Attorney for Appellant
Katherine A. Cornelius
Indianapolis, IN
Attorneys for Appellee
Karen Freeman-Wilson
Attorney General of Indiana
Adam M. Dulik
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
DOUGLAS BROWN,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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) Supreme Court No.
) 49S00-0004-CR-256
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)
)
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)
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APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton Pratt, Judge
Cause No. 49G01-9812-CF-205847
ON DIRECT APPEAL
July 19, 2001
SULLIVAN, Justice.
Defendant Douglas Brown was convicted of murder for shooting another
man to death. In affirming his conviction, we agree with the trial court
that the prosecution offered sufficient race-neutral justifications for
peremptorily excluding two potential African-American jurors; that
Defendant was provided with his statutory right to consult with his father;
and that there was no evidence to support instructing the jury on voluntary
manslaughter.
Background
The facts most favorable to the verdict show that on December 26,
1998, Defendant shot one Porter Moore outside an Indianapolis home from
which Moore sold drugs. That evening, Moore drove to the house with some
friends and went inside while his companions remained in the car. Soon
after Moore went into the house, Defendant and another man approached the
occupants of Moore’s car and asked where they could find a friend of
Defendant’s named Roosevelt Caruthers. Moore’s friends replied in a rude
manner. Defendant later told police that he had witnessed Caruthers argue
with several of Moore’s associates at the house earlier in the day.
Defendant told police he came to the house in order to find Caruthers.
After his confrontation with the occupants of the car, Defendant
walked towards the house. At this time, Moore left the house and passed by
Defendant. Defendant made a comment to Moore about the occupants of the
car, to which Moore made no reply. This lack of response apparently
insulted Defendant. He cocked a gun, pointed it at Moore, and pulled the
trigger. The gun misfired. Defendant later told police that Moore’s eyes
bulged like he was angry or scared. Moore then dove into his car.
Defendant fired again, this time striking Moore in the face and killing
him.
Defendant was charged with Murder[1] and Carrying a Handgun without a
License.[2] A jury convicted him on both counts and the trial court
sentenced him to 60 years on the murder charge and 365 days for the handgun
offense, which was to be served concurrently with the murder sentence.
Discussion
I
Defendant argues that his conviction must be reversed because the
prosecutor made what he contends were racially-based peremptory challenges
in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Batson held that a
State denies a “defendant equal protection of the laws when it puts him on
trial before a jury from which members of his race have been purposefully
excluded.” Id. at 85. For that reason, a litigant may not use peremptory
challenges “to exclude potential jurors from serving solely because of
race.” Williams v. State, 700 N.E.2d 784, 786 (Ind. 1998). See also
Willoughby v. State, 660 N.E.2d 570, 578 (Ind. 1996) (“Race-based
peremptory challenges are a form of racial discrimination which the State
cannot condone.”).
To contest an opposing party’s use of peremptory challenges under
Batson, a litigant must “establish a prima facie case of racial
discrimination.” Lee v. State, 689 N.E.2d 435, 440-41 (Ind. 1997), reh’g
denied. The moving party will make out such a prima facie case by showing
“(1) that the prosecutor used peremptory strikes to remove members of a
cognizable racial group from the jury pool; and (2) that the facts and
circumstances raise an inference that the prosecutor used those strikes to
exclude potential jury members from the jury because of their race.”
Williams, 700 N.E.2d at 786. Once the moving party establishes this prima
facie case, the burden of production shifts to the non-moving party, who
must “provide a race-neutral explanation for challenging [a] juror.”
McCants v. State, 686 N.E.2d 1281, 1284 (Ind. 1997). This “second step of
[the Batson] process does not demand an explanation that is persuasive, or
even plausible … .” Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curium).
Instead, the prosecutor must provide a facially valid explanation for the
use of the peremptory challenge and “‘[u]nless a discriminatory intent is
inherent in the prosecutor’s explanation, the reason offered will be deemed
race neutral.’” Id. at 768 (quoting Hernandez v. New York, 500 U.S. 352,
360 (1991) (plurality opinion)). Although the burden of production shifts
to the non-moving party to present a facially valid reason for the
peremptory challenge, the moving party retains the overall burden of proof
to establish “purposeful discrimination.” Id.
Defendant claims the State violated these principles by using
peremptory challenges to remove two black women from the jury.[3] The
trial court concluded that Defendant made a prima facie case that the
challenges were based on race and the State does not contest this
conclusion. See Appellee’s Br. at 6-8. The trial court then accepted the
State’s explanations for both challenges, which Defendant contends was
error. Therefore, we must determine whether the trial court could conclude
that the State offered facially valid race-neutral reasons for the
challenges.
First, Defendant contests the exclusion of potential juror Chandra
Sherrell. The State contends that it had a race-neutral reason for
challenging this potential juror in that she indicated that she would have
trouble judging credibility and therefore would hold the State to a high
burden of proof. See Appellee’s Br. at 8 (citing Supp. R. at 122.) The
State points to the potential juror’s statements during voir dire to the
effect that she “wasn’t prepared to judge anybody” and that she “couldn’t
possibly be sure a hundred percent that someone was guilty or not guilty.”
Appellee’s Br. at 8 (citing Supp. R. at 110-11.) Further, the potential
juror said that she would have trouble gauging credibility and that she
“wouldn’t feel comfortable deciding who’s guilty and who’s not guilty.”
(Supp. R. at 111-13.) Therefore, the potential juror said, the State’s
proof “would have to be a strong thing, without a shadow of a doubt … .”
(Supp. R. at 112.)[4] It is evident from these statements that the
potential juror believed that she would have difficulty judging
credibility, and that she would favor Defendant to compensate for this
perceived deficiency. The State therefore presented a valid race-neutral
reason for removing the potential juror from the panel.
Second, Defendant challenges the removal of potential juror Catherine
Reynolds. The State contends that it used a peremptory challenge on this
potential juror because she “said that she would rather not be a juror
because she had a niece who was killed by her niece’s son.” Appellee’s Br.
at 7 (citing Supp. R. at 72.) During voir dire, the State asked the
potential juror for her thoughts on the jury selection process. The
potential juror replied that she would rather not sit on the jury because
her grandnephew had killed her niece, who was a police officer. She stated
that she would have personal difficulty sitting on the panel, as she did
when she had served on a previous jury. While it is clear that the
potential juror believed that she had a bias and should not serve on the
jury, it is unclear whether this bias cut for or against the State. The
trial judge acknowledged as much by noting that “we don’t know whether or
not she would be prejudiced against the State or the Defense … .” (Supp.
R. at 96.) It is conceivable that she would be biased against Defendant
because a member of her family had been the victim of the crime with which
Defendant was charged. However, it is equally conceivable that she would
be biased against the State because another member of her family had been
the accused of the crime with which Defendant was charged. The latter
scenario is a valid race-neutral explanation for the peremptory challenge.
See, e.g., Willoughby, 660 N.E.2d at 578 (“An explanation is neutral if it
is ‘based on something other than the race of the juror. At [the
explanation stage] of the inquiry, the issue is the facial validity of the
prosecutor’s explanation. Unless a discriminatory intent is inherent in
the prosecutor’s explanation, the reason offered will be deemed race
neutral.’”) (quoting Hernandez, 500 U.S. at 358-59). Because the moving
party bears the overall burden of proving racial discrimination, we resolve
this conflict in favor of the State and conclude that the State has
presented a valid race-neutral explanation for the peremptory challenge.
See Bradley v. State, 649 N.E.2d 100, 105-06 (Ind. 1995), reh’g denied.
II
Defendant contends that his conviction must be reversed because the
trial court admitted his statement to police despite what Defendant
characterizes as a violation of Indiana Code § 31-32-5-1 (1998). This
statute provides that rights guaranteed to a child[5] under the United
States Constitution, the Indiana Constitution, or “any other law” may be
waived only under a narrow set of circumstances:
(1) by counsel retained or appointed to represent the child if the
child knowingly and voluntarily joins with the waiver;
(2) by the child’s custodial parent, guardian, custodian, or guardian
ad litem if:
(A) that person knowingly and voluntarily waives the right;
(B) that person has no interest adverse to the child;
(C) meaningful consultation has occurred between that person and
the child; and
(D) the child knowingly and voluntarily joins with the waiver;
or
(3) by the child, without the presence of a custodial parent,
guardian, or guardian ad litem, if:
(A) the child knowingly and voluntarily consents to the waiver;
and
(B) the child has been emancipated under IC 31-34-20-6 or IC 31-
37-19-27, by virtue of having married, or in accordance with the
laws of another state or jurisdiction.
Id.
The State introduced Defendant’s confession based on a waiver of
Defendant’s Fifth Amendment right to remain silent. Defendant did not
speak to an attorney prior to this waiver and he was not emancipated at the
time. See id. § 31-32-5-1(1) and (3). Therefore, the confession is
admissible only if the State shows that a parent waived Defendant’s rights
after providing Defendant meaningful consultation. See id. § 31-32-5-1(2).
Defendant spoke with his father before he gave his statement to police and
his father was present during the interrogation. However, Defendant argues
that this was not the “meaningful consultation” contemplated by Indiana
Code § 31-32-5-1(2)(C) because his father had not been advised of
Defendant’s constitutional rights prior to the consultation. See
Appellant’s Br. at 10-11.
In reviewing this claim, we note that the State bears the burden of
showing that a juvenile defendant received all of the protections of
Indiana Code §31-32-5-1. See Graham v. State, 464 N.E.2d 1, 4 (Ind. 1984),
Hickman v. State, 654 N.E.2d 278, 281 (Ind. Ct. App. 1995) (“We require
strict compliance with the statute in order to protect the juvenile’s
rights.”). However, as with any review of the admissibility of a
confession, we review the evidence in the light most favorable to the trial
court’s decision. See Carter v. State, 686 N.E.2d 1254, 1258 (Ind. 1997).
Cf. Appellant’s Br. at 10 (“On review, the court looks at the evidence
which supports the trial court’s decision.”).
The meaningful consultation requirement will be met when the State
demonstrates “actual consultation of a meaningful nature or … the express
opportunity for such consultation, which is then forsaken in the presence
of the proper authority by the juvenile, so long as the juvenile knowingly
and voluntarily waives his constitutional rights.” Williams v. State, 433
N.E.2d 769, 772 (Ind. 1982). See also Patton v. State, 588 N.E.2d 494, 496
(Ind. 1992) (“The consultation requirement is designed to afford the
juvenile a stabilizing and comparatively relaxed atmosphere in which to
make a serious decision that could affect the rest of his life.”), reh’g
denied.
Our review of the record shows that Defendant received meaningful
consultation with his father. Defendant’s confession was obtained after
police informed Defendant’s father that Defendant was to be arrested for
murder. The police gave Defendant’s father fifteen to 20 minutes to
consult with his son. The detective who took Defendant’s statement
testified that he informed Defendant that this time was set aside so that
Defendant could consult with his father. The detective testified that the
first thing he did after this consultation was to show Defendant and his
father a written waiver of rights and he read those rights to them.[6] He
asked both of them if they understood their rights and they said that they
did. After explaining these rights, the detective offered Defendant’s
father more time to consult with his son, but Defendant’s father declined.
Under these facts, we hold that Defendant received a meaningful opportunity
to consult with his father. See Trowbridge v. State, 717 N.E.2d 138, 146-
51 (Ind. 1999), reh’g denied.
As Defendant notes, we have expressly left open the question of
whether a consultation with a parent is meaningful under Indiana Code § 31-
32-5-1 if the parent is unaware of the child’s rights prior to the
consultation. See Cherrone v. State, 726 N.E.2d 251, 255 n.1 (Ind.
2000).[7] We reiterate that “the usual, and in our view the better,
practice … is to provide the consultation after advising the juvenile and
his or her parents of the rights to be waived.” Id. (citations omitted).
However, the record shows that after advising Defendant’s father of
Defendant’s rights, the detective who took Defendant’s statement offered
Defendant’s father a second opportunity to consult with his son. Having
learned of the pertinent constitutional rights, Defendant’s father
apparently saw no gain to be had from further consultation. Under these
circumstances, the lack of an advisement of rights prior to the
consultation did not affect the quality of consultation that Defendant
received and therefore he is not entitled to relief.[8]
III
Finally, Defendant argues that the trial court committed reversible
error when it refused to instruct the jury on voluntary manslaughter.
Initially, we note that:
When a defendant requests a lesser-included offense instruction,
a trial court applies a three-part analysis: (1) determine whether
the lesser-included offense is inherently included in the crime
charged; if not, (2) determine whether the lesser-included offense is
factually included in the crime charged; and, if either, (3) determine
whether a serious evidentiary dispute exists whereby the jury could
conclude that the lesser offense was committed but not the greater.
Culver v. State, 727 N.E.2d 1062, 1070 (Ind. 2000) (citing Wright v. State,
658 N.E.2d 563, 566-67 (Ind.1995)), reh’g denied. As for the first two
steps, we have already determined that voluntary manslaughter is a lesser
included offense of murder. See Dearman v. State, 743 N.E.2d 757, 760-61
(Ind. 2001) (noting that element of sudden heat distinguishes voluntary
manslaughter from murder), Crain v. State, 736 N.E.2d 1223, 1237 (Ind.
2000), Wilkins v. State, 716 N.E.2d 955, 956-57 (Ind. 1999). Therefore,
Defendant must demonstrate that there was a serious evidentiary dispute as
to the existence of sudden heat.
We have held that sudden heat “is characterized as anger, rage,
resentment, or terror sufficient to obscure the reason of an ordinary
person, preventing deliberation and premeditation, excluding malice, and
rendering a person incapable of cool reflection.” Dearman, 743 N.E.2d at
760. We find no such evidence in the present record. To establish sudden
heat, Defendant relies on the fact that he had returned to the house to
find his friend Caruthers, who had been in an argument earlier in the day.
He also cites the fact that both Moore and the occupants of the car were
rude to him. None of this evidence paints a scenario where sudden
circumstances caused Defendant to loose control of his rational senses.
First, while Defendant might have been afraid for his friend Caruthers as a
result of the argument Caruthers had with Moore’s associates, this fact
alone does not suggest that Defendant was acting under sudden heat when he
returned to the house several hours later. Cf. Isom v. State, 501 N.E.2d
1074, 1075 (Ind. 1986) (“Forty minutes after the initial confrontation,
Appellant found Payton, threatened him, and shot him numerous times,
knowing him to be unarmed. This evidence is sufficient to support the
inference that an adequate ‘cooling off period’ had elapsed, and that
therefore, the shooting was not done in a ‘sudden heat.’”). Second, while
Defendant might have been insulted by the conduct of Moore and his friends,
these personal slights were not the type of provocation that the law
recognizes as sufficient to cause one to abandon all reason under sudden
heat. Cf. White v. State, 699 N.E.2d 630, 635 (Ind. 1998) (“In the present
case, defendant can only point to the exchange of words and insults as
evidence of provocation. This was an ordinary argument gone bad. There is
no evidence to support an attempted voluntary manslaughter instruction.”).
Having reviewed the record, we find that there is no “appreciable evidence
of sudden heat” that would justify an instruction on voluntary manslaughter
under Wright. Dearman, 743 N.E.2d at 760.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] See Ind. Code § 35-42-1-1 (1998).
[2] See id. § 35-47-2-1.
[3] In discussing his Batson claims, Defendant notes that no blacks
served on his jury. Appellant’s Br. at 12. However, while the State did
remove two black jurors from the panel, the trial court repeatedly noted
that minorities were almost completely missing from the venire. The
potential jurors at issue here were two of only three blacks in the 32-
person venire.
[4] In argument before the trial court, the State made clear that its
challenge was based on the fact that the potential juror “indicated that
she could not judge, that she was not the right person to judge, that she
would have to be proved beyond a shadow of [a] doubt.” (Supp. R. at 122.)
[5] Defendant was seventeen at the time he gave his confession.
[6] The officer informed the Browns that
You have the right to have one or both parents present. You have
the right to remain silent; anything you may say can be used against
you in court. You have the right to have a lawyer present now, if you
do not have the money to retain a lawyer, you have the right to have
one appointed for you by the court before any questions are asked. If
you decide to answer questions now without a lawyer present you still
have the right to stop questioning at any time.
(R. at 314.) Both Defendant and his father signed a written waiver to this
effect.
[7] But cf. Graham v. State, 464 N.E.2d 1, 11 (Ind. 1984) (DeBruler,
J., dissenting) (“It is crystal clear from our statute and the cases cited
that the consultation of the juvenile with his parent, guardian, or counsel
must come after the advisement of rights are given, … so that there is
assurance that the two know what is at stake in the waiver which police are
attempting to get, and prior to the manifestation by the juvenile or his
parent, guardian, or counsel to the police that a decision on the waiver
question has been reached.”) (emphasis in original).
[8] Defendant also contends that his father was incapable of providing
meaningful consultation because his father was diagnosed as paranoid
schizophrenic and antisocial. Defendant does not explain how this
condition would affect his father’s ability to provide meaningful advice.
See Appellant’s Br. at 11. In fact, the record reflects that Defendant’s
father dealt with numerous offenses committed by his children and had
appeared with them in juvenile court. The detective testified that the
father said at the time that he understood what was occurring. These facts
show that Defendant’s father was not incompetent to provide meaningful
consultation. Cf. Fortson v. State, 270 Ind. 289, 298, 385 N.E.2d 429, 436
(1979) (holding that a mother – who was an outpatient at a mental health
clinic – provided meaningful consultation in part because “she did not
appear ill and was in control of herself and aware of her son’s rights and
of her surroundings and the consequences of what was happening at the time
of the waivers” and because she had provided such assistance on previous
occasions.).