FILED
Jun 20 2017, 8:44 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Suzy St. John Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eugene Roach, June 20, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1608-CR-1918
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Ronnie Huerta,
Appellee-Plaintiff. Commissioner
Trial Court Cause No.
49G09-1601-F6-5
Barnes, Judge.
Case Summary
[1] Eugene Roach appeals his conviction for Class A misdemeanor resisting law
enforcement. We remand.
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Issues
[2] Roach raises two issues, but we address one dispositive issue, which we restate
as whether the trial court properly denied his Batson challenge.1
Facts
[3] Indiana State Police Trooper Thomas Bennett was involved in a traffic stop in
Marion County when a woman alerted him to a nearby situation. Trooper
Bennett saw Roach and a woman near a bicycle and saw Roach hit the woman.
Trooper Bennett yelled, “[H]ey, stop, police!” Tr. p. 135. Roach made eye
contact with Trooper Bennett, got on his bicycle, and pedaled away. A
bystander intervened and blocked Roach from leaving, and Trooper Bennett
arrested Roach. The State charged Roach with Level 6 felony criminal
confinement, Class A misdemeanor battery, and Class A misdemeanor resisting
law enforcement. The State later dismissed the criminal confinement and
battery charges.
[4] During voir dire of Roach’s jury trial on the resisting law enforcement charge,
the State asked, “What are some duties of law enforcement officers that you can
think of? Mr. James, what are some duties of law enforcement officers that you
can think of?” Tr. p. 68. After discussing the matter with a couple of
prospective jurors, the State asked, “Mr. Wilson, you got anything to add to
1
Roach also argues that the trial court’s order to pay probation fees was improper. Given our resolution of
the Batson issue, we need not address the probation fees issue.
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that?” Id. Prospective Juror Wilson (“Juror Wilson”) responded, “Do the right
thing.” Id. Defense counsel also gave a hypothetical about the victim of an
assault walking away from a police officer. She then asked, “How about you,
Mr. Wilson? How do you feel about it?” Id. at 81. Juror Wilson responded, “I
INAUDIBLE press charges.” Id. These were the only verbal interactions with
Juror Wilson evident on the record.
[5] The State apparently used a peremptory challenge to strike Juror Wilson.
Defense counsel then told the trial court, “[I]t’s possible we’re raising a Batson
challenge, because he was the only African American on the panel.” Id. at 97.
The trial court said, “It’s a little premature still. INAUDIBLE juror seven.” Id.
Defense co-counsel then said, “I was about to say he was the only black man in
the Jury pool . . . .” Id. Defense co-counsel then noted, “For the record, I note
that Mr. Kevin Wilson, who is juror number fourteen is the only black male in
the Jury pool. Our client is a black male.” Id. at 98-99. Defense co-counsel
argued that Juror Wilson’s answers during voir dire were not different than two
white males—Mr. Bercot and Mr. Coble—that were also questioned. In
response, the State said:
First, the reason that Mr. Wilson was struck was Mr. Wilson’s
body language throughout the entirety of voir dire, particularly
given when Mr. Clapp was asking [a] question. The first thing
that I wrote on my Jury questionnaire was skeptical and then I
wrote disengaged. In addition to that, which I found problematic
given the way that he was acting in the Jury box, given that
combined with the fact that when Ms. Zuran questioned him
about whether or not he would stop if a police officer asked him
to stop, he said no, I wouldn’t stop. So, given the facts of this
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case, I think those two things combined lead to our strikes. Now,
additionally, Ms. Frick said that she took some notes about Mr.
Wilson not saying anything different from Mr. Bercot and from
Mr. Coble. As far as I recall, Mr. Wilson didn’t say anything
different from juror, Jason Costa, who is a white male who we
struck for the same reason that we struck Mr. Wilson. Those
being that he tended to agree with the questions that defense was
asking and his general attitude.
Id. at 99-100. Defense co-counsel responded:
I would note that in fact, Mr. Bercot did say that you would have
a right to walk away and that there was no need to respond [to]
an officer and again, for the record, I will note Mr. Bercot is a
white male and I’d also note, I say this for respectively, but Mr.
Seitz is not a mind reader. He can’t tell whether or not Mr.
Wilson was disengaged and skeptical. In fact, Ms. Eder, who is
on the Jury said, she seemed reluctant in her responses. So, I
would argue that her body language and responses were quite
similar.
Id. at 100. The trial court then found: “Having listened to the arguments of
both side[s], I don’t see that the State struck him with a purposeful act of
discrimination. So, I’m going to deny your challenge.” Id. at 100-101.
[6] The jury found Roach guilty as charged of Class A misdemeanor resisting law
enforcement. The trial court sentenced Roach to 365 days with credit of forty-
two days with the remainder suspended to non-reporting probation. Roach
now appeals.
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Analysis
[7] Roach argues that the trial court erred by overruling his Batson objection to the
striking of Juror Wilson. It is well-settled that using a peremptory challenge to
strike a potential juror solely on the basis of race violates the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution. Jeter v.
State, 888 N.E.2d 1257, 1262 (Ind. 2008) (citing Batson v. Kentucky, 476 U.S. 79,
106 S. Ct. 1712 (1986)), cert. denied. In Batson, the United States Supreme Court
provided a three-step process for determining when a strike is discriminatory:
“First, a defendant must make a prima facie showing that a
peremptory challenge has been exercised on the basis of race;
second, if that showing has been made, the prosecution must
offer a race-neutral basis for striking the juror in question; and
third, in light of the parties’ submissions, the trial court must
determine whether the defendant has shown purposeful
discrimination.”
Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016) (quoting Snyder v. Louisiana, 552
U.S. 474, 476-477, 128 S. Ct. 1203, 1207 (2008)). “[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.”
Id. at 1748.
[T]his procedure places great responsibility in the hands of the
trial judge, who is in the best position to determine whether a
peremptory challenge is based on an impermissible factor. This is
a difficult determination because of the nature of peremptory
challenges: They are often based on subtle impressions and
intangible factors.
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Davis v. Ayala, 135 S. Ct. 2187, 2208 (2015). “[T]he trial court’s decision as to
whether a peremptory challenge was discriminatory is given ‘great deference’
on appeal . . . .” Collier v. State, 959 N.E.2d 326, 329 (Ind. Ct. App. 2011)
(quoting Killebrew v. State, 925 N.E.2d 399, 401 (Ind. Ct. App. 2010), trans.
denied). The trial court’s ruling on “the issue of discriminatory intent must be
sustained unless it is clearly erroneous.” Snyder, 552 U.S. at 477, 128 S. Ct. at
1207.
[8] In the first step, “the burden is low, requiring that the defendant only show
circumstances raising an inference that discrimination occurred.” Addison v.
State, 962 N.E.2d 1202, 1208 (Ind. 2012) (citing Johnson v. California, 545 U.S.
162, 170, 125 S. Ct. 2410, 2417 (2005)). “This is commonly referred to as a
‘prima facie’ showing.” Id. “Although the removal of some African American
jurors by the use of peremptory challenges does not, by itself, raise an inference
of racial discrimination, 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.’” Id. at 1208-09 (quoting McCormick v. State,
803 N.E.2d 1108, 1111 (Ind. 2004)) (internal citations omitted).
[9] Here, the record indicates that Juror Wilson was the only African American
male in the jury pool. It is unclear, however, whether there was an African
American female in the jury pool. The State concedes that this issue is “now
moot because the trial court directed the parties to step two . . . .” Appellee’s
Br. p. 14 (citing Addison, 962 N.E.2d at 1209 n.2). Consequently, we will move
on to step two.
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[10] In step two, “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, 128 S. Ct. 1203). “‘Unless a discriminatory intent is
inherent in the prosecutor’s explanation, the reason offered will be deemed race
neutral.’” Id. (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771
(1995)). Although the race-neutral reason must be more than a mere denial of
improper motive, the reason need not be particularly “persuasive, or even
plausible.” Id.
[11] The State responded that it struck Juror Wilson based on his “body language . .
. combined with the fact that when [defense counsel] questioned him about
whether or not he would stop if a police officer asked him to stop, he said no, I
wouldn’t stop.” Tr. p. 99. Roach concedes that “[n]either reason was based on
Juror Wilson’s race so the explanation was facially race-neutral.” Appellant’s
Br. p. 10.
[12] In the final step of the analysis, the trial court “must determine whether the
defendant has shown purposeful discrimination.” Addison, 962 N.E.2d at 1209.
The trial court must evaluate the persuasiveness of the step two justification. Id.
at 1210. “It is then that ‘implausible or fantastic justifications may (and
probably will) be found to be pretexts for purposeful discrimination.’” Id.
(quoting Purkett, 514 U.S. at 768, 115 S. Ct. at 1771). “The issue is whether the
trial court finds the prosecutor’s race-neutral explanation credible.” Id. “‘[T]he
rule in Batson provides an opportunity to the prosecutor to give the reason for
striking the juror, and it requires the judge to assess the plausibility of that
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reason in light of all evidence with a bearing on it.’” Id. (quoting Miller–El v.
Dretke, 545 U.S. 231, 251-52, 125 S. Ct. 2317, 2331 (2005)). “Also, at the third
stage, the defendant may offer additional evidence to demonstrate that the
proffered justification was pretextual.” Id.
[13] One reason offered by the State as a reason for the strike was that “when
[defense counsel] questioned [Juror Wilson] about whether or not he would
stop if a police officer asked him to stop, he said no, I wouldn’t stop.” Tr. p. 99.
In this interaction, defense counsel had proposed a hypothetical about whether
a victim of a battery could walk away from a police officer. Defense counsel
then asked, “How about you, Mr. Wilson? How do you feel about it?” Id. at
81. Juror Wilson responded, “I INAUDIBLE press charges.” Id. The record
does not, in fact, reveal that Juror Wilson said he would not stop for the police
officer. “This mischaracterization of [the juror’s] voir dire testimony is
troubling and undermines the State’s proffered race-neutral reason for the
strike.” Addison, 962 N.E.2d at 1215 (citing Miller-El, 545 U.S. at 244, 125 S.
Ct. at 2327).
[14] The second reason offered by the State for the strike was a demeanor-based
explanation. Roach argues that the proffered “body language” reason for
striking Juror Wilson cannot support the strike because the trial court failed to
make a finding that the demeanor-based reason was credible. The trial court
here stated only: “Having listened to the arguments of both side[s], I don’t see
that the State struck him with a purposeful act of discrimination. So, I’m going
to deny your challenge.” Tr. p. 100-101.
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[15] In support of his argument, Roach relies on Snyder, 552 U.S. at 477, 128 S. Ct.
at 1208. There, the prosecutor struck an African American prospective juror
because of his “nervousness” and student-teaching obligation. Snyder, 552 U.S.
at 478, 128 S. Ct. at 1208. The trial court denied the Batson challenge without
explanation. On appeal, the United States Supreme Court noted:
[R]ace-neutral reasons for peremptory challenges often invoke a
juror’s demeanor (e.g., nervousness, inattention), making the trial
court’s firsthand observations of even greater importance. In this
situation, the 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,’” and we have stated that “in the absence of
exceptional circumstances, we would defer to [the trial court].”
Id. at 477, 128 S. Ct. at 1208 (internal citations omitted).
[16] Despite the deference given to trial courts, the Supreme Court noted that “the
record [did] not show that the trial judge actually made a determination
concerning [the juror’s] demeanor.” Id. at 479, 128 S. Ct. at 1209.
Rather than making a specific finding on the record concerning
[the juror’s] demeanor, the trial judge simply allowed the
challenge without explanation. It is possible that the judge did
not have any impression one way or the other concerning [the
juror’s] demeanor. [The juror] was not challenged until the day
after he was questioned, and by that time dozens of other jurors
had been questioned. Thus, the trial judge may not have recalled
[the juror’s] demeanor. Or, the trial judge may have found it
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unnecessary to consider [the juror’s] demeanor, instead basing
his ruling completely on the second proffered justification for the
strike. For these reasons, we cannot presume that the trial judge
credited the prosecutor’s assertion that [the juror] was nervous.
Id., 128 S. Ct. at 1209.
[17] In addressing the second reason for the strike—the student teaching
obligations—the Court compared the juror’s situation to the situations of other
jurors that were not stricken and concluded that the second reason was
“pretextual” and gave “rise to an inference of discriminatory intent.” Id. at 485,
128 S. Ct. at 1212. The Court then held:
[I]n light of the circumstances here—including absence of
anything in the record showing that the trial judge credited the
claim that [the juror] was nervous, the prosecution’s description
of both of its proffered explanations as “main concern[s],” and
the adverse inference noted above—the record does not show
that the prosecution would have pre-emptively challenged [the
juror] based on his nervousness alone. Nor is there any realistic
possibility that this subtle question of causation could be
profitably explored further on remand at this late date, more than
a decade after petitioner’s trial.
Id. at 485-86, 128 S. Ct. at 1212 (internal citations omitted). Consequently, the
Court reversed the defendant’s conviction.
[18] Following Snyder, the federal circuit courts are split regarding whether
credibility findings by the trial court are required on the record. See Morgan v.
City of Chicago, 822 F.3d 317, 330 n.30 (7th Cir. 2016). The Seventh Circuit has
held: “When the stated basis for a strike is predicated on subjective evidence
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like the juror’s demeanor, we typically have held that a trial court clearly errs by
neglecting to state expressly its credibility findings on the record.” Id. at 329.
[19] Our supreme court also relied on Snyder when it decided Addison, 962 N.E.2d
1202. In addressing the third step of the Batson analysis and whether findings
were necessary, the court noted:
[I]t is not at all clear that the trial court properly discharged its
third-stage duty of determining whether Addison had shown
purposeful discrimination. For example the trial court did not
indicate whether or why it found the State’s proffered
explanation credible. Although at least one federal circuit court
has declared “federal law has never required explicit fact-findings
following a Batson challenge, especially where a prima facie case
is acknowledged and the prosecution presents specific
nondiscriminatory reasons on the record,” Stenhouse v. Hobbs, 631
F.3d 888, 893 (8th Cir. 2011) (quoting Smulls v. Roper, 535 F.3d
853, 860 (8th Cir. 2008) (en banc)), nonetheless by simply
declaring, without more, that the State “articulated race neutral
reasons for striking all three jurors,” Tr. at 93-94, the trial court
appears to have combined stages two and three of the Batson
inquiry. This was incorrect. “The analytical structure
established by Batson cannot operate properly if the second and
third steps are conflated.” United States v. Rutledge, 648 F.3d 555,
559 (7th Cir. 2011) (remanding cause to the trial court for an
explicit step-three credibility finding to support its decision
denying a Batson challenge).
Addison, 962 N.E.2d at 1210. Ultimately, our supreme court determined: “The
State’s mischaracterization of Turner’s voir dire testimony, its failure to engage
Turner in any meaningful voir dire examination to explore his alleged undue
reliance on the testimony of professionals, and the comparative juror analysis,
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when taken collectively, leave us with the firm impression that the State’s
proffered explanation for striking venireperson Turner was a mere pretext based
on race, making a fair trial impossible.” Id. at 1217. The court reversed and
remanded for a new trial based on the Batson violation.
[20] Then, in Blackmon v. State, 47 N.E.3d 1225 (Ind. Ct. App. 2015), this court held,
relying on Addison and Snyder, that “a trial court is not required to make explicit
fact-findings following a Batson challenge.” Blackmon, 47 N.E.3d at 1233. We
distinguished Snyder because of the short amount of time between the challenge
and the questioning of the juror and the trial court’s ability to remember the
juror’s demeanor. We assumed that the trial court listened to and considered
the parties’ arguments and held that “[t]he 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.” Id. at
1234. Consequently, we concluded that the trial court did not err by denying
the defendant’s Batson challenge.
[21] Although Indiana courts have not specifically required credibility findings in all
Batson challenges involving demeanor-based reasons, we are left here with little
ability to review the trial court’s decision without such findings. Although the
State professed two reasons for striking Juror Wilson, we have concluded that
one of the reasons was not supported by the record, leaving only the demeanor-
based reason for Juror Wilson’s dismissal. It is impossible for us to determine
which reason the trial court used to deny the Batson challenge or if it found both
reasons persuasive. As in Snyder, we cannot presume that the trial court
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“credited the prosecutor’s assertion” that Juror Wilson’s body language was
inappropriate. Snyder, 552 U.S. at 479, 128 S. Ct. at 1209. Recognizing the
difficulty in exploring the credibility of the State’s demeanor-based explanation
long after a trial, the United States Supreme Court reversed in Snyder. Here,
however, less than one year has passed since the trial as compared to the decade
that had passed in Snyder. The Seventh Circuit has resolved such situations
where there is “an evidentiary gap at step three” by “remanding the case to
‘find out what the district court perceived.’” Morgan, 822 F.3d at 331 (quoting
Rutledge, 648 F.3d at 560). Although we recognize the difficulty, and perhaps
impossibility, of a trial court recalling a prospective juror’s demeanor months
after the trial, given our deference to the trial court in such matters, we believe
this course should be our first step. If, of course, the trial court is unable to
recall the prospective juror’s demeanor and make a determination regarding the
credibility of the State’s reason for the strike, a new trial is required.
Conclusion
[22] We remand for the trial court to make findings regarding the State’s demeanor-
based reason for striking Juror Wilson. Remanded.
Kirsch, J., and Robb, J., concur.
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Eugene Roach v. State of Indiana
Combined Opinion