Attorney for Appellant Attorneys for Appellee
Donald W. Pagos Steve Carter
Sweeney, Dabagia, Thorne, Janes & Pagos Attorney General
of Indiana
Michigan City, Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 46S03-0402-CR-91
Rodney J. McCormick,
APPELLANT (DEFENDANT BELOW),
v.
State of Indiana,
Appellee (Plaintiff below).
_________________________________
Appeal from the LaPorte Circuit Court, No. 46C01-9907-CF-84
The Honorable Robert W. Gilmore, Jr., Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 46A03-0202-
CR-42
_________________________________
February 26, 2004
Rucker, Justice.
This case presents the question of how a court should respond in the
context of a Batson claim when a party offers multiple rationales for a
peremptory strike, some of which are permissible and one of which is not.
Background
Rodney McCormick, an African American male, was charged with dealing
in cocaine, a class A felony. Two African American venire persons were
called to serve on the panel. During voir dire one of the two was
challenged for cause and removed. The other, juror Donaldson, confirmed
that she was a real estate broker and part-time postal worker; generally
responded either “yes” or “no” to several questions posed by both the State
and the defense; and acknowledged that a distant relative once suffered
from a drug problem, but the experience would have no bearing on her in
resolving the issues presented in McCormick’s case.
The State sought to exercise a peremptory challenge to remove juror
Donaldson from the panel. McCormick objected asserting that the State was
“attempting to improperly exclude all black jurors from this jury.” R. at
379. Two deputy prosecutors were assigned to try McCormick. When asked by
the trial court for their reasons in excluding the juror, one deputy
explained, “[T]hrough my questioning I seem to recall that she was
uncomfortable with the process. I felt that she was very forthcoming in
terms of assuring me that she would be able to keep an open mind to both
the State and the Defendant.” Id. at 381. The second deputy replied:
And my notes indicate, she appears uncomfortable and distraught.
And I also note that she’s a realtor and has relationships with
(inaudible) that I made that note in there. I – and that she’d
be unable to do difficult things for fear of offending people
and nothing more difficult than passing judgment on one, so, so
certainly one – a member of ones [sic] own in the community.
Id. (emphasis added). The trial court overruled McCormick’s objection, and
juror Donaldson was removed from the panel. The trial proceeded in due
course, and McCormick was convicted as charged. On appeal McCormick raised
several issues for review, one of which was that the State used a racially
based peremptory challenge. The Court of Appeals affirmed in an
unpublished memorandum decision. See McCormick v. State, No. 46A03-0202-CR-
042 (Ind. Ct. App. Dec. 17, 2002). We grant McCormick’s petition to
transfer.
Discussion
The exercise of racially discriminatory peremptory challenges is
constitutionally impermissible. Wright v. State, 690 N.E.2d 1098, 1104
(Ind. 1997). In order to establish a prima facie case of purposeful
discrimination in the selection of a jury, a defendant must show: (1) that
the prosecutor has exercised peremptory challenges to remove members of a
cognizable racial group from the venire; and (2) that the facts and
circumstances of the defendant’s case raise an inference that the
prosecutor used that practice to exclude venire persons from the jury due
to their race. Bradley v. State, 649 N.E.2d 100, 105 (Ind. 1995) (citing
Batson v. Kentucky, 476 U.S. 79 (1986)). Once a prima facie showing has
been established, the burden shifts to the State to present an explanation
for challenging such jurors. Batson, 476 U.S. at 97. The trial court then
has a duty to determine whether the defendant has established purposeful
discrimination. Id. at 98. In Purkett v. Elem, 514 U.S. 765 (1995), the
United States Supreme Court refined the test for determining whether a
juror has been struck for a reason violative of Batson. The Court declared
that the race-neutral explanation must be more than a mere denial of
improper motive, but it need not be “persuasive, or even plausible.” Id.
at 768. “‘[T]he 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.’”
Id. (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality
opinion)).
In the case before us the trial court was not persuaded that
McCormick carried his burden of making a prima facie showing of racial
discrimination. Specifically the trial court said, “So basically what it
gets down to is we have one African American person sitting in a jury box
right now. And I don’t think that the Defendant has established a pattern
of what I’ll call racial profiling or racial exclusion.” R. at 383.
Nonetheless, the trial court required the State to set forth its reasons
for peremptorily challenging juror Donaldson in order to “preserve the
record.” Id. at 382.
It is true that the removal of some African American jurors by the use
of peremptory challenges does not, by itself, raise an inference of racial
discrimination. Kent v. State, 675 N.E.2d 332, 340 (Ind. 1996). However,
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.” McCants v. State, 686 N.E.2d 1281, 1284
(Ind. 1997); see also Ashabraner v. Bowers, 753 N.E.2d 662, 667 (Ind. 2001)
(observing that the removal of the “only black member of the panel”
standing alone “establishes a prima facie case” of discrimination); cf.
Graham v. State, 738 N.E.2d 1096, 1100 (Ind. Ct. App. 2000) (finding that
the defendant established a prima facie case of discrimination where State
used its peremptory challenge to remove the only two African American
potential jurors from the venire), trans. not sought. Here, the State used
a peremptory challenge to remove the only African American venire person on
the panel. Thus, contrary to the trial court’s determination, it is clear
that McCormick made at least a prima facie showing of purposeful
discrimination in the jury selection process.
Nonetheless, where as here, a prosecutor has offered its 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. Hernandez, 500 U.S. at 359 (plurality
opinion). We thus examine the State’s proffered explanation to determine
whether it is in fact race-neutral. A neutral explanation means “an
explanation based on something other than the race of the juror.” Id. at
360.
The deputy prosecutors offered several reasons for their strike: (i)
juror Donaldson was distraught; (ii) she looked uncomfortable; and (iii)
her answers to questions made her appear uncomfortable with the process.
Each of these reasons is a permissible race-neutral explanation for the
exercise of a peremptory challenge. See, e.g., J.E.B. v. Alabama ex rel.
T.B., 511 U.S. 127, 148 (1994) (O’Connor, J., concurring) (“[A] trial
lawyer’s judgments about a juror’s sympathies are sometimes based on
experienced hunches and educated guesses, derived from a juror’s . . .
‘bare looks and gestures.’”). By contrast, another reason given for the
strike—that the juror would find it difficult “passing judgment on a member
of ones [sic] own in the community”—is not race-neutral. The challenged
juror and McCormick apparently shared but one thing in common: membership
in a cognizable racial group. To remove the juror because she may find it
difficult to sit in judgment of “one’s own” is an assumption that the
juror’s objectivity would be impaired because McCormick is black. This
assumption, which is clearly forbidden by the Equal Protection Clause,
Batson, 476 U.S. at 97, is based on a stereotypical view that African
Americans, because of their race, will relate to other African Americans in
a way that may preclude them from basing a verdict solely on the evidence
presented at trial. In sum, the “passing judgment” on “one’s own”
explanation for striking juror Donaldson was impermissibly race-based. [1]
Because the State gave multiple reasons for its strike, some of which
were permissible and one of which was not, we are faced with the question
of whether the existence of permissible reasons for exercising a peremptory
strike is sufficient to overcome an impermissible one. The United States
Supreme Court has yet to address the question of whether the existence of a
single discriminatory reason for a peremptory strike results in an
automatic Batson violation when race-neutral reasons also have been
articulated. However, some federal circuits follow an approach taken from
other areas of equal protection jurisprudence and have adopted what is
referred to as “dual motivation” analysis.[2] This approach proceeds under
the theory that “[a] person may act for more than one reason” and that when
a prosecutor offers both legitimate and illegitimate reasons for a strike,
further analysis is required. Howard v. Senkowski, 986 F.2d 24, 26 (2d
Cir. 1993). More specifically, under dual motivation analysis, if the
trial court finds that the proponent of the strike has articulated both
race-based and race-neutral reasons for a peremptory strike, then the
proponent bears the burden of demonstrating that the strike would have been
exercised even in the absence of any discriminatory motivation. Wallace v.
Morrison, 87 F.3d 1271, 1274-75 (11th Cir. 1996); see also King v. Moore,
196 F.3d 1327, 1335 (11th Cir. 1999) (“When the motives for striking a
prospective juror are both racial and legitimate, Batson error arises only
if the legitimate reasons were not in themselves sufficient reason for
striking the juror.”); accord Gattis v. Snyder, 278 F.3d 222, 235 (3d Cir.
2002), cert. denied, 537 U.S. 1049 (2002); Weaver v. Bowersox, 241 F.3d
1024, 1032 (8th Cir. 2001); Jones v. Plaster, 57 F.3d 417, 421 (4th Cir.
1995).
On the other hand, a number of state courts have rejected the dual
motivation analysis for reviewing Batson claims and instead have adopted
what is referred to as the “tainted” approach. In simple terms,
“[r]egardless of how many other nondiscriminatory factors are considered,
any consideration of a discriminatory factor directly conflicts with the
purpose of Batson and taints the entire jury selection process.” Arizona
v. Lucas, 18 P.3d 160, 163 (Ariz. Ct. App. 2001); see also Rector v.
Georgia, 444 S.E.2d 862, 865 (Ga. Ct. App. 1994) (“[T]he trial court erred
in ruling that other purportedly race neutral explanations cured the
element of the stereotypical reasoning employed by the State’s attorney in
exercising a peremptory strike.”); South Carolina v. Shuler, 545 S.E.2d
805, 811 (S.C. 2001) (“[A] racially discriminatory peremptory challenge in
violation of Batson cannot be saved because the proponent of the strike
puts forth a non-discriminatory reason.”); Moore v. Texas, 811 S.W.2d 197,
200 (Tex. Ct. Crim. App. 1991) (finding a Batson violation where a juror
would have a problem assessing punishment (valid) and was member of a
minority club (invalid)); Wisconsin v. King, 572 N.W.2d 530, 535 (Wis. Ct.
App. 1997) (“[W]here the challenged party admits reliance on a prohibited
discriminatory characteristic, we do not see how a response that other
factors were also used is sufficient rebuttal under the second prong of
Batson.”).
We endorse the approach taken by the foregoing jurisdictions and
conclude that it is not appropriate to apply the dual motivation analysis
in the Batson context. Such an analysis in our view is inconsistent with
the “facially valid” standard announced by the Supreme Court in Purkett.
Further, we recognize that Batson protects against only the most
conspicuous and egregious biases. “To excuse such obvious prejudice
because the challenged party can also articulate nondiscriminatory reasons
for the peremptory strike would erode what little protection Batson
provides against discrimination in jury selection.” Payton v. Kearse, 495
S.E.2d 205, 210 (S.C. 1998). Instead, we conclude the tainted approach is
the appropriate analytical tool in evaluating Batson claims. As applied to
the facts in this case, the State’s impermissible racially based peremptory
challenge tainted any nondiscriminatory reasons it may have proffered.
Accordingly, the State failed to meet its burden under the second prong of
Batson to come forward with a race-neutral explanation for its peremptory
strike. McCormick is thus entitled to a new trial.
Conclusion
We reverse the judgment of the trial court and remand this cause for a
new trial.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
-----------------------
[1] The State counters the rationale is not race-based but rather is
grounded on the trial deputy’s belief that the juror’s “job as a realtor
might make it difficult for her to reach an unpopular decision.” Br. of
Appellee at 12-13. The record shows that after jury selection and on the
second day of trial, McCormick renewed his objection to the State’s use of
a peremptory challenge to remove juror Donaldson. In response, both deputy
prosecutors further elaborated on their reasons for the strike. In
relevant part, one of the deputies explained that he had consulted with a
colleague and that the colleague “knew she was a realtor and that his
impression of Realtors are they try to make everybody happy. And that she
would – she may have a difficult time doing a difficult decision such as
convicting somebody.” R. at 517. Although this proffered rationale may
serve as an additional race-neutral reason for the State’s challenge, it
does not serve to vitiate the race-based reason proffered the day before.
[2] The Supreme Court has adopted this analysis in other areas of equal
protection jurisprudence as well. See Hunter v. Underwood, 471 U.S. 222,
231-32 (1985); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 285-87 (1977); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 270 n.21 (1977). However, although the full Supreme Court
has never addressed the issue, in a dissent to the denial of certiorari,
Justice Marshall joined by Justice Brennan contended that dual motivation
analysis is not appropriate in analyzing Batson claims. See Wilkerson v.
Texas, 493 U.S. 924 (1989) (Marshall, J., dissenting).