*1 needs, and that the Children's ed JONES, Appellant-Defendant, Cletus care. As in their thrived have Children convincing evi- and such, clear there is court's determi- dence Indiana, Appellee-Plaintiff. STATE unfitness, and parental nation of White's consent to 49A02-0512-CR-1196. with No. dispensing best the Children's serve would adoptions of Indiana. Appeals interests. 17, 2007. Jan. Conclusion and clear Silbernagels prеsented The necessi- to obviate
convincing evidence adoptions consent
ty of White's judgment trial court's The
the Children. clearly erroneous.
is not
Affirmed. J., MAY, concur.
RILEY, J., and
ORDER 15, 2006, hand- the Court November
On appeal marked in this opinion down
ed Decision, Not for Publica-
Memorandum counsel, have filed by Appellees, The
tion. Decision. to Publish Motion
a Verified in this case opinion Court's
Because this Appellate in out criteria as set
meets the that this 65(B), request Appellees
Rule opinion. publish matter, the Court
Having considered AS FOLLOWS: AND ORDERS
FINDS Motion Verified Appellees'
1. The GRANTED, this Decision
Publish down handed heretofore opinion
Court's marked cause on November
this Decision, for Publica- Not
Memorandum PUBLISHED. now ORDERED
tion is Judges Concur.
All Panel *2 at 29-80. Transeript possible."
quickly and disguise, but wore person him as the same recognized Wright 1st. on June in the bank had been demand with Jones's complied *3 Garner later money. Jones him the gave person as the identified positively 4th. on June bank robbed robbery with charged Jones The State at voir dire felony. During a class C as used his trial, prosecutor jury Jones's only to exelude challenges Cornelius, Indianapolis, A. Katherine panel. jurors on African-American two IN, Attorney Appellant. for that: stating motion a Batson made Jones of Carter, Attorney General Steve jurors, jurors; potential were 30 [there At- Meilaender, Deputy Indiana, H. Ellen seated, of which two IN, that were Attor- General, Indianapolis, torney We minorities, African Americans. Appellee. neys for both struck The State neither. struck Lloyd. And most and Ms. OPINION Johnson Mr. set on the second Lloyd was notably Ms. SHARPNACK, Judge. believe she and I don't Judge, jurors, of for conviction his appeals Jones Cletus with speak I not did single a word. said two raises felony.1Jones a class C robbery, the State think I don't directly. her as: issues, restate which we I look As question. single а asked her properly I. Whether record, think she I don't at the back on challenge Jones's denied certainly That mouth. her opened even 79, 476 U.S. Kentucky, Batson IAnd pattern. a level of rises 1719, 69 1712, 90 L.Ed.2d 106 S.Ct. selected that's been jury that the think (1986); and fair thing-not a fair-same not is sufficient the evidence II. Whether peers. Mr. Jones's of pool conviction Jones's to sustain chal- to Jones's response In at 16-17. Id. robbery. responded: lenge, affirm. We Lloyd. Ms. speak with I did [State]: 1, June follow. On facts The relevant big crux questions, of the And one City the National 2004, entered Jones And I only. testimony dire is my voir Tina and Garner Diamond Bank where ques- on very specifically asked Wright both worked. Wright tes- somebody on tion, convict you could 4, June On his voice. and heard saw no. rеsponse And her only? timony City the National returned reason-and legitimate fair and That's bank, approached entered Bank. testimony hinges this since note window, placed teller Garner's that's point, this the witnesses loudly money, and demanding her window her. I struck reason this done get stated, need just "I (2004). § 35-42-5-1 Ind.Code 1222
[Court]: And what about Mr. Johnson
stitutionally impermissible." McCormick
State,
then?
(Ind.2004).
"Upon
review,
appellate
a trial
him,
[State]: Mr.
court's de-
Speaking
Johnson.
cision concerning whether a peremptory
he
had
brother-in-law that had been
challenge
discriminatory
given great
killed. His attitude was-when I asked
deference, and will be
only
him about
set aside
if
testimony question,
the same
clearly
found to be
erroneous."
whether he could cоnvict on
Forrest v.
testimony
(Ind.2001).
only
and-using
example
of being
Evaluation
being
witness,
robbed and him
Batson
requires
claim
steps.
if the
three
found him
guilty,
was, well,
attitude
just
that's
way
it
*4
First,
party
the
contesting the challenge
goes.
must
prima
make out a
facie case of
racial discrimination by demonstrating
seool
ole shok
(1)
that:
juror
is a member of a
[State]: His attitude was more of the
(2)
cognizable
group;
racial
prose-
[the
fact that he could deal with that and
has
cutor]
exercised peremptory chal-
then-and
punishment
his
will come la-
lenges to remove that group's members
ter in life through a higher power. And
(8)
jury;
from the
the facts and
while that maybe
an attitude
[sic]
that's
circumstances of this case raise an infer-
right
all
for normal sоciety,
[sic]
I think
ence that
the exclusion was based on
juror
needs to have a little more than
Second,
race.
upon such showing,
just an indifference as to
way
one
or the
production
burden of
shifts to the propo-
other.
I think
jury
needs to have-
nent of the peremptory challenge
pro-
if they're going
fact,
to sit as the trier of
vide a
explanation.
race-neutral
If the
(in-
needs
have a something
more
explanation,
face,
on its
is based on
discernible) attitude at
point
than
race,
something other than
explana-
just that it happens. So that's the rea-
tion will be
Third,
deemed race-neutral.
son Mr. Johnson was struck.
the trial court must determine whether
Id. at 17-18. In overruling Jones's Batson
party
contesting
peremptory
challenge, the trial court stated:
challenge
proved
has
purposeful racial
Well,
only
there were
two African Amer-
discrimination.
jurors
ican
on our panel. The State's
(internal
omitted).
citations
given a race neutral reason for at least
one of them. And
Iso think that
Elem,
strikes
In
Purkett v.
514 U.S.
pattern
down a
of striking African
S.Ct. 1769
(1995)[,
[
because
court stated:
the trial
ruling,
In its
overruled."
noted but
challenge is
your
Ameri-
African
"Well,
only two
19.
Transcript at
[has]
The State
panel.
jurors on
can
least one
for at
neutral reason
a race
given
judge did
the trial
argues,
If, as Jones
(emphasis
19.
Transeript at
them."
of
two
struck
to have
had
"{believe]
court
added)
the trial
unclear whether
It is
to establish
improperly
Americans
African
giv-
reason
race-neutral
that a
meant
apply,"
Batson would
before
'pattern'
a
not the
challenges but
of the
one
en for
Appel
faulty.
be
would
a rationale
such
Moreover,
to which
it
unclеar
is
other.
Batson,
"once
10. Under
at
lant's Brief
so,
referring;
court
the trial
reason
challenge
peremptory
of a
opponent
referring to either
be
court could
of racial
facie
prima
out a
made
has
question
raises a
This
reasons.
given
both
one),
burden
(step
discrimination
explicitly
must
court
a trial
as to whether
proponent
tо the
shifts
production
challenge.
peremptory
on each
rule
race-neutral
forward with
to come
strike
pri-
that
requires
where
Logic
two)." Purkett, 514 U.S.
(step
explanation
has
racial discrimination
facie case
ma
race-neutral
"If a
1769.
115 S.Ct.
at
chal
peremptory
as
made
been
tendered,
trial court
explanation
a nonraciаl
jurors,
more
two or
lenges to
three)
(step
decide
then
must
provided
must be
challenge
for
reason
purpose
proved
of the strike
opponent
peremptory
improper
The
juror.
to each
(citing Her
racial discrimination."
ful
require
juror
one
would
any
358-59,
challenge
York, 500 U.S.
Newv.
nandez
McCormick,
(1991)
trial. See
new
114 L.Ed.2d
111 S.Ct.
for
Therefore,
reason
a nonracial
1113.2
(plurality)).
McCor
evaluating
claims.
Batson
tions in
Court endorsed
The Indiana
"Regardless
mick,
at 1113.
jurisdic-
by other
803 N.E.2d
taken
approach"
"tainted
peremptory challenge
given
must be
Johnson,
In striking
the State ar
each.
gues that
they
when
asked Johnson about
convicting
alone,
on testimony
in the con
Here, the trial court's statement
text of his being robbеd and him being the
the State's reason for excluding at
witness and a
finding
perpe
jurors
least one of the two
was race-neu
guilty:
trator not
However,
tral
ambiguous.
ambiguity
notwithstanding and granting due
his
defer
attitude was more of the fact that he
court,
ence to the trial
we
say
cannot
could deal with that and then-and
ruling
court's
clearly
here was
punishment will come later
in life
erroneous. The
gave separate
State
rea
through
higher
power. And while that
son for each of
challenges.
maybe
an
[sic]
attitude
right
that's all
Moreover, each of those reasons appears
for normal society,
[sic]
I
juror
think a
neutral on its face. "A neutral explanation
needs to have a little more than an
explanation
means an
based on something
indifference as
way
to one
or the other.
McCormick,
other
juror."
than the race of the
Id. at 18. We find that
explanation
this
03 N.E.2d at 1111.
explana
If the
8
on something
other than race. Fur
tion,
face,
on its
is based on something
ther, we find nothing in
explanation
this
race,
other than
explanation
will be
appears
discriminatory.
Forrest,
deemed race-neutral.
Jones offered
argument
no
to the trial
at 1004.
why
as to
the State's explanation for
Here,
prosecutor's
voir dire
striking Johnson should be disbelieved and
focused on probing
jurors
how
would as
found to
pretext,
masking a discrimina
sess a witness's credibility and whether
tory intent for striking Johnson from the
*6
jurors could convict based on a
jury.3 Thereforе,
witness's
we are unable to find
testimony alone without
corroborating
that
the
See,
strike was improper.
e.g.,
physical evidence. In striking juror Lloyd,
State,
Williams v.
818 N.E.2d
974
the State looked at the fact that she stated
(Ind.Ct.App.2004)
(holding that
that she could not convict someone based
court's decision
clearly
was not
erroneous
on testimony alone.
argued
State
that its where the trial court overruled Batson
"[hinged]
case
on testimony of
objection
the wit
based on the State peremptorily
point,
nesses at this
that's the reason I
striking an
juror
African-American
due to
struck her." Transeript at 17. We find his "dismissive attitude with respect to the
that this
case")
is
explanation
race-neutral
for
vacated in part and summarily
Therefоre,
the strike.
we cannot say that
in pertinent part by Williams v.
affd
the strike
improper.
was
State,
(Ind.2005).
IL. testimo Garner's that over, asserts Jones the is issue The next of a result was fear her ny regarding Jones's sustain to sufficient evidence question during by the State prompting reviewing When conviction. robbery Nevertheless, Indiana the ing. evidence, we insufficiency of the of claims necessary for is not that "it held the judge or evidence reweigh the not do was or she he testify that to a victim State, v. Jordan of witnesses. credibility only need "There Id. in fear." actually put reh'g dе (Ind.1995), 816, 817 N.E.2d infer jury can the which from be evidence evidence Rather, look we nied. in fear." put in fact was the victim that that therefrom inferences reasonable the Garner fact that the addition In Id. the affirm will Id. We verdict. the support fearful, record that she testified pro of evidence exists if there conviction com remembered that she indicates trier a reasonable which from value bative before days three into bank ing be guilty the defendant find could fact of robbery, of day robbery. On doubt. reasonable yond bank, Gar approached entered (2004) § 35-42-5-1 Ind.Code de a note window, gave teller ner's person "A part: pertinent in provides that loudly exclaimed money, and manding property intentionally takes or knowingly as quickly this done get "to needed he presence fromor person another from Based at 20-30. Transcript possible." any by putting . person: of another of fact trier evidence, a reasonable robbery, a commits ... in fear person in fear. placed that Garner infer could argue appears felony." Jones C Class 261 Ind. See, Perkins e.g., to convict insufficient the evidence "(lf (1973) (finding that 513, 514 failed to robbery because him fear, the evidence direct no in fear. placed prove cir from fear infer fact could trier by defined fear' is in 'putting "While robbery"). cumstances fear of reflects statute, law reasons, affirm we foregoing For the required harm injury personal bodily robbery. conviction Jones's person requiring a conviction Affirmed. State, 582 Rigsby 'fear'" put *7 Al (Ind.Ct.App.1991). 910, 912 N.E.2d MATHIAS, J., concurs. subsid subsequently fear Garner's though separate or dis- with KIRSCH, C.J., mentioned dissents never after ed that testified weapon, opinion. played note, felt she the handed
when dissenting. KIRSCH, Judge, Chief uncomfortable, a little seared, nervous, dissent. respectfully I might that felt she because fearful States the United decision the Since that this find to her. We something do 476 Kentucky, in Batson in fear' 'placing the sufficient 69 1712, L.Ed.2d 90 79, 106 S.Ct. U.S. victim the provides The statute element. has jurisprudence § 35- (1986), subsequent Ind.Code See in fear. put must be time to the what seemed eroded largely (2004). provide not 42-5-1(2) It does prose few Today, decision. landmark See, e.g., in fear. remain must victim the inept so are counsel trial or other cutors 1890 State, Clemmons challenge, a Batson with that, faced when placed was that victim (Ind.1989) (finding explanation an utter unable are they by her supported of defendant in fear facially racially neutral for striking tory challenge proved purposeful racial all cognizable members of a racial group discrimination." See also Highler v. from a prospective jury panel. And, (Ind.2006) (Trial the burden of showing purposeful racial must dis- determine whether purposeful dis- proved crimination has largely established.) unsustaina- crimination has been ble within the any confines of individual Here, the trial court here utilized an jury process. result, selection As a two improper standard-That the challenger Batson, decadеs after goal of ensuring must pattern show a of racial discrimina- "that no disqualified citizen is from tion. It then found a racially neutral rea- service because of his race" remains elu- son for "at least one" of the peremptory sive. Id. at 106 S.Ct. 1712. strikes, but failed to make a determination as to
Although the approximately other. twenty-five The per majority concludes cent County Marion court's methodology African-Americ im- an,4 proper, only but it then proceeds two out of thirty itself prospective to make jurors in this case determinations that prosecutor's African-American. reason for the Those two by were struck second prosecutor peremptory chal- lenge was ensuring a jury with neutral no and the chal- African-American lenger failed to show purposeful members. The given reasons racial by dis- pros ecutor were-on their face-racially neu crimination.
tral. Here is where I part my from col- leagues. I think that only
I would the trial judge like to see our jurisprudence can determine whether move to point that to use a peremptory challenge is racially only motivated and challenge to strike prospective judge trial can decide purposeful members of a cognizable racial group from discrimination has been shown. I do prospective jury requires more than a think that we should make these determi- showing of racial neutrality. I would like nations from reviewing a cold record. Ac- to see such challenges treated as chal- cordingly, I would reverse Jones' convic- lenges for cause. Finally, I would like to tion and remand for a new trial. see the placed burden party exercises peremptory challenges to strike
all members of a racial group to show an
absence of motivation, racial not on the
party who opposes challenges. The law is not yet. And, until it Frederick S. SHUGER and Roseanne gets there, the role of the judge Shuger, Appellants-Defendants, ruling on Batson challenges is critical.
The trial court has seen prospective STATE Jurors, Indiana, Appellee-Plaintiff. answers, heard their observed their affect. The trial court has heard per No. 64A03-0509-CR-456. emptory challenges and the reasons for Court of Appeals of Indiana. them. In Forrest (Ind.2001), Supreme Court Jan. said, "[T]he trial court must determine party contesting the peremp-
4. See www.census.gov