Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 21 2012, 9:32 am
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
collateral estoppel, or the law of the case. court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
VALERIE K. BOOTS GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GARY WATTS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1201-CR-24
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable James B. Osborn, Judge
Cause No. 49F15-1108-FD-58567
August 21, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Gary Watts (Watts), appeals his conviction for theft, a Class
D felony, Ind. Code § 35-43-4-2.
We affirm.
ISSUE
Watts raises one issue on appeal, which we restate as: Whether the trial court
properly denied his Batson challenge.
FACTS AND PROCEDURAL HISTORY
On August 17, 2011, Sable Lopez (Lopez) was watching television at his
landlord’s house, while his landlord and employer, James Brown (Brown), was in bed
upstairs. Around 9:25 p.m., Lopez heard dragging sounds coming from behind Brown’s
house. Lopez recognized the noise as coming from the lawnmower he used when he
performed gardening for Brown. Lopez ran to the privacy fence outside the house to
investigate. After shouting something to whomever was on the other side of the fence,
Lopez heard someone running and dragging the lawnmower. Lopez returned to Brown’s
house and called 911. He and Brown went out to the garage where Brown discovered
that his lawnmower was missing. Brown then got in his truck to search for the
lawnmower in the alleys around his home.
Indianapolis Metropolitan Police Officer William Amberger (Officer Amberger)
responded to the 911 dispatch. Officer Amberger entered an alley near Brown’s house
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and encountered Watts, who was pushing or dragging the lawnmower down the alley.
Assisted by another officer, Officer Amberger conducted a pat-down of Watts’ clothing,
locating tools in the pockets. Brown later arrived at the scene and identified the
lawnmower and the tools as his own. Thereafter, the officers arrested Watts.
On August 17, 2011, the State filed an Information charging Watts with theft, a
Class D felony, I.C. § 35-43-4-2. On November 16, 2011, a jury trial was held. The
State was represented by two prosecuting attorneys. A panel of fourteen venire persons
was called and questioned by both sides. After excusing one venire person for cause,
eight others were removed by the parties’ peremptory challenges.
The State exercised two of its peremptory challenges to remove two male African-
American venire persons, Bonds and Jackson. At a sidebar conference, Watts’ counsel
made a Batson challenge to the removal of these two jurors.1 The trial court immediately
requested a response from the State. After providing its reasons for removing Bonds, one
of the prosecuting attorneys provided her explanation for the removal of Jackson.
[STATE]: Mr. Jackson – he has had a cousin who has been convicted of
murder. So he has a family member who’s been convicted of a crime, and
he’s just very, very outspoken. And that’s just something that we didn’t
feel would be good – something that we wanted on the jury.
[TRIAL COURT]: Response.
[WATTS’ COUNSEL]: Judge – for one thing, they didn’t elicit any facts
about the cousin being convicted of murder. It could well be that he felt
good about how the State handled that, and he’s pro-State as a result of that
experience. Um, two, I didn’t notice him being particularly outspoken. If
1
Watts does not appeal the removal of Bonds, only the removal of Jackson.
3
any way, I thought he was very neutral – I thought he was very fair to the
State. So I don’t think that’s a sufficient – raising it to a reason.
[…]
[TRIAL COURT]: I – I’m really … the difficulty is – well, not the
difficulty, but you have left another African-American juror on the team, so
I don’t think there’s a consistent pattern of striking African-Americans. I
do question your rationale behind Mr. Jackson, but you – the rationale is
your own, and I don’t think given that you’ve left Ms. White on the jury
that there’s sufficient information for me to decide that you’ve decided to
strike those just because they’re African-American. So I’m going to deny
your [Batson] challenge on both of those people.
(Transcript pp. 69-71).
The trial court seated the remaining six members of the panel as jurors. Following
a recess, a final group of venire persons was questioned and the trial court seated an
alternate juror. The trial court then requested Watts’ counsel to make his Batson
argument, followed by the other prosecutor’s response.
[WATTS’ COUNSEL]: Um – I guess that was our challenge, that they
[Bonds and Jackson], eh – they were struck because of their race. Do you
want the State [to] provide their, um, reasoning? Or do you want me to just
go ahead?
[TRIAL COURT]: Okay. Well, I’ll show that your challenge is made and
if you want to restate your reasons for why [the State] made those strikes
[…].
[STATE]: […]. Um, with respect to juror number six, Mr. Jackson – uh,
[the other prosecutor] and I were not comfortable with some of his
responses. We felt he was a little more outspoken, um, than we were
particularly comfortable with, um, and some of his responses we just –
unfortunately I don’t have notes on the specific response I’m talking about.
Um, but we just weren’t comfortable with him being on the jury. I would
note that there were a few other African-American jurors that the State did
not – did not strike.
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[TRIAL COURT]: Well – let’s [not] count the alternate, since that was
after the fact, but eh –
[STATE]: That – I was going to – that [was] my next point.
[TRIAL COURT]: Okay – but that Ms. White was an African-American
female.
[STATE]: Yes. And also into that was Mr. Jackson’s body language
during the voir dire process.
[TRIAL COURT]: Okay, and as I ruled before, I’m – I’m going to accept
the State’s reasons as facially reasonable. I’ll also note that there was an
African-American female that was not excused by the State. So I’ll deny
the Batson challenge.
(Tr. pp. 84-85).
Trial thereafter commenced and Watts was found guilty as charged. On December
16, 2011, the trial court held a sentencing hearing. Watts was sentenced to two years’
incarceration at the Department of Correction and one year at community corrections on
home detention.
Watts now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Watts contends that the trial court erred when it denied his Batson objection to the
State’s peremptory challenge to remove Jackson from the venire. Specifically, he argues
that the trial court failed to properly apply the three-step test under Batson v. Kentucky,
476 U.S. 79 (1986). Watts concludes that because the trial court failed to properly
administer the Batson inquiry, the State removed Jackson from the venire based on
reasons that were a pretext for racial discrimination.
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I. Batson
Purposeful racial discrimination in the selection of a jury violates a defendant’s
right to equal protection. Ross v. State, 665 N.E.2d 599, 602 (Ind. Ct. App. 1996).
Batson and its progeny require the trial court to evaluate claims that a peremptory
challenge was racially based by engaging in a three-step process. See Cartwright v.
State, 962 N.E.2d 1217, 1220 (Ind. 2012). First, a defendant must make a prima facie
showing that a peremptory challenge has been exercised on the basis of race. Id. at 1221.
To make a prima facie case of purposeful discrimination, the defendant must show that
the excused juror was a member of a cognizable racial group and present an inference
that the juror was excluded because of his or her race. Forrest v. State, 757 N.E.2d 1003,
1004 (Ind. 2001).
Second, if that showing has been made, the prosecution must offer a race-neutral
basis for striking the juror in question. Cartwright, 962 N.E.2d at 1221. Although the
explanation must be more than a mere denial of improper motive, it need not be
persuasive or even plausible. Addison v. State, 962 N.E.2d 1202, 1209 (Ind. 2012). A
step two explanation is considered race-neutral if, on its face, it is based on something
other than race. Id.
Third, in light of the parties’ submissions, the trial court must determine whether
the defendant has shown purposeful discrimination. Cartwright, 962 N.E.2d at 1221.
This third step, the determination of discrimination, is the “duty” of the trial judge, who
evaluates the persuasiveness of the State’s step-two justification. See id. It is then that
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“implausible or fantastic justifications may (and probably will) be found to be pretexts
for purposeful discrimination.” Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam).
Also at the third stage, the defendant may offer additional evidence to demonstrate
that the proffered justification was pretextual. Addison v. State, 962 N.E.2d at 1210.
This may take the form of a side-by-side comparison with similarly situated non-African
American jurors who were permitted to serve. Id. at 1213 n. 4. Such comparison may
also be raised for the first time on appeal; however, review occurs under the stringent
fundamental error standard. Id. at 1213. The fundamental error exception is “extremely
narrow, and applies only when the error constitutes a blatant violation of basic principles,
the harm or potential for harm is substantial, and the resulting error denies the defendant
fundamental due process.” Id. Nevertheless, comparing juror responses requires an
appellate court to remain mindful that “a retrospective comparison of jurors based on a
cold appellate record may be very misleading when alleged similarities were not raised at
trial;” insofar as “an exploration of the alleged similarities at the time of trial might have
shown that the jurors in question were not really comparable.” Id. at 1216.
In sum, “the issue is whether the trial court finds the prosecutor’s race-neutral
explanation credible.” Id. at 1210. Trial court judges are much better situated than
appellate judges to weigh the credibility of the proffered explanation for striking the
prospective juror. See Jeter v. State, 888 N.E.2d 1257, 1264 (Ind. 2008), cert. denied,
555 U.S. 1055 (2008). The trial court’s decision concerning whether a peremptory
challenge is discriminatory is given great deference, and will be set aside only if found to
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be clearly erroneous. Cartwright, 962 N.E.2d at 1221. The burden of persuasion on a
Batson challenge rests with the party opposing the strike. Id.
II. Analysis
The State used its peremptory challenges to strike both Jackson and Bonds from
the jury panel. The removal of some African-American jurors by the use of peremptory
challenges does not, by itself, raise an inference of racial discrimination. Id. However,
where the State offers a “race-neutral explanation for the peremptory challenges and the
trial court has ruled on the ultimate question of intentional discrimination, the preliminary
issue of whether the defendant had made a prima facie showing of purposeful
discrimination becomes moot.” Addison, 962 N.E.2d at 1209 n.2. The parties do not
dispute that the first step of the Batson inquiry is moot since the State offered its reasons
why it removed Jackson and the trial court ruled on the issue of discrimination.
The second step of the analysis requires an examination of the State’s explanation
for exercising the complained of peremptory challenge. The first time Watts’ counsel
lodged their Batson challenge, one prosecuting attorney gave two reasons for the
challenge: (1) Jackson had a relative convicted of murder and (2) he was “very, very
outspoken” such that the prosecuting attorneys were uncomfortable. (Tr. p. 70). After
the alternate juror was selected, a second prosecuting attorney reiterated that Jackson was
outspoken and indicated a discomfort with Jackson’s responses. This prosecuting
attorney, however, gave two additional reasons: (1) the State did not strike other African-
American venire persons and (2) that the prosecuting attorneys were uncomfortable with
8
Jackson’s body language during voir dire. Watts acknowledges that all the foregoing
explanations were facially race-neutral. We therefore turn to the third-step of the inquiry.
Watts argues that the trial court misunderstood the law and wrongly conducted its
analysis during the third step. Specifically, he contends that the trial court did not
critically evaluate the State’s reasons for removing Jackson from the venire. Thus, Watts
claims, the State was permitted to remove Jackson based on justifications that were a
pretext for racial discrimination and the trial court therefore erred in denying his Batson
challenge. We disagree and find that the trial court adequately discharged its duty and
resolved the issue of credibility in the State’s favor.
Watts relies upon Addison to argue that the trial court failed to discharge its duty
since it did not indicate why it found the State’s explanations credible. In Addison, our
supreme court concluded that the trial court conflated steps two and three of the Batson
inquiry because it simply accepted the State’s race-neutral reasons in the face of
Addison’s unsubstantiated pretext argument. Addison, 962 N.E.2d at 1210. The Addison
court elected to review Addison’s Batson challenge for fundamental error since an
unsubstantiated pretext argument would have ordinarily been deemed waived on appeal.
Id. at 1213. Ultimately, the supreme court concluded that the State’s non-racial
justifications were pretextual in light of similar responses from non-African-American
venirepersons and the State’s mischaracterization of the removed venire person’s
testimony. Id. at 1217.
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Watts seizes upon imprecise language used by the trial court to contend that it
conflated steps two and three of the Batson inquiry. He points to the trial court’s
professed doubt of the State’s race-neutral reasons for removing Jackson and its
subsequent determination that such reasons were “facially reasonable” given that another
African-American was not removed. (Tr. p. 85). Thus, Watts contends that the trial
court failed to properly conduct step three of the Batson inquiry without determining
whether the State’s reasons were “actually reasonable.” (Appellant’s Br. p. 9).
We note that the trial court is not required to make explicit fact-findings following
a Batson challenge, especially where a prima facie case is acknowledged and the
prosecution presents specific non-discriminatory reasons on the record. Cartwright, 962
at 1222. Rather than conflating steps two and three of the Batson inquiry, the trial court
here injected step one considerations in making its step three determination. Although
consideration of Watts’ prima facie case under step one was moot, the trial court may
consider the totality of the relevant facts to make its ultimate determination whether
defendant carried his burden to prove racial discrimination by the State’s use of a
peremptory challenge. See Snyder v. Louisiana, 552 U.S. 472, 478 (2008). Here, the
trial court, though not without some doubt, relied upon the presence of an empaneled
African-American juror to resolve the credibility under step three in favor of the State.
Mindful that the defendant bears the burden to establish that the State’s non-racial
justifications were pretextual, we cannot say that the trial court was unable to consider
this a factor in its determination of the State’s credibility.
10
An Addison-type comparative inquiry leads to the same result. Watts argues that
the State’s failure to question Jackson on his relative’s murder conviction, its
mischaracterization of Jackson’s testimony as outspoken, and testimony of other venire
persons who were more opinionated mandate the conclusion that removal of Jackson was
racially motivated. The first of these arguments is easily resolved. The failure to follow
up with a minority venireperson may not constitute evidence of pretext where no other
venirepersons are similarly situated. See Cartwright, 962 N.E.2d at 1224. Although
other venirepersons testified to their direct experience with the police, the record does not
show that any other venire person had a relative convicted of a crime.2 Next, while the
State’s claims that Jackson was very outspoken is arguably dubious, attempts to
conclusively substantiate this is somewhat frustrated by the lack of juror identification in
the transcript. Further, the force of Jackson’s response that he would review video
evidence to determine whether someone was in possession of stolen goods does not
necessarily have less force than other jurors who contested a police officer’s radar gun
reading or another who remarked that she required further evidence to determine whether
an intentional act was accidental. Given all of these circumstances, the deference to the
trial court’s superior position to weigh the reasons, and the defendant’s burden to
demonstrate pretext, we cannot conclude that the trial court committed clear error in
2
Watts did not present any juror questionnaires and the record does not contain evidence from which we could
determine whether other venirepersons had family members convicted of a crime. See Cartwright, 962 at 1223 n. 4.
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overruling Watts’ Batson objection to the State’s peremptory strike of Jackson. We
therefore affirm the trial court’s ruling on Watts’ Batson challenge.
CONCLUSION
Based on the foregoing, we conclude that the trial court properly denied Watts’
Batson challenge.
Affirmed.
BAILEY, J. and CRONE, J. concur
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Gary Watts v. State of Indiana
Combined Opinion