MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                          Mar 15 2018, 9:02 am

court except for the purpose of establishing                           CLERK
                                                                   Indiana Supreme Court
the defense of res judicata, collateral                               Court of Appeals
                                                                        and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Richard Walker                                           Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Darrin L. Burns,                                         March 15, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1705-CR-975
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Happe,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48C04-1512-F3-2101



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1705-CR-975 | March 15, 2018       Page 1 of 10
[1]   Darrin L. Burns appeals his conviction for aggravated battery as a level 3

      felony. Burns raises one issue which we restate as whether the trial court

      properly denied his Batson challenge. We affirm.


                                      Facts and Procedural History

[2]   On November 3, 2015, Burns went to the VIP show club in Anderson, Indiana,

      with Tyrone Howard and Marquis Kelley. James Deane was also at the club

      that night with Joe Dill to play pool. Deane placed quarters down on Burns’s

      pool table and watched women dance. At some point, Deane and Howard had

      an altercation, Burns punched Deane, and Deane fell backwards and hit the

      pool table on the way down. At 11:35 p.m., an ambulance was dispatched to

      the club because Deane was unconscious and not breathing. When Deane

      arrived at the hospital, Dr. David Soper ordered a CT scan that revealed blood

      in the left temporal area. Deane remained in the hospital for a little over thirty

      days. Dr. James Callahan, the neurosurgeon who treated Deane, diagnosed

      him with a subdural hematoma, or a blood clot underneath the skull and the

      brain’s covering that pushes on the outside of the brain.


[3]   As a result of the events at the club, the State charged Burns with aggravated

      battery as a level 3 felony. During voir dire, the prosecutor questioned potential

      jurors and stated:


              sometimes there’s somethings [sic] that, you know, that the
              police, they do everything that they can, they investigate a case,
              we investigate a case, you know, and it goes to trial, we prosecute
              it, and you’re firmly convinced, you know, you say I’m firmly
              convinced, I know that it happened, but they say well, you know,
      Court of Appeals of Indiana | Memorandum Decision 48A02-1705-CR-975 | March 15, 2018   Page 2 of 10
        I had a question about this, and I call this like the “what if”
        question. Does anybody know a what-iffer? Every [sic] meet a
        what-iffer? They can what-if something to death, you know? But
        at the end of the day, you know, they have everything they need
        to make a decision, right? But they’re still asking other questions
        and they might be fair questions but they may not be necessary
        questions, right?


Transcript Volume 2 at 125. The following exchange occurred between the

prosecutor and Potential Juror 14:


        [Prosecutor]: Okay. We had a lot of discussion about the proof
        beyond a reasonable doubt. Were you able to hear that okay?
        Describe that for me real quick.

        [Potential Juror 14]: (Indiscernible)

        [Prosecutor]: Okay. And at the end of the day - We talked that
        sometimes you might have some questions left over, right, there
        might be some questions?

        [Potential Juror 14]: Yes.

        [Prosecutor]: But what do you have to - How convinced, I guess,
        do you have to be? Did you hear what we were talking about?

        [Potential Juror 14]: (Indiscernible)

        [Prosecutor]: Can you explain that, flush that out a little bit more
        for me?

        [Potential Juror 14]: (Indiscernible)

        [Prosecutor]: So at the end of the day you need to be firmly
        convinced?

        [Potential Juror 14]: Comfortable.



Court of Appeals of Indiana | Memorandum Decision 48A02-1705-CR-975 | March 15, 2018   Page 3 of 10
        [Prosecutor]: Comfortable, yeah. I mean we want you to walk
        out of here feeling like you made the right decision.

        [Potential Juror 14]: Right.

        [Prosecutor]: But if you have some questions at the end, and
        you’ve listened to all the evidence, but you’re firmly convinced
        that it happened, that this really happened, would you still be
        able to make a decision?

        [Potential Juror 14]: One way or the other.

        [Prosecutor]: Yeah, one way or - But I mean if you’re firmly
        convinced that it happened, right? If you believe that it happened
        would you be able to find someone guilty?

        [Potential Juror 14]: Yes.

        [Prosecutor]: Okay. And even if you have a few questions, you
        know, would you - Are you someone that’s kind of a what-iffer?
        Like you would what-if something?

        [Potential Juror 14]: Yes.

        [Prosecutor]: Okay. Tell me a little about that.

        [Potential Juror 14]: Well if you have doubts I think the main
        thing would be to ask a question. (Indiscernible)


Id. at 245-247. The prosecutor pointed out to Potential Juror 14 that he did not

answer the question on the jury questionnaire about whether “religious scruples

or anything” would keep the juror from being able to decide the defendant’s

guilt. Id. at 248. Potential Juror 14 stated that he thought he could make the

decision to find someone guilty if, “like [he] said,” he “got enough evidence to

ease [his] mind.” Id. at 248.


Court of Appeals of Indiana | Memorandum Decision 48A02-1705-CR-975 | March 15, 2018   Page 4 of 10
[4]   When the State exercised a peremptory strike, counsel for Burns made a Batson

      record, and stated that Potential Juror 14 was the only African-American on the

      jury panel, that Burns was an African-American, and that the State had no

      response from Potential Juror 14 that reflected that he could not be fair. The

      prosecutor responded by stating:


              When asked if he was a what-if person he said yes and when I
              asked him about, um, what that meant, um, what it boiled down
              to, um, him making a decision and he had, um, and I think the
              court can note, that he took longer, he didn’t answer right away.
              There was a pause on whether he could ultimately make a
              decision on the case. So a combination of both those things, that
              he answered yes, that he was a what-if person and that he
              hesitated when asked if he can make a decision in the case.


      Transcript Volume 3 at 3. Burns’s counsel raised concerns that Potential Juror

      14 had not given any indication of bias for Burns, to which the prosecutor

      stated that he “also asked him very clearly if he was able to hear the

      conversation that had been happening prior to this and he said yes,” that “the

      conversation prior to this contained many questions of the jurors about what-

      ifs,” and that Potential Juror 14 “knew what that meant.” Id.


[5]   The court denied the Batson challenge and stated:


              Of course the standard (indiscernible) the court uses at this point
              is not whether or not there’s a cause challenge. If there’s a
              reasonable independent reason that could justify the State’s
              decision and if there is a facially neutral reason then the court is
              to accept that, not (indiscernible) find out whether it’s — it’s not
              to go further (indiscernible). If they can come up with a facially

      Court of Appeals of Indiana | Memorandum Decision 48A02-1705-CR-975 | March 15, 2018   Page 5 of 10
              valid reason that seems to be supported by the record, that is
              sufficient. And I do think that in this case the juror was certainly
              very hesitant in his responses and did characterize himself as,
              using the words of the State, a what-iffer. He did qualify that
              somewhat in discussion later about that but I think the State is
              entitled to look at that and say this is a person who seems to be
              someone less than decisive and less than committed to the
              principal [sic] of listening to the facts of the record alone and not
              speculate beyond that. So I am going to allow the State the
              peremptory challenge on that and I’m gonna overrule the Batson
              objection.


      Id. at 4.


[6]   The jury found Burns guilty as charged. The court sentenced Burns to nine

      years with four years executed and five years suspended to probation.


                                                  Discussion

[7]   The issue is whether the trial court properly denied Burns’s Batson challenge. In

      Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717 (1986), the United

      States Supreme Court held that “[p]urposeful 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 challenge. The

      United States Supreme Court provided a three-step process for determining

      when a strike is discriminatory:


              First, a defendant must make a prima facie showing that a
              peremptory challenge has been exercised on the basis of race;
      Court of Appeals of Indiana | Memorandum Decision 48A02-1705-CR-975 | March 15, 2018   Page 6 of 10
        second, if that showing has been made, the prosecution must
        offer a race-neutral basis for striking the juror in question; and
        third, in light of the parties’ submissions, the trial court must
        determine whether the defendant has shown purposeful
        discrimination.


Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016) (quoting Snyder v. Louisiana, 552

U.S. 472, 476-477, 128 S. Ct. 1203, 1207 (2008)). In the first step, “the burden

is low, requiring that the defendant only show circumstances raising an

inference that discrimination occurred.” Addison v. State, 962 N.E.2d 1202,

1208 (Ind. 2012) (citing Johnson v. California, 545 U.S. 162, 170, 125 S. Ct. 2410,

2417 (2005)). “A step two explanation is considered race-neutral if, on its face,

it is based on something other than race.” Cartwright v. State, 962 N.E.2d 1217,

1220-1221 (Ind. 2012) (citing Forrest v. State, 757 N.E.2d 1003, 1004 (Ind. 2001)

(citing Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 1866 (1991)

(plurality opinion))). 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. (internal quotation marks

omitted). The trial court evaluates the persuasiveness of the step two

justification at the third step. Id.


        [T]his procedure places great responsibility in the hands of the
        trial judge, who is in the best position to determine whether a
        peremptory challenge is based on an impermissible factor. This
        is a difficult determination because of the nature of peremptory
        challenges: They are often based on subtle impressions and
        intangible factors.



Court of Appeals of Indiana | Memorandum Decision 48A02-1705-CR-975 | March 15, 2018   Page 7 of 10
       Davis v. Ayala, 135 S. Ct. 2187, 2208 (2015). “[T]he trial court’s decision as to

       whether a peremptory challenge was discriminatory is given ‘great deference’

       on appeal.” Collier v. State, 959 N.E.2d 326, 329 (Ind. Ct. App. 2011) (quoting

       Killebrew v. State, 925 N.E.2d 399, 401 (Ind. Ct. App. 2010), trans. denied). The

       trial court’s ruling on “the issue of discriminatory intent must be sustained

       unless it is clearly erroneous.” Snyder, 552 U.S. at 477, 128 S. Ct. at 1207.


[8]    Burns argues that the court erred by overruling his Batson objection to the

       striking of Potential Juror 14 and contends that the prosecutor’s response and

       explanation for the peremptory strike is characterized as a demeanor-based

       explanation and that the court failed to make adequate credibility findings

       regarding the explanation.


[9]    The State argues that the prosecutor offered two race-neutral reasons for the

       peremptory challenge and that the court explained why it found the

       prosecutor’s assessment of Potential Juror 14’s demeanor to be credible and

       why, based upon the responses to the prosecutor’s questions, it found Potential

       Juror 14 to be less than decisive and less than committed to the principle of

       listening to the facts on the record alone.


[10]   Burns’s counsel made a Batson record and stated that Potential Juror 14 was the

       only African-American on the jury panel and that Burns was an African-

       American. Accordingly, the burden shifted to the State to offer a race-neutral

       basis for striking Potential Juror 14. We note that “[u]nless a discriminatory

       intent is inherent in the prosecutor’s explanation, the reason offered will be


       Court of Appeals of Indiana | Memorandum Decision 48A02-1705-CR-975 | March 15, 2018   Page 8 of 10
       deemed race neutral. 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.’” Addison, 962 N.E.2d at 1209 (citation omitted). The record

       indicates that the prosecutor explained that it was striking Potential Juror 14

       because he answered affirmatively to being asked if he “was a what-if person”

       and that there “was a pause on whether [Potential Juror 14] could ultimately

       make a decision on the case.” Transcript Volume 3 at 3. This was a race-

       neutral reason for the prosecutor’s peremptory challenge of Potential Juror 14.


[11]   As for the third step of the Batson analysis, the trial court found the prosecutor’s

       race-neutral reason credible and persuasive. Indeed, the court echoed the

       concerns that Potential Juror 14 was “very hesitant in his responses” and that

       he characterized “himself as, using the words of the State, a what-iffer,” before

       noting that the State is entitled to look at potential jurors and determine they

       are “someone less than decisive and less than committed to the principal [sic] of

       listening to the facts of the record alone and not speculate beyond that.” Id. at

       4. Based upon our review of the record, we cannot say under the circumstances

       that the court’s ruling on Burns’s objection to the State’s peremptory challenge

       was clearly erroneous.


                                                   Conclusion

[12]   For the foregoing reasons, we affirm Burns’s conviction for aggravated battery

       as a level 3 felony.


[13]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 48A02-1705-CR-975 | March 15, 2018   Page 9 of 10
Baker, J., and Riley, J., concur.




Court of Appeals of Indiana | Memorandum Decision 48A02-1705-CR-975 | March 15, 2018   Page 10 of 10
