MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any
                                                                       Apr 09 2020, 9:56 am
court except for the purpose of establishing
the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
estoppel, or the law of the case.                                          Court of Appeals
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ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Tyler D. Helmond                                          F. Aaron Negangard
Indianapolis, Indiana                                     Chief Deputy Attorney General
                                                          Stephen Creason
                                                          Chief Counsel, Appeals
                                                          George P. Sherman
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Samuel E. Newbold,                                        April 9, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2036
        v.                                                Appeal from the Vanderburgh
                                                          Circuit Court
State of Indiana,                                         The Honorable Michael J. Cox,
Appellee-Plaintiff.                                       Magistrate
                                                          Trial Court Cause No.
                                                          82C01-1902-F2-1199



Mathias, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-2036 | April 9, 2020                   Page 1 of 8
[1]   Samuel E. Newbold appeals his convictions following a jury trial in the

      Vanderburgh Circuit Court. Newbold contends that the trial court erred when it

      determined that he failed to demonstrate that the State’s peremptory challenge

      to a venireperson was based on her race in violation of the Equal Protection

      Clause of the Fourteenth Amendment to the United States Constitution.

      Finding no error, we affirm.


                                  Facts and Procedural History
[2]   In February 2019, the Evansville Vanderburgh County Joint Task Force

      surveilled an Evansville residence for suspected narcotics activity. Law

      enforcement conducted traffic stops near the house and executed a search

      warrant of the house, which uncovered methamphetamine, paraphernalia, and

      firearms. Further investigation revealed that Newbold rented and lived in the

      house. The State ultimately charged Newbold with a number of drug offenses, a

      firearm offense, and alleged that he was an habitual offender.


[3]   Newbold’s two-day jury trial began on July 10, 2019. During voir dire, the

      prosecutor asked numerous prospective jurors, “if [the State] prove[s] our case

      beyond a reasonable doubt, if we firmly convince you of Mr. Newbold’s guilt,

      would you return a finding of guilty?” Tr. Vol. II, p. 40. Juror Three, an African

      American man, replied “I don’t know[.]” Id. Several jurors replied affirmatively

      before the prosecutor came to Juror Six, an African American woman. She also

      replied, “I don’t know,” but equivocated on a follow-up question. Then Juror

      Six was asked “Do you have reservations about this case? Is this the right role

      for you, is this the right job for you?” to which Juror Six replied “No.” Id. at 41.
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2036 | April 9, 2020   Page 2 of 8
      A third African American juror, Juror Ten, indicated on a questionnaire that

      her brother had faced criminal prosecution, but Juror Ten was not questioned

      on the matter.


[4]   In the opening round of jury selection, the State sought to strike both jurors

      Three and Six for cause and sought to use a peremptory strike for Juror Ten.

      Newbold raised a Batson objection to the exclusion of jurors Three, Six, and

      Ten. The trial court took a brief recess to consider the objection; it permitted

      Juror Three stricken for cause because Juror Three indicated he could not be

      fair and impartial in the case. The trial court overruled the State’s motion to

      strike Juror Six for cause but credited the State’s explanation for using a

      peremptory strike, which was: “[W]hen [the State] asked her if we proved our

      case beyond a reasonable doubt, could she convict the Defendant, she said, ‘I

      don’t know,’ meaning that she could not in fact act upon her duty as a juror.”

      Tr. Vol. II, p. 62. The trial court accordingly permitted the peremptory strike

      based on Juror Six’s uncertainty as to whether she could be fair and impartial in

      the case. As to Juror Ten, the trial court sustained Newbold’s objection because

      the State had not provided a race neutral explanation for her peremptory strike.


[5]   Newbold was found guilty of the following offenses: Level 2 felony dealing in

      methamphetamine; Level 4 felony possession of methamphetamine; Level 3

      felony possession of methamphetamine; Level 6 felony possession of a narcotic

      drug; and Level 4 felony unlawful possession of a firearm by a serious violent

      felon. Newbold admitted that, in light of a prior conviction, he was guilty of

      unlawful possession of a firearm by a serious violent felon. Newbold also

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2036 | April 9, 2020   Page 3 of 8
      admitted to the habitual offender allegation and pleaded guilty to a number of

      enhancements. On August 19, 2019, the trial court sentenced Newbold to forty

      years in the Department of Correction. This appeal followed.


                                     Discussion and Decision
[6]   Newbold’s sole challenge on appeal is that the trial court erred in concluding

      that the State, in seeking to strike Juror Six, was not purposefully discriminating

      against her based on her race. “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 use of a peremptory challenge to strike “even a sole

      prospective juror” on the basis of race violates the Fourteenth Amendment’s

      Equal Protection Clause. Addison v. State, 962 N.E.2d 1202, 1208 (Ind. 2012);

      see also Jeter v. State, 888 N.E.2d 1257, 1262–63 (Ind. 2008). Furthermore, a

      race-based peremptory challenge violates the equal protection rights of the

      prospective juror, and therefore Batson prohibits parties from using racially

      based peremptory challenges regardless of the race of the opposing party.

      Ashabraner v. Bowers, 753 N.E.2d 662, 666–67 (Ind. 2001).


              The Batson Court developed a three-step test to determine
              whether a peremptory challenge has been used improperly to
              disqualify a potential juror on the basis of race. First, the party
              contesting the peremptory challenge must make a prima facie
              showing of discrimination on the basis of race. Second, after the
              contesting party makes a prima facie showing of discrimination,
              the burden shifts to the party exercising its peremptory challenge
              to present a race-neutral explanation for using the challenge.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2036 | April 9, 2020   Page 4 of 8
              Third, if a race-neutral explanation is proffered, the trial court
              must then decide whether the challenger has carried its burden of
              proving purposeful discrimination.


      Jeter, 888 N.E.2d at 1263 (citations omitted).


[7]   On appellate review, the trial court’s decision as to whether a peremptory

      challenge was discriminatory is given great deference and will be set aside only

      if found to be clearly erroneous. Cartwright v. State, 962 N.E.2d 1217, 1221 (Ind.

      2012). “The trial court’s conclusion that the prosecutor’s reasons were not

      pretextual is essentially a finding of fact that turns substantially on credibility. It

      is therefore accorded great deference.” Highler v. State, 854 N.E.2d 823, 828

      (Ind. 2006). This deference, however, is “not absolute[;] [r]ather, courts need

      not accept any facially neutral reason for striking a juror and should consider

      ‘all relevant circumstances’ in assessing Batson-challenged peremptory strikes.”

      Killebrew v. State, 925 N.E.2d 399, 401 (Ind. Ct. App. 2010) (quoting Batson, 476

      U.S. at 96-97), trans. denied.


[8]   Newbold argues that the State’s proffered race neutral reason for striking Juror

      Six was pretext for impermissible racial discrimination. A neutral explanation is

      “an explanation based on something other than the race of the juror.”

      McCormick v. State, 803 N.E.2d 1108, 1111 (Ind. 2004). “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, 768–69

      (1995). The State’s explanation for striking Juror Six was that she “could not in

      fact act upon her duty as a juror” because she had expressed uncertainty about

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2036 | April 9, 2020   Page 5 of 8
       finding Newbold guilty even in the event the State met its burden of proof. Tr.

       Vol. II, p. 62.


[9]    There are two bases for Newbold’s contention that the trial court clearly erred

       in determining the reason for the State’s peremptory strike of Juror Six was not

       pretext for discrimination. First, Newbold points to the fact that the trial court

       sustained Newbold’s Batson objection as to Juror Ten, an African American

       woman against whom the prosecutor also sought to use a peremptory strike

       because she indicated on a questionnaire that she had a brother involved in the

       criminal justice system. Tr. Vol. II, p. 66. Neither party had further questioned

       Juror Ten on the matter, however, and the trial court determined that the

       State’s reason was not race neutral because “there was no exploration of the

       idea that perhaps [Juror Ten] may have had a reason not to be fair and

       impartial . . . other than the fact [of] her race.” Id. at 68. Juror Ten subsequently

       served on the jury.


[10]   Juror Six, by contrast, was questioned on the indication she gave that she might

       not be fair and impartial as a juror. Tr. Vol. II, p. 41. After expressing doubt

       that she could find Newbold guilty if the State proved its case, Juror Six agreed

       that serving as a juror was not “the right job for” her. Id. The full exchange is as

       follows:


               [State]: [I]f we proved our case, can you find the Defendant
               guilty?

               [Juror Six]: I don’t know.

               [State]: You don’t know. Why don’t you know?
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2036 | April 9, 2020   Page 6 of 8
               [Juror Six]: Well, yes.

               [State]: Okay, well yes is a lot different than, yes I can. Do you
               have reservations about this case? Is this the right role for you, is
               this the right job for you?

               [Juror Six]: No.


       Id.


[11]   The State correctly notes that for-cause excusal, which would preclude Batson-

       objection review, is appropriate where a juror expresses uncertainty about her

       ability or unwillingness to “decide guilt or innocence impartially.” Daniel v.

       State, 582 N.E.2d 364, 371 (Ind. 1991). Here, however inartful the prosecutor’s

       questioning of Juror Six, Juror Six was questioned about her ability and

       willingness to fulfill her duty as a juror in the event the State met its burden of

       proof. Juror Six’s indication that she may not be a fair and impartial juror was

       explored in a way that Juror Ten’s indication was not. Thus, the trial court’s

       overruling of Newbold’s Batson objection to Juror Six’s peremptory strike was

       not clear error because Juror Six’s peremptory strike was supported by a race

       neutral explanation where Juror Ten’s peremptory strike was not.


[12]   Newbold points to the State’s inconsistent questions as the second basis for his

       argument that the trial court erred in determining the State’s reason for Juror

       Six’s peremptory strike was race neutral. Newbold speculates that Juror Six

       may not have understood the prosecutor’s questions, and thus her answers

       expressing uncertainty do not support her peremptory strike. We disagree and

       consider the State’s for-cause strike of Juror Three a helpful comparison. Juror

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2036 | April 9, 2020   Page 7 of 8
       Three was less equivocal than Juror Six in expressing his inability to be a fair

       and impartial juror: when asked, “If [the State] proved our case, could you find

       the Defendant guilty?” Juror Three replied “I don’t know.” Tr. Vol. II, p. 40.

       Juror Three also expressed that he could not make a fair judgment against

       Newbold due to his prior experience with people with addiction. Id. at 31, 59–

       60. The State’s reason for striking Juror Six was substantially similar to its

       reason for striking Juror Three; thus, the trial court validly exercised its

       discretion in crediting the prosecutor’s explanation for striking Juror Six and

       overruling Newbold’s Batson objection as to Juror Six.


[13]   Given the relevant circumstances of Newbold’s case, the trial court’s acceptance

       of the State’s race neutral explanation for its peremptory strike of Juror Six was

       not clearly erroneous especially because all potential African-American jurors

       were not, in fact, struck from the jury panel. See Killebrew, 925 N.E.2d 399 at

       403.


                                                 Conclusion
[14]   The trial court’s determination that the State presented a race neutral and non-

       pretextual explanation for its peremptory strike of Juror Six was not clearly

       erroneous. Accordingly, we affirm Newbold’s convictions.


[15]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2036 | April 9, 2020   Page 8 of 8
