Cartwright v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Gregory F. Zoeller
Evansville, Indiana Attorney General of Indiana

Gary R. Rom
Deputy Attorney General
Indianapolis, Indiana

______________________________________________________________________________

In the FILED
Feb 22 2012, 11:12 am

Indiana Supreme Court CLERK
_________________________________ of the supreme court,
court of appeals and
tax court

No. 82S01-1109-CR-564

JERRME CARTWRIGHT,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________

Appeal from the Vanderburgh Circuit Court, No. 82C01-0812-FA-1396
The Honorable Carl A. Heldt, Judge
The Honorable Kelli E. Fink, Magistrate
_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 82A01-1005-CR-214
_________________________________

February 22, 2012

Rucker, Justice.
 Jerrme Cartwright was convicted of attempted battery and unlawful possession of a
firearm by a serious violent felon. In a divided opinion, the Court of Appeals reversed and
remanded for new trial. We granted transfer and now affirm the judgment of the trial court.

Facts and Procedural History

On the night of December 27, 2008, Jerrme Cartwright (“Cartwright”) was involved in a
fight at the American Legion in Evansville (the “Legion”). The fight apparently resulted in
injury to Legion patrons Tiffany Boyd (“Tiffany”) and Jamar Boyd (“Jamar”). After the fight,
Tiffany and Jamar drove to the nearby home of Linda Beattie (“Linda”) and parked outside.
Linda and her sister Shaudarekkia Bailey (“Shaudarekkia”), who had been present at the Legion
during the fight, also left and drove to Linda‟s house. Tiffany was outside her vehicle and
Shaudarekkia was inside her vehicle in front of Linda‟s house when Cartwright approached,
holding a gun. Cartwright pointed the gun in the direction of Tiffany and began shooting, fired
into the crowd that had gathered, and then pointed the gun and shot at Shaudarekkia. Police then
drove down the street, observed Cartwright firing into the crowd, and ordered him to drop his
weapon. Cartwright then fired at the two officers. Cartwright fled toward a local community
center but was later apprehended. A shirt containing DNA consistent with that of Cartwright, as
well as the gun which had fired the earlier shots, were subsequently found near the community
center.

The State charged Cartwright with four counts of Class A felony attempted murder, two
counts of Class B felony unlawful possession of a firearm by a serious violent felon, two counts
of Class B felony robbery, one count of Class A felony burglary, two counts of Class B felony
criminal confinement, one count of Class C felony battery, one count of Class D felony pointing
a firearm, and one count of Class D felony auto theft.

During jury selection, several members of the venire were stricken for cause and
peremptorily. Notably for our purposes, the State peremptorily struck the sole African American
venireperson, Ronald Bard. Cartwright immediately objected, asserting that the strike violated
his equal protection rights as elucidated in Batson v. Kentucky, 476 U.S. 79, 86 (1986). The trial
court allowed Cartwright to make extensive argument in support of his Batson claim and

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permitted the State to provide justification for the strike of Bard. Tr. at 143-50. The court
declined to find a prima facie case of discrimination but stated that the State provided “race
neutral reasons on the record, and for that reason I deny your Batson challenge.” Tr. at 151.

At a trial on only the attempted murder and unlawful possession of a firearm counts,
which had been bifurcated from the other charges for trial, a jury found Cartwright guilty of two
counts of Class C felony attempted battery with a deadly weapon and two counts of Class B
felony attempted aggravated battery, all lesser included offenses of attempted murder.
Cartwright was also convicted of Class B felony unlawful possession of a firearm by a serious
violent felon. The trial court sentenced Cartwright to an aggregate term of twenty-six years.

Cartwright appealed, raising two issues: (1) whether the trial court improperly denied his
Batson challenge to the State‟s peremptory strike of the sole African American prospective juror,
and (2) whether there was sufficient evidence to support his convictions for attempted battery
with a deadly weapon. In a divided opinion, the Court of Appeals reversed. Cartwright v. State,
950 N.E.2d 807 (Ind. Ct. App. 2011). The majority held that the State‟s proffered explanations
for its peremptory strike were pretextual resulting in purposeful discrimination in the selection of
the jury, in violation of the Equal Protection Clause of the United States Constitution as
explained in Batson. Judge Vaidik dissented, concluding that the State‟s justifications for the
strike were supported by the record and that the trial court had not erred in allowing the strike.
Cartwright, 950 N.E.2d at 816 (Vaidik, J., dissenting). The panel agreed that there was sufficient
evidence to support the attempted battery convictions. The State sought and we granted transfer,
thereby vacating the Court of Appeals‟ opinion, see Ind. Appellate Rule 58(A). We now affirm
the judgment of the trial court with respect to Cartwright‟s Batson claim. We summarily affirm
that portion of the Court of Appeals opinion concerning Cartwright‟s sufficiency claim.
Additional facts will be provided below as necessary.

Standard of Review

As we note today in Addison v. State, “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. The exclusion of even a sole prospective juror based on

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race, ethnicity, or gender violates the Fourteenth Amendment‟s Equal Protection Clause.” No.
49S05-1105-CR-267 (Ind. Feb. 22, 2012), slip op. at 6 (citing Batson v. Kentucky, 476 U.S. 79,
86 (1986); Snyder v. Louisiana, 552 U.S. 472, 478 (2008)) (internal quotation marks omitted).

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. “First, a defendant must make
a prima facie showing that a peremptory challenge has been excercised 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.” Snyder, 552 U.S. at
476-77 (quoting Miller-El v. Dretke, 545 U.S. 231, 277 (2005)). Accord Jeter v. State, 888
N.E.2d 1257, 1263 (Ind. 2008). A step two explanation is considered race-neutral if, on its face,
it is based on something other than race. Forrest v. State, 757 N.E.2d 1003, 1004 (Ind. 2001)
(citing Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion)). Although the
burden of persuasion on a Batson challenge rests with the party opposing the strike, Jeter, 888
N.E.2d at 1264-65, the third step – determination of discrimination – is the “duty” of the trial
judge. See Miller-El, 545 U.S. at 239; Jeter, 888 N.E.2d at 1264. The trial court evaluates the
persuasiveness of the step two justification at the third step. It is then that “implausible or
fantastic justifications may (and probably will) be found to be pretexts for purposeful
discrimination.” Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam). Also, at the third
stage, the defendant may offer additional evidence to demonstrate that the proffered justification
was pretextual.

“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.” Forrest, 757 N.E.2d at 1004. Accord Miller-El v. Cockrell, 537 U.S. 322,
340 (2003) (“„[T]he trial court‟s decision on the ultimate question of discriminatory intent
represents a finding of fact of the sort accorded great deference on appeal‟ and will not be
overturned unless clearly erroneous.” (quoting Hernandez, 500 U.S. at 364)). And under certain
circumstances, which are not present here, we may review a Batson claim under the more
rigorous standard of fundamental error. See, e.g., Addison, slip op. at 12.

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 Discussion

In this case the State offered, concurrently with its strike of venireperson Bard, reasons
for the strike:

For the record I put a preempt on Bard for the reasons that he has
indicated that he does not wish to serve. He has health issues. He
says he has trouble listening, and he mentioned on his prior
convictions that a family member had been convicted of
conversion, and his potential knowledge of witnesses.

Tr. at 140. Cartwright then stated “Well, I object under Batson. . . . [f]or the record, Mr. Bard is
the only black man in the jury box, an[d] the entire venire.” Tr. at 140. The trial court then
stated:
All right, and for purposes of the record under Batson [v.]
Kentucky, the Court does not find a prima fa[cie] case of
discrimination at this time, but despite that, the State has given
their . . . reasons . . . . so I don‟t find a pattern at this time.
However, the State has on record indicated what their reasons are.

Tr. at 141. Then, after a discussion with the court reporter as to whether she was able to hear and
record the Batson exchange that took place at the bench, the trial court excused the jurors from
the courtroom and held a separate Batson hearing on the strike of venireperson Bard. See Tr. at
143. During the hearing, Cartwright argued that under Batson he “is allowed to have Mr. Bard
as a juror in this case. . . . [because] he is the only black man in the venire, and [Cartwright] is a
black man.” Tr. at 144. This was the extent of Cartwright‟s Batson argument before the trial
court.1 The State again gave its race-neutral reasons, the only difference being that it did not
reiterate the reason related to Bard‟s potential knowledge of witnesses. See Tr. at 149-50. The
trial court then declined to find a prima facie case of discrimination, but noted that “the State
wanted to give their race neutral reasons anyway, they have made those race neutral reasons on
the record, and for that reason I deny your Batson challenge.” Tr. at 151.

The trial court incorrectly found no prima facie case of discrimination under the
circumstances present here. Our cases are clear that “the removal of „the only . . . African

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Cartwright further argued that the exclusion of Bard violated his right to have a fair cross section of the
community represented in the venire. Tr. at 144-46. Cartwright did not raise this claim on appeal.

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American juror that could have served on the petit jury‟” is sufficient to establish a prima facie
case under Batson. Addison, slip op. at 6 (quoting McCormick v. State, 803 N.E.2d 1108, 1111
(Ind. 2004)). But as the Court of Appeals correctly observed, “where, 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, 950 N.E.2d at 811. Accord Hernandez, 500 U.S. at 359 (recognizing that in the
Batson context, “where the defendant has done everything that would be required of him if the
plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer
relevant” (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983)
(brackets omitted)).

On transfer Cartwright argues that the United States Supreme Court decision in Snyder
mandates the conclusion that the strike of Bard was racially motivated. Cartwright declares that
Snyder “held that under the third step of Batson, the trial court must thoroughly analyze the
State‟s proffered reasons for striking an African-American juror from the jury panel.” Def.‟s
Resp. to Trans. at 7. Cartwright urges that Snyder requires a trial court to explicitly state its
reasons for deciding a Batson challenge. We do not read Snyder so expansively. Although
Snyder recognized that the trial court ultimately must make the determination of discrimination,
and the Court in Snyder noted that there, the trial court did not provide reasons for its Batson
ruling, Snyder did not declare that trial courts must do so. Indeed in a recent post-Snyder
opinion, at least one federal circuit 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)).

In Snyder, the prosecution offered two reasons for its strike of African American
venireperson Brooks: (1) that he “looked very nervous” and (2) that he stated he was concerned
about taking time away from his student teaching obligation to sit on the jury. Snyder, 552 U.S.
at 478. The Supreme Court noted that the trial court judge had included no express finding as to
Brooks‟ demeanor – i.e., his nervousness – in the record. And because demeanor cannot be

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shown from a “cold record” without a specific finding by the trial court, the Court refused to
credit the prosecutor‟s demeanor-based reason for striking Brooks. Id. at 479.

The Court then examined the record for evidence supporting the strike of Brooks based
on his concern about missing his student teaching obligation, a requirement for his degree. In
essence, the Court found that Brooks had been rehabilitated on this issue because Brooks‟
purported concern appeared to have dissipated after the trial court spoke with his dean and
assured him that the jury service would not pose a problem. See id. at 482-83. The Court further
compared Brooks to similarly situated seated jurors and found that the State had accepted at least
two white jurors who had expressed similar concerns about having conflicting obligations. Id. at
483-84. In light of this, and because there was nothing in the record showing that the trial judge
credited the nervousness justification, the Court concluded that the defendant‟s Batson challenge
should have succeeded.

By contrast, in this case all of the State‟s proffered reasons for the strike of Bard were
race-neutral, and none were demeanor-based. After examining the record, as did the Supreme
Court in Snyder, we find no evidence of pretext in the State‟s strike of venireperson Bard. Bard
volunteered on voir dire examination that he did not wish to serve on the jury. Tr. at 126. He
stated that he was taking a diuretic which caused him “a frequent problem of going to the
restroom.” Tr. at 127, 31. He also stated, “I‟m not a good listener, but . . . but that‟s from all my
life even school.” Tr. at 127. And on his juror questionnaire, he responded “Yes conversion” to
the question “Have you or any of your immediate family members been charged with or
convicted of a crime.” Appellant‟s Appendix at 118.2 The prosecutor did not run afoul of
Batson for striking Bard based on these statements. See, e.g., Lee v. State, 689 N.E.2d 435, 441
(Ind. 1997) (recognizing as race-neutral the fact that venireperson‟s brother had been convicted
of a crime); Ross v. State, 665 N.E.2d 599, 602 (Ind. Ct. App. 1996) (agreeing that a
venireperson‟s medical problems and need to urinate frequently were race-neutral reasons);
Mitleider v. Hall, 391 F.3d 1039, 1049 (9th Cir. 2004) (finding prosecutor‟s perception that
venireperson did not want to serve on the jury was a race-neutral reason); United States v.

2
We are not presented with any juror questionnaires other than that of venireperson Bard. We therefore
cannot determine whether any other venirepersons having criminal convictions in their immediate
families were seated on the jury. The burden rests with Cartwright to demonstrate pretext.

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Casper, 956 F.2d 416, 419 (3d Cir. 1992) (noting that hearing problems constitute a race-neutral
reason). Moreover, it is clear from the record that non-African American venirepersons with
problems similar to Bard‟s were also dismissed from the jury. See, e.g., Tr. at 45, 80-81, 89
(dismissing for cause a venireperson who stated he “would rather not serve” and whose
medication caused him difficulty processing what he hears and sees); Tr. at 108, 121 (dismissing
on State‟s peremptory challenge a venireperson who indicated she had problems with urinary
frequency); Tr. at 127, 138, 139 (dismissing for cause a venireperson who stated she would
rather not serve on the jury and whose anxiety disorder caused her problems “listening and
processing information”).

Cartwright seems to argue that because the State failed to follow-up on these issues with
Bard, its reasons must be pretextual. See Def.‟s Resp. to Trans. at 10-11. While it is true that
failing to follow-up with a minority venireperson may be evidence of pretext where other similar
non-minority venirepersons were seated, see Addison, slip op. at 18, Cartwright points us to no
similar seated jurors, and we find none. Cartwright also argues that the State‟s reasons for
striking Bard must be pretextual because Bard “never indicated that he would be unwilling to
judge the case fairly and impartially.” Def.‟s Resp. to Trans. at 11. But Cartwright fails to
explain why Bard‟s assumed ability to judge the case fairly and impartially renders the State‟s
strike of him pretextual.

In sum, Cartwright essentially argues that the State failed to meet its burden to
demonstrate its strike of Bard was not motivated by discriminatory purpose. But the State had
no such burden under Batson. The State was only required to come forth with race-neutral
reasons for striking Bard, and it did so. It was Cartwright‟s burden to demonstrate that those
reasons were pretextual. He has not carried his burden.

Conclusion

The judgment of the trial court is affirmed.

Shepard, C.J., and Dickson, Sullivan and David, JJ., concur.

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