Ashabraner v. Bowers

Attorneys for Appellant

Nathaniel Lee
Robert A. Burns
Lee, Burns, & Cossell, LLP
Indianapolis, IN

Attorney for Appellees

Edward R. Hannon
Hannon Centers Roop & Hutton
Indianapolis, IN

IN THE
INDIANA SUPREME COURT

MADONNA ASHABRANER,
Appellant (Plaintiff below),

v.

GARY W. BOWERS and RUMPKE OF
INDIANA-SHELBYVILLE, INC.,
Appellees (Defendants below).

)
) Supreme Court No.
) 49S02-0010-CV-00603
)
) Court of Appeals No.
) 49A02-9905-CV-00330
)
)
)

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gerald S. Zore, Judge
Cause No. 49D07-9802-CT-207

ON PETITION TO TRANSFER

August 30, 2001

SULLIVAN, Justice.

Plaintiff Madonna Ashabraner sued defendant Gary Bowers and his
employer, Rumpke of Indiana-Shelbyville, Inc., after a collision between
her car and their garbage truck. Ashabraner appeals a jury verdict in
favor of Bowers and Rumpke on grounds that the trial court violated Batson
v. Kentucky by allowing Bowers and Rumpke to remove an African-American
woman from the jury pool without requiring any race neutral justification
in the face of a prima facie case of discrimination. We agree and reverse
the judgment of the trial court.

Background

This case arises out of a collision between a garbage truck and a
small automobile. On November 19, 1992, Plaintiff Madonna Ashabraner was
driving north on Arlington Avenue in Indianapolis. Her compact car trailed
a garbage truck driven by defendant Gary Bowers and owned by defendant
Rumpke of Indiana-Shelbyville (collectively referred to as “Bowers”).
Both vehicles were in the far right lane of the four-lane road. Bowers
slowed the truck because he knew that he had to make a right turn into a
narrow driveway owned by a customer. Before Bowers attempted the turn, he
pulled the truck into the left lane. The parties contest exactly how far
left the truck strayed. Ashabraner testified that she believed Bowers was
changing lanes and continued in the right lane in order to pass the truck.
Bowers testified that he turned on his right turn signal and then straddled
the lanes in order to make the right turn. He said that he did so in order
to avoid lumbering the truck over the curb of the driveway. As Bowers
turned into the driveway, the truck collided with Ashabraner’s car.

Ashabraner sued Bowers for negligence. The jury returned a verdict in
favor of Bowers. Ashabraner appealed, claiming that Bowers used a racially-
based peremptory challenge, an expert witness was not qualified, and the
trial court erred in regard to two instructions. The Court of Appeals
affirmed in an unpublished memorandum opinion. See Ashabraner v. Bowers,
No. 49A02-9905-CV-330, 725 N.E.2d 167 (Ind. Ct. App. March 15, 2000). We
granted transfer.

Discussion

Ashabraner seeks a new trial because she contends that Bowers used a
racially-based peremptory challenge in violation of Batson v. Kentucky,
which prohibits racial discrimination in the exercise of such challenges.
476 U.S. 79 (1986). See also Wright v. State, 690 N.E.2d 1098, 1104-05
(Ind. 1997), reh’g denied. While that proposition sounds simple on its
face, Batson recognized that parties would have difficulty proving
discriminatory intent because of the discretionary (and often opaque)
nature of such challenges.[1] In response, the Court established a two-
step burden-shifting procedure. See Batson, 476 U.S. at 93-96. First, the
party objecting to the peremptory challenge must set out a prima facie case
of discrimination. To meet this requirement, the party contesting the
challenge must show that:
(1) the juror is a member of a cognizable racial group; (2) [the
challenging party] has exercised peremptory challenges to remove that
group’s members from the jury; and (3) the facts and circumstances of
this case raise an inference that the exclusion was based on race.

Wright, 690 N.E.2d at 1104-05 (citing Batson, 476 U.S. at 96). If the
moving party makes out a prima facie case, the burden shifts to the
challenging party to “come forward with a neutral explanation for [the
challenge].” See Batson, 476 U.S. at 97.[2] The party’s “explanation need
not rise to the level justifying exercise of a challenge for cause.” Id.
Instead, “[i]f the explanation, on its face, is based on something other
than race, the explanation will be deemed race neutral.” McCants v. State,
686 N.E.2d 1281, 1284 (Ind. 1997).[3]

Our experience is that the typical Batson claim turns on the
sufficiency of a proffered race neutral explanation for exclusion of the
juror.[4] Here, however, the trial court and the Court of Appeals did not
reach that step because they resolved the issue by finding no prima facie
case. During jury selection, Ashabraner objected to Bowers’s peremptory
challenge of a juror.[5] To make out a prima facie case of racial
discrimination, Ashabraner told the trial court that:
[The juror] was an African American. [D]uring the course of the voir
dire, [she] gave what appeared to be the most neutral possible
answers.[[6]] She appeared to be intelligent. She appeared to be
attentive and she answered all the questions that were posed to her by
[] counsel. The only reason that he could have used the peremptory
challenge is basically because of this person’s race.

(R. at 180.) In her motion to correct errors and on appeal, Ashabraner
noted that the juror was the only member of the venire who was black.[7]
Bowers’s counsel argued in reply that
I did not strike [the juror] because of race. I struck [the juror]
because of the way I saw the jury panel being made up. And … this is
a situation where [the juror] may be African American. … I don’t
[see] race as being an issue one way or another in this case. And …
it didn’t play into the decision in … any way. There wasn’t a single
panel member, Your Honor, who didn’t give positive responses to both
sides on all questions. … [R]ace didn’t enter into it and … how do
you defend this. How do you defend this argument? … [A]ll I can say is
… there was nothing inappropriate with using that peremptory strike in
this case.

(R. at 180-81.) The trial court overruled Ashabraner’s objection by
stating: “I think the case puts the Court in an untenable position and
peremptory challenges can be utilized for any reason.” (R. at 182.)

This colloquy demonstrates that the trial court did not adhere fully
to the principles enunciated in Batson and subsequent cases. Specifically,
the trial court refused to analyze Ashabraner’s objection to the peremptory
challenge, indicating that the court did not follow Batson even though it
applies to civil cases. See Edmonson v. Leesville Concrete Co., 500 U.S.
614, 616 (1991). Edmonson held that a trial court is so intertwined with
jury selection that its imprimatur is placed on any peremptory challenges
that it allows. See id. at 624. This interconnection makes racially-based
peremptory challenges a form of state action susceptible to federal
constitutional analysis even if the state is not a party to the litigation.
See, e.g., id. (“As we have outlined here, a private party could not
exercise its peremptory challenges absent the overt, significant assistance
of the court.”). Because Batson applies to civil cases, the trial court
was clearly wrong to conclude that “peremptory challenges can be utilized
for any reason.” (R. at 182.)

We also note that Bowers argued in the trial court that the
peremptory challenge was permissible because the juror was not the same
race as Ashabraner. This argument misapplies Batson. Trial courts must
employ the Batson methodology regardless of the race of the parties. See
Powers v. Ohio, 499 U.S. 400, 416 (1991), Wright v. State, 690 N.E.2d 1098,
1104 (Ind. 1997), Willoughby v. State, 660 N.E.2d 570, 578 (Ind. 1996).
This result obtains because under Batson a race-based peremptory challenge
violates not only the equal protection rights of the adverse party, but
those of the juror as well. See Powers, 499 U.S. at 415.[8] Batson
therefore prevents parties from using racially-based peremptory challenges
regardless of the race of the opposing party. See Williams v. State, 669
N.E.2d 1372, 1377 (Ind. 1996), cert. denied, 520 U.S. 1232 (1997) (“While
Batson itself appeared to be based upon the right of the criminal defendant
to a trial free of racial taint, the doctrine has evolved into one designed
to protect the right of the prospective juror to serve.”)

The Court of Appeals did not rely on the misunderstandings of the
trial court, but applied Batson and concluded that the circumstances
surrounding the peremptory challenge did not demonstrate a prima facie case
of discrimination. We hold that this conclusion was error.

Three factors must be established before a party makes out a prima
facie case under Batson. The first two – that the juror was a member of a
cognizable group and that the party removed jurors of this group – are not
at issue. The heart of Ashabraner’s Batson claim is the third factor –
whether “the facts and any other relevant circumstances of the defendant’s
case raise an inference that [a party] used [challenges] to exclude
venirepersons from the jury due to their race.” Bradley v. State, 649
N.E.2d 100, 105 (Ind. 1995) reh’g denied. The record shows that Bowers
removed the only black member of the venire. We have held that this fact
alone establishes a prima facie case, see McCants v. State, 686 N.E.2d
1281, 1284 (Ind. 1997), and, at a minimum, it is evidence of discrimination
that must weigh in the balance.

Ashabraner also asserts that the juror gave “neutral” answers that
were similar to answers given by other panel members who were not removed.
Appellant’s Br. at 8, 14.[9] Bowers does not contest Ashabraner’s
assertion that the juror gave neutral answers to questions during voir dire
and in the jury questionnaire, although the record does not reflect what
those answers were. Appellee’s Br. at 6-12. This evidence, coupled with
the juror’s status as the only black member of the panel, suffices to
establish Ashabraner’s prima facie case.[10] See 50A C.J.S. § 452 at 488
(“The challenger’s questions and statements during voir dire examination
and in exercising challenges may support or refute an inference of
discriminatory purpose.”); Henry M. Greenberg, Criminal Procedure, 44
Syracuse L. Rev. 189, 226 (1993) (“[T]here is no single litmus test for
determining when a prima facie Search Term Begin Search Term End case of
discriminatory intent has been established; There are no fixed rules for
determining what evidence will give rise to an inference sufficient to
establish a Search Term Begin Search Term End case of
discrimination.”).[11] While the case is close, Ashabraner put forth
sufficient facts to require Bowers to provide a race neutral reason for the
challenge.[12] The trial court and the Court of Appeals did not reach the
issue of whether Bowers could offer a race neutral explanation. Because
the trial court applied the wrong standard and the Court of Appeals held
that Ashabraner had not made out a prima facie case, we reverse and remand
for a new trial.[13]

Conclusion

Having granted transfer, thereby vacating the decision of the Court
of Appeals, Ind. Appellate Rule 11(B)(3),[14] we now reverse the judgment
of the trial court and remand for a new trial.

BOEHM, J., and RUCKER, J., concur.
DICKSON, J., dissents with separate opinion in which SHEPARD, C.J.,
concurs.

In The
INDIANA SUPREME COURT

MADONNA ASHABRANER )
Appellant, (Plaintiff below) )
)
v. ) 49S02-0010-CV-603
)
GARY BOWER and RUMPKE OF )
INDIANA-SHELBYVILLE, INC. )
Petioner-Appellee (Defendants below). )
________________________________________________

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gerald S. Zore, Judge
Cause No. 49D07-9802-CT-207
________________________________________________

On Petition to Transfer

August 30, 2001

DICKSON, Justice, dissenting,
The majority reverses on grounds that the trial court found no prima
facie case of discriminatory intent and failed to require the party
exercising the peremptory challenge to present a race neutral
justification. I believe that the rationale and holding of the majority
are contrary to United States Supreme Court authority in Purkett v. Elem,
514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), and Hernandez v. New
York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).
Under the facts of this case, inquiry into whether the plaintiff
established a prima facie case is moot. The trial court made its original
ruling after hearing both the plaintiff's challenge and the defendants'
explanation. The Supreme Court has explained that there are three steps to
the resolution of a Batson charge:
[O]nce the opponent of a peremptory challenge has made out a prima
facie case of racial discrimination (step one), the burden of
production shifts to the proponent of the strike to come forward with
a race-neutral explanation (step two). If a race-neutral explanation
is tendered, the trial court must then decide (step three) whether the
opponent of the strike has proved purposeful racial discrimination.

Purkett, 514 U.S. at 767, 115 S.Ct. at 1770-71, 131 L.Ed.2d at 839. This
three-step procedure "permits prompt rulings on objections to peremptory
challenges without substantial disruption of the jury selection process."
Hernandez, 500 U.S. at 358, 111 S.Ct. at 1865-66, 114 L.Ed.2d at 405. If
the trial court rules that the party challenging the peremptory challenge
has not made out a prima facie case, then no explanation is required of the
proponent of the challenge. However, if the proponent of the challenge,
without waiting for a ruling by the court, volunteers an explanation, and
the trial court rules on the issue of discriminatory intent, then the
"preliminary issue of whether [a party] had made a prima facie showing
becomes moot." Id. at 359, 111 S.Ct. at 1866, 114 L.Ed.2d at 405; see also
Morse v. Hanks,172 F.3d 983, 985 (7th Cir. 1999)(finding that when the
State offered the reason for using peremptory challenge, trial court's
misstep for failing to rule on prima facie case is a "no-harm, no-foul
situation"). That is what happened here. Defense counsel proffered a
purported race-neutral explanation prior to any ruling by the trial court
as to whether the plaintiff had presented a prima facie case of
discrimination. Thus, as in Hernandez, there is no trial or appellate
issue as to whether the plaintiff presented a sufficient prima facie case.
The fact that the defense interjected its reason for exercising the
peremptory challenge undermines the majority's conclusion that the trial
court failed to require one.
When the party exercising the peremptory challenge presents a
purported race-neutral explanation, the only requirement is that the
explanation be neutral; it need not be "persuasive, or even plausible."
Purkett, 514 U.S. at 768, 115 S.Ct. at 1771, 131 L.Ed.2d at 839. "Unless a
discriminatory intent is inherent in the [party]'s explanation, the reason
offered will be deemed race neutral." Hernandez, 500 U.S. at 360, 111
S.Ct. at 1866, 114 L.Ed.2d. at 406. The Supreme Court explains:
It is not until the third step that the persuasiveness of the
justification becomes relevant—the step in which the trial court
determines whether the opponent of the strike has carried his burden
of proving purposeful discrimination. [citations omitted.] At that
stage, implausible or fantastic justifications may (and probably will)
be found to be pretexts for purposeful discrimination. But to say
that a trial judge may choose to disbelieve a silly or superstitious
reason at step three is quite different from saying that a trial judge
must terminate the inquiry at step two when the race-neutral reason is
silly or superstitious. The latter violates the principle that the
ultimate burden of persuasion regarding racial motivation rests with,
and never shifts from, the opponent of the strike.

Purkett, 519 U.S. at 768, 115 S.Ct. at 1771, 131 L.Ed.2d at 839 (emphasis
in original).
In addition to denying any discriminatory intent, the attorney for
the defendants stated:
I went through the panel. I decided who I thought plaintiff would
strike, and I saw her [sic] was left and I saw-uh-went through who I
had available to me, and Ms. Brown was the last one-uh-before Mr.
Watts that-uh-that I can to to [sic] make up the panel that I though
would be the best for my situation and my client in this case.

Record at 181. Defense counsel's expressed reason for the peremptory
challenge was strategic.[15] For purposes of step two of the analysis,
there is no inherent discriminatory intent in the explanation provided by
the defendants, and as stressed in Purkett, the credibility or
persuasiveness of the explanation is not in issue. 514 U.S. at 768, 115
S.Ct. at 1771, 131 L.Ed.2d at 839.
In response to the defendants' proffer of a race-neutral explanation
and in support of her objection to the defendants' peremptory challenge,
the plaintiff argued to the trial court that the challenged juror was an
African-American and that, because the juror's demeanor and answers were
"neutral,"[16] the "only reason" the defendants "could have used the
peremptory challenge is basically because of this person's race." Record
at 180. With the presentation of defendants' explanation for their
peremptory challenge and the plaintiff's responding argument, the issue
thereby proceeded to step three, in which the trial court must determine
whether the party objecting to the peremptory challenge has carried the
burden of proving purposeful discrimination. Credibility and
persuasiveness of the explanation are appropriate considerations in step
three.
After plaintiff's argument, the trial court ruled: "I think the case puts
the court in an untenable position and peremptory challenges can be
utilized for any reason. I'll show the motion denied." Record at 182.[17]

Under step three, many factors are available for a trial judge's
consideration. A judge may consider the mix of other selected jurors,
their backgrounds, personalities, etc. The judge would be aware of the
issues and witnesses expected to come before the court, and may have had
available the questionnaires completed by the summoned prospective jurors.
Furthermore, the judge may have had prior trial experience with the
parties' counsel including their past practices and strategies. It is from
the totality of circumstances, many of which are not reflected in an
appellate record, that a trial judge must decide in step three whether the
opponent of the peremptory challenge has proved purposeful racial
discrimination.
The breadth of this evaluation underscores the wisdom of the
requirement that such trial court determinations be "accorded great
deference" on appeal. McCants v. State, 686 N.E.2d 1281, 1284 (Ind. 1997);
Williams v. State, 669 N.E.2d 1372, 1379 (Ind. 1996)(quoting Hernandez v.
New York, 500 U.S. at 364, 111 S.Ct. at 1868-69, 114 L.Ed.2d at 409; see
also Batson v. Kentucky, 476 U.S. 79, 98 n.21, 106 S.Ct. 1712, 1724 n. 21,
90 L.Ed.2d 69, 88-89 n.21 (1986)(trial court's finding "largely will turn
on evaluation of credibility [and should be given] great deference."); Kent
v. State, 675 N.E.2d 332, 339-40 (Ind. 1996); (trial court's determination
of Batson challenge is reviewed deferentially under the clearly erroneous
standard); Morse, 172 F.3d at 985 ("When in response to a Batson challenge
the prosecutor gives a race-neutral reason that persuades the judge, there
is no basis for reversal on appeal unless the reason given is completely
outlandish or there is evidence which demonstrates its falsity."). Judge
Easterbrook has similarly explained:
Batson requires the judge to determine whether a race-neutral reason
offered for a challenge is honest, and district judges are much better
situated than appellate judges to evaluate the honesty of the lawyers
who practice in district court. In the end, although the jury
selection raises substantial questions about the conduct and candor of
the prosecutor who selected this jury, the district judge's decision
that the explanation was honest must be accepted.

United States v. Roberts, 163 F.3d 998, 1000 (7th Cir. 1998).
This three step trial methodology and deferential appellate review
represents a thoughtful and cautious balance of the interests in preventing
racial discrimination in the jury selection process and preserving the
peremptory challenge as a vital component of our jury trial system.[18]
Peremptory challenges traditionally have been viewed as one means of
assuring the selection of a qualified and unbiased jury. Batson, 476 U.S.
at 91, 106 S.Ct. at 1720, 90 L.Ed.2d at 84. By permitting parties to
exercise even a limited number of peremptory challenges, our system of
justice acknowledges that one person may perceive from another's eye-
contact, affect, demeanor, and other ever-so-subtle body language—perhaps
cognizable only at an intuitive level—reliable information regarding the
prospective juror's probable personal resistance or hostility, openness to
the evidence, or other factors relevant to the juror's suitability. Even
if these sub-cognitive perceptions may occasionally be inaccurate as to the
prospective juror's actual attitude and fairness, they remain an extremely
important element in assuring a party's trust and confidence that the jury
about to decide the case is one that is fair and unbiased. This trust and
confidence of the parties in the jury is a crucial component of the justice
system and of our citizens' willingness to forgo self-help and to entrust
strangers to determine their personal interests and precious concerns.
If the trial court had sustained the plaintiff's objection to the
defendants' peremptory challenge by finding that the plaintiff had proven
purposeful racial discrimination, such a determination, deferentially
reviewed, would require affirmance. Likewise, here, where the trial court
heard argument of both counsel and was in a unique position to assess the
totality of circumstances and then denied the objection and permitted the
peremptory challenge, we should accord great deference to the judge's
decision, as required by the decisions of this Court and the United States
Supreme Court. I believe that the trial court should be affirmed.

SHEPARD, C.J., concurs.

-----------------------
[1] See, e.g., Julian Abele Cook, Jr., & Tracey Denise Weaver, Closing
Their Eyes to the Constitution: The Declining Role of the Supreme Court in
the Protection of Civil Rights, 1996 Det. C. L. Rev. 541, 555 (1996)
(“[T]he Supreme Court in McDonnell Douglas and BatsonSearch Term Begin
Search Term End , recognizing that invidious discrimination is difficult to
proveSearch Term Begin Search Term End , set forth the prima Search Term
Begin Search Term End facie case as a mechanism by which plaintiffs could
prove Search Term Begin Search Term End discrimination indirectly.”)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)
(creating similar burden-shifting test for proof of discrimination under
federal employment statutes)).

[2] While the burden of production shifts to the party exercising the
challenge, the overall burden to prove discriminatory use of peremptory
challenges remains on the party who objected to the challenge. See Purkett
v. Elem, 514 U.S. 765, 768 (1995) (per curium).

[3] As Cook and Weaver point out, this framework mirrors the prima
facie case/pretext analysis under McDonnell Douglas. See supra note 1.

[4] See, e.g., Wright v. State, 690 N.E.2d 1098, 1104 (Ind. 1998); Lee
v. State, 689 N.E.2d 435, 440 (Ind. 1997); Kent v. State, 675 N.E.2d 332,
339 (Ind. 1996); Currin v. State, 669 N.E.2d 976, 979 (Ind. 1996); Chubb
vs. State, 640 N.E.2d 44, 50 (Ind. 1994); cf. Williams v. State, 700 N.E.2d
784, 787 (Ind. 1998) (failure to establish prima facie case).

[5] The record is sparse as to what actually occurred during jury
selection because the voir dire does not appear in the record. Moreover,
the record contains several juror questionnaires, but not the one answered
by the juror in question. Instead, the parties rely on a transcript of an
argument that occurred just before the trial started. The record also
contains Ashabraner’s motion to correct errors and Bowers’s response to it,
both of which discuss the Batson issue. Bowers does not argue that
Ashabraner’s Batson claim cannot be reviewed on this record.

[6] Again, the actual voir dire answers are not in the record. See
supra note 3.

[7] Bowers argues on appeal that we should not consider the fact that
the juror was the only black member of the venire because Ashabraner did
not mention this fact before the trial court. (Appellee’s Br. at 8 n.2.)
The Court of Appeals accepted this argument and refused to consider the
juror’s status as the only black member of the venire. See Memorandum
Opinion at 4 n.2. However, Bowers made frequent mention of this fact in
his response to Ashabraner’s motion to correct errors (R. at 48-51) and in
his appellate brief. See Appellee’s Br. at 7. We conclude that Bowers has
conceded that the juror was the only black member of the venire. Indeed,
while Bowers asks us to ignore facts that Ashabraner did not mention during
argument before the trial court, he asserts a race neutral reason for the
challenge that he did not raise until his response to Ashabraner’s motion
to correct errors. See Appellee’s Br. at 10 (“What was not said at trial,
for strategically obvious reasons, but was stated in [Bowers’s] Response in
Opposition to Plaintiff’s Motion to Correct Errors … was that the person
seated in the 14th seat was a third year law student who could be valuable
to [Bowers] in addressing proximate cause issues … .”).

[8] As the Batson Court noted:
[B]y denying a person participation in jury service on account of his
race, the State unconstitutionally discriminate[s] against the
excluded juror. [Moreover, the] harm from discriminatory jury
selection extends beyond that inflicted on the defendant and the
excluded juror to touch the entire community. Selection procedures
that purposefully exclude black persons from juries undermine public
confidence in the fairness of our system of justice. Discrimination
within the judicial system is most pernicious because it is “a
stimulant to that race prejudice which is an impediment to securing to
[black citizens] that equal justice which the law aims to secure to
all others.”
Batson, 476 U.S. at 88 (quoting Strauder v. West Virginia, 100 U.S. 303,
308 (1880) (citations omitted), abrogated by Taylor v. Louisiana, 419 U.S.
522 (1975)). Edmonson resolved in the positive the question of whether a
civil litigant had standing to assert the rights of the juror. 500 U.S. at
628-29.

[9] Bowers conceded as much during argument before the trial court:
“There wasn’t a single panel member, Your Honor, who didn’t give positive
responses to both sides on all questions.” (R. at 181.)

[10] Taking this approach responds to Justice Marshall’s concern that
the prima facie case requirement would leave parties “free to discriminate
against blacks in jury selection provided that they hold that
discrimination to an ‘acceptable’ level.” Batson, 476 U.S. at 105
(Marshall, J., concurring). Cf. Henry M. Greenberg, Criminal Procedure, 44
Syracuse L. Rev. 189, 226 (1993) (“[W]hen a Batson objection has been made,
[the objecting party] is entitled to the benefit of the proposition that
peremptory challenges permit those inclined to discriminate to do so.”).
By finding that a party has established a prima facie case where the only
minority juror gave “neutral” answers to jury selection questions but was
removed anyway, we recognize that there may be unconstitutional
discrimination where the venire contained a single or a small number of
minority jurors. We believe it appropriate that trial courts make a Batson
investigation into potential discrimination in such circumstances. See
infra note 11.

[11] See also Cheryl A. C. Brown, Comment, Challenging the Challenge:
Twelve Years After Batson, Courts Are Still Struggling to Fill in the Gaps
Left By the Supreme Court, 28 U. Balt. L. Rev. 379, 403-04 (1999) (“[T]he
third requirement has been subjected to a number of interpretations. An
inference of discriminatory intent has been drawn from various
circumstances. For example, courts have considered whether the challenged
juror shares membership in a cognizable group with a defendant, victim,
witness, or attorney involved in the case. Courts have also considered the
type and level of voir dire questioning and the juror’s responses.
Challenges that remove all members of a cognizable group have been deemed
improper.”).

[12] This conclusion recognizes that the prima facie case only
entitles the party raising a Batson objection to shift the burden of
production. That is to say, the minimal evidence needed to support a prima
facie case under Batson must be sufficient to warrant a limited inquiry
into the challenging party’s motivations behind a peremptory challenge.
This investigation comes at the cost of the otherwise unconditional nature
of peremptory challenges, but if parties exercising such challenges have
followed constitutional mandates, their power to remove jurors will be
protected by Batson’s second step and by the fact that the moving party
retains the burden of proof to show that the challenge was racially-based.
In this way, the prima facie case requirement – and our application of it –
compromises the parties’ competing needs only so much as is necessary to
ensure that the constitution has not been violated. See, e.g., Stephen R.
Diprima, Note, Selecting a Jury in Federal Criminal Trials After Batson and
McCollum, 95 Colum. L. Rev. 888, 904 (1995) (“[T]he consequence of a
finding that a prima facie case has not been established is that the judge
refuses to ask the challenged party for an explanation, despite the
possibility that the challenged party will offer an explanation that
reveals discriminatory intent.”).

[13] The Court of Appeals expressed no viewpoint as to whether
Bowers’s met the second step of the Batson test, which requires a racially
neutral explanation for the strike. Because we have already vacated the
judgment of the trial court for its failure to correctly analyze
Ashabraner’s prima facie Batson case, we similarly do not reach this second
step. However, it is clear that bald statements such as “I did not strike
[the juror] because of race. I struck [the juror] because of the way I saw
the jury panel being made up” (R. at 180) do not present a sufficient
justification under Batson.

[14] Now App. R. 58(A).
[15] In his memorandum in opposition to the plaintiff's motion to
correct error, the defendants provided the following further explanation:
What was not said, for strategically obvious reasons, was that
the person seated in the 14th seat was a third year law student who,
if made an alternate to the jury panel, could be valuable to the
Defendants in addressing proximate cause issues which were critical to
the damage evaluation in this case if the jury got to the damages
issue.
Record at 49.

[16] The majority correctly notes that this Court has found a prima
facie case established when one party exercises a peremptory challenge to
strike the only prospective African-American that could have served on a
jury. McCants v. State, 686 N.E.2d 1281, 1284-85 (Ind. 1997). However,
the majority's emphasis on the prospective juror's "neutral" answers is
unfortunate. The neutrality of a prospective juror's answers, as well as
his or her demeanor, is not a significant consideration in assessing the
propriety of a peremptory challenge which by its nature is intended to
permit the exclusion of jurors not subject to exclusion for cause. Many
jurors properly excluded on peremptory challenges are likely to have
presented "neutral" answers and demeanor, but are removed based upon the
strategic and intuitive impressions and assessments by parties and counsel.
The fact that a peremptorily challenged juror gave "neutral" answers
therefore does not significantly distinguish the challenged juror from
others who may be properly subject to peremptory challenge.

[17] The majority infers that the trial court refused to apply Batson
principles because this was a civil case. I disagree and read the trial
court's comment merely to reflect its view that the plaintiff was
presenting only minimal circumstances to support her objection and further
to express the court's awareness of the important role of peremptory
challenges. It should also be noted that, at the close of trial, the
plaintiff filed a motion to correct errors that included a claim that the
trial court erred in allowing the defendants to exercise the peremptory
challenge over objection without offering a race-neutral explanation other
than "strategy." Record at 25. Both plaintiff and defendants submitted
memoranda in support of their respective positions. The plaintiff pointed
out in her memorandum, Record at 31-32, and the defendants do not dispute,
that a Batson challenge may be made in a civil case. The defendants
admitted in their memorandum that the plaintiff made a "timely Batson
objection . . . . " Record at 53. While the basis of the trial court's
ruling during trial voir dire may be somewhat imprecise, its later ruling
denying the motion to correct error follows the parties' agreement that a
Batson objection does apply to peremptory challenges in civil cases, thus
indicating that the trial court did not misunderstand the application of
Batson to civil trials.

[18] Describing the historical nature and rationale for the
peremptory challenge, William Blackstone explained:
In criminal cases, or at least in capital ones, there is in favorem
vitæ, allowed to the prisoner an arbitrary and capricious species of
challenge to a certain number of jurors, without showing any cause at
all; which is called a preemptory challenge; a provision full of that
tenderness and humanity to prisoners, for which our English laws are
justly famous. This is grounded on two reasons: 1. As every one must
be sensible, what sudden impressions and unaccountable prejudices we
are apt to conceive upon the bare looks and gestures of another; and
how necessary it is that a prisoner (when put to defend his life)
should have a good opinion of his jury, the want of which might
totally disconcert him; the law wills not that he should be tried to
any one man against whom he has conceived a prejudice even without
being able to assign a reason for such his dislike. 2. Because, upon
challenges for cause shown, if the reason assigned prove insufficient
to set aside the juror, perhaps the bare questioning his indifference
may sometimes provoke a resentment; to prevent all ill consequences
from which, the prisoner is still at liberty, if he pleases,
peremptorily to set him aside.
Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed.
1011, 1014 (1892)(quoting 4 William Blackstone, Commentaries 353).