FOR PUBLICATION
May 28 2014, 9:45 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DEBORAH MARKISOHN GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TYRECE ROBERTSON, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1310-CR-487
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Barbara Cook Crawford, Judge
Cause No. 49F09-1204-FD-26097
May 28, 2014
OPINION - FOR PUBLICATION
BAILEY, Judge
Case Summary
Tyrece Robertson (“Robertson”) was convicted of Attempted Residential Entry, as a
Class D felony,1 and Criminal Mischief, as a Class B misdemeanor.2 He now appeals.
We reverse.
Issue
Robertson raises one issue for our review: whether the trial court erred when it
overruled his Batson challenge contesting the State’s use of a peremptory challenge to strike
a juror.
Facts and Procedural History
Around 2 a.m. on April 20, 2012, Steven Cargill (“Cargill”) was in his apartment in
Indianapolis when he heard someone banging on his door loud enough to wake him up from
sleep at the opposite end of the apartment. Cargill twice went to his door to look through the
peephole; both times, no one was visible. Cargill then noticed someone in the parking lot
near his apartment patio using a flashlight to look inside the parked cars.
The knocking began a third time. This time, when Cargill went to the door, he saw
two individuals—one of whom would later be identified as Robertson—at his door, and he
saw Robertson trying to “mule kick” the door open. Cargill grabbed his cell phone, called
911, and braced his back against the door to keep it from bursting open. The banging
eventually stopped.
1
Ind. Code §§ 35-43-2-1.5 & 35-41-5-1.
2
I.C. § 35-43-1-2.
2
Soon after, Robertson and the other individual left the door of Cargill’s apartment. At
about this time, police arrived and arrested Robertson and his companion.
On April 20, 2012, the State charged Robertson with Attempted Residential Entry, as
a Class D felony, and Criminal Mischief, as a Class B misdemeanor.
A jury trial was conducted on July 31, 2013. During jury selection, the State used
peremptory strikes to remove several potential jurors from the venire, including Venireperson
Lisenbee, who was African American. Robertson raised a Batson challenge, which the trial
court overruled. After the jury was impaneled, the trial was conducted, and Robertson was
found guilty as charged.
On September 9, 2013, the court conducted a sentencing hearing. At the hearing’s
conclusion, the trial court entered judgments of conviction against Robertson and sentenced
him to 1 ½ years imprisonment for Attempted Residential Entry, with 170 days suspended to
probation, and 180 days imprisonment for Criminal Mischief, with the sentences run
concurrent with one another.
This appeal ensued.
Discussion and Decision
Batson Challenge
Robertson challenges his conviction solely on the basis of the trial court’s overruling
of his Batson challenge to the State’s peremptory strike of an African-American
venireperson.
As our supreme court has observed,
3
“Purposeful racial discrimination in selection of the venire violates a
defendant's right to equal protection because it denies him the protection that a
trial by jury is intended to secure.” Batson v. Kentucky, 476 U.S. 79, 86, 106
S.Ct. 1712, 90 L.Ed.2d 69 (1986). The exclusion of even a sole prospective
juror based on race, ethnicity, or gender violates the Fourteenth Amendment’s
Equal Protection Clause. See Snyder v. Louisiana, 552 U.S. 472, 478, 128
S.Ct. 1203, 170 L.Ed.2d 175 (2008).
Addison v. State, 962 N.E.2d 1202, 1208 (Ind. 2012).
A Batson challenge involves a three-step process. First, the defendant need “only
show circumstances raising an inference that discrimination occurred,” commonly referred to
as a prima facie showing of discrimination. Id. (citing Johnson v. California, 545 U.S. 162,
170 (2005)). Once the defendant makes a prima facie showing of discrimination on the part
of the State in the use of a peremptory challenge, the burden shifts to the State to provide a
race-neutral basis for striking the juror. Id. (citing Snyder, 552 U.S. at 477). Finally, the trial
court must determine whether, in light of the parties’ submissions, the defendant has
demonstrated that the State engaged in racially-based purposeful discrimination against the
challenged juror. Id. (citing Snyder, 552 U.S. at 477).
Here, Robertson contends that the trial court erroneously concluded that he failed to
establish a prima facie case of discrimination. To establish a prima facie case of
discrimination,
the party contesting the challenge must show that:
(1) the juror is a member of a cognizable racial group; (2) [the challenging
party] has exercised peremptory challenges to remove that group’s members
from the jury; and (3) the facts and circumstances of this case raise an
inference that the exclusion was based on race.
Ashabraner v. Bowers, 753 N.E.2d 662, 664 (Ind. 2001) (citations and quotations omitted).
4
The Indiana Supreme Court has further held:
Although the removal of some African American jurors by the use of
peremptory challenges does not, by itself, raise an inference of racial
discrimination, see Kent v. State, 675 N.E.2d 332, 340 (Ind. 1996), the
removal of “‘the only ... African American juror that could have served on the
petit jury’ does ‘raise an inference that the juror was excluded on the basis of
race.’” McCormick v. State, 803 N.E.2d 1108, 1111 (Ind. 2004) (quoting
McCants v. State, 686 N.E.2d 1281, 1284 (Ind. 1997)). See also Johnson [v.
California], 545 U.S. [162,] 173, 125 S.Ct. 2410 (finding that striking all three
African Americans in the venire was sufficient to constitute a prima facie case
of discrimination).
Addison v. State, 962 N.E.2d 1202, 1208-09 (Ind. 2012). The fact that “the only black
member of the venire” was removed from the jury “establishes a prima facie case of racial
discrimination” under the Batson test. Ashabraner, 753 N.E.2d at 667 (citing McCants v.
State, 686 N.E.2d 1281, 1284 (Ind. 1997)).
Here, Venireperson Lisenbee was part of a cognizable racial group, and the State
exercised a peremptory challenge to remove Venireperson Lisenbee—the only African
American subject to voir dire to that point—from the pool of jurors. Robertson asserts that
this is enough to establish a prima facie case, and directs us to this exchange among the State,
the court, and his trial counsel:
THE COURT: Okay. There’s more to it than just because you strike a
person who’s black off the jury that there’s a – that there’s an issue.
***
[ROBERTSON]: But [] the defense only has the burden of proving a prima
facie case in that they struck black jurors…
THE COURT: A black person?
5
[ROBERTSON]: [E]ssentially, yes. And – and then the burden shifts to the
State to prove uh, the rest of the case. We only ha – at this point, we only have
the burden of prima facie evidence…
***
[STATE]: Your Honor, I don’t think they have made a prima facie
case. He said a hundred percent of the African-American jurors on the panel.
She was the only African-American juror on the panel. Um, that was the – by
chance that’s how it happened.
***
THE COURT: There – I mean the – the purpose of Batson is making sure
that there is not a systematic way uh, that the State has chosen to eliminate
people who are of color on the – on the jury.
***
THE COURT: And, there has to have been the – some showing that –
that there has been that; that there has been some kind of systematic
elimination of people. Now, she was not the only black person in the panel at
the son [sic] – at the time.
(Tr. at 228-29.)
The court then overruled Robertson’s Batson challenge.
We agree with Robertson that this was error. Both parties acknowledge that, in this
case, neither Robertson nor the State had an opportunity to conduct voir dire of the other
African-American member of the venire. Because the trial court did not move to the second
step in the Batson analysis—requiring the State to present a facially race-neutral reason for
using a peremptory strike—the court did not conclude that Robertson had established a prima
facie case of discrimination. Yet, as Robertson points out, the only African-American juror
that was subject to voir dire—Venireperson Lisenbee—was stricken from the jury.
6
Thus, for all intents and purposes, the State used its peremptory challenges to strike
the only African-American member of the venire. The Indiana Supreme Court has held
clearly and on several occasions that striking from the venire the only African American juror
that could have served on the petit jury is prima facie evidence of discriminatory intent and
satisfies the initial burden under Batson. Cartwright v. State, 962 N.E.2d 1217, 1222 (Ind.
2012). This case is no exception. And because “the exclusion of even a sole prospective
juror based on race, ethnicity, or gender violates the Fourteenth Amendment's Equal
Protection Clause,” Addison, 962 N.E.2d at 1208, we conclude that Robertson’s rights under
the Fourteenth Amendment to the U.S. Constitution were violated. Accordingly, we reverse
the judgment of the trial court and remand the case for a new trial.3
Reversed.
KIRSCH, J., and MAY, J., concur.
3
We note that the charges of which Robertson was found guilty at trial, Attempted Residential Entry and
Criminal Mischief, relied upon the same evidence, Robertson’s kicking and damaging of the door to Cargill’s
apartment. This appears to have amounted to a violation of the double jeopardy protections afforded by the
actual evidence test articulated in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). Because we reverse on
other grounds, however, we do not address the matter further today.
7