                                                                              FILED
                                                                          Jun 26 2019, 9:38 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Timothy J. O’Connor                                        Curtis T. Hill, Jr.
      O’Connor & Auersch                                         Attorney General
      Indianapolis, Indiana
                                                                 Chandra K. Hein
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Antonio R. Whitfield,                                      June 26, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-2428
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Stanley E. Kroh,
      Appellee-Plaintiff                                         Magistrate
                                                                 Trial Court Cause No.
                                                                 49G03-1802-F5-5109



      Crone, Judge.



                                               Case Summary
[1]   Antonio R. Whitfield appeals his conviction for level 5 felony burglary

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

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

      Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019                           Page 1 of 15
      to a venireperson was based on her race in violation of the Fourteenth

      Amendment to the United States Constitution. Finding no error, we affirm.


                                  Facts and Procedural History
[2]   On February 10, 2018, around 5:00 a.m., David Marroquin heard a loud noise

      outside his home and looked outside. He saw a man wearing what looked like

      a ski mask entering the house under construction next door, and he called 911.

      Police officers arrived at the house and discovered that the home’s rear screen

      door was cut and partially opened, the doorframe was damaged, and the

      interior door was partially opened. Police and a canine unit entered the house

      and announced their presence with no response. They found some boxes near

      the back door, a crowbar near the stairs, and Whitfield in the exposed rafters of

      the second floor.


[3]   Police arrested Whitfield and requested that the construction superintendent

      report to the house. When he arrived, he told police that he was the only

      person with a key to the house and that he had locked up the house the

      previous evening around 6:00 p.m. When he locked up, the screen door had

      been intact, and the door frame had been undamaged. He also stated that there

      had been three unopened boxes of mosaic title, worth $500 to $600, by the front

      door, but those boxes were now by the back door and one box had been

      partially opened. Finally, he said that there had not been a crowbar in the

      house.




      Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019        Page 2 of 15
[4]   In February 2018, the State charged Whitfield with level 5 felony burglary, level

      6 felony theft, and class B misdemeanor criminal mischief. The State later

      moved to dismiss the theft charge, which the trial court granted. In addition,

      the State amended the charging information to include a habitual offender

      enhancement.


[5]   On August 23, 2018, Whitfield’s jury trial commenced. During jury selection,

      fourteen members of the jury pool were empaneled for questioning. L.M. was

      the sole African American on the panel. On her juror questionnaire, L.M.

      wrote that she was “[n]ot sure” that she could be a fair and impartial juror in a

      criminal trial and explained that she had “a low expectation of minorities

      receiving justice in [the] American Court System.” Appellant’s Supp. App.

      Vol. 2 at 3. She also wrote that she had family members who had been arrested

      for or charged with a crime. During voir dire, the trial court asked L.M. about

      the juror questionnaire and whether she believed that minorities were not

      always treated fairly by the system, and she answered, “Yes.” Tr. Vol. 2 at 37.

      The prosecutor asked L.M. whether she could be fair and impartial today, and

      she said, “Yes.” Id. The prosecutor also asked her whether, if the State

      presented evidence that firmly convinced her of the defendant’s guilt, she would

      be able to find the defendant guilty, and she responded affirmatively. Id.

      During defense counsel’s voir dire, L.M. indicated that she wanted to ask a

      question about the meaning of reasonable doubt. Id. at 40-41. She asked

      whether reasonable doubt meant that “there’s no doubt that somebody else had

      the same opportunity to commit the crime that the person is accused of.” Id. at


      Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019        Page 3 of 15
      41. Defense counsel explained that “if you have reasonable doubt remaining

      that this person could not have done the thing then you have to – you’re

      obligated to find him not guilty.” Id. However, L.M. indicated that defense

      counsel had not answered her question. Id. Defense counsel later re-

      questioned L.M. about the meaning of reasonable doubt. After some

      discussion, she eventually said, “I guess if they can prove beyond a reasonable

      doubt that this person did this, then, yes – … – I’d find him guilty.” Id. at 53-54

      (defense counsel’s one-word interruption omitted).


[6]   During the first round of strikes, the State sought to peremptorily strike L.M.

      Id. at 55. Whitfield raised a Batson claim;1 that is, he objected that the

      prosecution was using a peremptory strike to remove L.M. on account of her

      race in violation of the Equal Protection Clause of the United States

      Constitution. Id. The trial court stated that a prima facie showing of racial

      discrimination had been made given that L.M. was the only minority on the

      fourteen-person panel. The trial court then asked the State whether it wanted to

      make a record of its reasons for its peremptory strike of L.M. In support of the

      strike, the prosecutor said that there were “a handful or reasons”: (1) L.M.

      wrote on her juror questionnaire that “basically she couldn’t be fair and

      impartial” and had “a low expectation of minorities receiving justice in the

      court system[,]” which evidenced a bias against the State; (2) she also wrote

      that she had family members who had been arrested for or charged with a



      1
          Batson v. Kentucky, 476 U.S. 79 (1986).

      Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019            Page 4 of 15
      crime; (3) during voir dire, L.M. seemed “unclear on her ability to be fair and

      impartial and seemed to waiver [sic] significantly about whether she could find

      guilt even if the elements were proven beyond a reasonable doubt”; (4) based on

      her interaction with the prosecutor, she did not seem to want to be in court; (5)

      she did not seem to be interactive with the prosecutor and was more interactive

      with defense counsel; and (6) the prosecutor “didn’t get a good vibe from her

      based on what she was saying.” Id. at 55-57.


[7]   The trial court then asked whether defense counsel would like to respond.

      Whitfield’s counsel argued that it was unfair to strike black persons for thinking

      that the court system was unfair because they have a good reason to think that

      the system is unfair, and if such a reason was accepted, then black jurors would

      be disproportionately struck. Id. at 57. Defense counsel also argued that

      L.M.’s body language was no different than that of a white venireperson, and in

      defense counsel’s opinion, neither venireperson demonstrated an unwillingness

      to be in court. Id. at 57-58. Further, defense counsel noted that L.M. answered

      that she could be impartial and render a guilty verdict if the State met its burden

      of proof. Id. at 58.


[8]   The trial court concluded,


              The prima facia [sic] finding has been made due to this juror
              being the only minority in this group of 14, so that’s been met.
              The believes– and the Court’s heard the State’s reasons for them
              – for their exercise of the preemptory [sic] and also considered
              your response and the Court finds that the State did not
              improperly exercise the preemptory [sic] strike due to the reasons

      Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019         Page 5 of 15
              that they gave. I – because of the reasons the State has given, I
              didn’t see this as a pretext, or a striking of a juror solely because
              of her race. And the Court does find that the State’s properly
              exercised it’s [sic] preemptory [sic] strike.


              ….


              The Court heard the State give reasons other than that
              expectation of minorities receiving justice in the court system.
              The comments that [the prosecutor] made regarding his
              interactions with the juror – prospective juror and the other
              comments that [the prosecutor] gave, the Court doesn’t see it as
              only that issue of the juror[’]s expression of the answer on
              paragraph one on the second page of the questionnaire, so it just
              doesn’t appear to the Court that the State has unfairly abused or
              illegally used their preemptory [sic], given the other reason that
              they gave.


      Id. at 58-59. Before moving on to other matters, the prosecutor pointed out that

      there were other minority members in the gallery who had indicated that they

      could be fair and impartial on their questionnaire. The trial court dismissed

      L.M., and the trial proceeded. In its final form, the jury included a member of a

      minority group.


[9]   The jury found Whitfield guilty of burglary and criminal mischief, and he pled

      guilty to being a habitual offender. At sentencing, the trial court vacated the

      criminal mischief conviction based on double jeopardy considerations. The

      trial court sentenced Whitfield to three years for the burglary conviction and

      three years for the habitual offender enhancement. This appeal ensued.



      Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019               Page 6 of 15
                                         Discussion and Decision
[10]   Whitfield argues that the trial court erred in concluding that the State, in

       seeking to strike L.M., was not purposefully discriminating against her based on

       her race. “Purposeful racial discrimination in selection of the venire violates a

       defendant’s right to equal protection because it denies him the protection that a

       trial by jury is intended to secure.” Batson v. Kentucky, 476 U.S. 79, 86 (1986).2

       “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. 2012).


[11]   “‘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.’” Cartwright v. State, 962 N.E.2d

       1217, 1221 (Ind. 2012) (quoting Forrest v. State, 757 N.E.2d 1003, 1004 (Ind.

       2001)); see also Jeter v. State, 888 N.E.2d 1257, 1265 (Ind. 2008) (“On appeal, a

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

       it is clearly erroneous.”) (citing Snyder v. Louisiana, 552 U.S. 472, 478 (2008)).

       “The trial court’s conclusion that the prosecutor’s reasons were not pretextual is

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

       accorded great deference.” Highler v. State, 854 N.E.2d 823, 828 (Ind. 2006).




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

       Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019                                  Page 7 of 15
[12]   “Pursuant to Batson and its progeny, a trial court must engage in a three-step

       process in evaluating a claim that a peremptory challenge was based on race.”

       Cartwright, 962 N.E.2d at 1220. 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. 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.’” Id. at 1209

       (quoting Snyder, 552 U.S. at 477). “A race-neutral explanation means ‘an

       explanation based on something other than the race of the juror.’” Highler, 854

       N.E.2d at 827 (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 v. Elem, 514 U.S. 765, 768 (1995)). “[T]he issue is the facial

       validity of the prosecutor’s explanation.” McCormick v. State, 803 N.E.2d 1108,

       1111 (Ind. 2004) (quoting Purkett, 514 U.S. at 768).


[13]   Even if the State’s reasons appear on their face to be race-neutral, at the third

       step, the trial court must perform the essential task of assessing whether the

       State’s facially race-neutral reasons are credible. Addison, 962 N.E.2d at 1209.

       The second and third steps must not be conflated. See id. at 1210 (“The

       analytical structure established by Batson cannot operate properly if the second

       and third steps are conflated.”) (quoting United States v. Rutledge, 648 F.3d 555,

       559 (7th Cir. 2011)). In determining whether the State’s explanation for the

       strike is credible and not a pretext for discriminatory intent, the trial court must

       Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019           Page 8 of 15
       consider the State’s explanation “in light of all evidence with a bearing on it.”

       Id. (quoting Miller-El v. Dretke, 545 U.S. 231, 251-52 (2005)); see also Snyder, 552

       U.S. at 478 (“[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.”). Although this third step requires the trial

       court to evaluate “the persuasiveness of the justification” proffered by the

       prosecutor, “the ultimate burden of persuasion regarding racial motivation rests

       with, and never shifts from, the opponent of the strike.” Highler, 854 N.E.2d at

       828 (quoting Purkett, 514 U.S. at 768). At this stage, the defendant may offer

       additional evidence to demonstrate that the prosecutor’s reasons are pretextual.

       Addison, 962 N.E.2d at 1210. Then, “in light of the parties’ submissions, the

       trial court must determine whether the defendant has shown purposeful

       discrimination.” Id. at 1209 (quoting Snyder, 552 U.S. at 477).


[14]   Here, Whitfield argues that the trial court committed clear error at the third step

       by failing to explicitly credit the State’s demeanor-based reasons.3 The State

       justified its strike, in part, by explaining that L.M. did not seem to want to be in

       court, was not interactive with the prosecutor, and was more interactive with

       defense counsel. Defense counsel disputed the prosecutor’s description of

       L.M.’s demeanor and argued that L.M. exhibited the same behavior as a white




       3
        The parties do not dispute that the first two steps of the Batson inquiry are satisfied. We also note that
       “where … 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, 962
       N.E.2d at 1222; accord Addison, 962 N.E.2d at 1209 n.2.

       Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019                               Page 9 of 15
       venireperson. Whitfield is correct that “[i]f a prosecutor’s proffered reason for

       striking a black panelist applies just as well to an otherwise-similar nonblack

       who is permitted to serve, that is evidence tending to prove purposeful

       discrimination to be considered at Batson’s third step.” Id. at 1210 (quoting

       Miller-El, 545 U.S. at 241). Also, if a prosecutor mischaracterized a

       venireperson’s demeanor in justifying a peremptory strike, then that would

       arguably be evidence that the State’s demeanor-based reason was a pretext for

       purposeful discrimination. See Roach v. State, 79 N.E.3d 925, 929 (Ind. Ct. App.

       2017) (“[M]ischaracterization of [the juror’s] voir dire testimony is troubling

       and undermines the State’s proffered race-neutral reason for the strike.”)

       (quoting Addison, 962 N.E.2d at 1215).


[15]   Although defense counsel challenged the State’s demeanor-based justifications,

       the trial court did not indicate that it found the State’s demeanor-based reasons

       credible. Rather, the trial court provided a more general ruling that “because of

       the reasons the State [had] given,” the State was not “striking [L.M.] solely

       because of her race.” Tr. Vol. 2 at 58. Whitfield asserts that “without a finding

       by the trial court regarding the juror’s demeanor, this court cannot conclude

       that the State’s interpretation of L.M.’s demeanor was accurate.” Appellant’s

       Br. at 18.


[16]   Our supreme court has not held that a trial court is required to make explicit

       factual findings when ruling on a Batson challenge. See Cartwright, 962 N.E.2d

       at 1222 (rejecting defendant’s contention that trial court must explicitly state

       reasons for deciding a Batson challenge and noting that at least one federal

       Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019         Page 10 of 15
       circuit court has declared that federal law has never required explicit fact-

       findings) (citing Stenhouse v. Hobbs, 631 F.3d 888, 893 (8th Cir. 2011)), cert.

       denied; Addison, 962 N.E.2d at 1210 (also citing Stenhouse, 631 F.3d at 893); see

       also Richardson v. State, No. 18A-CR-2263, 2019 WL 1721720, at *4 (Ind. Ct.

       App. Apr. 18, 2019) (noting that trial court not required to make factual

       findings to support its determination), trans. denied. However, demeanor-based

       reasons have at least two unique qualities that would make factual findings

       particularly helpful to appellate review. First, the trial court’s role in assessing

       demeanor-based reasons is especially valuable. As the United States Supreme

       Court has noted,


               Race-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.”


       Snyder, 522 U.S. at 477 (quoting Hernandez, 500 U.S. at 365).


[17]   Second, appellate review is based on a cold transcript, which cannot provide a

       complete picture of a juror’s demeanor. Because of these qualities,

       circumstances which necessitate factual findings for adequate appellate review

       are likely to arise. For example, in Roach, 79 N.E.3d 925, another panel of this


       Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019          Page 11 of 15
Court remanded for the trial court to make findings regarding the prosecutor’s

demeanor-based reason for striking a potential juror. In that case, the

prosecutor sought to strike the only African-American male in the venire based

on his body language and because the juror stated that he would not stop if a

police officer asked him to stop. The trial court ruled, “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 929. On

appeal, the Roach court found that the record did not support the prosecutor’s

characterization of the juror’s voir dire testimony. Id. Because the non-

demeanor-based reason was not supported by the record and the trial court

made no findings as to whether it found the demeanor-based reason credible,

the Roach court found it “impossible for us to determine which reason the trial

court used to deny the Batson challenge or if it found both reasons persuasive.”

Id. at 931. The Roach court acknowledged that Indiana courts had not

specifically required findings, but noted that the federal circuit courts are split

regarding whether credibility findings by the trial court are required on the

record. Id. at 930 (citing Morgan v. City of Chicago, 822 F.3d 317, 330 n.30 (7th

Cir. 2016)).4 The Roach court noted that less than one year had passed since

trial and therefore remanded for the trial court to make findings regarding the

State’s demeanor-based reason. Id. at 932; cf. Killebrew v. State, 925 N.E.2d 399,




4
  “The Seventh Circuit has held: ‘When the stated basis for a strike is predicated on subjective evidence 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.’” Roach, 79 N.E.3d at 930 (quoting Morgan, 822 F.3d at 329).

Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019                                    Page 12 of 15
       403 (Ind. Ct. App. 2010) (reversing and remanding for new trial where trial

       court made no express finding that State’s demeanor-based reason was credible

       and other reason applied equally to two other white venirepersons who were

       not struck), trans. denied.


[18]   Here, in addition to the demeanor-based reasons, the State provided other

       reasons for the strike. The State explained that L.M. did not indicate on her

       questionnaire that she could be fair and impartial, she had family members who

       had been arrested for or charged with a crime, and based on her statements

       during voir dire, she seemed unclear on her ability to be fair and impartial and

       whether she could find guilt even if the elements of the crime where proven

       beyond a reasonable doubt. Whitfield does not argue that the other reasons are

       unsupported by the record or pretexts for purposeful discrimination.5 Indeed, in

       Highler, 854 N.E.2d at 827, our supreme court concluded that the State’s

       reasons for striking an African-American venireperson, one of which was that

       the venireperson’s statements in his questionnaire and during voir dire raised

       questions about his ability to be fair and impartial to the State, were race-



       5
           Whitfield briefly argues,
                Another of the State’s proffered reasons for striking L.M. is that she reported having a low
                expectation of minorities receiving fair treatment in the criminal justice system. But, as the
                defense pointed out, allowing such a strike would likely affect a large swath of minority
                populations and would result in disproportionally striking minority jurors. Indeed, only by
                members of minority groups serving on juries can that perception be mollified.
       Appellant’s Br. at 18. That is the entirety of his argument, and his failure to cite any authority for it waives
       the issue for our review. See Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005) (“[A] party waives
       any issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to
       authority and portions of the record.”), trans. denied; Ind. Appellate Rule 46(A)(8) (stating that appellant’s
       brief must contain contentions on issues presented and that each contention must be supported by cogent
       reasoning and citations to authorities and statutes relied on).

       Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019                                    Page 13 of 15
       neutral, and the court upheld the trial court’s determination that the reasons

       were not pretexts for purposeful discrimination. In addition, our supreme court

       has concluded that the trial court did not err in determining that the State’s

       peremptory strike was not racially motivated where the prosecutor’s concern

       that the venireperson would sympathize with the defendant as a result of that

       person’s past experience was race-neutral and fully supported by the record.

       Wright v. State, 690 N.E.2d 1098, 1105 (Ind. 1997). And, our supreme court has

       held that a peremptory strike based on the criminal conviction of the

       venireperson’s family member did not violate Batson. Nicks v. State, 598 N.E.2d

       520, 523 (Ind. 1992); see also Douglas v. State, 636 N.E.2d 197, 199 (Ind. Ct.

       App. 1994) (“[T]he exercise of a peremptory challenge is not violative of Batson

       where the challenged individual or family member has had previous

       involvement with the criminal justice system.”).


[19]   Thus, even if we decline to place any weight on the prosecutor’s demeanor-

       based reasons because the trial court did not explicitly find them to be credible,

       the prosecutor’s other proffered reasons provide a sound basis to affirm the trial

       court’s determination that the strike was not motivated by a discriminatory

       purpose. Although we are able to affirm in this case without explicit findings,

       making such findings is clearly the better practice. In cases where the State

       seeks to strike a potential juror based on the juror’s demeanor and the defense

       disputes the State’s description of the juror’s demeanor, we encourage the trial

       court to make factual findings regarding its observations of the juror’s

       demeanor when ruling on a Batson challenge.


       Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019          Page 14 of 15
[20]   Based on the foregoing, we affirm Whitfield’s conviction.


[21]   Affirmed.


       Bradford, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2428 | June 26, 2019   Page 15 of 15
