FILED
Jun 26 2019, 9:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. O’Connor Curtis T. Hill, Jr.
O’Connor & Auersch Attorney General
Indianapolis, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antonio R. Whitfield, June 26, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2428
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Stanley E. Kroh,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
49G03-1802-F5-5109
Crone, Judge.
Case Summary
[1] Antonio R. Whitfield appeals his conviction for level 5 felony burglary
following a jury trial. He contends that the trial court clearly erred in
determining that he failed to demonstrate that the State’s peremptory challenge
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to a venireperson was based on her race in violation of the Fourteenth
Amendment to the United States Constitution. Finding no error, we affirm.
Facts and Procedural History
[2] On February 10, 2018, around 5:00 a.m., David Marroquin heard a loud noise
outside his home and looked outside. He saw a man wearing what looked like
a ski mask entering the house under construction next door, and he called 911.
Police officers arrived at the house and discovered that the home’s rear screen
door was cut and partially opened, the doorframe was damaged, and the
interior door was partially opened. Police and a canine unit entered the house
and announced their presence with no response. They found some boxes near
the back door, a crowbar near the stairs, and Whitfield in the exposed rafters of
the second floor.
[3] Police arrested Whitfield and requested that the construction superintendent
report to the house. When he arrived, he told police that he was the only
person with a key to the house and that he had locked up the house the
previous evening around 6:00 p.m. When he locked up, the screen door had
been intact, and the door frame had been undamaged. He also stated that there
had been three unopened boxes of mosaic title, worth $500 to $600, by the front
door, but those boxes were now by the back door and one box had been
partially opened. Finally, he said that there had not been a crowbar in the
house.
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[4] In February 2018, the State charged Whitfield with level 5 felony burglary, level
6 felony theft, and class B misdemeanor criminal mischief. The State later
moved to dismiss the theft charge, which the trial court granted. In addition,
the State amended the charging information to include a habitual offender
enhancement.
[5] On August 23, 2018, Whitfield’s jury trial commenced. During jury selection,
fourteen members of the jury pool were empaneled for questioning. L.M. was
the sole African American on the panel. On her juror questionnaire, L.M.
wrote that she was “[n]ot sure” that she could be a fair and impartial juror in a
criminal trial and explained that she had “a low expectation of minorities
receiving justice in [the] American Court System.” Appellant’s Supp. App.
Vol. 2 at 3. She also wrote that she had family members who had been arrested
for or charged with a crime. During voir dire, the trial court asked L.M. about
the juror questionnaire and whether she believed that minorities were not
always treated fairly by the system, and she answered, “Yes.” Tr. Vol. 2 at 37.
The prosecutor asked L.M. whether she could be fair and impartial today, and
she said, “Yes.” Id. The prosecutor also asked her whether, if the State
presented evidence that firmly convinced her of the defendant’s guilt, she would
be able to find the defendant guilty, and she responded affirmatively. Id.
During defense counsel’s voir dire, L.M. indicated that she wanted to ask a
question about the meaning of reasonable doubt. Id. at 40-41. She asked
whether reasonable doubt meant that “there’s no doubt that somebody else had
the same opportunity to commit the crime that the person is accused of.” Id. at
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41. Defense counsel explained that “if you have reasonable doubt remaining
that this person could not have done the thing then you have to – you’re
obligated to find him not guilty.” Id. However, L.M. indicated that defense
counsel had not answered her question. Id. Defense counsel later re-
questioned L.M. about the meaning of reasonable doubt. After some
discussion, she eventually said, “I guess if they can prove beyond a reasonable
doubt that this person did this, then, yes – … – I’d find him guilty.” Id. at 53-54
(defense counsel’s one-word interruption omitted).
[6] During the first round of strikes, the State sought to peremptorily strike L.M.
Id. at 55. Whitfield raised a Batson claim;1 that is, he objected that the
prosecution was using a peremptory strike to remove L.M. on account of her
race in violation of the Equal Protection Clause of the United States
Constitution. Id. The trial court stated that a prima facie showing of racial
discrimination had been made given that L.M. was the only minority on the
fourteen-person panel. The trial court then asked the State whether it wanted to
make a record of its reasons for its peremptory strike of L.M. In support of the
strike, the prosecutor said that there were “a handful or reasons”: (1) L.M.
wrote on her juror questionnaire that “basically she couldn’t be fair and
impartial” and had “a low expectation of minorities receiving justice in the
court system[,]” which evidenced a bias against the State; (2) she also wrote
that she had family members who had been arrested for or charged with a
1
Batson v. Kentucky, 476 U.S. 79 (1986).
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crime; (3) during voir dire, L.M. seemed “unclear on her ability to be fair and
impartial and seemed to waiver [sic] significantly about whether she could find
guilt even if the elements were proven beyond a reasonable doubt”; (4) based on
her interaction with the prosecutor, she did not seem to want to be in court; (5)
she did not seem to be interactive with the prosecutor and was more interactive
with defense counsel; and (6) the prosecutor “didn’t get a good vibe from her
based on what she was saying.” Id. at 55-57.
[7] The trial court then asked whether defense counsel would like to respond.
Whitfield’s counsel argued that it was unfair to strike black persons for thinking
that the court system was unfair because they have a good reason to think that
the system is unfair, and if such a reason was accepted, then black jurors would
be disproportionately struck. Id. at 57. Defense counsel also argued that
L.M.’s body language was no different than that of a white venireperson, and in
defense counsel’s opinion, neither venireperson demonstrated an unwillingness
to be in court. Id. at 57-58. Further, defense counsel noted that L.M. answered
that she could be impartial and render a guilty verdict if the State met its burden
of proof. Id. at 58.
[8] The trial court concluded,
The prima facia [sic] finding has been made due to this juror
being the only minority in this group of 14, so that’s been met.
The believes– and the Court’s heard the State’s reasons for them
– for their exercise of the preemptory [sic] and also considered
your response and the Court finds that the State did not
improperly exercise the preemptory [sic] strike due to the reasons
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that they gave. I – because of the reasons the State has given, I
didn’t see this as a pretext, or a striking of a juror solely because
of her race. And the Court does find that the State’s properly
exercised it’s [sic] preemptory [sic] strike.
….
The Court heard the State give reasons other than that
expectation of minorities receiving justice in the court system.
The comments that [the prosecutor] made regarding his
interactions with the juror – prospective juror and the other
comments that [the prosecutor] gave, the Court doesn’t see it as
only that issue of the juror[’]s expression of the answer on
paragraph one on the second page of the questionnaire, so it just
doesn’t appear to the Court that the State has unfairly abused or
illegally used their preemptory [sic], given the other reason that
they gave.
Id. at 58-59. Before moving on to other matters, the prosecutor pointed out that
there were other minority members in the gallery who had indicated that they
could be fair and impartial on their questionnaire. The trial court dismissed
L.M., and the trial proceeded. In its final form, the jury included a member of a
minority group.
[9] The jury found Whitfield guilty of burglary and criminal mischief, and he pled
guilty to being a habitual offender. At sentencing, the trial court vacated the
criminal mischief conviction based on double jeopardy considerations. The
trial court sentenced Whitfield to three years for the burglary conviction and
three years for the habitual offender enhancement. This appeal ensued.
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Discussion and Decision
[10] Whitfield argues that the trial court erred in concluding that the State, in
seeking to strike L.M., was not purposefully discriminating against her based on
her race. “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 (1986).2
“The exclusion of even a sole prospective juror based on race, ethnicity, or
gender violates the Fourteenth Amendment’s Equal Protection Clause.”
Addison v. State, 962 N.E.2d 1202, 1208 (Ind. 2012).
[11] “‘Upon appellate review, a trial court’s decision concerning whether a
peremptory challenge is discriminatory is given great deference, and will be set
aside only if found to be clearly erroneous.’” Cartwright v. State, 962 N.E.2d
1217, 1221 (Ind. 2012) (quoting Forrest v. State, 757 N.E.2d 1003, 1004 (Ind.
2001)); see also Jeter v. State, 888 N.E.2d 1257, 1265 (Ind. 2008) (“On appeal, a
trial court’s ruling on the issue of discriminatory intent must be sustained unless
it is clearly erroneous.”) (citing Snyder v. Louisiana, 552 U.S. 472, 478 (2008)).
“The trial court’s conclusion that the prosecutor’s reasons were not pretextual is
essentially a finding of fact that turns substantially on credibility. It is therefore
accorded great deference.” Highler v. State, 854 N.E.2d 823, 828 (Ind. 2006).
2
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 v. Bowers, 753 N.E.2d 662, 666-67 (Ind. 2001).
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[12] “Pursuant to Batson and its progeny, a trial court must engage in a three-step
process in evaluating a claim that a peremptory challenge was based on race.”
Cartwright, 962 N.E.2d at 1220. 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. 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.’” Id. at 1209
(quoting Snyder, 552 U.S. at 477). “A race-neutral explanation means ‘an
explanation based on something other than the race of the juror.’” Highler, 854
N.E.2d at 827 (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 v. Elem, 514 U.S. 765, 768 (1995)). “[T]he issue is the facial
validity of the prosecutor’s explanation.” McCormick v. State, 803 N.E.2d 1108,
1111 (Ind. 2004) (quoting Purkett, 514 U.S. at 768).
[13] Even if the State’s reasons appear on their face to be race-neutral, at the third
step, the trial court must perform the essential task of assessing whether the
State’s facially race-neutral reasons are credible. Addison, 962 N.E.2d at 1209.
The second and third steps must not be conflated. See id. at 1210 (“The
analytical structure established by Batson cannot operate properly if the second
and third steps are conflated.”) (quoting United States v. Rutledge, 648 F.3d 555,
559 (7th Cir. 2011)). In determining whether the State’s explanation for the
strike is credible and not a pretext for discriminatory intent, the trial court must
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consider the State’s explanation “in light of all evidence with a bearing on it.”
Id. (quoting Miller-El v. Dretke, 545 U.S. 231, 251-52 (2005)); see also Snyder, 552
U.S. at 478 (“[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.”). Although this third step requires the trial
court to evaluate “the persuasiveness of the justification” proffered by the
prosecutor, “the ultimate burden of persuasion regarding racial motivation rests
with, and never shifts from, the opponent of the strike.” Highler, 854 N.E.2d at
828 (quoting Purkett, 514 U.S. at 768). At this stage, the defendant may offer
additional evidence to demonstrate that the prosecutor’s reasons are pretextual.
Addison, 962 N.E.2d at 1210. Then, “in light of the parties’ submissions, the
trial court must determine whether the defendant has shown purposeful
discrimination.” Id. at 1209 (quoting Snyder, 552 U.S. at 477).
[14] Here, Whitfield argues that the trial court committed clear error at the third step
by failing to explicitly credit the State’s demeanor-based reasons.3 The State
justified its strike, in part, by explaining that L.M. did not seem to want to be in
court, was not interactive with the prosecutor, and was more interactive with
defense counsel. Defense counsel disputed the prosecutor’s description of
L.M.’s demeanor and argued that L.M. exhibited the same behavior as a white
3
The parties do not dispute that the first two steps of the Batson inquiry are satisfied. We also note that
“where … 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, 962
N.E.2d at 1222; accord Addison, 962 N.E.2d at 1209 n.2.
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venireperson. Whitfield is correct that “[i]f a prosecutor’s proffered reason for
striking a black panelist applies just as well to an otherwise-similar nonblack
who is permitted to serve, that is evidence tending to prove purposeful
discrimination to be considered at Batson’s third step.” Id. at 1210 (quoting
Miller-El, 545 U.S. at 241). Also, if a prosecutor mischaracterized a
venireperson’s demeanor in justifying a peremptory strike, then that would
arguably be evidence that the State’s demeanor-based reason was a pretext for
purposeful discrimination. See Roach v. State, 79 N.E.3d 925, 929 (Ind. Ct. App.
2017) (“[M]ischaracterization of [the juror’s] voir dire testimony is troubling
and undermines the State’s proffered race-neutral reason for the strike.”)
(quoting Addison, 962 N.E.2d at 1215).
[15] Although defense counsel challenged the State’s demeanor-based justifications,
the trial court did not indicate that it found the State’s demeanor-based reasons
credible. Rather, the trial court provided a more general ruling that “because of
the reasons the State [had] given,” the State was not “striking [L.M.] solely
because of her race.” Tr. Vol. 2 at 58. Whitfield asserts that “without a finding
by the trial court regarding the juror’s demeanor, this court cannot conclude
that the State’s interpretation of L.M.’s demeanor was accurate.” Appellant’s
Br. at 18.
[16] Our supreme court has not held that a trial court is required to make explicit
factual findings when ruling on a Batson challenge. See Cartwright, 962 N.E.2d
at 1222 (rejecting defendant’s contention that trial court must explicitly state
reasons for deciding a Batson challenge and noting that at least one federal
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circuit court has declared that federal law has never required explicit fact-
findings) (citing Stenhouse v. Hobbs, 631 F.3d 888, 893 (8th Cir. 2011)), cert.
denied; Addison, 962 N.E.2d at 1210 (also citing Stenhouse, 631 F.3d at 893); see
also Richardson v. State, No. 18A-CR-2263, 2019 WL 1721720, at *4 (Ind. Ct.
App. Apr. 18, 2019) (noting that trial court not required to make factual
findings to support its determination), trans. denied. However, demeanor-based
reasons have at least two unique qualities that would make factual findings
particularly helpful to appellate review. First, the trial court’s role in assessing
demeanor-based reasons is especially valuable. As the United States Supreme
Court has noted,
Race-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.”
Snyder, 522 U.S. at 477 (quoting Hernandez, 500 U.S. at 365).
[17] Second, appellate review is based on a cold transcript, which cannot provide a
complete picture of a juror’s demeanor. Because of these qualities,
circumstances which necessitate factual findings for adequate appellate review
are likely to arise. For example, in Roach, 79 N.E.3d 925, another panel of this
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Court remanded for the trial court to make findings regarding the prosecutor’s
demeanor-based reason for striking a potential juror. In that case, the
prosecutor sought to strike the only African-American male in the venire based
on his body language and because the juror stated that he would not stop if a
police officer asked him to stop. The trial court ruled, “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 929. On
appeal, the Roach court found that the record did not support the prosecutor’s
characterization of the juror’s voir dire testimony. Id. Because the non-
demeanor-based reason was not supported by the record and the trial court
made no findings as to whether it found the demeanor-based reason credible,
the Roach court found it “impossible for us to determine which reason the trial
court used to deny the Batson challenge or if it found both reasons persuasive.”
Id. at 931. The Roach court acknowledged that Indiana courts had not
specifically required findings, but noted that the federal circuit courts are split
regarding whether credibility findings by the trial court are required on the
record. Id. at 930 (citing Morgan v. City of Chicago, 822 F.3d 317, 330 n.30 (7th
Cir. 2016)).4 The Roach court noted that less than one year had passed since
trial and therefore remanded for the trial court to make findings regarding the
State’s demeanor-based reason. Id. at 932; cf. Killebrew v. State, 925 N.E.2d 399,
4
“The Seventh Circuit has held: ‘When the stated basis for a strike is predicated on subjective evidence 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.’” Roach, 79 N.E.3d at 930 (quoting Morgan, 822 F.3d at 329).
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403 (Ind. Ct. App. 2010) (reversing and remanding for new trial where trial
court made no express finding that State’s demeanor-based reason was credible
and other reason applied equally to two other white venirepersons who were
not struck), trans. denied.
[18] Here, in addition to the demeanor-based reasons, the State provided other
reasons for the strike. The State explained that L.M. did not indicate on her
questionnaire that she could be fair and impartial, she had family members who
had been arrested for or charged with a crime, and based on her statements
during voir dire, she seemed unclear on her ability to be fair and impartial and
whether she could find guilt even if the elements of the crime where proven
beyond a reasonable doubt. Whitfield does not argue that the other reasons are
unsupported by the record or pretexts for purposeful discrimination.5 Indeed, in
Highler, 854 N.E.2d at 827, our supreme court concluded that the State’s
reasons for striking an African-American venireperson, one of which was that
the venireperson’s statements in his questionnaire and during voir dire raised
questions about his ability to be fair and impartial to the State, were race-
5
Whitfield briefly argues,
Another of the State’s proffered reasons for striking L.M. is that she reported having a low
expectation of minorities receiving fair treatment in the criminal justice system. But, as the
defense pointed out, allowing such a strike would likely affect a large swath of minority
populations and would result in disproportionally striking minority jurors. Indeed, only by
members of minority groups serving on juries can that perception be mollified.
Appellant’s Br. at 18. That is the entirety of his argument, and his failure to cite any authority for it waives
the issue for our review. See Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005) (“[A] party waives
any issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to
authority and portions of the record.”), trans. denied; Ind. Appellate Rule 46(A)(8) (stating that appellant’s
brief must contain contentions on issues presented and that each contention must be supported by cogent
reasoning and citations to authorities and statutes relied on).
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neutral, and the court upheld the trial court’s determination that the reasons
were not pretexts for purposeful discrimination. In addition, our supreme court
has concluded that the trial court did not err in determining that the State’s
peremptory strike was not racially motivated where the prosecutor’s concern
that the venireperson would sympathize with the defendant as a result of that
person’s past experience was race-neutral and fully supported by the record.
Wright v. State, 690 N.E.2d 1098, 1105 (Ind. 1997). And, our supreme court has
held that a peremptory strike based on the criminal conviction of the
venireperson’s family member did not violate Batson. Nicks v. State, 598 N.E.2d
520, 523 (Ind. 1992); see also Douglas v. State, 636 N.E.2d 197, 199 (Ind. Ct.
App. 1994) (“[T]he exercise of a peremptory challenge is not violative of Batson
where the challenged individual or family member has had previous
involvement with the criminal justice system.”).
[19] Thus, even if we decline to place any weight on the prosecutor’s demeanor-
based reasons because the trial court did not explicitly find them to be credible,
the prosecutor’s other proffered reasons provide a sound basis to affirm the trial
court’s determination that the strike was not motivated by a discriminatory
purpose. Although we are able to affirm in this case without explicit findings,
making such findings is clearly the better practice. In cases where the State
seeks to strike a potential juror based on the juror’s demeanor and the defense
disputes the State’s description of the juror’s demeanor, we encourage the trial
court to make factual findings regarding its observations of the juror’s
demeanor when ruling on a Batson challenge.
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[20] Based on the foregoing, we affirm Whitfield’s conviction.
[21] Affirmed.
Bradford, J., and Tavitas, J., concur.
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