MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Mar 15 2018, 9:02 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Richard Walker Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darrin L. Burns, March 15, 2018
Appellant-Defendant, Court of Appeals Case No.
48A02-1705-CR-975
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable David A. Happe,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C04-1512-F3-2101
Brown, Judge.
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[1] Darrin L. Burns appeals his conviction for aggravated battery as a level 3
felony. Burns raises one issue which we restate as whether the trial court
properly denied his Batson challenge. We affirm.
Facts and Procedural History
[2] On November 3, 2015, Burns went to the VIP show club in Anderson, Indiana,
with Tyrone Howard and Marquis Kelley. James Deane was also at the club
that night with Joe Dill to play pool. Deane placed quarters down on Burns’s
pool table and watched women dance. At some point, Deane and Howard had
an altercation, Burns punched Deane, and Deane fell backwards and hit the
pool table on the way down. At 11:35 p.m., an ambulance was dispatched to
the club because Deane was unconscious and not breathing. When Deane
arrived at the hospital, Dr. David Soper ordered a CT scan that revealed blood
in the left temporal area. Deane remained in the hospital for a little over thirty
days. Dr. James Callahan, the neurosurgeon who treated Deane, diagnosed
him with a subdural hematoma, or a blood clot underneath the skull and the
brain’s covering that pushes on the outside of the brain.
[3] As a result of the events at the club, the State charged Burns with aggravated
battery as a level 3 felony. During voir dire, the prosecutor questioned potential
jurors and stated:
sometimes there’s somethings [sic] that, you know, that the
police, they do everything that they can, they investigate a case,
we investigate a case, you know, and it goes to trial, we prosecute
it, and you’re firmly convinced, you know, you say I’m firmly
convinced, I know that it happened, but they say well, you know,
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I had a question about this, and I call this like the “what if”
question. Does anybody know a what-iffer? Every [sic] meet a
what-iffer? They can what-if something to death, you know? But
at the end of the day, you know, they have everything they need
to make a decision, right? But they’re still asking other questions
and they might be fair questions but they may not be necessary
questions, right?
Transcript Volume 2 at 125. The following exchange occurred between the
prosecutor and Potential Juror 14:
[Prosecutor]: Okay. We had a lot of discussion about the proof
beyond a reasonable doubt. Were you able to hear that okay?
Describe that for me real quick.
[Potential Juror 14]: (Indiscernible)
[Prosecutor]: Okay. And at the end of the day - We talked that
sometimes you might have some questions left over, right, there
might be some questions?
[Potential Juror 14]: Yes.
[Prosecutor]: But what do you have to - How convinced, I guess,
do you have to be? Did you hear what we were talking about?
[Potential Juror 14]: (Indiscernible)
[Prosecutor]: Can you explain that, flush that out a little bit more
for me?
[Potential Juror 14]: (Indiscernible)
[Prosecutor]: So at the end of the day you need to be firmly
convinced?
[Potential Juror 14]: Comfortable.
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[Prosecutor]: Comfortable, yeah. I mean we want you to walk
out of here feeling like you made the right decision.
[Potential Juror 14]: Right.
[Prosecutor]: But if you have some questions at the end, and
you’ve listened to all the evidence, but you’re firmly convinced
that it happened, that this really happened, would you still be
able to make a decision?
[Potential Juror 14]: One way or the other.
[Prosecutor]: Yeah, one way or - But I mean if you’re firmly
convinced that it happened, right? If you believe that it happened
would you be able to find someone guilty?
[Potential Juror 14]: Yes.
[Prosecutor]: Okay. And even if you have a few questions, you
know, would you - Are you someone that’s kind of a what-iffer?
Like you would what-if something?
[Potential Juror 14]: Yes.
[Prosecutor]: Okay. Tell me a little about that.
[Potential Juror 14]: Well if you have doubts I think the main
thing would be to ask a question. (Indiscernible)
Id. at 245-247. The prosecutor pointed out to Potential Juror 14 that he did not
answer the question on the jury questionnaire about whether “religious scruples
or anything” would keep the juror from being able to decide the defendant’s
guilt. Id. at 248. Potential Juror 14 stated that he thought he could make the
decision to find someone guilty if, “like [he] said,” he “got enough evidence to
ease [his] mind.” Id. at 248.
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[4] When the State exercised a peremptory strike, counsel for Burns made a Batson
record, and stated that Potential Juror 14 was the only African-American on the
jury panel, that Burns was an African-American, and that the State had no
response from Potential Juror 14 that reflected that he could not be fair. The
prosecutor responded by stating:
When asked if he was a what-if person he said yes and when I
asked him about, um, what that meant, um, what it boiled down
to, um, him making a decision and he had, um, and I think the
court can note, that he took longer, he didn’t answer right away.
There was a pause on whether he could ultimately make a
decision on the case. So a combination of both those things, that
he answered yes, that he was a what-if person and that he
hesitated when asked if he can make a decision in the case.
Transcript Volume 3 at 3. Burns’s counsel raised concerns that Potential Juror
14 had not given any indication of bias for Burns, to which the prosecutor
stated that he “also asked him very clearly if he was able to hear the
conversation that had been happening prior to this and he said yes,” that “the
conversation prior to this contained many questions of the jurors about what-
ifs,” and that Potential Juror 14 “knew what that meant.” Id.
[5] The court denied the Batson challenge and stated:
Of course the standard (indiscernible) the court uses at this point
is not whether or not there’s a cause challenge. If there’s a
reasonable independent reason that could justify the State’s
decision and if there is a facially neutral reason then the court is
to accept that, not (indiscernible) find out whether it’s — it’s not
to go further (indiscernible). If they can come up with a facially
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valid reason that seems to be supported by the record, that is
sufficient. And I do think that in this case the juror was certainly
very hesitant in his responses and did characterize himself as,
using the words of the State, a what-iffer. He did qualify that
somewhat in discussion later about that but I think the State is
entitled to look at that and say this is a person who seems to be
someone less than decisive and less than committed to the
principal [sic] of listening to the facts of the record alone and not
speculate beyond that. So I am going to allow the State the
peremptory challenge on that and I’m gonna overrule the Batson
objection.
Id. at 4.
[6] The jury found Burns guilty as charged. The court sentenced Burns to nine
years with four years executed and five years suspended to probation.
Discussion
[7] The issue is whether the trial court properly denied Burns’s Batson challenge. In
Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717 (1986), the United
States Supreme Court held that “[p]urposeful 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 challenge. 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;
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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. 472, 476-477, 128 S. Ct. 1203, 1207 (2008)). 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)). “A step two explanation is considered race-neutral if, on its face,
it is based on something other than race.” Cartwright v. State, 962 N.E.2d 1217,
1220-1221 (Ind. 2012) (citing Forrest v. State, 757 N.E.2d 1003, 1004 (Ind. 2001)
(citing Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 1866 (1991)
(plurality opinion))). Although the burden of persuasion on a Batson challenge
rests with the party opposing the strike, “the third step—determination of
discrimination—is the duty of the trial judge.” Id. (internal quotation marks
omitted). The trial court evaluates the persuasiveness of the step two
justification at the third step. Id.
[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] Burns argues that the court erred by overruling his Batson objection to the
striking of Potential Juror 14 and contends that the prosecutor’s response and
explanation for the peremptory strike is characterized as a demeanor-based
explanation and that the court failed to make adequate credibility findings
regarding the explanation.
[9] The State argues that the prosecutor offered two race-neutral reasons for the
peremptory challenge and that the court explained why it found the
prosecutor’s assessment of Potential Juror 14’s demeanor to be credible and
why, based upon the responses to the prosecutor’s questions, it found Potential
Juror 14 to be less than decisive and less than committed to the principle of
listening to the facts on the record alone.
[10] Burns’s counsel made a Batson record and stated that Potential Juror 14 was the
only African-American on the jury panel and that Burns was an African-
American. Accordingly, the burden shifted to the State to offer a race-neutral
basis for striking Potential Juror 14. We note that “[u]nless a discriminatory
intent is inherent in the prosecutor’s explanation, the reason offered will be
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deemed race neutral. 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.’” Addison, 962 N.E.2d at 1209 (citation omitted). The record
indicates that the prosecutor explained that it was striking Potential Juror 14
because he answered affirmatively to being asked if he “was a what-if person”
and that there “was a pause on whether [Potential Juror 14] could ultimately
make a decision on the case.” Transcript Volume 3 at 3. This was a race-
neutral reason for the prosecutor’s peremptory challenge of Potential Juror 14.
[11] As for the third step of the Batson analysis, the trial court found the prosecutor’s
race-neutral reason credible and persuasive. Indeed, the court echoed the
concerns that Potential Juror 14 was “very hesitant in his responses” and that
he characterized “himself as, using the words of the State, a what-iffer,” before
noting that the State is entitled to look at potential jurors and determine they
are “someone less than decisive and less than committed to the principal [sic] of
listening to the facts of the record alone and not speculate beyond that.” Id. at
4. Based upon our review of the record, we cannot say under the circumstances
that the court’s ruling on Burns’s objection to the State’s peremptory challenge
was clearly erroneous.
Conclusion
[12] For the foregoing reasons, we affirm Burns’s conviction for aggravated battery
as a level 3 felony.
[13] Affirmed.
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Baker, J., and Riley, J., concur.
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