# Osmulski v. Becze > Indiana Court of Appeals · August 10, 1994 · 638 N.E.2d 828 URL: https://www.frixlaw.com/law-library/cases/9721936 ## Case - **Full name:** Lori M. OSMULSKI, Appellant-Defendant, v. Charles BECZE, Individually and as Administrator of the Estate of Martha Becze, Deceased, Appellee-Plaintiff, and Northern Indiana Public Service Company, Appellee-Defendant - **Court:** Indiana Court of Appeals - **Decided:** August 10, 1994 - **Citations:** 638 N.E.2d 828; 1994 Ind. App. LEXIS 1031; 1994 WL 415112 - **Precedential status:** Published - **Opinion:** Dissent by Staton - **Judges:** Garrard, Barteau, Staton - **Cited by:** 16 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9721936 ## How later opinions describe it (automated extraction) - stating that “opinion testimony by an expert witness even as to the ultimate fact in issue is not objectionable merely for the reason that it invades the province of the trier of fact” and that “expert testimony is admissible when the expert has some special knowledge which wo… ## Opinion text STATON, Judge, dissenting. I dissent to the Majority's disposition of Issue I. The Majority impermissibly extends the rationale of the Batson line of cases to impose barriers to the use of pretrial devices provided in the Indiana Rules of Trial Procedure. In so doing, the Majority unduly encumbers the administration of justice in Indiana courts. It is well settled that the Equal Protection Clause prohibits the use of peremptory challenges to exclude prospective jurors on account of their race. Edmonson v. Leesville Concrete Co., Inc. (1991), 500 U.S. 614 , 111 S.Ct. 2077 , 114 L.Ed.2d 660 ; Powers v. Ohio (1991), 499 U.S. 400 , 111 S.Ct. 1364 , 113 L.Ed.2d 411 ; Batson v. Kentucky (1986), 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 . The Supreme Court recently extended this principle to preclude the use of gender-based peremptory strikes. J.E.B. v. Alabama ex rel. T.B. (1994), -- U.S. ---, 114 S.Ct. 1419 , 128 L.E.2d 89 . The Majority avails itself of this principle and then makes the significant leap from jury selection to the automatic change of venue provisions of Ind.Trial Rule 76. The Majority supports this leap by characterizing the use of change of venue in Lake County as an "exhaustive peremptory challenge" of prospective jurors on account of their race. This characterization is unwarranted and improper. Prior to the amendment of T.R. 76, the right to automatic change of venue was conferred equally on every litigant in Indiana courts. The constitutionality of this rule was upheld in Piwowar v. Washington Lumber and Coal Co. (1980), Ind.App., 405 N.E.2d 576 . The Majority's conclusion divests litigants in counties with substantial minority populations of this right. While it is true that Lake County has a substantially greater population of African-Americans than its surrounding counties, it does not logically follow that a civil litigant in Lake County who chooses to exercise his right to automatic change of venue is doing so in order to purposefully exclude African-Americans from serving on the jury. In practice, parties request a change of venue for any number of reasons. Nevertheless, a party wishing to exercise his right now bears the burden of disproving discriminatory intent. Inherent in the Majority's analysis is the assumption that racial proportionality on juries will be better achieved by limiting the availability of TR. 76 in certain counties. This assumption ignores the fact that racially proportionate juries are not constitutionally required. Piwowar, supra, at 580-581 (quoting Fay v. New York (1947), 332 U.S. 261, 291 , 67 S.Ct. 1613, 1629 , 91 L.Ed. 2043 ; Hoyt v. Florida (1961), 368 U.S. 57, 59 , 82 S.Ct. 159, 161 , 7 L.Ed.2d 118 ). At the same time, the Majority fails to acknowledge that disproportionate distribution of racial and ethnic populations in a given area is common: one county may be home to a substantial number of citizens from a particular ethnic group, another may be home to a substantial number of citizens from a particular religious group. This makes necessary the determination of when a group's population percentage constitutes a "substantial number" invoking this rule. Trial courts would be required to consider these factors every time a litigant attempted to exercise his rights under T.R. 76. In turn, the trial court's decision would be appealable, and if determined to be erroneous would result in relitigating a case nearly from its point of inception. This potential for relit-igation places an additional hardship on our already overburdened courts. The Majority's analysis interjects racial matters into yet another portion of the judicial process, further promoting polarization of racial causes and detracting from the concept of equality among all who avail themselves of our courts. The former T.R. 76 was facially neutral (as is the current rule), affording each litigant an equal opportunity to obtain a change of venue. See Piwowar, supra, at 581 . These litigants should not *840 lose their otherwise equal footing based solely upon accidents of geography. For the reasons stated above, I respectfully dissent to the disposition of Count I, and would remand this cause for a new trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9721936. Public record. Not legal advice.