Antonio R. Whitfield v. State of Indiana ( 2019 )


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  •                                                                               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
    Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019                           Page 1 of 15
    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.
    Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019        Page 2 of 15
    [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 Court
    of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019        Page 3 of 15
    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).
    Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019            Page 4 of 15
    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
    Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019         Page 5 of 15
    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.
    Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019               Page 6 of 15
    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).
    Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019                                  Page 7 of 15
    [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
    Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019           Page 8 of 15
    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.
    Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019                               Page 9 of 15
    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
    Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019         Page 10 of 15
    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
    Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019          Page 11 of 15
    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
    ).
    Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019                                    Page 12 of 15
    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).
    Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019                                    Page 13 of 15
    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.
    Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019          Page 14 of 15
    [20]   Based on the foregoing, we affirm Whitfield’s conviction.
    [21]   Affirmed.
    Bradford, J., and Tavitas, J., concur.
    Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019   Page 15 of 15