                                                                                        FILED
                                                                                  Jun 20 2017, 8:44 am

                                                                                        CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Suzy St. John                                             Curtis T. Hill, Jr.
      Indianapolis, Indiana                                     Attorney General of Indiana

                                                                James B. Martin
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Eugene Roach,                                             June 20, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A04-1608-CR-1918
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Ronnie Huerta,
      Appellee-Plaintiff.                                       Commissioner
                                                                Trial Court Cause No.
                                                                49G09-1601-F6-5



      Barnes, Judge.


                                              Case Summary
[1]   Eugene Roach appeals his conviction for Class A misdemeanor resisting law

      enforcement. We remand.



      Court of Appeals of Indiana | Opinion 49A04-1608-CR-1918| June 20, 2017                    Page 1 of 13
                                                       Issues
[2]   Roach raises two issues, but we address one dispositive issue, which we restate

      as whether the trial court properly denied his Batson challenge.1


                                                        Facts
[3]   Indiana State Police Trooper Thomas Bennett was involved in a traffic stop in

      Marion County when a woman alerted him to a nearby situation. Trooper

      Bennett saw Roach and a woman near a bicycle and saw Roach hit the woman.

      Trooper Bennett yelled, “[H]ey, stop, police!” Tr. p. 135. Roach made eye

      contact with Trooper Bennett, got on his bicycle, and pedaled away. A

      bystander intervened and blocked Roach from leaving, and Trooper Bennett

      arrested Roach. The State charged Roach with Level 6 felony criminal

      confinement, Class A misdemeanor battery, and Class A misdemeanor resisting

      law enforcement. The State later dismissed the criminal confinement and

      battery charges.


[4]   During voir dire of Roach’s jury trial on the resisting law enforcement charge,

      the State asked, “What are some duties of law enforcement officers that you can

      think of? Mr. James, what are some duties of law enforcement officers that you

      can think of?” Tr. p. 68. After discussing the matter with a couple of

      prospective jurors, the State asked, “Mr. Wilson, you got anything to add to




      1
        Roach also argues that the trial court’s order to pay probation fees was improper. Given our resolution of
      the Batson issue, we need not address the probation fees issue.

      Court of Appeals of Indiana | Opinion 49A04-1608-CR-1918| June 20, 2017                           Page 2 of 13
      that?” Id. Prospective Juror Wilson (“Juror Wilson”) responded, “Do the right

      thing.” Id. Defense counsel also gave a hypothetical about the victim of an

      assault walking away from a police officer. She then asked, “How about you,

      Mr. Wilson? How do you feel about it?” Id. at 81. Juror Wilson responded, “I

      INAUDIBLE press charges.” Id. These were the only verbal interactions with

      Juror Wilson evident on the record.


[5]   The State apparently used a peremptory challenge to strike Juror Wilson.

      Defense counsel then told the trial court, “[I]t’s possible we’re raising a Batson

      challenge, because he was the only African American on the panel.” Id. at 97.

      The trial court said, “It’s a little premature still. INAUDIBLE juror seven.” Id.

      Defense co-counsel then said, “I was about to say he was the only black man in

      the Jury pool . . . .” Id. Defense co-counsel then noted, “For the record, I note

      that Mr. Kevin Wilson, who is juror number fourteen is the only black male in

      the Jury pool. Our client is a black male.” Id. at 98-99. Defense co-counsel

      argued that Juror Wilson’s answers during voir dire were not different than two

      white males—Mr. Bercot and Mr. Coble—that were also questioned. In

      response, the State said:

              First, the reason that Mr. Wilson was struck was Mr. Wilson’s
              body language throughout the entirety of voir dire, particularly
              given when Mr. Clapp was asking [a] question. The first thing
              that I wrote on my Jury questionnaire was skeptical and then I
              wrote disengaged. In addition to that, which I found problematic
              given the way that he was acting in the Jury box, given that
              combined with the fact that when Ms. Zuran questioned him
              about whether or not he would stop if a police officer asked him
              to stop, he said no, I wouldn’t stop. So, given the facts of this
      Court of Appeals of Indiana | Opinion 49A04-1608-CR-1918| June 20, 2017    Page 3 of 13
              case, I think those two things combined lead to our strikes. Now,
              additionally, Ms. Frick said that she took some notes about Mr.
              Wilson not saying anything different from Mr. Bercot and from
              Mr. Coble. As far as I recall, Mr. Wilson didn’t say anything
              different from juror, Jason Costa, who is a white male who we
              struck for the same reason that we struck Mr. Wilson. Those
              being that he tended to agree with the questions that defense was
              asking and his general attitude.


      Id. at 99-100. Defense co-counsel responded:


              I would note that in fact, Mr. Bercot did say that you would have
              a right to walk away and that there was no need to respond [to]
              an officer and again, for the record, I will note Mr. Bercot is a
              white male and I’d also note, I say this for respectively, but Mr.
              Seitz is not a mind reader. He can’t tell whether or not Mr.
              Wilson was disengaged and skeptical. In fact, Ms. Eder, who is
              on the Jury said, she seemed reluctant in her responses. So, I
              would argue that her body language and responses were quite
              similar.


      Id. at 100. The trial court then found: “Having listened to the arguments of

      both side[s], I don’t see that the State struck him with a purposeful act of

      discrimination. So, I’m going to deny your challenge.” Id. at 100-101.


[6]   The jury found Roach guilty as charged of Class A misdemeanor resisting law

      enforcement. The trial court sentenced Roach to 365 days with credit of forty-

      two days with the remainder suspended to non-reporting probation. Roach

      now appeals.




      Court of Appeals of Indiana | Opinion 49A04-1608-CR-1918| June 20, 2017   Page 4 of 13
                                                   Analysis
[7]   Roach argues that the trial court erred by overruling his Batson objection to the

      striking of Juror Wilson. It is well-settled that using a peremptory challenge to

      strike a potential juror solely on the basis of race violates the Equal Protection

      Clause of the Fourteenth Amendment to the United States Constitution. Jeter v.

      State, 888 N.E.2d 1257, 1262 (Ind. 2008) (citing Batson v. Kentucky, 476 U.S. 79,

      106 S. Ct. 1712 (1986)), cert. denied. In Batson, 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;
              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. 474, 476-477, 128 S. Ct. 1203, 1207 (2008)). “[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.”

      Id. at 1748.


              [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 | Opinion 49A04-1608-CR-1918| June 20, 2017      Page 5 of 13
      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]   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)). “This is commonly referred to as a

      ‘prima facie’ showing.” Id. “Although the removal of some African American

      jurors by the use of peremptory challenges does not, by itself, raise an inference

      of racial discrimination, the removal of ‘the only . . . African American juror

      that could have served on the petit jury’ does ‘raise an inference that the juror

      was excluded on the basis of race.’” Id. at 1208-09 (quoting McCormick v. State,

      803 N.E.2d 1108, 1111 (Ind. 2004)) (internal citations omitted).


[9]   Here, the record indicates that Juror Wilson was the only African American

      male in the jury pool. It is unclear, however, whether there was an African

      American female in the jury pool. The State concedes that this issue is “now

      moot because the trial court directed the parties to step two . . . .” Appellee’s

      Br. p. 14 (citing Addison, 962 N.E.2d at 1209 n.2). Consequently, we will move

      on to step two.

      Court of Appeals of Indiana | Opinion 49A04-1608-CR-1918| June 20, 2017   Page 6 of 13
[10]   In step two, “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, 128 S. Ct. 1203). “‘Unless a discriminatory intent is

       inherent in the prosecutor’s explanation, the reason offered will be deemed race

       neutral.’” Id. (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771

       (1995)). Although the race-neutral reason must be more than a mere denial of

       improper motive, the reason need not be particularly “persuasive, or even

       plausible.” Id.


[11]   The State responded that it struck Juror Wilson based on his “body language . .

       . combined with the fact that when [defense counsel] questioned him about

       whether or not he would stop if a police officer asked him to stop, he said no, I

       wouldn’t stop.” Tr. p. 99. Roach concedes that “[n]either reason was based on

       Juror Wilson’s race so the explanation was facially race-neutral.” Appellant’s

       Br. p. 10.


[12]   In the final step of the analysis, the trial court “must determine whether the

       defendant has shown purposeful discrimination.” Addison, 962 N.E.2d at 1209.

       The trial court must evaluate the persuasiveness of the step two justification. Id.

       at 1210. “It is then that ‘implausible or fantastic justifications may (and

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

       (quoting Purkett, 514 U.S. at 768, 115 S. Ct. at 1771). “The issue is whether the

       trial court finds the prosecutor’s race-neutral explanation credible.” Id. “‘[T]he

       rule in Batson provides an opportunity to the prosecutor to give the reason for

       striking the juror, and it requires the judge to assess the plausibility of that

       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1918| June 20, 2017      Page 7 of 13
       reason in light of all evidence with a bearing on it.’” Id. (quoting Miller–El v.

       Dretke, 545 U.S. 231, 251-52, 125 S. Ct. 2317, 2331 (2005)). “Also, at the third

       stage, the defendant may offer additional evidence to demonstrate that the

       proffered justification was pretextual.” Id.


[13]   One reason offered by the State as a reason for the strike was that “when

       [defense counsel] questioned [Juror Wilson] about whether or not he would

       stop if a police officer asked him to stop, he said no, I wouldn’t stop.” Tr. p. 99.

       In this interaction, defense counsel had proposed a hypothetical about whether

       a victim of a battery could walk away from a police officer. Defense counsel

       then asked, “How about you, Mr. Wilson? How do you feel about it?” Id. at

       81. Juror Wilson responded, “I INAUDIBLE press charges.” Id. The record

       does not, in fact, reveal that Juror Wilson said he would not stop for the police

       officer. “This mischaracterization of [the juror’s] voir dire testimony is

       troubling and undermines the State’s proffered race-neutral reason for the

       strike.” Addison, 962 N.E.2d at 1215 (citing Miller-El, 545 U.S. at 244, 125 S.

       Ct. at 2327).


[14]   The second reason offered by the State for the strike was a demeanor-based

       explanation. Roach argues that the proffered “body language” reason for

       striking Juror Wilson cannot support the strike because the trial court failed to

       make a finding that the demeanor-based reason was credible. The trial court

       here stated only: “Having listened to the arguments of both side[s], I don’t see

       that the State struck him with a purposeful act of discrimination. So, I’m going

       to deny your challenge.” Tr. p. 100-101.

       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1918| June 20, 2017      Page 8 of 13
[15]   In support of his argument, Roach relies on Snyder, 552 U.S. at 477, 128 S. Ct.

       at 1208. There, the prosecutor struck an African American prospective juror

       because of his “nervousness” and student-teaching obligation. Snyder, 552 U.S.

       at 478, 128 S. Ct. at 1208. The trial court denied the Batson challenge without

       explanation. On appeal, the United States Supreme Court noted:

               [R]ace-neutral reasons for peremptory challenges often invoke a
               juror’s demeanor (e.g., nervousness, inattention), making the trial
               court’s firsthand observations of even greater importance. In this
               situation, the 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,’” and we have stated that “in the absence of
               exceptional circumstances, we would defer to [the trial court].”


       Id. at 477, 128 S. Ct. at 1208 (internal citations omitted).


[16]   Despite the deference given to trial courts, the Supreme Court noted that “the

       record [did] not show that the trial judge actually made a determination

       concerning [the juror’s] demeanor.” Id. at 479, 128 S. Ct. at 1209.


               Rather than making a specific finding on the record concerning
               [the juror’s] demeanor, the trial judge simply allowed the
               challenge without explanation. It is possible that the judge did
               not have any impression one way or the other concerning [the
               juror’s] demeanor. [The juror] was not challenged until the day
               after he was questioned, and by that time dozens of other jurors
               had been questioned. Thus, the trial judge may not have recalled
               [the juror’s] demeanor. Or, the trial judge may have found it

       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1918| June 20, 2017   Page 9 of 13
               unnecessary to consider [the juror’s] demeanor, instead basing
               his ruling completely on the second proffered justification for the
               strike. For these reasons, we cannot presume that the trial judge
               credited the prosecutor’s assertion that [the juror] was nervous.


       Id., 128 S. Ct. at 1209.


[17]   In addressing the second reason for the strike—the student teaching

       obligations—the Court compared the juror’s situation to the situations of other

       jurors that were not stricken and concluded that the second reason was

       “pretextual” and gave “rise to an inference of discriminatory intent.” Id. at 485,

       128 S. Ct. at 1212. The Court then held:

               [I]n light of the circumstances here—including absence of
               anything in the record showing that the trial judge credited the
               claim that [the juror] was nervous, the prosecution’s description
               of both of its proffered explanations as “main concern[s],” and
               the adverse inference noted above—the record does not show
               that the prosecution would have pre-emptively challenged [the
               juror] based on his nervousness alone. Nor is there any realistic
               possibility that this subtle question of causation could be
               profitably explored further on remand at this late date, more than
               a decade after petitioner’s trial.


       Id. at 485-86, 128 S. Ct. at 1212 (internal citations omitted). Consequently, the

       Court reversed the defendant’s conviction.


[18]   Following Snyder, the federal circuit courts are split regarding whether

       credibility findings by the trial court are required on the record. See Morgan v.

       City of Chicago, 822 F.3d 317, 330 n.30 (7th Cir. 2016). The Seventh Circuit has

       held: “When the stated basis for a strike is predicated on subjective evidence
       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1918| June 20, 2017    Page 10 of 13
       like the juror’s demeanor, we typically have held that a trial court clearly errs by

       neglecting to state expressly its credibility findings on the record.” Id. at 329.


[19]   Our supreme court also relied on Snyder when it decided Addison, 962 N.E.2d

       1202. In addressing the third step of the Batson analysis and whether findings

       were necessary, the court noted:

               [I]t is not at all clear that the trial court properly discharged its
               third-stage duty of determining whether Addison had shown
               purposeful discrimination. For example the trial court did not
               indicate whether or why it found the State’s proffered
               explanation credible. Although at least one federal circuit court
               has declared “federal law has never required explicit fact-findings
               following a Batson challenge, especially where a prima facie case
               is acknowledged and the prosecution presents specific
               nondiscriminatory reasons on the record,” Stenhouse v. Hobbs, 631
               F.3d 888, 893 (8th Cir. 2011) (quoting Smulls v. Roper, 535 F.3d
               853, 860 (8th Cir. 2008) (en banc)), nonetheless by simply
               declaring, without more, that the State “articulated race neutral
               reasons for striking all three jurors,” Tr. at 93-94, the trial court
               appears to have combined stages two and three of the Batson
               inquiry. This was incorrect. “The analytical structure
               established by Batson cannot operate properly if the second and
               third steps are conflated.” United States v. Rutledge, 648 F.3d 555,
               559 (7th Cir. 2011) (remanding cause to the trial court for an
               explicit step-three credibility finding to support its decision
               denying a Batson challenge).


       Addison, 962 N.E.2d at 1210. Ultimately, our supreme court determined: “The

       State’s mischaracterization of Turner’s voir dire testimony, its failure to engage

       Turner in any meaningful voir dire examination to explore his alleged undue

       reliance on the testimony of professionals, and the comparative juror analysis,

       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1918| June 20, 2017    Page 11 of 13
       when taken collectively, leave us with the firm impression that the State’s

       proffered explanation for striking venireperson Turner was a mere pretext based

       on race, making a fair trial impossible.” Id. at 1217. The court reversed and

       remanded for a new trial based on the Batson violation.


[20]   Then, in Blackmon v. State, 47 N.E.3d 1225 (Ind. Ct. App. 2015), this court held,

       relying on Addison and Snyder, that “a trial court is not required to make explicit

       fact-findings following a Batson challenge.” Blackmon, 47 N.E.3d at 1233. We

       distinguished Snyder because of the short amount of time between the challenge

       and the questioning of the juror and the trial court’s ability to remember the

       juror’s demeanor. We assumed that the trial court listened to and considered

       the parties’ arguments and held that “[t]he 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.” Id. at

       1234. Consequently, we concluded that the trial court did not err by denying

       the defendant’s Batson challenge.


[21]   Although Indiana courts have not specifically required credibility findings in all

       Batson challenges involving demeanor-based reasons, we are left here with little

       ability to review the trial court’s decision without such findings. Although the

       State professed two reasons for striking Juror Wilson, we have concluded that

       one of the reasons was not supported by the record, leaving only the demeanor-

       based reason for Juror Wilson’s dismissal. It is impossible for us to determine

       which reason the trial court used to deny the Batson challenge or if it found both

       reasons persuasive. As in Snyder, we cannot presume that the trial court

       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1918| June 20, 2017   Page 12 of 13
       “credited the prosecutor’s assertion” that Juror Wilson’s body language was

       inappropriate. Snyder, 552 U.S. at 479, 128 S. Ct. at 1209. Recognizing the

       difficulty in exploring the credibility of the State’s demeanor-based explanation

       long after a trial, the United States Supreme Court reversed in Snyder. Here,

       however, less than one year has passed since the trial as compared to the decade

       that had passed in Snyder. The Seventh Circuit has resolved such situations

       where there is “an evidentiary gap at step three” by “remanding the case to

       ‘find out what the district court perceived.’” Morgan, 822 F.3d at 331 (quoting

       Rutledge, 648 F.3d at 560). Although we recognize the difficulty, and perhaps

       impossibility, of a trial court recalling a prospective juror’s demeanor months

       after the trial, given our deference to the trial court in such matters, we believe

       this course should be our first step. If, of course, the trial court is unable to

       recall the prospective juror’s demeanor and make a determination regarding the

       credibility of the State’s reason for the strike, a new trial is required.


                                                  Conclusion
[22]   We remand for the trial court to make findings regarding the State’s demeanor-

       based reason for striking Juror Wilson. Remanded.


       Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1608-CR-1918| June 20, 2017      Page 13 of 13
