Ronald Richardson v. State of Indiana ( 2019 )

FILED
Apr 18 2019, 10:05 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ronald Richardson, April 18, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2263
v. Appeal from the Fayette Circuit
Court
State of Indiana, The Honorable Hubert Branstetter,
Appellee-Plaintiff. Jr., Judge
Trial Court Cause No.
21C01-1512-F2-968
Bradford, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019 Page 1 of 22
Case Summary
[1] On December 2, 2015, Ronald Richardson sold approximately $70 worth of
heroin to Shannon Burroughs. When he was arrested a short time later, he was
in possession of heroin, cocaine, and marijuana. He was subsequently
convicted of Level 4 felony dealing in a narcotic drug and sentenced to a ten-
year term of incarceration. On appeal, he contends (1) that the trial court
abused its discretion in allowing the State to strike the only African-American
member of the venire (the “potential juror”) from the jury, (2) the trial court
abused its discretion in admitting certain evidence, (3) his rights protecting the
prohibition against double jeopardy were violated, and (4) the evidence is
insufficient to sustain his convictions. Concluding that trial court properly
found that the State proffered a race-neutral reason for striking the potential
juror from the jury; the trial court did not abuse its discretion in admitting the
challenged evidence; Richardson was only convicted of one crime and, thus,
was not subjected to double jeopardy; and the evidence is sufficient to sustain
his conviction for Level 4 felony dealing in a narcotic drug, we affirm.
Facts and Procedural History
[2] On December 2, 2015, Burroughs was associating with Ciera Golay and Robert
Thomas when she arranged to purchase heroin from Richardson. Burroughs
arranged to purchase seven “caps” from Richardson for $10 per cap. A cap is
about a tenth of a gram of heroin packaged in a clear capsule. Burroughs
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agreed to meet Richardson at a Village Pantry in Wayne County to complete
the purchase.
[3] Richardson arrived at the Village Pantry with his girlfriend Comfort Bair and
one of Bair’s friends. Bair was driving and Richardson was sitting in the
backseat. When she arrived, Burroughs sat in the front passenger seat of the
vehicle and gave Bair the money. Richardson gave Burroughs a “hand full” of
caps, more than the seven they had discussed. Tr. Vol. I p. 124. Burroughs
took the caps and returned to Golay’s vehicle. Once in the vehicle, Burroughs
told Golay to “go” because she “knew the $50.00 bill” that she had given to
Bair “was fake.” Tr. Vol. I p. 127.
[4] Bair followed when Golay left the Village Pantry. The vehicles traveled
“erratically” and at a high rate of speed. While Bair was following Golay,
Department of Natural Resources Conservation Officer Grahm Selm received a
dispatch from the Union County Sheriff’s Department that two white vehicles
traveling southbound on State Road 27 were traveling at a high rate of speed,
passing multiple vehicles at once, blocking oncoming traffic, and making the
oncoming traffic go onto the shoulder. Officer Selm observed the two vehicles
near Liberty and started following them. Both vehicles turned westbound onto
State Road 44 towards Connersville. Officer Selm continued to follow the
vehicles, at one point reaching 100 miles per hour. The vehicles were
eventually stopped on 5th Street in Connersville by Connersville Police Officers,
including Officer Brad Rosser.
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[5] Recognizing that his vehicle was about to be stopped by police, Richardson
threw a baggie containing capsules of heroin and cocaine to Bair and instructed
her to hide the drugs. Bair complied by putting the baggie containing the drugs
“inside” her. Tr. Vol. I p. 151. Also at Richardson’s instruction, Bair’s friend
put a baggie containing marijuana “inside” her. Tr. Vol. I p. 152.
[6] Once the vehicles had been stopped, Officer Rosser searched the vehicle in
which Burroughs had been a passenger. During the search, he found a coat that
had twenty-three capsules in the pocket. Subsequent testing revealed that the
capsules contain heroin. After Bair was arrested and transported to the Fayette
County Jail, she removed the baggie containing the capsules of heroin and
cocaine from her vagina.
[7] On December 4, 2015, the State charged Richardson with Level 2 felony
dealing in a narcotic drug, Class A misdemeanor dealing in marijuana, and
Class B misdemeanor visiting a common nuisance. Prior to trial, the State
dismissed the dealing-in-marijuana and visiting-a-common-nuisance charges
and amended the remaining dealing charge to a Level 3 felony. At the
conclusion of trial, the jury returned guilty verdicts for the lesser-included
offenses of Level 4 and Level 5 felony dealing in a narcotic. The trial court
entered judgment on the Level 4 dealing charge and sentenced Richardson to a
ten-year term of imprisonment.
Discussion and Decision
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I. Jury Selection
[8] “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).
“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).
[9] “A defendant’s race-based Batson claim involves a three-step process.” Id. “At
the first stage the burden is low, requiring that the defendant only show
circumstances raising an inference that discrimination occurred.” Id. “This is
commonly referred to as a ‘prima facie’ showing.” Id.[10] At the second stage, “the burden shifts to the prosecution to offer a race-neutral
basis for striking the juror in question.” Id. at 1209 (internal quotation omitted).
“Unless a discriminatory intent is inherent in the prosecutor’s explanation, the
reason offered will be deemed race neutral.” Id. (internal quotation omitted).
“Although the race-neutral reason must be more than a mere denial of improper
motive, the reason need not be particularly persuasive, or even plausible.” Id.(internal quotation omitted). “At this second step 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.” Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam) (internal
brackets and quotation omitted).
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[11] At the third stage, the trial court must determine whether, in light of the parties’
submissions, the defendant has shown purposeful discrimination. Cartwright v.
State, 962 N.E.2d 1217, 1221 (Ind. 2012). “The trial court, not the appellate
court, is in the best position to consider the juror’s demeanor, the nature and
strength of the parties’ arguments, and the attorney’s demeanor and
credibility.” Blackmon v. State, 47 N.E.3d 1225, 1234 (Ind. Ct. App. 2015).
“The issue is whether the trial court finds the prosecutor’s race-neutral
explanation credible.” Roach v. State, 79 N.E.3d 925, 929 (Ind. Ct. App. 2017).
“Although the burden of persuasion on a Batson challenge rests with the party
opposing the strike, the third step—determination of discrimination—is the
‘duty’ of the trial judge.” Cartwright, 962 N.E.2d at 1221 (internal citations
omitted). “The trial court evaluates the persuasiveness of the step two
justification at the third step.” Id. “It is then that implausible or fantastic
justifications may (and probably will) be found to be pretexts for purposeful
discrimination.” Id. (internal quotation omitted). “Also, at the third stage, the
defendant may offer additional evidence to demonstrate that the proffered
justification was pretextual.” Id.
[12] In this case, at the first stage, it is undisputed that Richardson made a prima
facie case that the State’s peremptory challenge suggested an inference of
discrimination because the potential juror was the only African-American
member of the venire. See id. at 1222 (noting that removal of the only African-
American juror that could have served on the jury is sufficient to establish a
prima facie case under Batson). The first stage was therefore satisfied, and the
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burden then shifted to the State to present a race-neutral reason for striking the
potential juror.
[13] As for the second stage, the record reveals that during voir dire, the potential
juror indicated that she liked to read and watch television. When asked what
she liked to read and watch, the potential juror indicated “stories about the
law.” Tr. Vol. I p. 62. She indicated that she “really like[d] Law & Order” and
had “seen every episode of Perry Mason.” Tr. Vol. I p. 62. The potential juror
then told the deputy prosecutor that she thought “beyond [a] reasonable doubt”
meant “[t]hat you have sufficient evidence to convince us that your case is
bigger than the other persons in that this person is guilty.” Tr. Vol. I p. 62. The
deputy prosecutor responded by clarifying that the jurors “will not be
comparing cases … [t]hats not how a criminal case works” and informed the
venire that she, as the State’s representative, had the “burden to prove each of
the elements of the crime charged.” Tr. Vol. I pp. 62, 63. In explaining her
desire to strike the potential juror, the deputy prosecutor indicated that she
observed the potential juror (1) enjoys reading and watching books and
programs that are law-related, (2) to be aggressive and dominant, and (3) to
have dominant body language. Defense counsel responded, stating “Judge,
(inaudible) her ethnicity (inaudible) uh, State proper reason uh, I think um, I
don’t have any other (inaudible).” Tr. Vol. I p. 77. The State’s reasons for
striking the potential juror were facially valid and race neutral. Thus, the
second stage was satisfied.
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[14] Once the first and second stages had been satisfied, the issue proceeded to the
third stage. Again, at this stage, the trial court evaluated the persuasiveness of
the State’s justification and considered whether the justification was valid or
mere pretext. See Cartwright, 962 N.E.2d at 1221. After considering the State’s
proffered justification, the trial court granted the State’s request to strike the
potential juror, stating, “We’ll note [defense counsel’s] objection for the record
and we’ll find that the reasons articulated by the State are appropriate reasons
for striking [potential juror] at this time.” Tr. Vol. I p. 77.
[15] Upon review, we conclude that the trial court properly determined that the
State articulated a race-neutral reason for using a peremptory challenge to strike
the potential juror from the jury. The potential juror indicated during voir dire
that she had an interest in law-related books and television shows, and her
enjoyment of these mediums may have left her with an inaccurate
understanding of criminal proceedings. The potential juror’s interest in law-
related books and television shows has been found to be a permissible ground
for the State’s peremptory challenge. See United States v. Farhane, 634 F.3d 127,
157–58 (2d Cir. 2011) (providing that it was plausible for the prosecutor to think
that a juror who regularly watched television shows such as CSI might be more
inclined to think that forensic evidence is necessary to prove guilty); United
States v. Murillo, 288 F.3d 1126, 1136 (9th Cir. 2002) (finding that the juror’s
statement that Judge Judy was her favorite television show was a permissible
ground for the prosecutor’s peremptory challenge).
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[16] Further, despite Richardson’s claim to the contrary, when making its
determination as to whether the State provided a race-neutral reason for striking
the potential juror, the trial court was not required to make factual findings to
support its reasoning. See Cartwright, 962 N.E.2d at 1222 (providing that neither
state nor federal law require a trial court to make explicit findings when
deciding whether the State offered a race-neutral reason for striking a potential
juror); Blackmon, 47 N.E.3d at 1234 (indicating that the trial court is not
required to make explicit findings every time the prosecution justifies a
peremptory strike based on a juror’s demeanor). The trial court made its ruling
immediately following the parties’ questioning of the potential juror during voir
dire and its observations and memories of the potential juror’s demeanor would
have been fresh in the trial court’s mind. Nothing in the record calls into
question the deference owed to the trial court’s evaluation of the demeanor of
the individuals and parties appearing before it. Richardson has failed to
establish error in this regard.
II. Admission of Evidence
[17] “We review the trial court’s ruling on the admission of evidence for an abuse of
discretion.” Espinoza v. State, 859 N.E.2d 375, 381 (Ind. Ct. App. 2006). “We
reverse only where the decision is clearly against the logic and effect of the facts
and circumstances.” Id. According to Richardson, the trial court abused its
discretion by admitting Exhibits 3, 6, and 7 because the State failed to present
an adequate chain of custody for the items.
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[18] An adequate foundation establishing a continuous chain of
custody is established if the State accounts for the evidence at
each stage from its acquisition, to its testing, and to its
introduction at trial. Under the chain of custody doctrine, an
adequate foundation is laid when the continuous whereabouts of
an exhibit is shown from the time it came into the possession of
the police.
To establish a proper chain of custody, the State must give
reasonable assurances that the evidence remained in an
undisturbed condition. However, the State need not establish a
perfect chain of custody, and once the State strongly suggests the
exact whereabouts of the evidence, any gaps go to the weight of
the evidence and not to admissibility. Moreover, there is a
presumption of regularity in the handling of evidence by officers,
and there is a presumption that officers exercise due care in
handling their duties. To mount a successful challenge to the
chain of custody, one must present evidence that does more than
raise a mere possibility that the evidence may have been
tampered with.
Id. at 382 (internal citations and quotations omitted).
[19] Richardson claims that the trial court abused its discretion in admitting the
challenged Exhibits because of a gap in the chain of custody of the evidence,
thereby suggesting that the evidence may have been tampered with. Exhibit 3
was an evidence bag containing capsules of heroin that were found in the
pocket of a coat recovered from Burroughs’s vehicle. Officer Rosser collected
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the capsules at the scene, placed them in a tamper-proof evidence bag,1 sealed
the bag, and filled out the necessary identifying information. Exhibit 6 was a
white rock-like substance, which was subsequently determined to be 3.66 grams
of cocaine, and Exhibit 7 was a number of capsules containing heroin. Exhibits
6 and 7 were recovered from Bair’s person. Nancy Bohlander, a jail officer at
the Fayette County Jail who observed Bair remove a bag containing the cocaine
and the capsules from her person upon being booked into custody, placed the
contraband in an evidence bag and gave it to Officer Rosser.
[20] In challenging the chain of custody of Exhibits 3, 6, and 7, Richardson argues
that the Exhibits were unaccounted for from April 10, 2017 to August 8, 2018.
We disagree. The following dates detail the custody chain of the challenged
Exhibits:
December 2, 2015 Officer Rosser deposited Exhibits 3, 6, and 7 into a
secure storage in the evidence room of the Connersville
Police Department (“the Department”). The Exhibits
were subsequently logged into the evidence room by
the Department’s evidence custodian and continued to
be stored in the secure evidence room.
April 10, 2017 Exhibits 3 and 6 were transported and relinquished to
the Indiana State Police (“ISP”) Lab for testing.
June 2, 2017 Exhibits 3 and 6 were returned to the Department and
placed in the evidence room.
1
While markings on the evidence bag indicated that it contained twenty-one capsules, Exhibit 4, which
depicted the contents of Exhibit 3 together with the other items recovered from the coat shows twenty-three
capsules. Considering Exhibits 3 and 4 together with the evidence that the bag was sealed and did not appear
to have been tampered with and Officer Rosser’s acknowledgment that it was possible that he miscounted the
capsules when he logged the evidence, one may reasonably assume that the indication that the bag contained
only twenty-one capsules was a scrivener’s error and that the bag actually contained twenty-three capsules.
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June 2, 2017 Exhibit 7 was transported and relinquished to the ISP
Lab for testing.
July 7, 2017 Exhibit 7 was returned to the Department and placed in
the evidence room.
August 8, 2018 Exhibits 3, 6, and 7 were removed from evidence room
for court and returned the same day.
August 13, 2018 Exhibits 3, 6, and 7 were removed from the evidence
room for court.
[21] The record demonstrates that the Exhibits were placed in the Department’s
evidence room on December 2, 2015. The Exhibits remained in the evidence
room until being sent to the ISP Lab for testing. Once testing was complete, the
Exhibits were returned to the evidence room. The Exhibits then remained in
the Department’s evidence room until being removed for trial. The technician
who tested the Exhibits at the ISP Lab testified that the Exhibits appeared in the
same condition as on the day when she concluded her testing. The record does
not include any gaps in the chain of custody for Exhibits 3, 6, or 7.
[22] Moreover, even if Richardson had been able to establish some gap in the chain
of custody, his challenge to the admission of the Exhibits fails. Again, to
mount a successful challenge to the chain of custody, Richardson was required
to present evidence that does more than raise a mere possibility that the
evidence may have been tampered with. Id. He did not do so. As such, the
alleged gap in the chain of custody goes to the weight of the evidence and not to
admissibility. Id. The trial court, therefore, did not abuse its discretion by
admitting Exhibits 3, 6, or 7 into evidence. See Troxell v. State, 778 N.E.2d 811,
815 (Ind. 2002) (concluding that while the defendant had pointed to potential
Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019 Page 12 of 22
gaps in the chain of custody and alleged that the evidence may have been
subject to tampering during said gaps, he presented no evidence supporting the
allegation and, because of the presumption of regularity in handling evidence,
there was no error in admitting the challenged evidence).
III. Double Jeopardy
[23] Both the Fifth Amendment of the United States Constitution and Article I,
Section 14 of the Indiana Constitution provide that no one shall be put in
jeopardy twice for the same offense. (Emphasis added). Richardson claims that
he was convicted of both Level 4 felony and Level 5 felony dealing and that
because these convictions punished him for the same offense, punishment for
both “inherently violates [his] rights to be free from double jeopardy.”
Appellant’s Br. p. 25. While the original sentencing order did reference
convictions for both Level 4 felony dealing and Level 5 felony dealing, both the
trial court’s amended sentencing order and the abstract of judgment indicate
that Richardson was convicted of only the Level 4 felony dealing charge.
Given that Richardson was convicted of only one count of Level 4 felony
dealing, his double jeopardy claim fails, as he was not punished twice for his
actions in violation of Article I, Section 14 or the Fifth Amendment.
IV. Sufficiency of the Evidence
[24] When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the verdict. It is
the fact-finder’s role, not that of appellate courts, to assess
witness credibility and weigh the evidence to determine whether
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it is sufficient to support a conviction. To preserve this structure,
when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the trial court’s ruling.
Appellate courts affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a
reasonable doubt. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence. The
evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (citations, emphasis, and
quotations omitted).
[25] Initially, we note that Richardson’s claim regarding the sufficiency of the
evidence was based entirely on his claim that the trial court abused its discretion
in admitting Exhibits 3, 6, and 7. However, given our conclusion that the trial
court did not abuse its discretion in that regard, the jury could consider the
Exhibits in determining that the State produced sufficient evidence to prove
Richardson’s guilt.
[26] In order to convict Richardson of Level 4 felony dealing in a narcotic drug, the
State was required to prove that Richardson knowingly or intentionally
delivered or possessed with the intent to deliver between one and five grams of
heroin. Ind. Code § 35-48-4-1. The evidence establishes that Richardson
possessed 4.29 grams of heroin, which he instructed Bain to hide when his
vehicle was stopped by police. He also sold 3.0 grams of heroin to Burroughs.
The evidence is sufficient to sustain Richardson’s conviction.
[27] The judgment of the trial court is affirmed.
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Tavitas, J., concurs.
Crone, J., concurs in part and concurs in result in part with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Ronald Richardson, Court of Appeals Case No.
18A-CR-2263
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff
Crone, Judge, concurring in part and concurring in result in part.
[28] I fully concur as to issues II through IV, but I write separately to express my
concerns regarding the Batson analysis in issue I.
[29] With respect to the first stage of the three-stage Batson process, I agree with my
colleagues that “Richardson made a prima facie case that the State’s
peremptory challenge suggested an inference of discrimination because the
potential juror was the only African-American member of the venire.” Slip op.
at 6.
[30] Once the defendant makes a prima facie showing, the burden then shifts to the
State in the second stage to come forward with a race-neutral explanation for
challenging a venireperson. In this case, the prosecutor gave the following
reasons for striking the potential juror:
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[W]e found [the potential juror] to be um, aggressive and
dominant in the conversation um, in her answering she was
always the first to speak out um, she’s—was very um, in her
language it was “I” uh, we’re looking for a group so when we’re
analyzing juries we’re looking for more of what we will decide.
She had dominant body language and under our system of what
we look for in life experience, in personality what is exhibited
here in um, the kinds of t.v. shows that she enjoys, the kinds of
reading um, and the kinds of hobby activities she fits into the
category um, for us to strike and not want on the jury.
Tr. Vol. 1 at 76. At that point, the trial court did not make a specific finding
that these reasons were race neutral.
[31] “At the third and last stage of a Batson inquiry, ‘in light of the parties’
submissions, the trial court must determine whether the defendant has shown
purposeful discrimination.’” Addison, 962 N.E.2d at 1209 (quoting Snyder v.
Louisiana, 552 U.S. 472, 477 (2008)). “Although the burden of persuasion on a
Batson challenge rests with the party opposing the strike, the third step—
determination of discrimination—is the ‘duty’ of the trial judge.” Id. at 1210
(citation omitted). “The trial court evaluates the persuasiveness of the step two
justification at the third step. It is then that ‘implausible or fantastic
justification may (and probably will) be found to be pretexts for purposeful
discrimination.’” Id. (quoting Purkett, 514 U.S. at 768). “The issue is whether
the trial court finds the prosecutor’s race-neutral explanation credible.” Id.“‘[T]he rule in Batson provides an opportunity to the prosecutor to give the
reason for striking the juror, and it requires the judge to assess the plausibility of
that reason in light of all evidence with a bearing on it.’” Id. (quoting Miller-El
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v. Dretke, 545 U.S. 231, 251-52 (2005)). “Also, at the third stage, the defendant
may offer additional evidence to demonstrate that the proffered justification
was pretextual.” Id.[32] Here, Richardson apparently offered no additional evidence to demonstrate that
the prosecutor’s proffered justifications for striking the potential juror were
pretextual. See Tr. Vol. 1 at 77 (“Judge, (inaudible) her ethnicity (inaudible) uh,
State proper reason uh, I think um, I don’t have any other (inaudible).”). 2 And
ultimately, the trial court found “that the reasons articulated by the [prosecutor
were] appropriate reasons for striking [the potential juror] at [that] time.” Id.(emphasis added). In this context, I presume that “appropriate” means both
“race neutral” and “credible” for Batson purposes.3
[33] The prosecutor’s reasons for striking the potential juror are race neutral on their
face. But the transcript flatly contradicts the prosecutor’s assertion that the
potential juror was “aggressive and dominant in the conversation” and “was
always the first to speak out.” She spoke only when spoken to and succinctly
answered the questions asked of her. Tr. Vol. 1 at 61-63, 68, 75. As for the
potential juror’s allegedly “dominant body language,” i.e., demeanor, the trial
2
As this excerpt suggests, the quality of the voir dire transcript leaves much to be desired. Cf. Childress v.
State, 96 N.E.3d 632, 636-37 (Ind. Ct. App. 2018) (noting “significant deficiencies in the transcript” of voir
dire proceedings in addressing appellant’s Batson argument).
3
I do not share Richardson’s concern that the trial court conflated the second and third stages of the Batson
process. We presume that a trial court knows and follows the applicable law. Tharpe v. State, 955 N.E.2d 836,
842 (Ind. Ct. App. 2011), trans. denied.
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court made no specific finding to support the prosecutor’s assessment. We have
acknowledged that U.S. Supreme Court precedent does not require “a trial
court to make explicit findings every time the prosecution justifies a peremptory
strike based on a juror’s demeanor[,]” Blackmon, 47 N.E.3d at 1234, but making
such findings is clearly the better practice in light of an appellate court’s
inability to judge a potential juror’s demeanor, and I urge the Indiana Supreme
Court to require such findings in Indiana trial courts to promote both fairness
and judicial economy. Cf. Roach, 79 N.E.3d at 931-32 (remanding for
determination regarding credibility of prosecutor’s demeanor-based reason for
striking juror, where second reason for striking juror was not supported by the
record).
[34] Regarding the potential juror’s media preferences, my colleagues state that a
“potential juror’s interest in law-related books and television shows has been
found to be a permissible ground for the State’s peremptory challenge.” Slip
op. at 8 (citing Farhane, 634 F.3d at 157-58, and Murillo, 288 F.3d at 1136). In
Farhane, the prosecutor specifically argued that the potential juror’s “frequent
television viewing of the three ‘CSI’ television shows might make him reluctant
to convict in the absence of scientific evidence.” 634 F.3d at 157. Here,
however, the prosecutor made no specific argument regarding the potential
juror’s choice of books and television shows. My colleagues merely speculate
that the potential juror’s “enjoyment of these mediums may have left her with
an inaccurate understanding of criminal proceedings,” slip op. at 8, and
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overlook her apparent willingness to maintain an open mind and follow the
law:
[PROSECUTOR]: … Uh, Ms. Smithson, what do you think
beyond reasonable doubt is?
[POTENTIAL JUROR]: That you have sufficient evidence to
convince us that your case is bigger than the other persons in that
this person is guilty or what you (inaudible)
[PROSECUTOR]: Okay um, (inaudible) first part agree with
that. There’s one little place where I disagree. You will not be
comparing cases (inaudible)
[POTENTIAL JUROR]: Oh.
[PROSECUTOR]: That’s not how a criminal case works.
(Inaudible) but a criminal case it’s my burden to prove each of
the elements of the crime charged. (Inaudible) and you have to
deliberate, what would your verdict be?
[POTENTIAL JUROR]: Not guilty.
[PROSECUTOR]: Because there’s not any evidence. You have
to be convinced by the evidence and beyond a reasonable doubt
(inaudible) but it’s not beyond all doubt but it’s a high burden.
Tr. Vol. 1 at 62-63. Although the transcript’s quality is poor, one could
reasonably infer that the prosecutor asked the potential juror what her verdict
would be if she had to render one before any evidence was presented, and she
correctly answered that she would have to find the defendant not guilty.
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[35] In Murillo, the appellate court ruled that the potential juror’s “statement that
Judge Judy was her favorite TV show” was a “permissible ground[] for the
prosecutor’s peremptory challenge[,]” in that it “did not inherently suggest a
discriminatory intent” and was “race-neutral.” 288 F.3d at 1136. But the
opinion does not say why the prosecutor found the potential juror’s fondness
for Judge Judy objectionable. Although a prosecutor’s explanation for
exercising a peremptory strike “need not rise to the level justifying exercise of a
challenge for cause[,]” Batson, 476 U.S. at 97, I believe that a prosecutor facing
a Batson challenge should be required to offer some justification as to why a
potential juror’s media preferences could affect that person’s fitness to be a
juror. Otherwise, we risk allowing such preferences to become shorthand,
Batson-proof bases for exercising peremptory strikes (e.g., anyone who likes to
watch Judge Judy is unfit to be a juror). See Minetos v. City Univ. of N.Y., 925 F.
Supp. 177, 184-85 (S.D.N.Y. 1996) (“Subjective reasons offered by counsel to
justify peremptory challenges (such as the juror’s hairstyle, bad facial
expression, body language, or over-responsiveness to opposing counsel) will be
evaluated by the trial court and the peremptory challenge will be sustained if the
trial court confirms there is a sound and credible basis for it. Of course, listing
in this manner has the unfortunate effect of creating a how-to guide for
defeating Batson challenges. Such guidelines do not ensure that juror strikes are
Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019 Page 21 of 22
not racially motivated—only that advocates are on notice of which reasons will
best survive judicial review.”) (footnote omitted).4
[36] All that being said, absent any existing requirement for trial courts to make
findings regarding a potential juror’s demeanor or for prosecutors to offer some
justification for striking a potential juror based on his or her media preferences,
I must reluctantly defer to the trial court, who was uniquely situated to assess
the potential juror’s allegedly “dominant body language” and determine the
credibility of the prosecutor’s objection to her choice of books and television
shows. My reluctance is heightened by the lack of evidence supporting the
prosecutor’s assertion that the potential juror was “aggressive and dominant in
the conversation,” but in the end I must conclude that Richardson has failed to
establish that the trial court clearly erred in denying his Batson challenge.
Accordingly, I concur in result as to issue I.
4
The district judge in Minetos echoed Justice Thurgood Marshall’s call in his concurring opinion in Batson to
end “peremptory challenges and the racial discrimination they perpetuate.” 925 F. Supp. at 185.
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