceeding and by the court sua sponte. Freytag, 501 U.S. at 896-97, 111 S.Ct. 2631.

      . In Martinez-Salazar, the Court declined to read an exhaustion requirement into Federal Rule of Criminal Procedure 24(b) and concluded, in dictum, that a defendant could either use a peremptory curatively or appeal on Sixth Amendment grounds, 528 U.S. at 307, 120 S.Ct. 774, but that conclusion has no effect on state procedure. Moreover, concurring in the judgment, Justices Scalia and Kennedy disagreed with the majority's dictum and would apply ordinary principles of waiver. Id. at 318-19, 120 S.Ct. 774 (Scalia, J.); cf. Thompson, 248 F.3d at 623 (criticizing Martinez-Salazar dictum "as putting the litigant in a heads-I-win-tails-you-lose position: if he wins a jury verdict, he can pocket his victory, and if he loses, he can get a new trial”).

      . Whiting’s final contention that the exhaustion rule renders appellate review illusory is undercut by the fact that this Court periodically reviews properly preserved claims of this nature. E.g., Ward, 908 N.E.2d at 596-98; McHenry v. State, 820 N.E.2d 124, 127 (Ind.2005); Campbell v. State, 547 N.E.2d 843, 843-44 (Ind.1989). Furthermore, that a preserved error is reversible only if the defendant shows that at least an objectionable juror served simply acknowledges that a criminal defendant is entitled to a fair trial, not a perfect one. E.g., Ross, 487 U.S. at 91, 108 S.Ct. 2273; Van Arsdall, 475 U.S. at 681, 106 S.Ct. 1431.

      . Whiting cites Riggs v. State, 809 N.E.2d 322 (Ind.2004), to support the proposition that ”[j]uror impartiality challenges have been reviewed under the fundamental error doctrine.” Pet. to Transfer 6. But the issue in Riggs concerned whether the trial court had abused its discretion in replacing a juror with an alternate after deliberations had begun. We held that the record did not support the trial court's decision and thus reversed and remanded for a new trial. Id. at 323, 329. Notably, defense counsel had objected to the trial court’s action, id. at 325, so the case was not one concerning fundamental error.

      . Thus, Whiting's claim that her default is excusable because the judge was on notice misses the mark.


author: DAVID, Justice.

text:
    John BERRY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 49S04-1110-CR-611.
    Supreme Court of Indiana.
    June 20, 2012.

      Patricia Caress McMath, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   DAVID, Justice.

After a bench trial, the trial court rejected the defendant’s insanity defense, finding that the defendant’s behavior was the result of his voluntary abuse of alcohol. The Court of Appeals reversed, concluding that the defendant suffered from “settled insanity,” a mental disease or defect caused by the defendant’s prolonged and chronic abuse of alcohol, which rendered him unable to appreciate the wrongfulness of his conduct.

We affirm the trial court because there was credible expert testimony that defendant’s behavior was caused by his voluntary abuse of alcohol.

Facts and Procedural History

John Berry is a forty-one-year-old man who suffers from alcohol dependence. Berry began abusing alcohol at the age of nine and became a daily drinker by his sophomore year of high school. He also used marijuana, cocaine, methamphetamine, LSD, mushrooms, and ecstasy, but he stopped using these drugs at age thirty. His drinking, however, continued.

Over the years, Berry has received rehabilitation treatment multiple times without success. He also has several convictions related to his alcohol use.

In 1999, Berry was diagnosed with bipolar disorder. He has been hospitalized multiple times for a combination of symptoms related to his drug and alcohol abuse and bipolar disorder. He has been treated with mood-stabilizing, psychotropic, anti-anxiety, and antidepressant medications.

On Monday, February 9, 2009, Berry went with his father, John Berry III (Father), to a house Father was helping renovate. Father parked his truck in front of the house. Tony Monday was working on the bathroom ceramic tile when Berry and Father arrived.

Father greeted Monday, and Monday told Father that he had borrowed the power drill and claw hammer during the weekend and that those tools were in the bathroom. Father then took Berry into one of the bedrooms where Berry was to do drywall work, and Father told Berry where the drill and hammer were.

Berry went into the bathroom and told Monday that he was “going to kill” him. Monday asked Berry why, and Berry told Monday to “shut up” and repeated that he was “going to kill” him. Berry then struck Monday in the head with the claw hammer. Monday pleaded with Berry to stop, but Berry ignored him and continued to strike Monday.

During this time, Father was in the living room area with his back to the hallway leading to the bathroom. Eventually, Monday exited the bathroom into the hallway, and Father turned around to see Monday bleeding profusely from his head. Father began attending to Monday’s injuries as Monday explained to Father what happened. Father called 911.

Father then saw Berry in the kitchen, walking back and forth and wiping the hammer with a towel. Father asked Berry, “Did you hit him with the f* *king hammer?” Berry responded, “I guess so.”

Father told Berry to go to the garage. Berry left through the back door, walked to the front of the house, opened Father’s truck, and placed the hammer and bloody towel in a chest of drawers located in the covered bed of the truck. Berry then reentered the house and told Father he could not find the garage. Father told Berry where the garage was and that Berry should stay there.

Medics and police officers arrived soon after. Father told the officers where Berry was, and they surrounded the garage. Berry initially refused to unlock the door and exit the garage, but Father was eventually able to convince Berry to come out.

Police handcuffed Berry and began to question him. They described Berry’s behavior as nonchalant and very calm; noted that Berry’s speech was clear; and stated that Berry offered no resistance. When asked where the hammer was, Berry told police it was in a drawer in the truck and directed them to the correct truck. When asked why he placed the hammer there, Berry responded that Father told him to do so. Finally, when asked why he hit Monday with the hammer, Berry gave nonsensical answers, including that God told him to hit Monday and that'Monday was caught playing with an eagle. Berry was then taken to the hospital, admitted to a mental health center, and discharged several days later.

Monday suffered severe injuries. He underwent surgery to repair his nose, his eyes, and his broken jaw. Titanium plates were implanted into his skull, and he also lost sight in one eye. Monday can no longer use his dentures due to the damage inflicted to his jaw.

The State charged Berry with Class A felony attempted murder. Berry interposed an insanity defense. A court-appointed psychiatrist and court-appointed psychologist found Berry competent to stand trial.

Berry waived his right to a trial by jury. After hearing expert and lay testimony, the trial court found Berry guilty as charged, rejecting his insanity defense. On appeal, the Court of Appeals reversed, finding that “the circumstances of Berry’s case fall squarely within the doctrine of settled insanity.” Berry v. State, 950 N.E.2d 821, 885 (Ind.Ct.App.2011). We granted transfer.

Insanity Defense

The issue before this Court is not whether the State failed to establish beyond a reasonable doubt the elements of attempted murder. See Ind.Code § 35-41-4-l(a) (2008). Rather, the issue is whether Berry successfully raised and established the insanity defense to avoid criminal responsibility. See id. § 35-41-3-6(a).

The burden is on the defendant to establish the defense of insanity by a preponderance of the evidence. Id. § 35-41-4-1(b). Specifically, a defendant has to prove that he could not appreciate the wrongfulness of his conduct at the time of the offense due to some mental disease or defect. Id. § 35-41-3-6(a). A “mental disease or defect” is defined as “a severely abnormal mental condition that grossly and demonstrably impairs a person’s perception, but the term does not include an abnormality manifested only by repeated unlawful or antisocial conduct.” Id. § 35-41-3-6(b).

When temporary mental incapacity is the result of voluntary intoxication, it does not fit within the above definition of “mental disease or defect.” See Jackson v. State, 273 Ind. 49, 52, 402 N.E.2d 947, 949 (1980) (“Temporary mental incapacity, when induced by voluntary intoxication, normally furnishes no legal excuse for, or defense to, a crime.”). On the other hand, “[w)here the ingestion of intoxicants, though voluntary, has been abused to the point that it has produced mental disease such that the accused is unable to appreciate the wrongfulness of his conduct ... the law does not hold him responsible for his acts.” Id. at 52, 402 N.E.2d at 949.

A. Standard of Review

“A determination of insanity is a question for the trier of fact.” Gambill v. State, 675 N.E.2d 668, 672 (Ind.1996). Here, Berry claims that his insanity defense should have prevailed at trial; thus, he is in the position of appealing a negative judgment. See Metzler v. State, 540 N.E.2d 606, 610 (Ind.1989). A defendant in Berry’s position faces a “monumental burden” because he “seeks to upset the finding of the trier of fact on appeal.” Lautzenheiser v. State, 481 N.E.2d 113, 114 (Ind.1985).

The standard of review is highly deferential. A court on review does not reweigh evidence or assess witness credibility but rather considers only the evidence most favorable to the judgment and the reasonable and logical inferences drawn from that evidence. Thompson v. State, 804 N.E.2d 1146, 1149 (Ind.2004). Importantly, a court on review asks whether the inferences supporting the trial court’s judgment were reasonable and not whether “more reasonable” inferences could have been made. Id. at 1150 (internal quotation marks omitted).

Furthermore, in these circumstances, an appellate court reverses a trial court’s judgment “only when the evidence is without conflict and leads only to the conclusion that the defendant was insane when the crime was committed.” Id. at 1149. In Galloway v. State, this Court noted that “[t]he strongest showing of an evidentiary conflict occurs where the experts disagree as to whether the defendant was insane at the time of the offense.” 938 N.E.2d 699, 710 (Ind.2010). Thus, if a credible expert opines that a defendant was sane when committing an offense, despite other expert opinions to the contrary, it is reasonable for a trial court to reject a defendant’s insanity defense. See id. (“[(Conflicting credible expert testimony is sufficiently probative of sanity.”).

B. Intoxication and Mental Disease or Defect

In this case, the trial court concluded that Berry did not meet either requirement for a successful insanity defense. Specifically, the trial court found that Berry did not suffer from a mental disease or defect and that he appreciated the wrongful nature of his conduct. The trial court’s conclusions were as follows:

(1) The Defendant’s conduct and statements before, during, and after the attack point to his knowledge of the wrongful nature of his actions.
(2) The Defendant’s conduct during the assault constituted a substantial step toward the commission of the intended crime of killing Tony Monday.
(3) The psychotic symptoms displayed by the Defendant began during his alcohol binge on Saturday and Sunday and continued into the morning of the assault. Given the Defendant’s longstanding and chronic alcoholism, coupled with his heavy drinking on the weekend preceding the assault on Monday morning, February 9, the Court concludes that these symptoms were brought on by the Defendant’s voluntary abuse of alcohol, rather than the result of Bipolar Disorder or other mental disease or defect.

The Court of Appeals reversed, finding that the trial court erroneously rejected Berry’s insanity defense. Berry, 950 N.E.2d at 837. On the issue of whether Berry suffered from a mental disease or defect, the Court of Appeals disagreed with the trial court’s conclusions and determined that (1) there was no evidence from which a reasonable inference could be drawn that Berry was intoxicated at the time of the offense and that (2) Berry’s psychotic state was a product of his “settled insanity.” Id. at 832, 835.

The State argues that the Court of Appeals did not adhere to the applicable standard of review in this case. Specifically, the State claims that the Court of Appeals reweighed the evidence and assessed witness credibility. The State further argues that the Court of Appeals “sua sponte” found that Berry suffered from settled insanity even though no expert suggested that Berry suffered from such a condition.

Ultimately, we must decide the following issue: considering the evidence most favorable to the trial court’s judgment, was it contrary to law for the trial court to conclude that Berry’s psychotic symptoms were the result of his voluntary abuse of alcohol and not a mental disease or defect? This necessarily requires us to delve into the presented evidence and the fuzzy area of law on intoxication and insanity.

Three experts submitted reports and testified to Berry’s mental status during the commission of the crime. Dr. Parker, a psychiatrist hired by the defense, was the first expert to testify at trial. He met with Berry in September 2009. In Dr. Parker’s report, he noted that “Berry said he drank a fifth of hard liquor daily for many years and freely admitted that he was an alcoholic.” But Dr. Parker’s ultimate conclusion was that “with reasonable medical certainty” during the time of the offense Berry suffered from a mental disorder, namely bipolar disorder, and accordingly did not appreciate the wrongfulness of his conduct. Dr. Parker elaborated on his conclusion,

Mr. Berry meets criteria for diagnosis with bipolar disorder, most recent episode mixed, with psychotic features.... In the days prior to the assault, Mr. Berry started to experience visual hallucinations and delusions of an evil presence in his friend’s house. His delusions and hallucinations continued upon his return to his father’s house and he began to experience auditory hallucinations on the morning of the assault.... Mr. Berry was described by the ER psychiatrist as delusional, with a disorganized thought process, shortly after his arrest. All but one of the reports noted the defendant had used alcohol fairly heavily over the weekend preceding the assault, but had not been drinking heavily before then and had not consumed alcohol for nearly 24 hours at the time of the attack. It is therefore unlikely the defendant was intoxicated on alcohol at the time of the assault. It is also unlikely the defendant was experiencing delirium tremens.... In addition, the ER physician specifically stated the defendant was not experiencing delirium tremens.
At the time of the clinical interview, the defendant had no memory of the assault itself.... Based on the defendant’s active psychosis at the time of the assault, his attribution of the assault to an eagle (a symbol for God) and to God’s message to him, and his lack of any attempt to flee the scene or destroy evidence, I believe the defendant did not appreciate the wrongfulness of his actions at the time of the alleged offense.

At trial, Dr. Parker stated, consistent with his report, that Berry met the requirements for a successful insanity defense because Berry was suffering from bipolar disorder, which had rendered him unable to appreciate the wrongfulness of his conduct at the time of the offense. Dr. Parker also opined that Berry was most likely sober when the incident occurred and that the psychosis was not related to alcohol use or withdrawal. He again noted that the emergency-room physician specifically stated that Berry was not suffering from delirium tremens at the time of the incident.

Dr. Olive, a court-appointed psychologist, testified after Dr. Parker. He met with Berry in May 2009. Dr. Olive’s report referenced both Berry’s bipolar disorder and the resulting inability to appreciate the wrongfulness of his conduct. Dr. Olive specifically stated as follows:

With regard to his mental state at the time of the offense, in reviewing his narrative as well as the Probable Cause Affidavit, there appears to be evidence that Mr. Berry was unable to appreciate the wrongfulness of his conduct. Per the admission summary from Wishard Hospital from February 9, 2009, Mr. Berry appears to have been in the midst of a manic episode with psychotic features, as evidenced by persecutory delusions, derealization, and thoughts of control. Although the record from Wishard indicates that Mr. Berry might possibly had been in the midst of alcohol withdrawal, there is no evidence of delirium tremens, the latter of which might potentially account for some of his sympto-matology. Thus, I am of the opinion that Mr. Berry’s alleged conduct appears to be the direct product of the aforementioned symptomatology stemming from his Bipolar Disorder With Psychotic Features.

At trial, Dr. Olive testified consistent with his report, noting Berry’s history of bipolar disorder and concluding that Berry could not appreciate the wrongfulness of his actions. Dr. Olive also stated that although he could not rule out alcohol definitively, he did not think that alcohol intoxication or withdrawal played a significant role. He further noted that there was no evidence that Berry was suffering from delirium tremens during the offense.

Dr. Masbaum, a court-appointed psychiatrist, was the last expert to testify. He met with Berry in April 2009. Dr. Masb-aum’s conclusions from his report differed from Dr. Parker’s and Dr. Olive’s conclusions. Specifically, Dr. Masbaum believed that voluntary alcohol abuse was the likely cause of Berry’s symptoms:

Due to this individual’s history of a diagnosis and treatment of Bipolar Disorder as well as his history of alcohol withdrawal & Polysubstance use, it is difficult to determine with reasonable medical certainty whether he was of unsound mind and unable to appreciate the wrongfulness of his conduct at the time of the alleged offense. It is likely that his symptoms were a result of voluntary alcohol & substance use/intoxication/withdrawal or a combination of all. Based on my experience and training, violent behavior is more likely with the combination of alcohol & substances and a severe mental disorder rather than the disorder alone. His multiple hospitalizations gave him much opportunity to understand his disorder and the importance of taking his medication and the danger of using substances and alcohol with his disorder.

At trial, Dr. Masbaum was able to form more definite conclusions on Berry’s condition at the time of the offense. Dr. Masb-aum stated that “at the time of the alleged offense, it was my diagnostic impression there were four possibilities associated with the alcohol use at that time to explain [Berry’s] symptoms and behavior.” Dr. Masbaum named the four: alcohol intoxication, pathological intoxication, alcohol hallucinosis, and delirium tremens. Dr. Masbaum explained that the first three are “connected with voluntary alcohol use” whereas delirium tremens is “the only one to fall in the category of being a severe mental disorder.” The trial court then asked Dr. Masbaum which of the four diagnostic possibilities outlined he would choose based on the course of Berry’s treatment at the hospital after the incident and the manner in which Berry responded to the treatment. Dr. Masbaum responded, “Well, since [Berry] did not go into delirium tremens ... then I believe one of the other three alcohol situations explain his symptoms and probably the first one, acute alcoholic intoxication, although the second also could be a factor.” The trial court explored this issue further and asked Dr. Masbaum, “Did you, do you feel that absent delirium tremens that the patient could have been in alcohol withdrawal without any sign of D.T.?” Dr. Masbaum responded, “Yes. [Berry] could have had just a low grade type of withdrawal. There are all grades of it.” The State then asked Dr. Masbaum, “So, basically, your diagnosis, the defendant placed himself in the alcohol-induced psychosis by voluntarily abusing alcohol; is that correct?” Dr. Masbaum responded, “Yes.”

Dr. Masbaum also explained that Berry could have been intoxicated without showing any signs to that effect: “a person with chronic alcoholism can be drinking and not show any signs of intoxication outwardly whatsoever.” Dr. Masbaum also explained that although Berry reported that he stopped drinking twenty-four hours before the attack, based on his clinical experience alcoholics are “not truthful” in reporting how much they drank. Dr. Masbaum also made it clear that he believed that the bipolar diagnosis was “questionable” because there was “just too much alcohol awash here.”

Several lay witnesses testified after the experts. Richard Lee Smith, a chemical dependency technician and Berry’s Alcoholics Anonymous sponsor, testified to the various “stages” that Berry would go through when he drank. Specifically, Smith testified that Berry would first be intoxicated, then go through a withdrawal stage that would last two to three days, proceed to a normal state, and finally become depressed. Cassandra Turner, who had been married to Berry, and Michelle Thompson, who had dated Berry, both testified to Berry’s violent nature after he had been drinking.

As stated earlier, temporary mental incapacity produced by voluntary intoxication is not an excuse for a crime. Fisher v. State, 64 Ind. 485, 440, 1878 WL 3066, at *8. In other words, that sort of temporary mental incapacity is not considered a mental disease or defect under Indiana’s insanity statute. On the other hand, Indiana recognizes situations where “the ingestion of intoxicants, though voluntary, has been abused to the point that it has produced mental disease.” Jackson, 273 Ind. at 52, 402 N.E.2d at 949. This type of mental disease is now commonly referred to as “settled” or “fixed” insanity. State v. Sexton, 180 Vt. 34, 904 A.2d 1092, 1101-04 (2006) (citing numerous cases and other sources that have discussed the concept of “settled” or “fixed” insanity). In cases where a defendant’s conduct is caused by his or her “settled” or “fixed” insanity, the defendant would be able to meet the mental-disease prong of Indiana’s insanity statute.

Here the experts disagreed as to what caused Berry’s behavior. Both Dr. Parker and Dr. Olive attributed Berry’s behavior to his bipolar disorder. Dr. Masbaum, on the other hand, found that diagnosis questionable. And at trial Dr. Masbaum opined that Berry’s symptoms were caused by the voluntary abuse of alcohol and not his bipolar disorder. Notably, none of the experts suggested that Berry suffered from “settled” or “fixed” insanity; in fact, all of the experts ruled out “delirium tremens,” a type of settled insanity caused by the chronic abuse of alcohol. See Fisher, 64 Ind. at 440, 1878 WL 3066, at *3.

The intersection of voluntary intoxication and insanity is murky at best. Jeff Feix & Greg Wolber, Intoxication and Settled Insanity: A Finding of Not Guilty by Reason of Insanity, 35 J. Am. Acad. Psychiatry & Law 172-82 (2007) (describing the “complicated process of untangling the effects of mental illness and substance abuse” and noting that “the picture becomes more clouded” when substance abuse is involved in an insanity defense). Certainly, not all chronic alcoholics have destroyed their mental faculties to the point where they suffer from a mental disease as defined in Indiana’s insanity statute. On the other hand, consumption of alcohol prior to committing an offense does not automatically rule out the insanity defense, as the underlying cause of a defendant’s behavior could be a mental disease. Ultimately, it is for the trier of fact “to determine whether the accused’s conduct was the result of a diseased mind — regardless of the source of the disease — or was the result of voluntary intoxication.” Jackson, 273 Ind. at 52, 402 N.E.2d at 949.

Although we agree with the Court of Appeals that “settled insanity” is a mental disease or defect as defined in the insanity statute, we fail to see how the evidence was without conflict that Berry suffered from such a condition. As stated earlier, no expert suggested that settled insanity was the cause for Berry’s behavior; in fact, all three experts ruled out delirium tremens, a form of settled insanity.

It is true that Dr. Masbaum could not give an exact label to Berry’s condition. But, in the end, Dr. Masbaum did opine that Berry’s behavior was caused by his voluntary abuse of alcohol. And the trial court, as the trier of fact, was within its province to accept Dr. Masbaum’s testimony at trial, draw reasonable inferences from it, and discredit conflicting testimony. A reasonable inference from Dr. Masb-aum’s detailed testimony on the subject was that Berry’s behavior was due to either voluntarily induced alcohol intoxication or voluntarily induced alcohol withdrawal. The subsequent lay testimony on Berry’s post-intoxication behavior buttressed Dr. Masbaum’s conclusions. Given the highly deferential standard of review and the expert and lay testimony supporting the trial court’s findings, we affirm the trial court.

Because the trial court appropriately found that Berry’s conduct was not caused by a mental disease or defect, we need not address whether Berry could appreciate the wrongfulness of his conduct.

Conclusion

There was credible expert testimony that Berry’s behavior was caused by the voluntary abuse of alcohol and not a mental disease or defect as defined in Indiana’s insanity statute. Accordingly, under the applicable standard of review, we affirm the trial court’s rejection of Berry’s insanity defense.

DICKSON, C.J., and SULLIVAN, RUCKER, and MASSA, JJ., concur.

      . This has been codified. Indiana Code section 35-41-2-5 states that "[i]ntoxication is not a defense in a prosecution for an offense and may not be taken into consideration in determining the existence of a mental state that is an element of the offense unless the defendant meets the requirements of IC 35-41-3-5.” Indiana Code section 35-41-3-5 states that intoxication is a defense only if the intoxication resulted from a substance being introduced (1) without the person’s consent or (2) without the person’s knowledge that the substance might cause intoxication.

      . Also, a trial court can disregard the testimony of experts and instead rely upon the testimony of lay witnesses. Thompson, 804 N.E.2d at 1149.

      . According to the defense, the incident occurred more than twenty-four hours after Berry consumed alcohol; thus, the timing of the incident falls squarely within Berry’s "withdrawal” phase as described by Smith.

      . The trial court cited both Turner's and Thompson's testimony in its findings of fact:
      Outright violence on the part of the Defendant when he was drinking or in a withdrawal phase was reported by both his former wife and his girlfriend. Cassandra Turner, to whom he was married from 1991 to 1996, testified as to her personal experience with the Defendant’s pattern of binge drinking, withdrawal and violence, as did Michelle Thompson who lived with the Defendant for five years, from 2000 to 2005. In one incident reported by Ms. Thompson in March 2004, the Defendant broke into her apartment, apparently retrieved a hammer from a storage closet, and was found drinking in her kitchen, after having just been released from jail where he had spent the night sobering up following an arrest for public intoxication.

      .In its findings, the trial court noted the conflict in the expert testimony. Dr. Parker also acknowledged the conflict between himself and Dr. Masbaum: "[Tjhere's a relationship in time of alcohol use and the symptoms, but I don't think there's a cause, a cause and effect linkage between those two. So, I'd respectfully disagree with Dr. Masbaum in that regard.”

      . A specific label as to the defendant’s state of mind is, in fact, unnecessary. This Court has specifically stated that triers of fact "need not be influenced by the use of specific labels, but rather must determine for themselves, whether the defendant's disability was such as to excuse him from criminal responsibility." Hill v. State, 252 Ind. 601, 616, 251 N.E.2d 429, 438 (1969).
      At bottom, the determination whether a man is or is not held responsible for his conduct is not a medical but a legal, social or moral judgment. Ideally, psychiatrists— much like experts in other fields — should provide grist for the legal mill, should furnish the raw data upon which the legal judgment is based. It is the psychiatrist who informs as to the mental state of the accused — his characteristics, his potentialities, his capabilities. But once this information is disclosed, it is society as a whole, represented by judge or jury, which decides whether a man with the characteristics described should or should not be held accountable for his acts.

        id. at 617, 251 N.E.2d at 438 (emphasis and internal quotation marks omitted) (quoting United States v. Freeman, 357 F.2d 606, 619-20 (2d Cir.1966)).

      . The trial court also made a finding on possible malingering by Beriy based on Dr. Masb-aum's testimony, which further supports a conclusion that Berry was not insane:
      On cross examination by the State, Dr. Masbaum found it significant that the Defendant was able to provide significant detail about what occurred before the assault and after the assault, but had little or no memory of the assault itself, although the Defendant did recall that after the assault on Tony, he was "standing there with my father's hammer ... I started panicking ... I knew I hurt somebody.” Dr. Masbaum testified that it is common for a person arrested for a crime to report that they cannot remember what happened at the time of a crime. He stated that this is a form of malingering, which is faking mental illness to avoid criminal responsibility. The fact that a person experiences actual psychosis during an event does not, in many cases, prevent that person from remembering what occurred during the event. He also testified that a person who is in the mental health system for many years, hearing about and observing symptoms of different disorders reported by other patients, thereby developing a familiarity with the mental health system generally, learns to manipulate that system.
      Accordingly, the trial court concluded on malingering as follows:
      The Defendant displayed a pattern of embellishment in the description of the hallucinations which he was experiencing on the morning of the assault during the succession of interviews which took place, beginning with the police on the scene and the treating psychiatrist at the hospital, followed by three psychiatric interviews. This pattern of embellishment, coupled with Defendant's amnesia regarding what occurred during the attack, is all too close to what Dr. Masbaum described as “malingering”.
      The Court of Appeals found it "unreasonable to conclude that Berry displayed amnesia regarding his actions during the attack.” Berry, 950 N.E.2d at 837 n. 14. However, the record, specifically Berry's statement given to police the day following the attack, references Berry’s amnesia. The police asked, "Uh, you're saying, you said yesterday, that you had a blank spot as you described it.” Berry responded, "Yeah."


text:
    In the Matter of Robert C. SZILAGYI, Respondent.
    No. 46S00-1204-DI-217.
    Supreme Court of Indiana.
    June 20, 2012.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: As part of Respondent’s 2009 divorce decree, his wife’s last name was restored to her name prior to the marriage and Respondent was awarded the marital home. Later that year, Respondent pursued refinancing of the home, which required his former wife to execute a quitclaim deed of her interest to him. Respondent’s secretary prepared the deed using the former wife’s restored name rather than her married name as reflected on the title. The secretary sent the quitclaim deed to the former wife, who signed it with her restored name and returned it without being notarized.

Respondent did not review the quitclaim deed until the day of the closing. When he discovered the problems, he asked his secretary to prepare a new deed. He then signed his former wife’s married name on the deed, signed his secretary’s name as notary, and used his secretary’s notary stamp on the deed, all without the knowledge of consent of either his former wife or his secretary. As a result, the secretary became the subject of an investigation by the Indiana Secretary of State into the authenticity of the notarization.

The parties cite the following facts in aggravation: (1) Respondent’s misconduct was due to a dishonest or selfish motive, i.e., the wish to avoid an unpleasant conversation with his former wife to explain his urgent need for her assistance; and (2) Respondent, having practiced law for over 30 years, should have known the importance of authentic legal documents and how this type of misconduct can impugn the reputation of lawyers and the integrity of the legal system.

The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; and (2) Respondent is remorseful and accepts responsibility for his actions.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
8.4(d): Engaging in conduct prejudicial to the administration of justice.

Discipline: The parties propose the appropriate discipline is a sixty-day suspension with automatic reinstatement. The Court, having considered the submissions of the parties, now approves the agreed discipline.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of sixty days, beginning August 1, 2012. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the period of suspension, provided there are no other suspensions then in effect, Respondent shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(4)(c).

The costs of this proceeding are assessed against Respondent.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.