MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         May 24 2017, 9:12 am
court except for the purpose of establishing                           CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
estoppel, or the law of the case.                                       and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
William T. Myers                                        Curtis T. Hill, Jr.
Grant County Public Defender                            Attorney General of Indiana
Marion, Indiana
                                                        Monika Prekopa Talbot
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Mitchell Carroll,                                       May 24, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        27A02-1606-CR-1536
        v.                                              Appeal from the Grant Superior
                                                        Court
State of Indiana,                                       The Honorable Dana J.
Appellee-Plaintiff                                      Kenworthy, Judge
                                                        Trial Court Cause No.
                                                        27D02-1507-F2-6



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1536 | May 24, 2017        Page 1 of 7
                                       Statement of the Case
[1]   Following a jury trial, Mitchell Carroll was convicted of numerous felonies and

      misdemeanors. On appeal, he asserts that the trial court erred in denying his

      objection to the State’s use of peremptory challenges to remove “the only two

      African-American” prospective jurors from the jury venire in violation of Batson

      v. Kentucky, 476 U.S. 79 (1986). Appellant’s Br. at 7. Finding no Batson

      violation regarding prospective juror R.J., and concluding that Carroll has

      waived his claim regarding the alleged peremptory strike of a second African-

      American prospective juror, we affirm.


                                 Facts and Procedural History
[2]   The relevant facts most favorable to the verdicts indicate that prior to July 2015,

      Carroll and A.N. were in a romantic relationship and shared a residence. A.N.

      and her son, P.C., moved out of the residence at some point but returned on

      July 2, 2015, to retrieve P.C.’s video gaming system. When they arrived at the

      residence, Carroll exited the house “acting crazy” and yelling at A.N. Tr. at

      557. He reached into her vehicle, turned off the ignition, and made her enter

      the house. P.C. ran away and called 911.


[3]   Neighbors heard a scream and a gunshot and witnessed Carroll carrying a gun

      while dragging A.N. by her hair. Carroll looked angry and A.N. looked scared.

      Three neighbors called 911. One of those neighbors then saw A.N. and Carroll

      in a car, with A.N. driving. That same night, A.N.’s mother called police to

      report that she believed her daughter had been kidnapped and that A.N. was


      Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1536 | May 24, 2017   Page 2 of 7
      driving with Carroll in a silver Lexus. A.N.’s mother reported that Carroll was

      armed with a rifle and that he had wanted to take her as well but that she

      refused to go. A.N.’s mother reported that Carroll told her that he was going to

      kill both women.


[4]   Police subsequently located A.N. driving a silver Lexus with Carroll “slumping

      down” in the passenger seat. Id. at 333-34. After an officer began following the

      Lexus in a marked police cruiser, Carroll pointed the rifle at the officer. The

      officer called for backup. A.N. subsequently stopped the vehicle and Carroll

      exited the vehicle with his hands in the air. A.N. stayed in the vehicle, and

      when officers approached her, she was crying, trembling, gasping, and saying,

      “He was going to kill me. He was going to kill me.” Id. at 337. Officers found

      Carroll’s rifle in the vehicle. Three shell casings found outside Carroll’s

      residence, which appeared to have been recently fired, matched the rifle found

      in the vehicle.


[5]   The State charged Carroll with fourteen criminal counts including level 2 felony

      kidnapping while hijacking a vehicle, level 2 felony criminal confinement while

      hijacking a vehicle, two counts of level 5 felony intimidation with a deadly

      weapon, level 5 felony battery by means of a deadly weapon, level 6 felony

      pointing a loaded firearm, level 6 felony criminal recklessness with a deadly

      weapon, class A misdemeanor domestic battery, class A misdemeanor theft,

      class A misdemeanor intimidation, and four counts of class A misdemeanor

      invasion of privacy. The trial court later dismissed the level 5 felony battery

      charge and the class A misdemeanor theft charge. Jury selection began on May

      Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1536 | May 24, 2017   Page 3 of 7
      10, 2016, and trial on the twelve remaining counts was held on May 11, 2016.

      At the conclusion of the trial, the jury found Carroll guilty as charged. The trial

      court sentenced him to an aggregate sentence of thirty years. This appeal

      ensued.


                                     Discussion and Decision
[6]   Carroll’s sole contention on appeal is that the trial court erred in denying his

      Batson objection to the State’s use of peremptory strikes to remove African-

      American prospective juror R.J., as well as a second African-American

      prospective juror, from the jury pool. “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, 476

      U.S. at 86. “The exclusion of even a sole prospective juror based on race,

      ethnicity, or gender violates the Fourteenth Amendment’s Equal Protection

      Clause.” Addison v. State, 962 N.E.2d 1202, 1208 (Ind. Ct. App. 2012).


[7]   Our supreme court has explained that pursuant to Batson and its progeny, a

      defendant’s claim that a peremptory challenge was based on race is evaluated

      using a three-step process:

              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. A step two explanation is considered race-
              neutral if, on its face, it is based on something other than race.
      Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1536 | May 24, 2017   Page 4 of 7
              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.
              The trial court evaluates the persuasiveness of the step two
              justification at the third step. It is then that implausible or
              fantastic justifications may (and probably will) be found to be
              pretexts for purposeful discrimination. Also, at the third stage,
              the defendant may offer additional evidence to demonstrate that
              the proffered justification was pretextual.


      Cartwright v. State, 962 N.E.2d 1217, 1220-21 (Ind. 2012) (citations and

      quotation marks omitted). “Upon appellate review, a trial court’s decision

      concerning whether a peremptory challenge is discriminatory is given great

      deference, and will be set aside only if found to be clearly erroneous.” Id. at

      1221.


[8]   Regarding prospective juror R.J., we will assume for the sake of argument that

      Carroll made a prima facie showing of discrimination based upon race.

      Accordingly, the burden shifted to the State to offer a race-neutral basis for

      striking R.J. We note that “[a] neutral explanation means ‘an explanation

      based on something other than the race of the juror.’” McCormick v. State, 803

      N.E.2d 1108, 1111 (Ind. 2004) (citation omitted). “Unless a discriminatory

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

      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 1208-09 (citation omitted). The

      record indicates that in response to Carroll’s Batson objection to the State’s

      peremptory challenge of R.J., the State explained that it was striking R.J. based
      Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1536 | May 24, 2017   Page 5 of 7
       upon her statement during voir dire that she was “psychic.” 1 Tr. at 148. This

       was a race-neutral reason for the State’s peremptory challenge of R.J.


[9]    As for the third step of the Batson analysis, the trial court found the State’s race-

       neutral reason credible and persuasive. Indeed, the trial court echoed the

       State’s concern that R.J. had stated that she was “psychic,” and the trial court

       was similarly concerned with “the vibe” of her statement. Id. at 148-49.

       Carroll made no argument that the proffered race-neutral justification was

       pretextual. Under the circumstances, we cannot say that the trial court clearly

       erred in determining that the State’s peremptory challenge of prospective juror

       R.J. was not discriminatory. Accordingly, the trial court did not err in denying

       Carroll’s Batson objection to the removal of prospective juror R.J.


[10]   Regarding Carroll’s claim that the trial court also erred in denying his objection

       to the State’s alleged peremptory challenge of a second African-American

       prospective juror, he has provided us an inadequate record to review this claim.

       It has long been recognized that it is the appellant’s burden to provide us an

       adequate record to permit meaningful appellate review. Wilhoite v. State, 7

       N.E.3d 350, 354-55 (Ind. Ct. App. 2014). While the record does indicate that

       there may have been “two black jurors” in the venire and that Carroll




       1
        Although much of the State’s race-neutral explanation for its peremptory challenge of prospective juror R.J.
       was inaudible to the transcriber, the record clearly indicates, and Carroll concedes, that the State’s
       peremptory challenge was based upon R.J.’s “psychic” statement. Specifically, during voir dire, when she
       was asked about the high evidentiary standard of reasonable doubt, R.J. stated that she was “like a very, kind
       of psychic person, so I can feel a lot of things. Not everything, but some things, so I would have to feel the
       peace within me and all the evidence also and the person.” Tr. at 107.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1536 | May 24, 2017                Page 6 of 7
       challenged the State’s removal of both R.J. and a second prospective African-

       American juror, see Tr. at 148, Carroll concedes that the voir dire transcript “is

       unclear, due to inaudible conversation, whether or not defense counsel or the

       prosecutor responded to the Batson challenge of the other African-American

       venireperson.” Appellant’s Br. at 10.


[11]   We note that if Carroll received what he believed to be an inadequate record of

       proceedings due to the inaudible portions of the transcript, Indiana Appellate

       Rule 31 provides, in part, that “[i]f no Transcript of all or part of the evidence is

       available, a party or the party’s attorney may prepare a verified statement of the

       evidence from the best available sources, which may include the party’s or the

       attorney’s recollection.” Carroll failed to do so.2 Carroll has failed to meet his

       burden to present us with an adequate record for review and has therefore

       waived his Batson claim regarding the second African-American venireperson.

       See Weekly v. State, 496 N.E.2d 29, 31 (Ind. 1986) (defendant waived Batson

       challenge on appeal by failing to present adequate record). We affirm Carroll’s

       convictions.


[12]   Affirmed.


       Barnes, J., and Robb, J., concur.




       2
         While it appears that a court reporter was, in fact, present during the proceedings here, as trial courts trend
       away from using live court reporter’s, we note that the audibility of tape recorded proceedings and the
       resulting inadequacy of the transcripts is going to become an increasing problem. Parties and their trial
       attorneys must be cognizant of this fact and more often avail themselves of Appellate Rule 31.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1536 | May 24, 2017                    Page 7 of 7
