                                                                                   Dec 15 2015, 5:31 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      David W. Stone IV                                         Gregory F. Zoeller
      Anderson, Indiana                                         Attorney General of Indiana
                                                                Brian Reitz
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Billy Deon Blackmon,                                      December 15, 2015
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                48A02-1505-CR-270
              v.                                                Appeal from the Madison Circuit
                                                                Court
      State of Indiana,                                         The Honorable Angela Warner
      Appellee-Plaintiff                                        Sims, Judge
                                                                Trial Court Cause No.
                                                                48C01-1310-FD-2037



      Crone, Judge.


                                             Case Summary
[1]   Billy Deon Blackmon appeals his conviction for class D felony resisting law

      enforcement following a jury trial. He argues that the trial court clearly erred in

      rejecting his claim that the prosecutor used a peremptory challenge to strike a


      Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015                Page 1 of 23
      potential juror based on the juror’s race in violation of the Equal Protection

      Clause of the Fourteenth Amendment to the United States Constitution. The

      prosecutor gave two reasons for his peremptory strike, one of which was

      demeanor-based. The trial court allowed the peremptory strike without

      explicitly stating which of the prosecutor’s reasons it found to be credible and

      not racially motivated. On appeal, Blackmon argues that because one of the

      reasons was demeanor-based and the trial court failed to find that it was

      credible, we have no basis from which to defer to the trial court on this reason.

      He also argues that the second reason was a pretext for racial discrimination.

      Therefore, he argues that his conviction must be reversed and his case

      remanded for a new trial.


[2]   Given the circumstances present here, we reject Blackmon’s contention that the

      trial court was required to explicitly credit the prosecutor’s demeanor-based

      reason. We conclude that the prosecutor’s second reason is suspicious and

      raises an inference of discriminatory motive. However, we conclude that

      reversal of Blackmon’s conviction is not required because it is clear that the

      prosecutor would have struck the juror based on the demeanor-based reason

      alone.


[3]   Blackmon also asserts that the evidence is insufficient to support his conviction.

      We conclude that the evidence is sufficient, and therefore we affirm.




      Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015   Page 2 of 23
                                  Facts and Procedural History
[4]   In September 2013, Anderson Police Officer Michael Lee was assigned to serve

      a writ of body attachment on Blackmon. Around 12:48 a.m., Officer Lee,

      accompanied by deputy prosecutor Dan Kopp, drove to a parking lot near

      Blackmon’s suspected location. Anderson Police Officers Chris Barnett and

      Mike Williams arrived to assist Officer Lee. The house where Blackmon was

      suspected to be was located on a dead-end street. The officers believed that a

      police car would not be able to approach the house without being seen, so

      Kopp, who was in plain clothes, walked to the house to see if Blackmon’s white

      Chevrolet Trailblazer was parked there. Kopp told the officers that the lights

      were on in the house but he did not see the Trailblazer.


[5]   The officers decided to proceed to the house on foot. Officers Barnett and

      Williams walked to the front of the house while Officer Lee and Kopp walked

      to the back of the residence. Officers Barnett and Williams knocked on the

      front door. A female answered and told them that Blackmon was not there,

      which they related to Officer Lee who was still behind the house.


[6]   Officer Lee heard a vehicle in the alley behind the house. The vehicle, a white

      Trailblazer, was moving toward the house at “a little higher speed than normal

      for somebody driving down an alley.” Tr. at 141. The Trailblazer turned

      quickly into an area behind the house that looked like it was frequently used as

      a parking spot. Officer Lee was standing “right in front of” that parking spot.

      Id. at 140. The Trailblazer stopped with its headlights “right on” Officer Lee,

      who was in full police uniform. Id. at 141. Officer Lee stepped aside to get
      Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015   Page 3 of 23
      “out of direct line with the vehicle and drew [his] handgun.” Id. He backed up

      four or five steps and shined the light attached to his pistol into the driver’s door

      window, which was rolled down. Officer Lee, who was about ten feet from the

      car, made “direct eye contact” with Blackmon. Id. at 142. Officer Lee

      recognized Blackmon from photographs he had looked at earlier that evening.


[7]   Blackmon put the car in reverse and started to back out of the parking spot.

      Officer Lee shouted, “Stop! Police!” Id. He took a few steps toward the car as

      it was backing up, called Blackmon by name, and again told him to stop. Id.

      Blackmon drove down the alley and turned onto the street.


[8]   Officer Lee saw the direction Blackmon was driving, radioed other officers in

      the area, and gave them a description of the vehicle. A few minutes later,

      police spotted the Trailblazer eight or nine blocks away parked in the yard of an

      abandoned house. The keys were still in the ignition. No one was in the

      abandoned house. Officer Lee discovered that the Trailblazer was registered to

      Blackmon’s mother.


[9]   The State charged Blackmon with class D felony resisting law enforcement. A

      jury convicted him as charged. This appeal ensued. Additional facts will be

      provided.




      Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015   Page 4 of 23
                                      Discussion and Decision

        Section 1 – The trial court did not err in denying Blackmon’s
                                 Batson claim.
[10]   In Batson v. Kentucky, 476 U.S. 79, 86 (1986), the United States Supreme Court

       held, “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.” A defendant’s claim that the State has used

       a peremptory challenge to strike a potential juror solely on the basis of race is

       commonly known as a Batson claim. Equal protection rights under Batson have

       been substantially expanded. See Jeter v. State, 888 N.E.2d 1257, 1262 (Ind.

       2008) (observing that Batson has been extended to prohibit criminal defendants

       from using peremptory challenges to strike a juror solely on the basis of race)

       (citing Georgia v. McCollum, 505 U.S. 42, 59 (1992)), cert. denied; Addison v. State,

       962 N.E.2d 1202, 1208 (Ind. 2012) (“The exclusion of even a sole prospective

       juror based on race, ethnicity, or gender violates the Fourteenth Amendment’s

       Equal Protection Clause.”) (citing Snyder v. Louisiana, 552 U.S. 472, 478

       (2008)); Ashabraner v. Bowers, 753 N.E.2d 662, 666 (Ind. 2001) (observing that

       Batson applies to civil cases) (citing Edmonson v. Leesville Concrete Co., 500 U.S.

       614, 616 (1991)). Under Batson, a race-based peremptory challenge also violates

       the equal protection rights of the juror, and therefore Batson prohibits parties

       from using racially-based peremptory challenges regardless of the race of the

       opposing party. Ashabraner, 753 N.E.2d at 666-67.




       Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015   Page 5 of 23
[11]   Here, during jury selection, the State used its peremptory challenges in the first

       round to strike three potential jurors, including one of only two African-

       Americans in the fourteen-person venire. 1 Blackmon raised a Batson claim, and

       the parties engaged in the following discussion.


                  Defense counsel: [I]t is a Batson record that I would like to
                  make. [W]e had in the jury box for selection, two (2) African[-]
                  Americans. We had [Juror 3] and [Juror 14]. [Juror 14] has
                  been selected as a juror. [Juror 3] was excused by exercise of a
                  [peremptory] challenge by the State and, again, just requesting
                  that the record be made on that and inquiring as to the rationale
                  beyond her dismissal.


                  Court: [Defense counsel] indicated that in the original fourteen
                  (14) jurors that we had up in the jury box for possible selection
                  on the first round, we did have two (2) African[-]Americans and
                  that was [Juror 3], and then [Juror 14]. As [defense counsel]
                  indicated, [Juror 14] has now been seated as a juror in this case
                  and [Juror 3] was struck by the exercise of a [peremptory]
                  challenge by the State. Does the State wish to offer an
                  explanation as to the reason for the [peremptory] on [Juror 3]?


                  Prosecutor: The State did not exercise a [peremptory] due to
                  race or gender. The State exercised a [peremptory] because I did
                  not see [Juror 3] actively engaged in the dialogue both when
                  [defense counsel] and myself were asking questions to the entire
                  group. Some people were nodding or shaking their heads.
                  People were raising their hands. The only time she answered
                  questions when was [sic] she was asked them directly. She just
                  wasn’t very engaged. I didn’t really want to put her on the jury




       1
           The record is silent as to the race of the other two panelists struck by the State.


       Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015                Page 6 of 23
                to begin with. Then after getting back to the table and
                confirming Officer Lee, he indicated that he believed [Juror 3]
                might know Linda Mitchell as well, who’s a witness. And, and
                that was I guess the final straw and decided to exercise a
                [peremptory].


                Defense counsel: And, and just for purposes of the record, I
                would note that [Juror 9 and Juror 12] I believe it was likewise,
                were not very responsive or engaged, it seemed, equally with
                [Juror 3]. And also would note that [Juror 3] did not identify or
                react to Linda Mitchell’s name at any time. [W]hen her name
                was mentioned in sort of the mini opening that we gave as
                introduction.


                Prosecutor: Well, I’m not sure I’d agree with the
                characterization of the other jurors ….


                Court: …. And make sure, maybe, we make clear, then, for the
                record itself in the context of this challenge that Mr. Blackmon is
                an African[-]American gentlemen as well that is in the
                courtroom.[ 2]…. The Court is not persuaded that the Defendant
                has established that there has been a purposeful discrimination in
                this – in exercising [the prosecutor’s] [peremptory] challenge.


       Tr. at 108-10 (verbal pauses removed for clarity).


[12]   Blackmon argues that the trial court erred in denying his Batson challenge and

       that reversal of his conviction and remand for a new trial is the proper remedy.

       “Upon appellate review, a trial court’s decision concerning whether a




       2
         We reiterate that the party making a Batson claim need not be the same race as the potential juror(s). See
       Ashabraner, 753 N.E.2d at 666-67.

       Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015                        Page 7 of 23
       peremptory challenge is 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). When a party raises a race-based Batson claim, three steps are

       involved. At the first step, 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. The State argues that Blackmon failed to make a

       prima facie case of purposeful discrimination. During jury selection, the

       prosecutor used his peremptory challenges to strike one of two African-

       American panelists. Standing alone the removal of some African-American

       jurors by peremptory challenge does not raise an inference of discrimination.

       McCormick v. State, 803 N.E.2d 1108, 1111 (Ind. 2004) (citing Kent v. State, 675

       N.E.2d 332, 340 (Ind. 1996)). On the other hand, our supreme court has held

       that striking the only African-American juror that could have served on the petit

       jury is prima facie evidence of discriminatory intent. Addison, 962 N.E.2d at

       1209 (citing McCormick, 803 N.E.2d at 1111); see also Schumm v. State, 866

       N.E.2d 781, 789 (Ind. Ct. App. 2007) (concluding that where State struck the

       sole African-American juror, defendant made a prima facie showing of racial

       discrimination).


[13]   Here, only one African-American was left to serve on the fourteen-person jury. 3

       Blackmon did not argue to the trial court that this fact established a prima facie




       3
         However, that African-American juror was ultimately excused when the State inadvertently let him see an
       unredacted copy of the defendant’s driving record. Tr. at 156, 172, 174.

       Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015                    Page 8 of 23
       case, and the record does not reveal whether there were additional

       circumstances present during Blackmon’s trial that would raise an inference of

       discrimination. However, we need not decide whether Blackmon established a

       prima facie case. “[W]here, as here, a prosecutor has offered a race-neutral

       explanation for the peremptory challenge and the trial court has ruled on the

       ultimate question of intentional discrimination, the preliminary issue of

       whether the defendant had made a prima facie showing of purposeful

       discrimination becomes moot.” Cartwright v. State, 962 N.E.2d 1217, 1222 (Ind.

       2012); accord Addison, 962 N.E.2d at 1209 n.2. 4


[14]   At the second step, 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.’” Addison, 962 N.E.2d at 1209 (quoting Snyder, 552 U.S. at 477).

       “[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, 803




       4
          The State argues that “We may reexamine whether Blackmon failed to make a prima facie showing of
       discrimination notwithstanding that the prosecutor offered an explanation for the peremptory strike and the
       trial court ruled that Blackmon had failed to establish purposeful discrimination.” Appellee’s Br. at 10 n.3.
       The State maintains that step one becomes moot only when the prosecutor defends his use of peremptory
       strikes without any prompting or inquiry from the trial court. In support, the State cites Hernandez v. New
       York, 500 U.S. 352, 359 (1991), in which the prosecutor offered the reasons for his peremptory challenges
       without being prompted to do so. The State’s argument ignores Cartwright, 962 N.E.2d 1217, in which the
       State offered its reasons for its peremptory strike simultaneously with its request to strike. Our supreme court
       declined to reexamine whether the defendant made a prima facie case of purposeful discrimination because
       the State had supplied its reasons and the trial court ruled on the ultimate issue of purposeful discrimination.
       Id. at 1222. We further note that here, the prosecutor did not argue to the trial court that Blackmon had
       failed to make a prima facie case of purposeful discrimination. Cf. Hardister v. State, 849 N.E.2d 563, 576
       (Ind. 2006) (defendant argued on appeal that trial court clearly erred by ruling that he failed to make a prima
       facie showing of purposeful discrimination and supreme court found that defendant failed to make prima
       facie case and concluded that trial court had not clearly erred in summarily denying Batson claim without
       asking prosecutor to explain reasons for peremptory strikes).

       Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015                         Page 9 of 23
       N.E.2d at 1110 (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). Here,

       the prosecutor gave two reasons for striking Juror 3: her lack of engagement

       with the jury selection process and the possibility that she might know defense

       witness Linda Williams. These reasons are based on something other than the

       race of the juror, and therefore, on their face, they are racially neutral. See

       McCormick, 803 N.E.2d at 1110.


[15]   At the third step, the trial court must determine “‘whether the defendant has

       shown purposeful discrimination.’” Addison, 962 N.E.2d at 1209 (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 third step requires the trial

       court to assess 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)). At this stage, the defendant may offer additional evidence to

       demonstrate that the prosecutor’s explanation was pretextual. Id. Although

       this third step involves evaluating “the persuasiveness of the justification”

       proffered by the prosecutor, “the ultimate burden of persuasion regarding racial

       Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015   Page 10 of 23
       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.


[16]   Here, defense counsel argued that white panelists had been equally disengaged,

       with which the prosecutor disagreed. Defense counsel also argued that Juror 3

       did not indicate that she knew Linda Williams when the venire was asked early

       in voir dire (more on this below). The trial court then ruled that Blackmon had

       failed to show purposeful discrimination.


[17]   Blackmon advances two alleged errors in the trial court’s ruling. First, he

       argues that the trial court erred by failing to state whether it found both of the

       prosecutor’s reasons credible or only one of his reasons credible. Generally, a

       trial court is not required to make explicit fact-findings following a Batson

       challenge. Addison, 962 N.E.2d at 1210. However, Blackmon asserts that

       because one of the prosecutor’s reasons was based on Juror 3’s demeanor, the

       trial court’s failure to identify which reason it was relying on resulted in an

       inadequate ruling and leaves us without a basis to conclude that the trial court

       found the demeanor-based reason credible. Blackmon does not otherwise argue

       that the demeanor-based reason is constitutionally infirm. Second, Blackmon

       contends that the trial court erred in denying his Batson challenge because the

       prosecutor’s other reason was a pretext for discrimination. We address each

       claim in turn.

       Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015   Page 11 of 23
[18]   To support his argument that the trial court erred in failing to explicitly credit

       the prosecutor’s demeanor-based reason, Blackmon relies on Snyder, 552 U.S.

       472. There, the prosecutor gave two reasons for striking a black juror. First,

       the prosecutor explained that the juror seemed nervous throughout the

       questioning. Id. at 478. Second, the prosecutor stated that the juror was a

       student teacher who was going to miss class and might be inclined to find that

       the defendant was guilty of a lesser verdict to avoid the penalty phase and

       shorten his jury duty. Id. The trial court denied the defendant’s Batson claim

       without indicating which of the reasons it found credible, merely ruling that it

       would “allow the challenge.” Id.


[19]   In addressing whether the trial court clearly erred in denying the defendant’s

       Batson claim, the Supreme Court considered both of the prosecutor’s proffered

       reasons. As for the juror’s alleged nervousness, the Court noted that

       “nervousness cannot be shown from a cold transcript.” Id. at 479 (citation

       omitted). The Court explained that “deference is especially appropriate where

       a trial judge has made a finding that an attorney credibly relied on demeanor in

       exercising a strike. Here, however, the record did not show that the trial judge

       actually made a determination concerning the juror’s demeanor.” Id.

       Significantly, the juror “was not challenged until the day after he was

       questioned, and by that time dozens of other jurors had been questioned.” Id.

       Under these circumstances, the Court observed that the trial judge might not

       even have remembered the juror’s demeanor. Because the prosecutor had

       offered two reasons for the strike, the Court reasoned that the trial court may

       Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015   Page 12 of 23
       have had no opinion on the juror’s demeanor or may have based its ruling

       completely on the prosecutor’s second reason. Id. The Court concluded, “For

       these reasons, we cannot presume that the trial judge credited the prosecutor’s

       assertion that [the juror] was nervous.” Id.


[20]   The Court then addressed the second reason given for the strike, namely, that

       the juror had conflicting obligations. The Court concluded that it was

       “implausible” in light of the brevity of the trial, which the prosecutor

       anticipated on the record during voir dire. The Court stated that this

       implausibility was reinforced by the prosecutor’s acceptance of white jurors

       who also said that they had obligations that conflicted with jury duty. Id. at

       483. The Court concluded that the prosecutor’s second reason was pretextual

       and gave rise to an inference of discriminatory intent. Id. at 485. In

       determining the proper remedy, the Court noted that remanding to determine

       whether “the prosecution would have pre-emptively challenged [the juror]

       based on his nervousness alone” would be impossible because more than a

       decade had passed since Snyder’s trial. Id. at 485-86. Therefore, the Court

       reversed Snyder’s conviction.


[21]   We do not read Snyder as requiring a trial court to make explicit findings every

       time the prosecution justifies a peremptory strike based on a juror’s demeanor.

       In Snyder, the juror “was not challenged until the day after he was questioned,

       and by that time dozens of other jurors had been questioned,” and therefore the

       Supreme Court thought it reasonably possible that the trial judge might not

       even have remembered the juror’s demeanor. 552 U.S. at 479. Here, in

       Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015   Page 13 of 23
       contrast, there is no reason to think that the trial court did not remember the

       panelists’ demeanor. Voir dire occurred within one morning, and there were

       only fourteen panelists. Blackmon argued in support of his Batson claim,

       specifically identifying two white panelists who he said were as equally

       unengaged as Juror 3. The prosecutor disagreed with defense counsel’s

       characterization of other white panelists.


[22]   We assume that the trial court listened to and considered the parties’

       arguments. 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. As the Snyder court

       observed,

               [T]he trial court must evaluate not only whether the prosecutor’s
               demeanor belies a discriminatory intent, but also whether the
               juror’s demeanor can credibly be said to have exhibited the basis
               for the strike attributed to the juror by the prosecutor. We have
               recognized that these determinations of credibility and demeanor
               lie “peculiarly within a trial judge’s province.”


       Id. at 477 (quoting Hernandez, 500 U.S. at 365). In this case, there are no

       circumstances that call into question the usual deference we give to the trial

       court’s superior ability to evaluate the panelists’ demeanor and the attorneys’

       arguments and demeanor.


[23]   Blackmon also relies on Killebrew v. State, 925 N.E.2d 399 (Ind. Ct. App. 2010),

       trans. denied, in which another panel of this Court found that Snyder squarely

       applied. In Killebrew, the prosecutor used peremptory challenges to strike all
       Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015   Page 14 of 23
       five African-American members of the venire. The prosecutor’s reasons for

       striking “potential juror L.S. [was] because he was too ‘emphatic’ in agreeing

       with defense counsel’s description of the State’s burden of proof, and because

       [the prosecutor] was afraid that L.S. would place too high of an evidentiary

       burden upon the State.” Id. at 402. As for L.S. being too “emphatic,” the

       Killebrew court found that it was the same as the claim of “nervousness” in

       Snyder. The Killebrew court observed that “the trial court here made no express

       finding whether it believed L.S. was ‘emphatic’ in agreeing with defense

       counsel’s description of the burden of proof.” Id. The Killebrew court

       concluded, “[W]e will not place any weight on the prosecutor’s claim here that

       L.S. was too ‘emphatic’ in agreeing with defense counsel.” Id.


[24]   The Killebrew court also found that the State’s second reason was governed by

       Snyder. The court observed that “there was no meaningful distinction between

       how L.S. described his concept of the State’s burden of proof” and how the

       white panelists who were not struck described it. Id. at 403. The court

       concluded that Killebrew had established that the prosecutor’s peremptory

       strike of L.S. was the result of purposeful discrimination and reversed and

       remanded for a new trial. Id.


[25]   We conclude that Killebrew is distinguishable. In deciding that it would not

       place any weight on the prosecutor’s demeanor-based justification, the Killebrew

       majority did not discuss the circumstances surrounding voir dire or the

       arguments advanced by the attorneys at step three of the Batson procedure.

       Significantly, the prosecutor struck all five African-American panelists, and the
       Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015   Page 15 of 23
Killebrew court concluded that the record showed that the prosecutor’s second

reason applied to other white panelists who were not struck. Regarding the

issue of whether to credit the prosecutor’s demeanor-based reason, we agree

with Judge Mathias’s interpretation of Snyder in his dissenting opinion. He

wrote,

         In reviewing the L.S. strike it is once again important to
         emphasize the trial court’s unique position to assess L.S.’s
         demeanor during voir dire. In answering Killebrew’s Batson
         challenge, the prosecutor referred to the “emphatic” manner in
         which L.S. apparently agreed with defense counsel. The trial
         court, not our court, was in the best position to determine
         whether L.S. was “emphatic,” and whether, because of L.S.’s
         demeanor in the courtroom, the prosecutor’s proffered race-
         neutral explanation for striking L.S. was credible. See Snyder, 552
         U.S. at 477, 128 S. Ct. 1203 (noting importance of trial court’s
         first-hand observation of juror’s demeanor). Unlike the majority,
         I do not read Snyder to mean that, simply because the trial court
         did not specifically make a finding regarding the juror’s
         demeanor, that we are at liberty to second-guess the trial court’s
         ultimate conclusion regarding the credibility of the prosecutor’s
         proffered race-neutral reasons for striking a minority juror.


Killebrew, 925 N.E.2d at 405 (Mathias, J., dissenting). 5




5
  Blackmon also cites United States v. Rutledge, 648 F.3d 555 (7th Cir. 2011), which is likewise distinguishable.
In Rutledge, the trial court denied the defendant’s Batson challenge. In so doing, it merely stated that the
government’s reasons for the strike were race-neutral. The Seventh Circuit concluded that the trial court
failed to satisfy its duty in step three of the Batson procedure to determine whether the government’s reasons
were credible. Id. at 561. The Seventh Circuit remanded for the trial court to evaluate the government’s
reasons for credibility, not merely facial racial neutrality. Here, the trial court found that Blackmon failed to
establish purposeful discrimination, thereby reaching the ultimate issue required by step three.

Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015                         Page 16 of 23
[26]   Here, as previously noted, there were no circumstances to suggest that the trial

       court did not remember the panelists. In addition, Juror 3’s disengagement was

       plainly the main reason offered by the prosecutor for the peremptory strike.

       The attorneys presented argument on her demeanor and discussed the

       demeanor of other panelists, and the trial court ruled that Blackmon had failed

       to establish purposeful discrimination. Accordingly, we conclude that

       Blackmon has failed to show that the trial court’s ruling was inadequate or

       erroneous because it failed to make an explicit finding that Juror 3’s

       disengagement was a credible nondiscriminatory reason for the peremptory

       strike.


[27]   We now turn to the second reason the prosecutor advanced in support of his

       peremptory strike of Juror 3. The prosecutor said that Officer Lee told him that

       Juror 3 “might know” Linda Mitchell. Tr. at 109. For background purposes,

       we note that after the panelists were sworn in, the prosecutor introduced

       himself and informed the panel of the names of the State’s witnesses. Id. at 44.

       Defense counsel followed suit, telling the panel that Blackmon’s aunt, Linda

       Mitchell, was a potential defense witness. Id. at 44-45. The trial court asked

       the panelists whether any of them recognized the names of the potential

       witnesses. Id. Juror 3, who was under oath, did not indicate that she knew

       Mitchell. After additional questions from the trial court, the prosecutor had an

       opportunity to question the panel. The prosecutor did not ask Juror 3 whether

       she knew Mitchell. “‘The State’s failure to engage in any meaningful voir dire

       examination on a subject the State alleges it is concerned about is evidence


       Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015   Page 17 of 23
       suggesting that the explanation is a sham and a pretext for discrimination.’”

       Addison, 962 N.E.2d at 1215 (quoting Miller-El, 545 U.S. at 246). The State

       asserts that the prosecutor did not question Juror 3 about Mitchell because

       Officer Lee did not tell the prosecutor that Juror 3 might know Mitchell until

       after the prosecutor got back to the table. Tr. at 109. That merely raises the

       question why Officer Lee did not inform the prosecutor while the trial court

       was questioning the panelists before the prosecutor began his voir dire.


[28]   The State also argues that the prosecutor had no reason to doubt Officer Lee’s

       statement that Juror 3 might know Mitchell and that Juror 3 might not have

       heard Mitchell’s name because Juror 3 was disengaged. We cannot speculate

       on either of these suggestions based on a cold transcript. Given that Juror 3

       was under oath and that the prosecutor’s proffered reason was one that he

       learned from Officer Lee, who was not under oath, the prosecutor’s proffered

       reason is suspicious and supports an inference of discriminatory intent.


[29]   Taking stock of matters thus far, we have a demeanor-based reason for striking

       Juror 3 that supports the trial court’s denial of Blackmon’s Batson claim. If that

       were the only reason given, we would have no basis to find that the trial court

       clearly erred in denying his Batson claim. However, there was a second reason

       provided that, although facially race-neutral, appears to be a pretext. We must

       determine the proper remedy under these circumstances, which neither party

       nor the United States Supreme Court has addressed. The Indiana Supreme

       Court dealt with a somewhat similar situation in McCormick, 803 N.E.2d 1108.

       There, the prosecutor gave several reasons for striking the only African-

       Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015   Page 18 of 23
       American on the panel: she was distraught; she looked uncomfortable; and her

       answers showed that she was uncomfortable with the process. The McCormick

       court concluded that each of these reasons was a permissible race-neutral

       explanation. Id. at 1111. However, the court concluded that one of the

       prosecutor’s reasons–that the juror would find it difficult “passing judgment on

       a member of one’s own in the community”–was not facially race-neutral. Id.


[30]   In determining the appropriate remedy, the court considered two alternative

       approaches: the dual motivation approach and the tainted approach. The dual

       motivation approach “proceeds under the theory that ‘[a] person may act for

       more than one reason’ and that when a prosecutor offers both legitimate and

       illegitimate reasons for a strike, further analysis is required.” Id. at 1112

       (quoting Howard v. Senkowski, 986 F.2d 24, 26 (2d Cir. 1993)) (brackets in

       McCormick). The tainted approach maintains that “‘[r]egardless of how many

       other nondiscriminatory factors are considered, any consideration of a

       discriminatory factor directly conflicts with the purpose of Batson and taints the

       entire jury selection process.’” Id. at 1113 (quoting Arizona v. Lucas, 18 P.3d 160,

       163 (Ariz. Ct. App. 2001)) (brackets in McCormick). The McCormick court

       observed that the dual motivation analysis “is inconsistent with the facially

       valid standard announced by the Supreme Court in Purkett.” Id. Therefore, the

       McCormick court applied the tainted approach and concluded that “the State

       failed to meet its burden under the second prong of Batson to come forward with

       a race-neutral explanation for its peremptory strike. McCormick is thus entitled

       to a new trial.” Id.

       Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015   Page 19 of 23
[31]   In sum, the McCormick court applied the tainted approach because one of the

       reasons for the peremptory challenge was race-based on its face. The

       McCormick court specifically referred to Purkett, in which the Supreme Court

       held that the prosecutor’s reasons must be facially neutral, but need not be

       “persuasive, or even plausible.” 514 U.S. at 768. Here, the prosecutor’s second

       reason was facially race-neutral, and therefore McCormick is not controlling.

       We decline to extend it to the circumstances present here, in which the

       prosecutor satisfied the second step of the Batson analysis and the trial court

       ruled that Blackmon failed to establish purposeful discrimination.


[32]   We observe that the Supreme Court has stated that dual motivation analysis

       would apply in the context of determining racial motivation for purposes of

       adjudicating other types of challenges based on the Equal Protection Clause.

       Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270 n.21

       (1977). 6 We think that the dual motivation analysis is appropriate to apply in

       this case. “[U]nder dual motivation analysis, if the trial court finds that the

       proponent of the strike has articulated both race-based and race-neutral reasons




       6
           In Snyder, the Supreme Court did not need to decide whether to apply dual motivation analysis:

                In other circumstances, we have held that, once it is shown that a discriminatory intent was a
                substantial or motivating factor in an action taken by a state actor, the burden shifts to the party
                defending the action to show that this factor was not determinative. See Hunter v. Underwood,
                471 U.S. 222, 228, 105 S. Ct. 1916, 85 L. Ed. 2d 222 (1985). We have not previously applied
                this rule in a Batson case, and we need not decide here whether that standard governs in this
                context. For present purposes, it is enough to recognize that a peremptory strike shown to have
                been motivated in substantial part by discriminatory intent could not be sustained based on any
                lesser showing by the prosecution.
       552 U.S. at 486-87.

       Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015                            Page 20 of 23
       for a peremptory strike, then the proponent bears the burden of demonstrating

       that the strike would have been exercised even in the absence of any

       discriminatory motivation.” McCormick, 803 N.E.2d at 1112. In this case, the

       record clearly establishes that the predominant reason that the prosecutor

       wished to strike Juror 3 was that she was not fully engaged with the jury

       selection process. The prosecutor stated that he “didn’t really want to put her

       on the jury to begin with,” and that when he learned that she might know a

       defense witness, it was merely the “final straw.” Tr. at 109. Accordingly, we

       conclude that the prosecutor would have exercised the peremptory challenge in

       the absence of any discriminatory purpose. Therefore, we conclude that the

       trial court did not clearly err in denying Blackmon’s Batson challenge.


         Section 2 – The evidence is sufficient to support Blackmon’s
                  conviction for resisting law enforcement.
[33]   Blackmon also contends that his conviction is unsupported by sufficient

       evidence. Our standard of review is well settled:

               [When] reviewing the sufficiency of the evidence needed to
               support a criminal conviction[,] ... we neither reweigh evidence
               nor judge witness credibility. We consider only the evidence
               supporting the judgment and any reasonable inferences that can
               be drawn from such evidence. We will affirm a conviction if
               there is substantial evidence of probative value such that a
               reasonable trier of fact could have concluded the defendant was
               guilty beyond a reasonable doubt.


       Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008) (citations omitted).



       Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015   Page 21 of 23
[34]   To convict Blackmon of class D felony resisting law enforcement, the State was

       required to prove that he used a vehicle to knowingly or intentionally flee from

       a law enforcement officer after the officer had, by visible or audible means,

       identified himself and ordered him to stop. Ind. Code § 35-44.1-3-1(a)(3), -

       (b)(1)(A); Appellant’s App. at 8 (charging information). Blackmon argues that

       there is insufficient evidence to establish that he knew or had reason to know

       that he was dealing with a police officer. See Mason v. State, 944 N.E.2d 68, 71

       (Ind. Ct. App. 2011) (“To be convicted for resisting law enforcement, though,

       the evidence must show that the defendant knew or had reason to know that the

       person resisted was a police officer.”), trans. denied.


[35]   Here, Officer Lee was in full police uniform. He testified that he was directly in

       front of the parking area when Blackmon’s Trailblazer pulled in and that its

       lights were shining directly at him. Officer Lee and Blackmon made direct eye

       contact. The driver’s door window was rolled down. Officer Lee was only

       about ten feet away when he yelled, “Stop! Police!” Tr. at 142. He also called

       Blackmon by name and again yelled for him to stop. This is sufficient evidence

       from which a reasonable trier of fact could find that Blackmon knew or had

       reason to know that the person yelling at him to stop was a police officer.

       Blackmon’s argument is merely a request to reweigh the evidence, which we

       must decline. We conclude that the evidence is sufficient and affirm

       Blackmon’s conviction.




       Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015   Page 22 of 23
[36]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 48A02-1505-CR-270| December 15, 2015   Page 23 of 23
