      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                              FILED
      this Memorandum Decision shall not be                          Dec 09 2016, 9:06 am

      regarded as precedent or cited before any                           CLERK
      court except for the purpose of establishing                    Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Mark S. Lenyo                                            Gregory F. Zoeller
      South Bend, Indiana                                      Attorney General of Indiana
                                                               J.T. Whitehead
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Terral Lerron Golden,                                    December 9, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               71A03-1601-CR-167
              v.                                               Appeal from the St. Joseph
                                                               Superior Court 2
      State of Indiana,                                        The Honorable John M.
      Appellee-Plaintiff.                                      Marnocha, Judge
                                                               Trial Court Cause No.
                                                               71D02-1509-MR-14



      Mathias, Judge.


[1]   Terral Lerron Golden (“Golden”) was convicted in St. Joseph Superior Court

      of murder and attempted murder. Golden appeals and presents two issues,


      Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 1 of 26
      which we restate as: (1) whether Golden knowingly and intelligently waived his

      right to counsel, and (2) whether the trial court erred in overruling Golden’s

      Batson challenge.


[2]   We affirm.


                                    Facts and Procedural History

[3]   On September 15, 2015, Lacy Patton (“Patton”) and his friend Arles Slaven

      (“Slaven”) went to a home on Douglas Road in St. Joseph County, Indiana.

      The home was known as a drug house, and Patton and Slaven went there to

      locate Haeli Stevenson (“Stevenson”), the mother of Patton’s infant son.

      Stevenson had gone to the house with her baby so that she could buy marijuana

      from Tristan Gill (“Gill”), who lived at the home. Also at the home was the

      defendant, Golden, who was Gill’s cousin.


[4]   Stevenson saw Patton and Slaven coming toward the home and warned Gill

      before trying to leave. Before she could leave, Stevenson ran into Patton. Patton

      saw Stevenson breastfeeding their child while smoking, and the two began to

      argue. Gill became involved, and he and Patton began to fight, with Patton

      punching Gill. Golden then asked Gill for his gun. Shortly thereafter, Patton

      heard Slaven say, “put the gun down, punk, put the gun down.” Trial Tr. pp.

      396-97. Patton ran to the room where Slaven was and saw Golden pointing the

      gun at Slaven. Golden then alternated pointing the gun at Slaven and Patton,

      which Patton described as if Golden were playing “eenie meenie miney mo.”

      Id. at 397.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 2 of 26
[5]   Patton then ran back to Stevenson to tell her that Golden had a gun. After

      Patton left the room, Golden shot Slaven, who died as a result of his injuries.

      After the gunshot, Gill, who had witnessed the shooting, was asked by the

      owner of the home what had happened. Gill told him, “a murder just

      happened.” Trial Tr. p. 387.


[6]   On September 18, 2015, the State charged Golden with murder and attempted

      murder. At a pretrial hearing on October 6, 2015, Golden informed the trial

      court that he wished to represent himself. The trial court then engaged in an

      extensive colloquy with Golden regarding the dangers of self-representation:


              [Golden]:        I will be representing myself.
              [Court]:         Okay. Has anybody talked to you about that and
                               told you what the law is, concerning that?
              [Golden]:        (indicates negatively)
              [Court]:         Well, I want to make sure you understand, you
                               have the right to be represented by an attorney.
              [Golden]:        Right.
              [Court]:         You have the right to hire your own lawyer, if you
                               want to.
                               If I find that you’re indigent under the law, I can
                               appoint a public defender for you at no cost.
                               You also have the right to represent yourself.
              [Golden]:        Right.
              [Court]:         Although I strongly recommend against that. And
                               the reason for that is, I can’t give you any help,
                               okay?
                               I can’t give you any advice, I can’t tell you what to
                               do, I can’t tell you what not to do.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 3 of 26
        [Golden]:        Right.
        [Court]:         And you are held to the same standard as a lawyer.
        [Golden]:        Right.
        [Court]:         So you can’t, for instance, go to trial, be ineffective,
                         get yourself convicted, then later on say you were
                         ineffective, because the issue is gone.
        [Golden]:        Right.
        [Court]:         And these advisements that I’m going to go through
                         here with you. . . well, I’ll just read this, because I’m
                         going to ask you to sign this.
                         It says: I’ve been accused of a crime and have a
                         copy of the charges. The judge has told me the
                         nature of the charges and there may be lesser
                         included offenses, defenses or mitigating
                         circumstances about which I should know.
                         I know I have the right to a lawyer and the right to
                         be my own lawyer.
                         The judge has warned me that that it’s dangerous
                         and almost always unwise to be my own lawyer,
                         because I’ll be held to the same standards of law and
                         procedure as a lawyer and I will not get special
                         treatment from the Court.
                         The judge has warned me that I may hurt my own
                         case, and the State has an experienced lawyer.
                         The judge has warned me that a lawyer has skills
                         and expertise in preparing for and conducting a
                         criminal defense that I do not have, and that a
                         lawyer will be better able to:
                         Number one, investigate and question witnesses,
                         gather appropriate documentary evidence, obtain
                         favorable defense witnesses, prepare and file pretrial
                         motions, prepare appropriate written jury
                         instructions, prepare opening and closing

Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 4 of 26
                         statements, examine and cross-examine witnesses at
                         trial, and recognize objectionable prejudicial
                         evidence and testimony, and make proper
                         objections to it.
                         Do you understand all those things?
        [Golden]:        Yes, sir.
        [Court]:         How far did you go in school?
        [Golden]:        To the 12th.
        [Court]:         So 12 years of education; is that correct?
        [Golden]:        Yes, sir.
        [Court]:         Have you ever been . . . have you ever seen a
                         psychiatrist or psychologist for anything?
        [Golden]:        No.
        [Court]:         You understand the rules of evidence and
                         procedure?
        [Golden]:        Yes, sir.
        [Court]:         Okay, how do you know that?
        [Golden]:        I just know. I follow what I’ve learned.
        [Court]:         And you understand the English language; is that
                         correct?
        [Golden]:        Yes, sir.
        [Court]:         Now that I’ve given you these warnings, but I’m
                         telling you that it’s your choice.
        [Golden]:        Yes, sir.
        [Court]:         It’s my advice to you that you hire a lawyer, but it’s
                         your choice. That you either hire a lawyer or you
                         ask for a public defender and be represented by
                         someone that’s done this sort of stuff before.
                         But you understand that it’s your choice?
        [Golden]:        Yes, sir.

Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 5 of 26
              [Court]:         Do you still wish to represent yourself?
              [Golden]:        Yes, sir.
              [Court]:         Is that your free and voluntary decision, is that what
                               you want to do?
                               Do you feel that’s the best course in proceeding?
              [Golden]:        Yes, sir.

      Pretrial Tr. pp. 3-7.


[7]   Golden then asserted his right to a speedy trial, which caused the court to warn

      him that a speedy trial might be helpful, but also might put pressure on him to

      get his case together in a short period. The court repeated its warning regarding

      self-representation, to which Golden responded, “I know what I’m doing.”

      Pretrial Tr. p. 9. The trial court then set a trial date of December 14, 2015.


[8]   At another pretrial hearing held on October 27, 2015, Golden reasserted his

      right to self-representation, yet he also informed the trial court that he needed

      time to hire private counsel. At the subsequent November 5, 2015 hearing,

      Golden informed the trial court that he had been unable to retain private

      counsel. The trial court then appointed a public defender, Mark Lenyo, to

      represent Golden. At the next pretrial hearing on November 9, 2015, Golden’s

      appointed public defender indicated that he could not prepare for Golden’s trial

      in time for the December 14 trial date. The following exchange then occurred:


              [Golden]:        This ain’t even my lawyer, Your Honor.
              [Court]:         Well, he can be your lawyer and is your lawyer.
              [Golden]:        I’ve asked for a speedy trial.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 6 of 26
              [Court]:         Well, you have a right to a speedy trial at a time
                               when your lawyer can be prepared.
              [Golden]:        I don’t want him as my lawyer then.
              [Court]:         You don’t get any other lawyer.
              [Golden]:        Oh, well.
              [Court]:         You want to continue to represent yourself?
              [Golden]:        Yes, sir.
              [Court]:         Okay, Mr. Golden will represent himself, pro se. . . .
                               Against my advice.

      Pretrial Tr. pp. 19-20.


[9]   The following day, the trial court brought the parties back into court to discuss

      the matter further. The court noted that requiring the public defender to prepare

      for the speedy trial date of December 14 “puts him kinda behind the eight-ball.”

      Pretrial Tr. p. 24. The trial court therefore wanted to ensure that Golden

      understood that he had “an absolute right to represent” himself. Id. at 25.

      Golden indicated that he understood. The trial court further informed Golden:


              And you understand that, you have an absolute right to be
              represented by an attorney.
              And as I said to you before when you made the original waiver, I
              always suggest that a defendant in any criminal case, whether in
              custody or not in custody, that they get a lawyer. Because a
              lawyer has certain skills and training and knows the law and
              knows what to do, particularly in a complicated case.
              And more importantly, when you are in custody you don’t have
              the ability to do the kinds of things a lawyer would do, because
              you’re in custody.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 7 of 26
               And I want to make sure . . . I won’t use the word scare you off,
               but when I was originally looking at my calendar I was talking
               May or something like that, but that’s my mistake. Because I just
               initially assumed with this first appearance, that’s what I would
               normally do in a murder case.
               And so on one hand, I don’t believe that I could force Mr. Lenyo
               to represent you, and force in effect to be incompetent as counsel,
               given the time frame.
               I would certainly be willing to speed this trial up, you know, in
               more of the earlier part of next year, as opposed to April or May,
               if you wish to have Mr. Lenyo represent you.
               But I wanted to make sure you were here and you could think
               about that. Because I think we would be looking probably more
               like mid-January or February rather than December. Because I
               think I could put this case--

       Pretrial Tr. pp. 25-26.


[10]   Golden then interrupted: “This is my problem. . . . My kid, my baby mother

       doesn’t want him. So I’m the only one that can take care of the baby. I want to

       go through this while this trial is being done.” Pretrial Tr. p. 26. The trial court

       warned Golden that, if convicted, he faced a long sentence and would never get

       to see his child. Golden responded, “And I’m willing to take that chance.” Id.

       The court then noted that there was a hold on Golden from another jurisdiction

       and that, even if he were acquitted in this case, he might still be in custody. The

       court continued:


               So I guess what I’m telling you, Mr. Golden, this is a murder
               case, you in representing yourself, if you get convicted, cannot
               later on claim that you were ineffective.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 8 of 26
               And even in situations where lawyers are charged with a crime or
               lawyers are involved in some sort of civil case where they are a
               defendant, it’s always the better practice that that person, the
               lawyer, even hire another lawyer to represent them, because you
               need that.
               And now [the prosecuting attorney] has told me that it really
               doesn’t matter because of a hold in another jurisdiction on the
               14th, as well.
               So I’m willing to do whatever you want me to do.

       Pretrial Tr. pp. 26-27. Golden responded in no uncertain terms, “I want to

       keep my trial date.” Id. at 27. The court also asked if Golden desired to

       continue to proceed pro se, to which Golden responded, “Yes, sir.” Id. The trial

       court again asked, “I want to make sure that you are really clear about that,” to

       which Golden again responded in the affirmative. Id.


[11]   Still, the trial court was concerned about the situation, and on the next pretrial

       hearing on November 24, 2015, the court stated:


               Now Mr. Golden, I just want to go over this again one more time
               with you, because I think it’s so important.
               You have told me that you . . . you’ve moved for a speedy trial,
               which I’ve honored. And you had told me that one of the reasons
               you want to get this over with, is that you have a child born and
               you don’t believe the mother is an appropriate person to care for
               the child. So you want to get this done and get out of custody as
               soon as possible; is that correct?

       Pretrial Tr. p. 31. Golden responded, “Yes.” The court then had the following

       discussion with Golden:



       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 9 of 26
        [Court]:         But Mr. Fronk, the deputy prosecutor, the last time
                         we were here said that no matter what happens in
                         this case, whether you are found guilty or not guilty,
                         or even if the State dismisses the case, there’s a hold
                         on you from another jurisdiction, so you are not
                         getting out of custody, no matter what happens.
        [Golden]:        That’s already been dropped.
        [Court]:         What?
        [Golden]:        It’s been dropped.
        [Court]:         Well, I just have to tell you that.
                         And you know, the problem here is, this is a murder
                         case. And the sentence is fairly severe in this case.
                         You are looking at anywhere . . . if you were
                         convicted, at 45 to 65 years in prison. And you
                         would have to serve 75 percent of that, there’s no
                         day-for-day credit for these cases anymore.
                         You have a right to be represented by an attorney,
                         you have a right to the appointment of an attorney
                         at no expense to you, if you were found indigent.
                         And I think I had already made that finding,
                         because I had appointed a public defender.
                         You do have an absolute right to represent yourself.
                         Now the difficulty that we had here, if you recall, I
                         appointed the public defender to represent you. Mr.
                         Lenyo came here to enter his appearance, but he
                         could not honor your speedy trial request.
                         I was a bit confused, as you recall, and I was talking
                         about setting this off until April sometime, as I
                         would do if you made your first appearance in a
                         murder case today. And I had forgotten that you
                         had already appeared and requested a speedy trial
                         before counsel had been appointed.



Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 10 of 26
                         I told you and Mr. Lenyo, that I could not force
                         him to represent you and be unprepared. Just like I
                         can’t force any attorney to represent you when he’s
                         unprepared.
                         But I did say that what I would do, is instead of
                         looking at April or May, that I would reset this as a
                         first setting on a Monday and set this probably in
                         mid-February, to allow your lawyer to get prepared
                         in this case.
                         And you said you didn’t want that, you wanted to
                         go to trial in December as planned; is that correct?
        [Golden]:        Right.
        [Court]:         Now you understand that the other problem is, I
                         really can’t even appoint standby counsel for you.
                         Because in a murder case there is so much
                         information to go through, that I don’t think there is
                         going to be any lawyer who’s going to say that he
                         can give you advice in this case, if he can’t be
                         prepared.
                         And so it puts you in a real bind in this case.
                         I strongly . . . I will honor your request to represent
                         yourself, pro se. But I strongly advise you that you
                         consider these things and consider the ramification
                         of representing yourself.
                         I think I told you that’s never a good idea to
                         represent yourself. And I think I had given you an
                         example that even when attorneys get in trouble,
                         they don’t represent themselves, they hire another
                         attorney to represent them.
        [Golden]:        Yes.
        [Court]:         I’ve got to get this case going, it’s up in two weeks,
                         we’ve summoned a jury in here. But I want you to
                         think about that and I want you to . . . at this point


Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 11 of 26
                         and time you’re telling me you want to do this
                         without a lawyer on December 14th; is that correct?
        [Golden]:        Yes.
        [Court]:         And you understand that at trial I can’t help you, I
                         can’t give you advice.
        [Golden]:        I know that.
        [Court]:         You’re going to have to be able to select this jury on
                         your own, you’re going to have to know the law,
                         you’re going to have to know how to make
                         objections to keep inadmissible evidence out, you’re
                         going to have to know how to respond to objections
                         . . . when the State objects to something you’re
                         doing.
                         You’re going to have to know all the procedures in
                         trial, including opening statements and final
                         arguments and all that other kind of stuff.
                         And I just don’t think there is really anyone who is
                         equipped to do that and to represent themselves.
                         But you’re telling me . . . please tell me, if I’m
                         wrong, you still want to waive your right to a
                         lawyer and go to trial on December 14.
        [Golden]:        Of course.
        [Court]:         Now let me tell you this, we are going to summon
                         the jury and I want you to think about this.
                         If at any time in the next week that you change your
                         mind and you start thinking that maybe you really
                         do need a lawyer, just write a letter and give it to the
                         jail, they’ll get it to me, then I’ll get you back here in
                         court, okay?
        [Golden]:        Okay.

Pretrial Tr. pp. 33-36.


Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 12 of 26
[12]   The trial court again warned Golden about the dangers of self-representation at

       yet another pretrial hearing on December 9, 2015, shortly before the trial was to

       begin. This time, the trial court noted for the record that it had ordered Mr.

       Lenyo and Mr. Korpal, another public defender, to visit Golden in jail and

       speak with him regarding the procedures at trial. The court then went over the

       history of Golden’s request to represent himself, his request for a public

       defender, and his rejection of the public defender who would be unprepared by

       the time of the speedy trial date. The court also noted that it had the probation

       department run a records check and confirmed that, contrary to Golden’s

       earlier assertions, there were still two pending parole holds on Golden from

       California. Thus, the trial court told him, “no matter what happens in this case,

       you have to understand that you’re not going to be getting out of custody.”

       Pretrial Tr. p. 40. Golden seemed unconcerned and stated “I got to take one at

       a time.” Id. The court again warned Golden of the dangers of self-

       representation, stating:


               Well, what I’m suggesting to you, Mr. Golden, is that you re-
               think your decision to represent yourself in this case.
               Because I’m telling you that my experience and about everybody
               else’s experience is, that in most cases that’s the surest way to get
               yourself convicted.
               As I said, if you want an attorney, I’ll appoint an attorney. And it
               would require that your trial be continued, but I would continue
               it for no more than 60 days. I would instruct that attorney has to
               be ready within that time and I would make that a priority case
               so it is not bumped or set over by some other case.
               But that’s something that you really have to think about.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 13 of 26
               Because as I’ve said, you have an absolute right to represent
               yourself, but you also have an absolute right to have an attorney.
               I don’t know anything about your case, I don’t know anything
               about the facts of your case, I don’t know how strong or weak the
               State’s case is, I don’t know anything about any defenses you
               may have. I hear that stuff for the first time at trial, when the jury
               hears it.
               But I’m telling you that you greatly increase your chances of
               conviction by representing yourself.

       Pretrial Tr. pp. 40-41. Golden responded simply, “I’m ready for trial.” Id. at

       41.


[13]   One last time, at the very beginning of Golden’s trial, the court repeated its

       history of warnings regarding Golden’s decision to represent himself. The court

       also reiterated that Golden had holds from California that would mean that he

       would not go free if acquitted, but instead be turned over to California

       authorities. The court then asked Golden yet again, “And you still said that you

       did not want to delay the trial, in order to have a lawyer assist you. Is that

       true?” Golden replied, “Yes.” Trial Tr. p. 8. The court then advised Golden

       about the severity of the sentence he was facing if convicted, and Golden

       indicated that he understood this. The court continued its discussion with

       Golden as follows:


               [Court]:         I just want to make sure that you understand that
                                again, I strongly suggest that you get the advice of a
                                lawyer in this case; do you understand that?
               [Golden]:        (indicates affirmative)



       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 14 of 26
        [Court]:         Not only for the purpose of conducting the trial, if it
                         comes down to that, but you had written me a letter
                         concerning how you thought it best to resolve this
                         case and the kind of plea offer or plea you might be
                         take to get this case resolved.
                         But that’s something that a lawyer would negotiate
                         with the State for you; do you understand that?
        [Golden]:        (indicates affirmative).
        [Court]:         And the State may say, “Sure,” the State may say,
                         “No.”
                                               ***
                         I really want, Mr. Golden, for you to think about
                         this, because the stakes are so high.
                         I would probably have the same conversation with a
                         person who was going to trial facing a minor
                         charge, because I think anytime a person has been
                         in custody, it’s their time, not my time. But you
                         understand that this is so important.
                         Is there anyone in the courtroom today, friends or
                         family, whose advice you trust?
                         (Whereupon, the defendant indicates toward the
                         back of the courtroom.)
        [Court]:         Would you like . . . I won’t allow more than two,
                         but would you like some time to talk to those people
                         about what I’ve said to you, and to reconsider
                         whether you want me to appoint a lawyer for you?
        [Golden]:        No, thanks.
        [Court]:         And I’m telling you, Mr. Golden, it’s now
                         December 14th, I would have this set for trial within
                         60 days, you know, if you wanted that.
        [Golden]:        I’m good.
        [Court]:         Are you sure?

Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 15 of 26
               [Golden]:        Yes, sir.

       Trial Tr. pp. 9-11. The case then proceeded to trial.


[14]   During voir dire of the jury panel, the prosecuting attorney asked Juror 49

       several questions. Juror 49 indicated that, although he was not enthusiastic

       about being selected as a juror, he would do so if asked. The prosecuting

       attorney then asked him, “Okay. On your form I think you also indicated that

       someone you knew or someone close to you had either the victim or a

       defendant in a criminal case; is that correct?” Juror 49 responded, “Yes, sir.” Id.

       at 162. When the prosecuting attorney asked, “Can I ask which side it was?”

       Juror 49 responded, “No, you cannot.” Id. Juror 49 then continued:


               The point that I’m trying to make, is that anything that I
               personally have done, does not have anything to do with this
               person over here, as far as what he has done, what he would be
               charged for. So none of what I did, would be relevant. I’ve
               already told you that I’m the kind that would take the facts and
               the evidence that you have to present. You are the prosecutor,
               he’s the defendant, you would make your case and I would take
               all of what you all say, then make a decision based on that. There
               is nothing else that I have to add to the conversation or
               questioning that’s taking place, that’s nothing.


       Id. at 162-63.


[15]   The prosecutor continued to question Juror 49 regarding how life experiences

       can influence one’s view of things, and eventually asked, “If your moral feelings

       doesn’t [sic] agree with the law a hundred percent, which one are you going to

       follow, sir?” Id. at 165. Juror 49 responded:

       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 16 of 26
                I do believe there is something to where there was probable
                cause.
                Again, it would have to be to the extent of what the situation is,
                what took place and why did it take place. And then you would
                make your decision based on that.
                I’ve sat here about two and-a-half hours and we’ve talked about
                CSI and all of this other stuff, which is really not applicable to
                what really needs to be taking place here. We’re talking about a
                trial. He’s on trial for . . . what, two charges? One being murder
                and one being charged as attempted murder, and that’s a very
                serious issue. That’s the way we have to look at it and that’s, you
                know, pretty much the way I said it.

       Id. at 165-66.


[16]   Subsequently, the State used a peremptory strike against Juror 49, who was

       African-American. The trial court determined that the State had a race-neutral

       reason for using the peremptory strike on the juror: that the stricken juror had

       told the prosecuting attorney that he was wasting time by asking him questions.


[17]   At the end of the three-day trial, the jury found Golden guilty as charged. At the

       January 15, 2016, sentencing hearing, the trial court entered judgments of

       conviction on the jury’s verdict and sentenced him to sixty-five years on the

       murder conviction and a consecutive term of forty years on the attempted murder

       conviction, for an aggregate sentence of 105 years.1 Golden now appeals.




       1
        At the sentencing hearing, the trial court stated that it was imposing a fifty-year sentence on the attempted
       murder conviction. The trial court corrected this misstatement in its written sentencing order issued later that
       day.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016             Page 17 of 26
                                            I. Right to Counsel

[18]   Golden first argues that the trial court failed to properly advise him of the risks

       of representing himself and that his waiver of his right to counsel was therefore

       not made knowingly and intelligently.


[19]   The Sixth Amendment, applicable to the states by way of the Fourteenth

       Amendment, guarantees a criminal defendant the right to counsel before he

       may be tried, convicted, and punished. Hopper v. State, 957 N.E.2d 613, 617

       (Ind. 2011) (citing Faretta v. California, 422 U.S. 806, 807 (1975)). The Sixth

       Amendment right to counsel also encompasses the affirmative right for a

       defendant to represent himself in a criminal case. Id. However, it is “undeniable

       that in most criminal prosecutions defendants could better defend with

       counsel’s guidance than by their own unskilled efforts.” Id. (internal quotations

       omitted). Because a defendant who waives his right to counsel forgoes many of

       the traditional benefits associated with the right to counsel, the defendant must

       “knowingly and intelligently” forgo these benefits. Id. Accordingly, a defendant

       who wishes to proceed pro se should be made aware of the dangers and

       disadvantages of self-representation such that the record will show that he

       “knows what he is doing and his choice is made with eyes open.” Id. (internal

       quotations omitted).


[20]   No particular formula or script must be read to the defendant; instead, the

       information that must be given depends on a range of case-specific factors,

       including the defendant’s education or sophistication, the complex or easily


       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 18 of 26
       grasped nature of the charge, and the stage of the proceeding.” Id. (citing Iowa v.

       Tovar, 541 U.S. 77, 88 (2004)).


[21]   Drawing on precedent from the federal Seventh Circuit, our supreme court has

       held that courts determining whether a waiver of counsel was made knowingly

       and intelligently must consider: (1) the extent of the court’s inquiry into the

       defendant’s decision, (2) other evidence in the record that establishes whether

       the defendant understood the dangers and disadvantages of self-representation,

       (3) the background and experience of the defendant, and (4) the context of the

       defendant’s decision to proceed pro se. Id. (citing United States v. Hoskins, 243

       F.3d 407, 411 (7th Cir. 2001)).


[22]   Here, the trial court engaged in a repeated, extensive inquiry into Golden’s

       desire to represent himself. The trial court repeatedly warned Golden of the

       dangers of self-representation and of the court’s willingness to delay the trial as

       little as possible for counsel to prepare in order to accommodate Golden’s

       desire for a speedy trial. Still, Golden repeatedly and steadfastly insisted on

       representing himself. Thus, Golden was well advised of the dangers of self-

       representation, and the court went out of its way to inquire into Golden’s

       decision to proceed pro se.


[23]   Moreover, the record indicates that Golden has an extensive criminal history.

       Indeed, at sentencing the trial court noted that Golden had a history of

       delinquent behavior as a juvenile, including brandishing a weapon and assault

       with a deadly weapon, which would be serious felonies if committed by an


       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 19 of 26
       adult. He also had several adult felony convictions in California. In other

       words, Golden had extensive experience in the criminal justice system, further

       indicating that he knew the dangers and disadvantages of self-representation.

       Moreover, nothing in the record suggests that Golden suffers from any mental

       or intellectual problems, and he went to school through the twelfth grade and

       had no difficulties in understanding the English language.


[24]   Golden was insistent on a speedy trial date, as was his right. See Ind. Crim.

       Rule 4(B)(1).2 However, the exercise of this right was not without

       consequences, and when given the choice of a trial within seventy days and the

       assistance of counsel, Golden insisted on his early trial every time. Thus, we

       think Golden’s choice to proceed pro se was strategic. See Kubsch v. State, 866

       N.E.2d 726, 738 (Ind. 2007) (noting that a defendant who waives his right to

       counsel for strategic reasons tends to do so knowingly).


[25]   Under the facts and circumstances present in this case, we have little difficultly

       in saying that Golden knowingly and intelligently waived his right to counsel.

       Indeed, we have encountered few cases where a trial court was more thorough

       in its repeated warnings regarding the dangers of self-representation.




       2
         Although Criminal Rule 4 implements a defendant’s constitutional right to a speedy trial, courts review
       claims of Criminal Rule 4 violations separately and distinctly from claims of the constitutional right to a
       speedy trial. Logan v. State, 16 N.E.3d 953, 958 (Ind. 2014). Although a delay in Golden’s trial might have
       extended the trial beyond the seventy-day limit imposed by Criminal Rule 4(b)(1), this delay would likely not
       have implicated Golden’s constitutional right to a speedy trial. See McClellan v. State, 6 N.E.3d 1001, 1005
       (Ind. Ct. App. 2014) (noting that, in the context of the constitutional right to a speedy trial, a delay in trial is
       not presumptively prejudicial until more than one year has passed).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016                Page 20 of 26
       Accordingly, we reject Golden’s claim that he was denied his right to counsel.

       See Butler v. State, 951 N.E.2d 255, 261 (Ind. Ct. App. 2011) (holding that

       defendant knowingly and intelligently waived his right to counsel where trial

       court, even though it did not repeat its advisements, advised him that defendant

       had the right to an attorney and that an attorney would be appointed for him if

       he could not afford one, and where the record indicated that defendant had

       extensive experience with the criminal justice system and asked for and received

       appellate counsel); Castel v. State, 876 N.E.2d 768, 771 (Ind. Ct. App. 2007)

       (holding that defendant did not knowingly and intelligently waiver her right to

       counsel where trial court neither advised her at trial about her right to counsel

       nor warned her about the dangers of self-representation and record was devoid

       of any evidence showing defendant’s understanding of the disadvantages of self-

       representation, her background and experience, or the context of her decision to

       proceed pro se); Atkinson v. State, 810 N.E.2d 1190, 1192 (Ind. Ct. App. 2004)

       (holding that defendant did not knowingly and intelligently waive his right to

       counsel where he was not advised of his right to counsel or the dangers of self-

       representation).


                                           II. Batson Challenge

[26]   Golden also claims that the trial court erred in overruling his Batson challenge

       to the State’s use of one of its peremptory challenges to remove an African-

       American from the jury venire. “Purposeful racial discrimination in selection of

       the jury 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

       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 21 of 26
       U.S. 79, 86 (1986). The exclusion of even a sole prospective juror based on race,

       ethnicity, or gender violates the Equal Protection Clause of the Fourteenth

       Amendment. Addison v. State, 962 N.E.2d 1202, 1208 (Ind. 2012) (citing Snyder

       v. Louisiana, 552 U.S. 472, 478 (2008)). In Batson, the United States Supreme

       Court set forth a three-part process to address claims of the improper use of

       peremptory challenges. See id.


[27]   First, the defendant need only show circumstances raising an inference that

       improper discrimination occurred. Id. (citing Johnson v. California, 545 U.S. 162,

       170 (2005). At this stage, the defendant’s burden is relatively low and

       commonly referred to as a “prima facie” showing. Id. Using a peremptory strike

       to remove some African-American jurors does not, by itself, raise an inference

       of racial discrimination. Addison, 962 N.E.2d at 1208 (citing Kent v. State, 675

       N.E.2d 332, 340 (Ind. 1996)). However, the removal of the only African-

       American juror on the panel does raise an inference that the juror was excluded

       on the basis of race. Id. (citing McCormick v. State, 803 N.E.2d 1108, 1111 (Ind.

       2004); McCants v. State, 686 N.E.2d 1281, 1284 (Ind. 1997)).


[28]   If the requirements of the first stage are met, then, at the second stage, the

       burden shifts to the prosecution to offer a race-neutral basis for striking the juror

       in question. Addison, 962 N.E.2d at 1208 (citing Synder, 522 U.S. at 477). An

       explanation is considered race-neutral if, on its face, it is based on something

       other than race. Id. (citing Forrest v. State, 757 N.E.2d 1003, 1004 (Ind. 2001)).

       Unless a discriminatory intent is inherent in the prosecutor’s explanation, the

       reason offered will be deemed race-neutral. Id. (citing Purkett v. Elem, 514 U.S.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 22 of 26
       765, 768 (1995)). 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.


[29]   Third, the trial court must then determine, in light of the parties’ submissions,

       whether the defendant has shown purposeful discrimination. Id. 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

       court judge. Id. (citing Jeter, 888 N.E.2d at 1264-65; Miller-El v. Dretke, 545 U.S.

       231, 239 (2005)). It is for the trial court to evaluate the persuasiveness of the

       proffered race-neutral justification at the third step of the analysis. Id. It is at this

       stage that “‘implausible or fantastic justifications may (and probably will) be

       found to be pretexts for purposeful discrimination.’” Cartwright v. State, 962

       N.E.2d 1217, 1221 (Ind. 2012) (quoting Purkett, 514 U.S. 765 at 768. At this

       final step, the defendant may offer additional evidence to demonstrate that the

       proffered justification was pretextual. Id.


[30]   Upon appellate review, we give great deference to the trial court’s decision

       concerning whether a peremptory challenge is discriminatory, and the trial

       court’s decision will be set aside only if it is clearly erroneous. Id. (citing Forrest,

       757 N.E.2d at 1004; Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).


[31]   Here, Golden challenges the State’s use of a peremptory strike to remove Juror

       49 from the venire. However, Golden acknowledges that, had Juror 49 not been




       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 23 of 26
       stricken, he would not have served on the jury; instead, he would have been

       selected as the second alternate juror.


[32]   Neither the United States Supreme Court nor the Seventh Circuit Court of

       Appeals has yet extended Batson to alternate jurors. See United States v. Canoy, 38

       F.3d 893, 899 n.6 (7th Cir. 1994); see also Carter v. Kemna, 255 F.3d 589, 592-93

       (8th Cir. 2001). More importantly, this court has held that Batson does not apply

       to peremptory strikes of alternate jurors who do not participate in deliberations.

       See Johnson v. State, 722 N.E.2d 382, 382 (Ind. Ct. App. 2000) (“because the

       alternate juror [on whom the State used a peremptory challenge] did not

       participate in jury deliberations, Johnson could not have been harmed by the

       trial court’s decision.”). Based on this reason alone, we could affirm the trial

       court’s decision. However, even if Batson did apply, Golden would not prevail.


[33]   Golden argues that the trial court failed to require the State to meet its burden

       under the second step of the Batson analysis by offering a race-neutral reason.3


[34]   We disagree. The prosecuting attorney explained his reason for striking Juror

       49 was that the juror, “basically told me that I had been wasting everybody’s

       time by asking all these questions all day, so . . . .” Id. at 174. The trial court




       3
         The State argues that, even though the prosecuting attorney did offer a race-neutral reason, Golden did not
       even meet the relatively low burden of step one. It is true that there is little direct indication in the record that
       Juror 49 was the only African-American in the venire. However, when the State indicated its intention to use
       a peremptory strike on this juror, the trial court stated that it would require the State to offer a race-neutral
       explanation for the use of the peremptory strike. Thus, we may safely presume that the trial court felt that the
       first step of the Batson analysis had been satisfied.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016                 Page 24 of 26
       also noted that Juror 49 had refused to answer one of the prosecutor’s voir dire

       questions.


[35]   Under these facts and circumstances, we cannot say that the trial court’s

       conclusion that the State offered a race-neutral reason was clearly erroneous.

       The prosecuting attorney’s exchanges with Juror 49 were, at times, contentious.

       Also, the prosecuting attorney gave a facially non-race-based explanation for

       the use of his peremptory challenge on Juror 49, i.e., that the juror had a

       negative attitude toward the prosecuting attorney. See Ross v. State, 665 N.E.2d

       599, 602 (Ind. Ct. App. 1996) (holding that State’s use of peremptory strike on

       African-American juror was facially race-neutral where it was based on juror’s

       “body language” and the general “lack of rapport” between the juror and the

       prosecutor). Nor is there any indication here that the State failed to challenge

       non-African Americans who had given similar responses to Juror 49. Cf.

       Addison v. State, 962 N.E.2d 1202, 1215 (Ind. 2012) (holding that trial court

       erred in ruling that State’s use of peremptory strike to remove African-

       American juror was permissible where non-African-American jurors gave

       answers “strikingly similar” to the answers given by the stricken juror that

       formed the State’s proffered “race-neutral” reason for striking the juror). We

       therefore conclude that the trial court did not clearly err in rejecting Golden’s

       Batson claim.


                                                  Conclusion

[36]   The trial court gave repeated and detailed warnings and advisements to Golden

       regarding his decision to represent himself at trial, and Golden had extensive
       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 25 of 26
       prior experience in the criminal justice system. His decision to proceed pro se

       also appears to have been strategic. We accordingly reject Golden’s claim that

       his waiver of his right to counsel was not knowingly or intelligently made. Also,

       even if Batson were to apply to alternate jurors, the State gave a facially race-

       neutral reason for its use of a peremptory challenge. Therefore, we cannot say

       that the trial court’s rejection of Golden’s Batson claim was clearly erroneous.


[37]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1601-CR-167 | December 9, 2016   Page 26 of 26
