                                                                     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



      Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019         Page 2 of 22
      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.



      Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019      Page 3 of 22
[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

      Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019         Page 4 of 22
                                             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).


       Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019        Page 5 of 22
[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

       Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019          Page 6 of 22
       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.




       Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019        Page 7 of 22
[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).




       Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019           Page 8 of 22
[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.



       Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019          Page 9 of 22
[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




       Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019      Page 10 of 22
       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.

       Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019                            Page 11 of 22
        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
       Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019         Page 13 of 22
               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.

       Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019         Page 14 of 22
Tavitas, J., concurs.


Crone, J., concurs in part and concurs in result in part with opinion.




Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019       Page 15 of 22
                                                    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:




       Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019                      Page 16 of 22
               [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

       Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019            Page 17 of 22
       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.

       Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019                                 Page 18 of 22
       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




       Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019         Page 19 of 22
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.




Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019         Page 20 of 22
[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.

       Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019                              Page 22 of 22
