                                                                FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                              Jan 27 2012, 8:39 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                         CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

EUGENE C. HOLLANDER                                GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   GEORGE P. SHERMAN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JUSTIN L. HARGROVE,                                )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 67A01-1103-CR-112
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE PUTNAM CIRCUIT COURT
                         The Honorable Matthew L. Headley, Judge
                              Cause No. 67C01-1004-FA-54


                                        January 27, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
        Justin L. Hargrove appeals his conviction of Class A felony attempted murder,1 Class

D felony resisting law enforcement,2 and Class D felony criminal recklessness.3 He presents

two issues for our review:

        1.      Whether the trial court improperly allowed the State to strike the only African-

                American member of the jury pool; and

        2.      Whether the prosecutor committed misconduct during closing argument.

We affirm.

                          FACTS AND PROCEDURAL HISTORY

        On April 8, 2010, the State charged Hargrove with Class A felony attempted murder,

Class D felony resisting law enforcement, Class D felony receiving stolen property,4 and

Class D felony criminal recklessness. Hargrove’s jury trial began January 18, 2011.

        During voir dire, the State moved to strike the only African-American member of the

jury pool. Hargrove challenged the strike, and the State explained Hargrove’s prosecutor had

been the State’s counsel during that prospective juror’s trial for intimidation. Over

Hargrove’s objection, the trial court allowed the State to strike that juror.

        During closing arguments, the prosecutor made two statements regarding his role as a

prosecutor, and the role of the jury. He stated, “I am representing our community. I

represent every person in our society. In fact the final decision when we get to hear the issue



1
  Ind. Code § 35-42-1-1(1) (murder); Ind. Code § 35-41-5-1 (attempt).
2
  Ind. Code § 35-44-3-3(a)(3).
3
  Ind. Code § 35-42-2-2(b)(1).
4
  Ind. Code § 35-43-4-2(b).

                                                   2
here today is that you folks and our society have determined what you can and cannot do in

the community.” (Tr. at 667.) He also told the jury it was responsible for deciding if

Hargrove’s “conduct in our society is acceptable or not.” (Id. at 686.)

       The jury found Hargrove guilty of Class A felony attempted murder, Class D felony

resisting law enforcement, and Class D felony criminal recklessness. The trial court entered

the convictions and sentenced Hargrove to an aggregate sentence of forty-four years with

forty-three years executed and one year on probation.

                              DISCUSSION AND DECISION

       1.     Batson Challenge

       Hargrove argues the trial court violated Batson v. Kentucky, 476 U.S.79, 89 (1986),

when it allowed the State to strike the only African-American member of the jury pool.

Pursuant to the Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution, a party cannot strike a prospective juror based solely on the juror’s race. Id.

When a party raises a Batson challenge, the trial court must engage in a three-part test.

Highler v. State, 854 N.E.2d 823, 826 (Ind. 2006). First, the trial court must determine

“whether the defendant has made a prima facie showing that the prosecutor exercised a

peremptory challenge on the basis of race.” Id. at 826-27. Second, “the burden shifts to the

State to present a race-neutral explanation for striking the juror.” Id. at 827. Third, the trial

court must evaluate “‘the persuasiveness of the justification’ proffered by the prosecutor, but

‘the ultimate burden of persuasion regarding racial motivation rests with, and never shifts

from, the opponent of the strike.’” Id. at 828 (quoting Purkett v. Elem, 514 U.S. 765, 768

                                               3
(1995), reh’g denied). We afford great deference to the trial court’s decision that a

prosecutor’s motivation for striking a juror was not improper, and we reverse only if the trial

court’s decision was clearly erroneous. Id.

          The first prong of the test, prima facie evidence of racial discrimination, was satisfied

because the State struck the only African-American member of the juror pool. See McCants

v. State, 686 N.E.2d 1281, 1284 (Ind. 1997) (holding “removing the only prospective

African-American juror . . . raise[s] an inference that the juror was excluded on the basis of

race”).

          The burden then shifted to the State to provide a race-neutral reason for striking the

potential juror. During voir dire, the prosecutor indicated he struck the prospective juror

because he “prosecuted her for intimidation . . . [and] I’d never keep any person that I

prosecuted.” (Tr. at 62.) Once the jury was seated, the trial court reaffirmed the State’s

reason for striking the African-American juror:

          COURT:        OK, we’re on the record. The jury has been seated. We just
          want to make sure we are making a record regarding the striking of one of the
          jurors that was an African American and the State struck her for challenge on
          peremptory challenge and can you state your reason for the reason Prosecutor,
          Deputy Prosecutor, Chief Deputy Prosecutor I will get it straight, Mr. Long.

          MR. LONG: Judge the reason we would advise is one she had a criminal
          record and she was convicted of intimidation here in this county in 2005 which
          means that our office would, Mr. Bookwalter was the sitting prosecutor and
          would have prosecuted this case. Additional [sic] I believe she testified or
          spoken [sic] during voir dire that she had a background in criminal justice and
          we were concerned that that [sic] information and the knowledge she
          possessed would become a problem back in deliberations with the jury.



                                                  4
       MR. BOOKWALTER:             In addition Judge[,] Rebecca O’Neal[,] who was
       juror number five, we struck her for the exact same reason. She had a criminal
       record early when I was prosecutor and we struck her for the same reasons.

(Id. at 131) (format altered). After evaluating the State’s proffered reasons for striking the

African-American juror, the trial court found, “the reason for the strike on the peremptory

was race neutral and that all of the other people that have criminal convictions in which Mr.

Bookwalter was a prosecutor[,] he has struck from the jury list as well and we will proceed

on with trial at this time.” (Id. at 132.)

       Hargrove argues the State’s reason for striking the African-American juror was

“merely pretext” (Br. of Appellant at 15) because the prosecutor based his assertion on the

jury questionnaire, and not on voir dire questioning to determine whether the potential juror

might be prejudiced by prior contact with the prosecutor. We disagree.

       The record reflects the trial court’s adherence to and careful application of the Batson

test. Hargrove has not cited legal authority to support his premise the State was required to

question the juror before striking her, or that an answer on a jury questionnaire is an

insufficient basis for striking a potential juror. That the prospective juror had a criminal

record and had been prosecuted by the person who was responsible for prosecuting Hargrove

is a race-neutral reason. See Douglas v. State, 636 N.E.2d 197, 199 (Ind. Ct. App. 1994)

(State could strike the only African-American in the jury pool because her child had

previously been prosecuted by the State). Therefore, the trial court did not abuse its

discretion in finding the State provided a credible race-neutral reason for striking the only

African-American member of the jury pool.

                                              5
       2.     Prosecutorial Misconduct

       In reviewing a claim of prosecutorial misconduct, we must determine: (1) whether the

prosecutor engaged in misconduct; and if so, (2) whether the misconduct had a probable

persuasive effect on the jury. Ritchie v. State, 809 N.E.2d 258, 268 (Ind. 2004), reh’g

denied. A claim of improper argument to the jury is measured by the probable persuasive

effect of any misconduct on the jury’s decision and whether there were repeated occurrences

of misconduct that would evince a deliberate attempt to improperly prejudice the defendant.

Id. at 269.

       Hargrove did not object to the prosecutor’s statements. Failure to object to the alleged

misconduct precludes appellate review of the claim, Booher v. State, 773 N.E.2d 814, 817

(Ind. 2002), unless the alleged misconduct amounts to fundamental error. Id. To prevail on

such a claim, the defendant must establish not only the grounds for prosecutorial misconduct

but also the additional grounds for fundamental error. Id. at 818. To be fundamental error,

the misconduct must have made a fair trial impossible or been a clearly blatant violation of

basic and elementary principles of due process that presents an undeniable and substantial

potential for harm. Id. at 817.

       Hargrove asserts two statements during the prosecutor’s closing argument were

misconduct that made a fair trial impossible. First, at the beginning of his closing statement,

the prosecutor stated:

       It’s the State of Indiana versus Justin Hargrove. Basically I am representing
       our community. I represent every person in our society. In fact the final
       decision when we get to hear the issue here today is that you folks and our
       society have determined what you can and cannot do in the community.
                                               6
(Tr. at 667.) During his rebuttal argument, the prosecutor also said:

       Thank God we have police officers like that. I look at our department and I’m
       fifty six years old and I’m not going to be around. Let me tell you, I hope
       thirty years from now we have a thirty year officer in our community that has
       shown us the last thirty years what a (inaudible). And your job really here
       today beyond this case is to decide whether [sic] in our society where the line
       gets drawn. You know when I became prosecutor six years ago the FOP gave
       me this and I didn’t know what it was. Jared Baugh gave it to me. Jared’s
       Dad was killed in the line of duty and that’s the line [sic] blue line. That’s
       what separates us from them. That’s what separates law from lawlessness.
       And that’s really what this case is about. Our society doesn’t put up with this.
       We don’t shoot AR15s off in celebrations. We have a line [sic] blue line that
       protects us and you folks are going to decide today where that line is at. Is this
       conduct in our society acceptable or not[?] Thank you.

(Id. at 686.) Hargrove argues both statements encouraged the jury to convict him on reasons

besides his guilt.

       The State argues the prosecutor’s statements were akin to those in Brennan v. State,

639 N.E.2d 649, 652 (Ind. 1994), in which the prosecutor told the jury Brennan was a “cold-

blooded killer” and the jury should “convict the defendant because such a conviction would

be just.” Id. Our Indiana Supreme Court held the comments were appropriate because the

prosecutor

       did not try to convey to the jury that he knew something that was not presented
       in evidence nor did he make false statements concerning the evidence which
       was presented. It should be obvious to all that the prosecutor is there to
       convince the jury of the defendant’s guilt. His observations on his duty and
       [the jury’s] duty were accurate.

Id.




                                               7
          We agree the prosecutor’s statements regarding the jury’s duty to decide Hargrove’s

guilt are similar to those in Brennan. We therefore decline to hold the prosecutor’s

statements constituted misconduct. See also Johnson v. State, 436 N.E.2d 796, 797 (Ind.

1982) (holding prosecutor saying defendant’s act was a “type of activity we cannot accept in

this community” was “a comment on the character of the offense and did not constitute

prosecutorial misconduct”).

                                         CONCLUSION

          We find no abuse of discretion in the trial court’s finding the State had a race-neutral

reason for striking the only African-American in the jury pool. In addition, the prosecutor

did not commit misconduct during his closing argument when he reminded the jurors of their

duty and made comments regarding the character of the charged offenses. Accordingly, we

affirm.

          Affirmed.

NAJAM, J., and RILEY, J., concur.




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