                                                                                       FILED
                                                                                  Mar 16 2018, 10:33 am

                                                                                       CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Anthony C. Lawrence                                       Curtis T. Hill, Jr.
      Anderson, Indiana                                         Attorney General of Indiana

                                                                Katherine Cooper
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Steven Wade Childress,                                    March 16, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                48A02-1707-CR-1658
              v.                                                Appeal from the Madison Circuit
                                                                Court
      State of Indiana,                                         The Honorable David A. Happe,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                48C04-1601-F3-191



      Crone, Judge.


                                              Case Summary
[1]   Steven Wade Childress appeals his conviction for level 3 felony armed robbery.

      He argues that the trial court clearly erred in rejecting his claim, commonly

      known as a Batson claim, that the prosecutor’s peremptory challenge to a


      Court of Appeals of Indiana | Opinion 48A02-1707-CR-1658 | March 16, 2018                            Page 1 of 10
      potential juror was improperly based on the juror’s race. Finding no error, we

      affirm.


                                  Facts and Procedural History
[2]   In October 2015, Childress and Demerio Strong went to a party at T.B.’s house.

      Childress and Strong discussed committing a robbery. T.B. texted Darren Sloss

      that his cousin was at her house and he should come over. Sloss drove to T.B.’s

      and parked behind her house. When Sloss went in the house, he did not see his

      cousin and decided to leave. He exited the house and was attacked outside by

      Childress and Strong. Strong held a gun to the back of his head and forced him

      to the ground. Childress and Strong asked him for money. While he was on

      the ground, Sloss saw Childress rummaging around his car. Sloss was kicked,

      punched, and pistol-whipped. Some of his clothing was ripped off. Several

      women came outside, prompting Childress and Strong to run away. Sloss

      walked to a hospital and reported the robbery. Police found his clothes and

      wallet behind T.B.’s house, but the money in his wallet, about $200, was gone.


[3]   In January 2016, the State charged Childress with level 3 felony armed robbery.

      In May 2017, a jury trial was held. During voir dire, the prosecutor questioned

      the potential jurors at length regarding their understanding of reasonable doubt.

      When the venire was passed to defense counsel, he also questioned the

      potential jurors about the burden of proof. When defense counsel’s questioning

      was finished, the parties presented the trial court with their for cause and

      peremptory challenges. The State sought to exercise one of its peremptory

      challenges to strike Potential Juror 8. Childress raised a Batson claim, noting
      Court of Appeals of Indiana | Opinion 48A02-1707-CR-1658 | March 16, 2018   Page 2 of 10
that two African-American jurors had been excused for cause by agreement of

the parties but Potential Juror 8 was the only remaining African-American

juror. Tr. Vol. 2 at 166. The prosecutor responded,


        When defense was doing his questioning at the end and he said what is
        your definition of reasonable doubt and the first thing out of
        [Potential Juror 8’s] mouth was no doubt. That in fact is too high of
        a burden. When he was questioned by [the prosecutor] on the
        different (indiscernible—paper rustling) with the witness a lot of
        the things that were going back and forth, but the main concern
        was when he said what is reasonable doubt and his actual
        comment was a hundred percent, no, a hundred percent. And
        his answer was no doubt. It was that statement that we struck that
        was most (indiscernible).


Id. at 166-67 (emphases added). Defense counsel countered, “I don’t think a

single answer should be the basis for it. I think [], (indiscernible—paper

rustling) factual situation in which we have primarily [] black individuals,

witnesses, [] the accused, [] and for that reason we think that [Potential Juror 8]

who is African-American should remain on the jury.” Id. at 167. The trial

court noted that at the outset Potential Juror 2 answered “a hundred percent.”

Id. The prosecutor explained,


        [Potential Juror 2] was a hundred percent, you’re correct;
        however, then that was the first answer when the definition was
        given and then she came around and later said, no, it doesn’t
        have to be a hundred percent. She said I understand after
        definitions had been given. That’s when [Potential Juror 8] said
        no doubt, and he never came back from that. So, at this point
        (indiscernible—coughing).


Court of Appeals of Indiana | Opinion 48A02-1707-CR-1658 | March 16, 2018   Page 3 of 10
      Id. (emphasis added). Defense counsel stated that Potential Juror 8 was not

      questioned about his answer any further. Id. The trial court responded,


              [I]t’s different than a cause challenge. [There] doesn’t have to be
              an opportunity to rehabilitate or respond to what they say. The
              question is is there an independent (indiscernible—coughing)
              factor that would support a good faith basis to exercise a
              peremptory. And here [] I think frankly it’s a closer call than we
              usually see on these challenges, but I think there is a distinction to
              be drawn between the answer between Potential Juror 2 and No. 8 and
              the timing. So, at this point, I’m going to overrule the Batson
              objection and the State’s challenge to Juror No. 8 will stand.


      Id. at 167-68 (emphasis added) (underlining omitted).


[4]   The jury found Childress guilty as charged. The trial court sentenced him to

      twelve years with eight years suspended to probation. This appeal ensued.


                                      Discussion and Decision
[5]   Childress argues that the trial court committed reversible error in denying his

      Batson claim. “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). “Upon appellate

      review, a trial court’s decision concerning whether a peremptory challenge is




      Court of Appeals of Indiana | Opinion 48A02-1707-CR-1658 | March 16, 2018    Page 4 of 10
      discriminatory is given great deference, and will be set aside only if found to be

      clearly erroneous.” Forrest v. State, 757 N.E.2d 1003, 1004 (Ind. 2001).


[6]   When a defendant raises a race-based Batson claim, three steps are involved.

      First, the defendant must make a prima facie showing that there are

      “circumstances raising an inference that discrimination occurred.” Addison, 962

      N.E.2d at 1208. Second, if the defendant makes a prima facie showing, the

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

      juror in question.’” Id. at 1209 (quoting Snyder v. Louisiana, 552 U.S. 472, 477

      (2008)). “[T]he race-neutral explanation must be more than a mere denial of

      improper motive, but it need not be ‘persuasive, or even plausible.’” McCormick

      v. State, 803 N.E.2d 1108, 1110 (Ind. 2004) (quoting Purkett v. Elem, 514 U.S.

      765, 768 (1995)). “‘[T]he issue is the facial validity of the prosecutor’s

      explanation.’” Id. (quoting Purkett, 514 U.S. at 768). “A neutral explanation

      means ‘an explanation based on something other than the race of the juror.’”

      Id. at 1111 (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991)). “‘Unless

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

      offered will be deemed race neutral.’” Addison, 962 N.E.2d at 1209 (quoting

      Purkett, 514 U.S. at 768). Third, the trial court must determine “‘whether the

      defendant has shown purposeful discrimination.’” Id. (quoting Snyder, 552 U.S.

      at 477). “It is then that ‘implausible or fantastic justifications may (and

      probably will) be found to be pretexts for purposeful discrimination.’” Id. at

      1210 (quoting Purkett, 514 U.S. at 768). The defendant may offer additional

      evidence to demonstrate that the prosecutor’s explanation was pretextual, and

      Court of Appeals of Indiana | Opinion 48A02-1707-CR-1658 | March 16, 2018    Page 5 of 10
      the trial court assesses the credibility of the State’s race-neutral explanation “‘in

      light of all evidence with a bearing on it.’” Id. (quoting Miller-El v. Dretke, 545

      U.S. 231, 251-52 (2005)). Although this third step involves evaluating “the

      persuasiveness of the justification” proffered by the prosecutor, “the ultimate

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

      from, the opponent of the strike.” Highler v. State, 854 N.E.2d 823, 828 (Ind.

      2006) (quoting Purkett, 514 U.S. at 768). “[I]n considering a Batson objection, or

      in reviewing a ruling claimed to be Batson error, all of the circumstances that

      bear upon the issue of racial animosity must be consulted.” Snyder, 552 U.S.at

      478.


[7]   Childress asserts that the trial court erroneously concluded that the prosecutor’s

      peremptory strike of Potential Juror 8 was not racially motivated. He contends

      that the record does not support the prosecutor’s claim that Potential Juror 8

      answered “no doubt” when defense counsel asked what reasonable doubt

      meant, and therefore the prosecutor misrepresented what Potential Juror 8

      answered, which undermines the State’s race-neutral reason for the strike.

      Unfortunately, our review of his argument is hindered by the significant

      deficiencies in the transcript. Childress’s trial “was taken down by machine

      recording” and later transcribed. Tr. Vol. 4 at 142. The transcript contains

      numerous instances of statements by the prosecutor, defense counsel, and the

      potential jurors that are labeled “indiscernible.” Also, the transcript identifies

      each potential juror as “Prospective Juror,” and consequently, we cannot

      determine with certainty which statements correspond to a specific potential


      Court of Appeals of Indiana | Opinion 48A02-1707-CR-1658 | March 16, 2018   Page 6 of 10
      juror unless that juror was addressed by name. Even if we accept Childress’s

      identification of specific statements as belonging to Potential Juror 8, many of

      those answers are “indiscernible.” Thus, Childress’s claim that the record does

      not support the prosecutor’s reason for striking Potential Juror 8 is based on an

      incomplete transcript.


[8]   The appellant bears the burden of presenting a record that is complete with

      respect to the issues raised on appeal. Moffitt v. State, 817 N.E.2d 239, 247 (Ind.

      Ct. App. 2004) (citing Ford v. State, 704 N.E.2d 457, 461 (Ind. 1998)), trans.

      denied. Two appellate rules might have assisted Childress in meeting his

      burden. Indiana Appellate Rule 31 establishes a procedure for satisfying this

      burden when a transcript of the evidence is unavailable. Section A of the rule

      provides,


              If no Transcript of all or part of the evidence is available, a party
              or the party’s attorney may prepare a verified statement of the
              evidence from the best available sources, which may include the
              party’s or the attorney’s recollection. The party shall then file a
              motion to certify the statement of evidence with the trial court or
              Administrative Agency. The statement of evidence shall be
              submitted with the motion.


      Section B gives the opposing party fifteen days to respond, and Section C

      authorizes the trial court, after a hearing if necessary, to certify a statement of

      evidence, which then becomes part of the clerk’s record. We also note that

      Indiana Appellate Rule 32 provides that if a disagreement arises as to whether

      the clerk’s record or transcript accurately discloses what occurred in the trial


      Court of Appeals of Indiana | Opinion 48A02-1707-CR-1658 | March 16, 2018   Page 7 of 10
       court, any party may move the trial court to resolve the disagreement, and the

       trial court “shall” issue an order that either confirms that the clerk’s record or

       transcript is accurate or corrects the clerk’s record or transcript to reflect what

       actually occurred.


[9]    Despite its deficiencies, the transcript reveals that neither defense counsel nor

       the trial court disputed the prosecutor’s claim that when asked by defense

       counsel what reasonable doubt meant, Potential Juror 8 answered “no doubt.”

       Tr. Vol. 2 at 166-68. In the absence of anything in the record that is contrary to

       the prosecutor’s representation when it was submitted to the trial court, we

       decline to find that the prosecutor misrepresented Potential Juror 8’s answer.

       Thus, Childress’s argument that the prosecutor’s alleged misrepresentation

       undermines his race-neutral reason is unavailing.


[10]   Childress also argues that the trial court erroneously concluded that the

       prosecutor’s peremptory strike of Potential Juror 8 was not racially motivated

       because the prosecutor subjected the juror to heightened scrutiny, the

       prosecutor failed to re-examine the juror after the objectionable answer, and

       Potential Juror 2 provided an answer identical to Juror 8’s but Juror 2 was not

       struck. We cannot agree that the prosecutor subjected Potential Juror 8 to

       heightened scrutiny. Our review of the transcript reveals that the prosecutor

       questioned many potential jurors at length about their understanding of

       reasonable doubt. As for the prosecutor’s failure to re-examine Potential Juror

       8, we note that the juror gave the unacceptable answer during defense counsel’s

       questioning. The prosecutor was not required to re-examine the juror.

       Court of Appeals of Indiana | Opinion 48A02-1707-CR-1658 | March 16, 2018   Page 8 of 10
[11]   Finally, we cannot agree with Childress’s assertion that Potential Juror 2, who

       was not struck, gave an answer identical to Potential Juror 8’s. “It is certainly

       true that ‘if a prosecutor’s proffered reason for striking a black panelist applies

       just as well to an otherwise-similar nonblack who is permitted to serve, that is

       evidence tending to prove purposeful discrimination to be considered at Batson’s

       third step.’” Addison, 962 N.E.2d at 1210 (quoting Miller-El, 545 U.S. at 241).

       Here, however, there is a salient difference between Potential Jurors 2 and 8.

       The prosecutor explained that Potential Juror 2 “came around and later said,

       no, it doesn’t have to be a hundred percent. She said I understand after

       definitions had been given. That’s when [Potential Juror 8] said no doubt, and

       he never came back from that.” Tr. Vol. 2 at 167. The record shows that when

       the prosecutor initially questioned Potential Juror 2 about her understanding of

       beyond a reasonable doubt, she initially answered “a hundred percent sure.”

       Id. at 104. But after further explanation and illustration from the prosecutor

       about what beyond a reasonable doubt required, she agreed that beyond a

       reasonable doubt was not a hundred percent. Id. at 110. Thus, Potential Juror

       2 revised her understanding of reasonable doubt and negated her original

       response. In contrast, even after questioning and explanation by the prosecutor,

       Potential Juror 8 expressed his belief that reasonable doubt meant no doubt

       when he was later questioned by defense counsel. Ultimately, Potential Jurors

       2 and 8 did not express an identical understanding of reasonable doubt.

       Accordingly, we conclude that the trial court’s rejection of Childress’s Batson

       claim was not clearly erroneous.


       Court of Appeals of Indiana | Opinion 48A02-1707-CR-1658 | March 16, 2018   Page 9 of 10
[12]   Affirmed.


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 48A02-1707-CR-1658 | March 16, 2018   Page 10 of 10
