Dec 15 2015, 5:31 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone IV Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Billy Deon Blackmon, December 15, 2015
Appellant-Defendant, Court of Appeals Case No.
48A02-1505-CR-270
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Angela Warner
Appellee-Plaintiff Sims, Judge
Trial Court Cause No.
48C01-1310-FD-2037
Crone, Judge.
Case Summary
[1] Billy Deon Blackmon appeals his conviction for class D felony resisting law
enforcement following a jury trial. He argues that the trial court clearly erred in
rejecting his claim that the prosecutor used a peremptory challenge to strike a
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potential juror based on the juror’s race in violation of the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution. The
prosecutor gave two reasons for his peremptory strike, one of which was
demeanor-based. The trial court allowed the peremptory strike without
explicitly stating which of the prosecutor’s reasons it found to be credible and
not racially motivated. On appeal, Blackmon argues that because one of the
reasons was demeanor-based and the trial court failed to find that it was
credible, we have no basis from which to defer to the trial court on this reason.
He also argues that the second reason was a pretext for racial discrimination.
Therefore, he argues that his conviction must be reversed and his case
remanded for a new trial.
[2] Given the circumstances present here, we reject Blackmon’s contention that the
trial court was required to explicitly credit the prosecutor’s demeanor-based
reason. We conclude that the prosecutor’s second reason is suspicious and
raises an inference of discriminatory motive. However, we conclude that
reversal of Blackmon’s conviction is not required because it is clear that the
prosecutor would have struck the juror based on the demeanor-based reason
alone.
[3] Blackmon also asserts that the evidence is insufficient to support his conviction.
We conclude that the evidence is sufficient, and therefore we affirm.
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Facts and Procedural History
[4] In September 2013, Anderson Police Officer Michael Lee was assigned to serve
a writ of body attachment on Blackmon. Around 12:48 a.m., Officer Lee,
accompanied by deputy prosecutor Dan Kopp, drove to a parking lot near
Blackmon’s suspected location. Anderson Police Officers Chris Barnett and
Mike Williams arrived to assist Officer Lee. The house where Blackmon was
suspected to be was located on a dead-end street. The officers believed that a
police car would not be able to approach the house without being seen, so
Kopp, who was in plain clothes, walked to the house to see if Blackmon’s white
Chevrolet Trailblazer was parked there. Kopp told the officers that the lights
were on in the house but he did not see the Trailblazer.
[5] The officers decided to proceed to the house on foot. Officers Barnett and
Williams walked to the front of the house while Officer Lee and Kopp walked
to the back of the residence. Officers Barnett and Williams knocked on the
front door. A female answered and told them that Blackmon was not there,
which they related to Officer Lee who was still behind the house.
[6] Officer Lee heard a vehicle in the alley behind the house. The vehicle, a white
Trailblazer, was moving toward the house at “a little higher speed than normal
for somebody driving down an alley.” Tr. at 141. The Trailblazer turned
quickly into an area behind the house that looked like it was frequently used as
a parking spot. Officer Lee was standing “right in front of” that parking spot.
Id. at 140. The Trailblazer stopped with its headlights “right on” Officer Lee,
who was in full police uniform. Id. at 141. Officer Lee stepped aside to get
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“out of direct line with the vehicle and drew [his] handgun.” Id. He backed up
four or five steps and shined the light attached to his pistol into the driver’s door
window, which was rolled down. Officer Lee, who was about ten feet from the
car, made “direct eye contact” with Blackmon. Id. at 142. Officer Lee
recognized Blackmon from photographs he had looked at earlier that evening.
[7] Blackmon put the car in reverse and started to back out of the parking spot.
Officer Lee shouted, “Stop! Police!” Id. He took a few steps toward the car as
it was backing up, called Blackmon by name, and again told him to stop. Id.
Blackmon drove down the alley and turned onto the street.
[8] Officer Lee saw the direction Blackmon was driving, radioed other officers in
the area, and gave them a description of the vehicle. A few minutes later,
police spotted the Trailblazer eight or nine blocks away parked in the yard of an
abandoned house. The keys were still in the ignition. No one was in the
abandoned house. Officer Lee discovered that the Trailblazer was registered to
Blackmon’s mother.
[9] The State charged Blackmon with class D felony resisting law enforcement. A
jury convicted him as charged. This appeal ensued. Additional facts will be
provided.
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Discussion and Decision
Section 1 – The trial court did not err in denying Blackmon’s
Batson claim.
[10] In Batson v. Kentucky, 476 U.S. 79, 86 (1986), the United States Supreme Court
held, “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.” A defendant’s claim that the State has used
a peremptory challenge to strike a potential juror solely on the basis of race is
commonly known as a Batson claim. Equal protection rights under Batson have
been substantially expanded. See Jeter v. State, 888 N.E.2d 1257, 1262 (Ind.
2008) (observing that Batson has been extended to prohibit criminal defendants
from using peremptory challenges to strike a juror solely on the basis of race)
(citing Georgia v. McCollum, 505 U.S. 42, 59 (1992)), cert. denied; Addison v. State,
962 N.E.2d 1202, 1208 (Ind. 2012) (“The exclusion of even a sole prospective
juror based on race, ethnicity, or gender violates the Fourteenth Amendment’s
Equal Protection Clause.”) (citing Snyder v. Louisiana, 552 U.S. 472, 478
(2008)); Ashabraner v. Bowers, 753 N.E.2d 662, 666 (Ind. 2001) (observing that
Batson applies to civil cases) (citing Edmonson v. Leesville Concrete Co., 500 U.S.
614, 616 (1991)). Under Batson, a race-based peremptory challenge also violates
the equal protection rights of the juror, and therefore Batson prohibits parties
from using racially-based peremptory challenges regardless of the race of the
opposing party. Ashabraner, 753 N.E.2d at 666-67.
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[11] Here, during jury selection, the State used its peremptory challenges in the first
round to strike three potential jurors, including one of only two African-
Americans in the fourteen-person venire. 1 Blackmon raised a Batson claim, and
the parties engaged in the following discussion.
Defense counsel: [I]t is a Batson record that I would like to
make. [W]e had in the jury box for selection, two (2) African[-]
Americans. We had [Juror 3] and [Juror 14]. [Juror 14] has
been selected as a juror. [Juror 3] was excused by exercise of a
[peremptory] challenge by the State and, again, just requesting
that the record be made on that and inquiring as to the rationale
beyond her dismissal.
Court: [Defense counsel] indicated that in the original fourteen
(14) jurors that we had up in the jury box for possible selection
on the first round, we did have two (2) African[-]Americans and
that was [Juror 3], and then [Juror 14]. As [defense counsel]
indicated, [Juror 14] has now been seated as a juror in this case
and [Juror 3] was struck by the exercise of a [peremptory]
challenge by the State. Does the State wish to offer an
explanation as to the reason for the [peremptory] on [Juror 3]?
Prosecutor: The State did not exercise a [peremptory] due to
race or gender. The State exercised a [peremptory] because I did
not see [Juror 3] actively engaged in the dialogue both when
[defense counsel] and myself were asking questions to the entire
group. Some people were nodding or shaking their heads.
People were raising their hands. The only time she answered
questions when was [sic] she was asked them directly. She just
wasn’t very engaged. I didn’t really want to put her on the jury
1
The record is silent as to the race of the other two panelists struck by the State.
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to begin with. Then after getting back to the table and
confirming Officer Lee, he indicated that he believed [Juror 3]
might know Linda Mitchell as well, who’s a witness. And, and
that was I guess the final straw and decided to exercise a
[peremptory].
Defense counsel: And, and just for purposes of the record, I
would note that [Juror 9 and Juror 12] I believe it was likewise,
were not very responsive or engaged, it seemed, equally with
[Juror 3]. And also would note that [Juror 3] did not identify or
react to Linda Mitchell’s name at any time. [W]hen her name
was mentioned in sort of the mini opening that we gave as
introduction.
Prosecutor: Well, I’m not sure I’d agree with the
characterization of the other jurors ….
Court: …. And make sure, maybe, we make clear, then, for the
record itself in the context of this challenge that Mr. Blackmon is
an African[-]American gentlemen as well that is in the
courtroom.[ 2]…. The Court is not persuaded that the Defendant
has established that there has been a purposeful discrimination in
this – in exercising [the prosecutor’s] [peremptory] challenge.
Tr. at 108-10 (verbal pauses removed for clarity).
[12] Blackmon argues that the trial court erred in denying his Batson challenge and
that reversal of his conviction and remand for a new trial is the proper remedy.
“Upon appellate review, a trial court’s decision concerning whether a
2
We reiterate that the party making a Batson claim need not be the same race as the potential juror(s). See
Ashabraner, 753 N.E.2d at 666-67.
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peremptory challenge is discriminatory is given great deference, and will be set
aside only if found to be clearly erroneous.” Forrest v. State, 757 N.E.2d 1003,
1004 (Ind. 2001). When a party raises a race-based Batson claim, three steps are
involved. At the first step, the defendant must make a prima facie showing that
there are “circumstances raising an inference that discrimination occurred.”
Addison, 962 N.E.2d at 1208. The State argues that Blackmon failed to make a
prima facie case of purposeful discrimination. During jury selection, the
prosecutor used his peremptory challenges to strike one of two African-
American panelists. Standing alone the removal of some African-American
jurors by peremptory challenge does not raise an inference of discrimination.
McCormick v. State, 803 N.E.2d 1108, 1111 (Ind. 2004) (citing Kent v. State, 675
N.E.2d 332, 340 (Ind. 1996)). On the other hand, our supreme court has held
that striking the only African-American juror that could have served on the petit
jury is prima facie evidence of discriminatory intent. Addison, 962 N.E.2d at
1209 (citing McCormick, 803 N.E.2d at 1111); see also Schumm v. State, 866
N.E.2d 781, 789 (Ind. Ct. App. 2007) (concluding that where State struck the
sole African-American juror, defendant made a prima facie showing of racial
discrimination).
[13] Here, only one African-American was left to serve on the fourteen-person jury. 3
Blackmon did not argue to the trial court that this fact established a prima facie
3
However, that African-American juror was ultimately excused when the State inadvertently let him see an
unredacted copy of the defendant’s driving record. Tr. at 156, 172, 174.
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case, and the record does not reveal whether there were additional
circumstances present during Blackmon’s trial that would raise an inference of
discrimination. However, we need not decide whether Blackmon established a
prima facie case. “[W]here, as here, a prosecutor has offered a race-neutral
explanation for the peremptory challenge 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.” Cartwright v. State, 962 N.E.2d 1217, 1222 (Ind.
2012); accord Addison, 962 N.E.2d at 1209 n.2. 4
[14] At the second step, if the defendant makes a prima facie showing, the burden
shifts to the prosecution to “‘offer a race-neutral basis for striking the juror in
question.’” Addison, 962 N.E.2d at 1209 (quoting Snyder, 552 U.S. at 477).
“[T]he race-neutral explanation must be more than a mere denial of improper
motive, but it need not be ‘persuasive, or even plausible.’” McCormick, 803
4
The State argues that “We may reexamine whether Blackmon failed to make a prima facie showing of
discrimination notwithstanding that the prosecutor offered an explanation for the peremptory strike and the
trial court ruled that Blackmon had failed to establish purposeful discrimination.” Appellee’s Br. at 10 n.3.
The State maintains that step one becomes moot only when the prosecutor defends his use of peremptory
strikes without any prompting or inquiry from the trial court. In support, the State cites Hernandez v. New
York, 500 U.S. 352, 359 (1991), in which the prosecutor offered the reasons for his peremptory challenges
without being prompted to do so. The State’s argument ignores Cartwright, 962 N.E.2d 1217, in which the
State offered its reasons for its peremptory strike simultaneously with its request to strike. Our supreme court
declined to reexamine whether the defendant made a prima facie case of purposeful discrimination because
the State had supplied its reasons and the trial court ruled on the ultimate issue of purposeful discrimination.
Id. at 1222. We further note that here, the prosecutor did not argue to the trial court that Blackmon had
failed to make a prima facie case of purposeful discrimination. Cf. Hardister v. State, 849 N.E.2d 563, 576
(Ind. 2006) (defendant argued on appeal that trial court clearly erred by ruling that he failed to make a prima
facie showing of purposeful discrimination and supreme court found that defendant failed to make prima
facie case and concluded that trial court had not clearly erred in summarily denying Batson claim without
asking prosecutor to explain reasons for peremptory strikes).
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N.E.2d at 1110 (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995)). “‘[T]he
issue is the facial validity of the prosecutor’s explanation.’” Id. (quoting Purkett,
514 U.S. at 768). “A neutral explanation means ‘an explanation based on
something other than the race of the juror.’” Id. at 1111 (quoting Hernandez v.
New York, 500 U.S. 352, 360 (1991)). “‘Unless a discriminatory intent is
inherent in the prosecutor’s explanation, the reason offered will be deemed race
neutral.’” Addison, 962 N.E.2d at 1209 (quoting Purkett, 514 U.S. at 768). Here,
the prosecutor gave two reasons for striking Juror 3: her lack of engagement
with the jury selection process and the possibility that she might know defense
witness Linda Williams. These reasons are based on something other than the
race of the juror, and therefore, on their face, they are racially neutral. See
McCormick, 803 N.E.2d at 1110.
[15] At the third step, the trial court must determine “‘whether the defendant has
shown purposeful discrimination.’” Addison, 962 N.E.2d at 1209 (quoting
Snyder, 552 U.S. at 477). “It is then that ‘implausible or fantastic justifications
may (and probably will) be found to be pretexts for purposeful discrimination.’”
Id. at 1210 (quoting Purkett, 514 U.S. at 768). The third step requires the trial
court to assess the credibility of the State’s race-neutral explanation “‘in light of
all evidence with a bearing on it.’” Id. (quoting Miller-El v. Dretke, 545 U.S. 231,
251-52 (2005)). At this stage, the defendant may offer additional evidence to
demonstrate that the prosecutor’s explanation was pretextual. Id. Although
this third step involves evaluating “the persuasiveness of the justification”
proffered by the prosecutor, “the ultimate burden of persuasion regarding racial
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motivation rests with, and never shifts from, the opponent of the strike.” Highler
v. State, 854 N.E.2d 823, 828 (Ind. 2006) (quoting Purkett, 514 U.S. at 768).
“[I]n considering a Batson objection, or in reviewing a ruling claimed to be
Batson error, all of the circumstances that bear upon the issue of racial
animosity must be consulted.” Snyder, 552 U.S.at 478.
[16] Here, defense counsel argued that white panelists had been equally disengaged,
with which the prosecutor disagreed. Defense counsel also argued that Juror 3
did not indicate that she knew Linda Williams when the venire was asked early
in voir dire (more on this below). The trial court then ruled that Blackmon had
failed to show purposeful discrimination.
[17] Blackmon advances two alleged errors in the trial court’s ruling. First, he
argues that the trial court erred by failing to state whether it found both of the
prosecutor’s reasons credible or only one of his reasons credible. Generally, a
trial court is not required to make explicit fact-findings following a Batson
challenge. Addison, 962 N.E.2d at 1210. However, Blackmon asserts that
because one of the prosecutor’s reasons was based on Juror 3’s demeanor, the
trial court’s failure to identify which reason it was relying on resulted in an
inadequate ruling and leaves us without a basis to conclude that the trial court
found the demeanor-based reason credible. Blackmon does not otherwise argue
that the demeanor-based reason is constitutionally infirm. Second, Blackmon
contends that the trial court erred in denying his Batson challenge because the
prosecutor’s other reason was a pretext for discrimination. We address each
claim in turn.
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[18] To support his argument that the trial court erred in failing to explicitly credit
the prosecutor’s demeanor-based reason, Blackmon relies on Snyder, 552 U.S.
472. There, the prosecutor gave two reasons for striking a black juror. First,
the prosecutor explained that the juror seemed nervous throughout the
questioning. Id. at 478. Second, the prosecutor stated that the juror was a
student teacher who was going to miss class and might be inclined to find that
the defendant was guilty of a lesser verdict to avoid the penalty phase and
shorten his jury duty. Id. The trial court denied the defendant’s Batson claim
without indicating which of the reasons it found credible, merely ruling that it
would “allow the challenge.” Id.
[19] In addressing whether the trial court clearly erred in denying the defendant’s
Batson claim, the Supreme Court considered both of the prosecutor’s proffered
reasons. As for the juror’s alleged nervousness, the Court noted that
“nervousness cannot be shown from a cold transcript.” Id. at 479 (citation
omitted). The Court explained that “deference is especially appropriate where
a trial judge has made a finding that an attorney credibly relied on demeanor in
exercising a strike. Here, however, the record did not show that the trial judge
actually made a determination concerning the juror’s demeanor.” Id.
Significantly, the juror “was not challenged until the day after he was
questioned, and by that time dozens of other jurors had been questioned.” Id.
Under these circumstances, the Court observed that the trial judge might not
even have remembered the juror’s demeanor. Because the prosecutor had
offered two reasons for the strike, the Court reasoned that the trial court may
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have had no opinion on the juror’s demeanor or may have based its ruling
completely on the prosecutor’s second reason. Id. The Court concluded, “For
these reasons, we cannot presume that the trial judge credited the prosecutor’s
assertion that [the juror] was nervous.” Id.
[20] The Court then addressed the second reason given for the strike, namely, that
the juror had conflicting obligations. The Court concluded that it was
“implausible” in light of the brevity of the trial, which the prosecutor
anticipated on the record during voir dire. The Court stated that this
implausibility was reinforced by the prosecutor’s acceptance of white jurors
who also said that they had obligations that conflicted with jury duty. Id. at
483. The Court concluded that the prosecutor’s second reason was pretextual
and gave rise to an inference of discriminatory intent. Id. at 485. In
determining the proper remedy, the Court noted that remanding to determine
whether “the prosecution would have pre-emptively challenged [the juror]
based on his nervousness alone” would be impossible because more than a
decade had passed since Snyder’s trial. Id. at 485-86. Therefore, the Court
reversed Snyder’s conviction.
[21] We do not read Snyder as requiring a trial court to make explicit findings every
time the prosecution justifies a peremptory strike based on a juror’s demeanor.
In Snyder, the juror “was not challenged until the day after he was questioned,
and by that time dozens of other jurors had been questioned,” and therefore the
Supreme Court thought it reasonably possible that the trial judge might not
even have remembered the juror’s demeanor. 552 U.S. at 479. Here, in
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contrast, there is no reason to think that the trial court did not remember the
panelists’ demeanor. Voir dire occurred within one morning, and there were
only fourteen panelists. Blackmon argued in support of his Batson claim,
specifically identifying two white panelists who he said were as equally
unengaged as Juror 3. The prosecutor disagreed with defense counsel’s
characterization of other white panelists.
[22] We assume that the trial court listened to and considered the parties’
arguments. The trial court, not the appellate court, is in the best position to
consider the juror’s demeanor, the nature and strength of the parties’
arguments, and the attorney’s demeanor and credibility. As the Snyder court
observed,
[T]he trial court must evaluate not only whether the prosecutor’s
demeanor belies a discriminatory intent, but also whether the
juror’s demeanor can credibly be said to have exhibited the basis
for the strike attributed to the juror by the prosecutor. We have
recognized that these determinations of credibility and demeanor
lie “peculiarly within a trial judge’s province.”
Id. at 477 (quoting Hernandez, 500 U.S. at 365). In this case, there are no
circumstances that call into question the usual deference we give to the trial
court’s superior ability to evaluate the panelists’ demeanor and the attorneys’
arguments and demeanor.
[23] Blackmon also relies on Killebrew v. State, 925 N.E.2d 399 (Ind. Ct. App. 2010),
trans. denied, in which another panel of this Court found that Snyder squarely
applied. In Killebrew, the prosecutor used peremptory challenges to strike all
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five African-American members of the venire. The prosecutor’s reasons for
striking “potential juror L.S. [was] because he was too ‘emphatic’ in agreeing
with defense counsel’s description of the State’s burden of proof, and because
[the prosecutor] was afraid that L.S. would place too high of an evidentiary
burden upon the State.” Id. at 402. As for L.S. being too “emphatic,” the
Killebrew court found that it was the same as the claim of “nervousness” in
Snyder. The Killebrew court observed that “the trial court here made no express
finding whether it believed L.S. was ‘emphatic’ in agreeing with defense
counsel’s description of the burden of proof.” Id. The Killebrew court
concluded, “[W]e will not place any weight on the prosecutor’s claim here that
L.S. was too ‘emphatic’ in agreeing with defense counsel.” Id.
[24] The Killebrew court also found that the State’s second reason was governed by
Snyder. The court observed that “there was no meaningful distinction between
how L.S. described his concept of the State’s burden of proof” and how the
white panelists who were not struck described it. Id. at 403. The court
concluded that Killebrew had established that the prosecutor’s peremptory
strike of L.S. was the result of purposeful discrimination and reversed and
remanded for a new trial. Id.
[25] We conclude that Killebrew is distinguishable. In deciding that it would not
place any weight on the prosecutor’s demeanor-based justification, the Killebrew
majority did not discuss the circumstances surrounding voir dire or the
arguments advanced by the attorneys at step three of the Batson procedure.
Significantly, the prosecutor struck all five African-American panelists, and the
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Killebrew court concluded that the record showed that the prosecutor’s second
reason applied to other white panelists who were not struck. Regarding the
issue of whether to credit the prosecutor’s demeanor-based reason, we agree
with Judge Mathias’s interpretation of Snyder in his dissenting opinion. He
wrote,
In reviewing the L.S. strike it is once again important to
emphasize the trial court’s unique position to assess L.S.’s
demeanor during voir dire. In answering Killebrew’s Batson
challenge, the prosecutor referred to the “emphatic” manner in
which L.S. apparently agreed with defense counsel. The trial
court, not our court, was in the best position to determine
whether L.S. was “emphatic,” and whether, because of L.S.’s
demeanor in the courtroom, the prosecutor’s proffered race-
neutral explanation for striking L.S. was credible. See Snyder, 552
U.S. at 477, 128 S. Ct. 1203 (noting importance of trial court’s
first-hand observation of juror’s demeanor). Unlike the majority,
I do not read Snyder to mean that, simply because the trial court
did not specifically make a finding regarding the juror’s
demeanor, that we are at liberty to second-guess the trial court’s
ultimate conclusion regarding the credibility of the prosecutor’s
proffered race-neutral reasons for striking a minority juror.
Killebrew, 925 N.E.2d at 405 (Mathias, J., dissenting). 5
5
Blackmon also cites United States v. Rutledge, 648 F.3d 555 (7th Cir. 2011), which is likewise distinguishable.
In Rutledge, the trial court denied the defendant’s Batson challenge. In so doing, it merely stated that the
government’s reasons for the strike were race-neutral. The Seventh Circuit concluded that the trial court
failed to satisfy its duty in step three of the Batson procedure to determine whether the government’s reasons
were credible. Id. at 561. The Seventh Circuit remanded for the trial court to evaluate the government’s
reasons for credibility, not merely facial racial neutrality. Here, the trial court found that Blackmon failed to
establish purposeful discrimination, thereby reaching the ultimate issue required by step three.
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[26] Here, as previously noted, there were no circumstances to suggest that the trial
court did not remember the panelists. In addition, Juror 3’s disengagement was
plainly the main reason offered by the prosecutor for the peremptory strike.
The attorneys presented argument on her demeanor and discussed the
demeanor of other panelists, and the trial court ruled that Blackmon had failed
to establish purposeful discrimination. Accordingly, we conclude that
Blackmon has failed to show that the trial court’s ruling was inadequate or
erroneous because it failed to make an explicit finding that Juror 3’s
disengagement was a credible nondiscriminatory reason for the peremptory
strike.
[27] We now turn to the second reason the prosecutor advanced in support of his
peremptory strike of Juror 3. The prosecutor said that Officer Lee told him that
Juror 3 “might know” Linda Mitchell. Tr. at 109. For background purposes,
we note that after the panelists were sworn in, the prosecutor introduced
himself and informed the panel of the names of the State’s witnesses. Id. at 44.
Defense counsel followed suit, telling the panel that Blackmon’s aunt, Linda
Mitchell, was a potential defense witness. Id. at 44-45. The trial court asked
the panelists whether any of them recognized the names of the potential
witnesses. Id. Juror 3, who was under oath, did not indicate that she knew
Mitchell. After additional questions from the trial court, the prosecutor had an
opportunity to question the panel. The prosecutor did not ask Juror 3 whether
she knew Mitchell. “‘The State’s failure to engage in any meaningful voir dire
examination on a subject the State alleges it is concerned about is evidence
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suggesting that the explanation is a sham and a pretext for discrimination.’”
Addison, 962 N.E.2d at 1215 (quoting Miller-El, 545 U.S. at 246). The State
asserts that the prosecutor did not question Juror 3 about Mitchell because
Officer Lee did not tell the prosecutor that Juror 3 might know Mitchell until
after the prosecutor got back to the table. Tr. at 109. That merely raises the
question why Officer Lee did not inform the prosecutor while the trial court
was questioning the panelists before the prosecutor began his voir dire.
[28] The State also argues that the prosecutor had no reason to doubt Officer Lee’s
statement that Juror 3 might know Mitchell and that Juror 3 might not have
heard Mitchell’s name because Juror 3 was disengaged. We cannot speculate
on either of these suggestions based on a cold transcript. Given that Juror 3
was under oath and that the prosecutor’s proffered reason was one that he
learned from Officer Lee, who was not under oath, the prosecutor’s proffered
reason is suspicious and supports an inference of discriminatory intent.
[29] Taking stock of matters thus far, we have a demeanor-based reason for striking
Juror 3 that supports the trial court’s denial of Blackmon’s Batson claim. If that
were the only reason given, we would have no basis to find that the trial court
clearly erred in denying his Batson claim. However, there was a second reason
provided that, although facially race-neutral, appears to be a pretext. We must
determine the proper remedy under these circumstances, which neither party
nor the United States Supreme Court has addressed. The Indiana Supreme
Court dealt with a somewhat similar situation in McCormick, 803 N.E.2d 1108.
There, the prosecutor gave several reasons for striking the only African-
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American on the panel: she was distraught; she looked uncomfortable; and her
answers showed that she was uncomfortable with the process. The McCormick
court concluded that each of these reasons was a permissible race-neutral
explanation. Id. at 1111. However, the court concluded that one of the
prosecutor’s reasons–that the juror would find it difficult “passing judgment on
a member of one’s own in the community”–was not facially race-neutral. Id.
[30] In determining the appropriate remedy, the court considered two alternative
approaches: the dual motivation approach and the tainted approach. The dual
motivation approach “proceeds under the theory that ‘[a] person may act for
more than one reason’ and that when a prosecutor offers both legitimate and
illegitimate reasons for a strike, further analysis is required.” Id. at 1112
(quoting Howard v. Senkowski, 986 F.2d 24, 26 (2d Cir. 1993)) (brackets in
McCormick). The tainted approach maintains that “‘[r]egardless of how many
other nondiscriminatory factors are considered, any consideration of a
discriminatory factor directly conflicts with the purpose of Batson and taints the
entire jury selection process.’” Id. at 1113 (quoting Arizona v. Lucas, 18 P.3d 160,
163 (Ariz. Ct. App. 2001)) (brackets in McCormick). The McCormick court
observed that the dual motivation analysis “is inconsistent with the facially
valid standard announced by the Supreme Court in Purkett.” Id. Therefore, the
McCormick court applied the tainted approach and concluded that “the State
failed to meet its burden under the second prong of Batson to come forward with
a race-neutral explanation for its peremptory strike. McCormick is thus entitled
to a new trial.” Id.
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[31] In sum, the McCormick court applied the tainted approach because one of the
reasons for the peremptory challenge was race-based on its face. The
McCormick court specifically referred to Purkett, in which the Supreme Court
held that the prosecutor’s reasons must be facially neutral, but need not be
“persuasive, or even plausible.” 514 U.S. at 768. Here, the prosecutor’s second
reason was facially race-neutral, and therefore McCormick is not controlling.
We decline to extend it to the circumstances present here, in which the
prosecutor satisfied the second step of the Batson analysis and the trial court
ruled that Blackmon failed to establish purposeful discrimination.
[32] We observe that the Supreme Court has stated that dual motivation analysis
would apply in the context of determining racial motivation for purposes of
adjudicating other types of challenges based on the Equal Protection Clause.
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270 n.21
(1977). 6 We think that the dual motivation analysis is appropriate to apply in
this case. “[U]nder dual motivation analysis, if the trial court finds that the
proponent of the strike has articulated both race-based and race-neutral reasons
6
In Snyder, the Supreme Court did not need to decide whether to apply dual motivation analysis:
In other circumstances, we have held that, once it is shown that a discriminatory intent was a
substantial or motivating factor in an action taken by a state actor, the burden shifts to the party
defending the action to show that this factor was not determinative. See Hunter v. Underwood,
471 U.S. 222, 228, 105 S. Ct. 1916, 85 L. Ed. 2d 222 (1985). We have not previously applied
this rule in a Batson case, and we need not decide here whether that standard governs in this
context. For present purposes, it is enough to recognize that a peremptory strike shown to have
been motivated in substantial part by discriminatory intent could not be sustained based on any
lesser showing by the prosecution.
552 U.S. at 486-87.
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for a peremptory strike, then the proponent bears the burden of demonstrating
that the strike would have been exercised even in the absence of any
discriminatory motivation.” McCormick, 803 N.E.2d at 1112. In this case, the
record clearly establishes that the predominant reason that the prosecutor
wished to strike Juror 3 was that she was not fully engaged with the jury
selection process. The prosecutor stated that he “didn’t really want to put her
on the jury to begin with,” and that when he learned that she might know a
defense witness, it was merely the “final straw.” Tr. at 109. Accordingly, we
conclude that the prosecutor would have exercised the peremptory challenge in
the absence of any discriminatory purpose. Therefore, we conclude that the
trial court did not clearly err in denying Blackmon’s Batson challenge.
Section 2 – The evidence is sufficient to support Blackmon’s
conviction for resisting law enforcement.
[33] Blackmon also contends that his conviction is unsupported by sufficient
evidence. Our standard of review is well settled:
[When] reviewing the sufficiency of the evidence needed to
support a criminal conviction[,] ... we neither reweigh evidence
nor judge witness credibility. We consider only the evidence
supporting the judgment and any reasonable inferences that can
be drawn from such evidence. We will affirm a conviction if
there is substantial evidence of probative value such that a
reasonable trier of fact could have concluded the defendant was
guilty beyond a reasonable doubt.
Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008) (citations omitted).
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[34] To convict Blackmon of class D felony resisting law enforcement, the State was
required to prove that he used a vehicle to knowingly or intentionally flee from
a law enforcement officer after the officer had, by visible or audible means,
identified himself and ordered him to stop. Ind. Code § 35-44.1-3-1(a)(3), -
(b)(1)(A); Appellant’s App. at 8 (charging information). Blackmon argues that
there is insufficient evidence to establish that he knew or had reason to know
that he was dealing with a police officer. See Mason v. State, 944 N.E.2d 68, 71
(Ind. Ct. App. 2011) (“To be convicted for resisting law enforcement, though,
the evidence must show that the defendant knew or had reason to know that the
person resisted was a police officer.”), trans. denied.
[35] Here, Officer Lee was in full police uniform. He testified that he was directly in
front of the parking area when Blackmon’s Trailblazer pulled in and that its
lights were shining directly at him. Officer Lee and Blackmon made direct eye
contact. The driver’s door window was rolled down. Officer Lee was only
about ten feet away when he yelled, “Stop! Police!” Tr. at 142. He also called
Blackmon by name and again yelled for him to stop. This is sufficient evidence
from which a reasonable trier of fact could find that Blackmon knew or had
reason to know that the person yelling at him to stop was a police officer.
Blackmon’s argument is merely a request to reweigh the evidence, which we
must decline. We conclude that the evidence is sufficient and affirm
Blackmon’s conviction.
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[36] Affirmed.
May, J., and Bradford, J., concur.
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