Attorney for Appellant Attorneys for Appellee
Donald W. Pagos Steve Carter
Sweeney, Dabagia, Thorne, Janes & Pagos Attorney General of Indiana
Michigan City, Indiana
Ellen H. Meilaender
Deputy Attorney General Indianapolis, Indiana
Appeal from the LaPorte Circuit Court, No. 46C01-9907-CF-84
The Honorable Robert W. Gilmore, Jr., Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 46A03-0202-CR-42
February 26, 2004
The State sought to exercise a peremptory challenge to remove juror Donaldson from
the panel. McCormick objected asserting that the State was attempting to improperly
exclude all black jurors from this jury. R. at 379. Two
deputy prosecutors were assigned to try McCormick. When asked by the trial
court for their reasons in excluding the juror, one deputy explained, [T]hrough my
questioning I seem to recall that she was uncomfortable with the process.
I felt that she was very forthcoming in terms of assuring me that
she would be able to keep an open mind to both the State
and the Defendant. Id. at 381. The second deputy replied:
And my notes indicate, she appears uncomfortable and distraught. And I also note that shes a realtor and has relationships with (inaudible) that I made that note in there. I and that shed be unable to do difficult things for fear of offending people and nothing more difficult than passing judgment on one, so, so certainly one a member of ones [sic] own in the community.
Id. (emphasis added). The trial court overruled McCormicks objection, and juror Donaldson was removed from the panel. The trial proceeded in due course, and McCormick was convicted as charged. On appeal McCormick raised several issues for review, one of which was that the State used a racially based peremptory challenge. The Court of Appeals affirmed in an unpublished memorandum decision. See McCormick v. State, No. 46A03-0202-CR-042 (Ind. Ct. App. Dec. 17, 2002). We grant McCormicks petition to transfer.
In the case before us the trial court was not persuaded that McCormick
carried his burden of making a prima facie showing of racial discrimination.
Specifically the trial court said, So basically what it gets down to is
we have one African American person sitting in a jury box right now.
And I dont think that the Defendant has established a pattern of
what Ill call racial profiling or racial exclusion. R. at 383.
Nonetheless, the trial court required the State to set forth its reasons for
peremptorily challenging juror Donaldson in order to preserve the record. Id. at 382.
It is true that the removal of some African American jurors by the
use of peremptory challenges does not, by itself, raise an inference of racial
discrimination. Kent v. State, 675 N.E.2d 332, 340 (Ind. 1996). However,
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. McCants v. State, 686 N.E.2d
1281, 1284 (Ind. 1997); see also Ashabraner v. Bowers, 753 N.E.2d 662, 667
(Ind. 2001) (observing that the removal of the only black member of the
panel standing alone establishes a prima facie case of discrimination); cf. Graham v.
State, 738 N.E.2d 1096, 1100 (Ind. Ct. App. 2000) (finding that the defendant
established a prima facie case of discrimination where State used its peremptory challenge
to remove the only two African American potential jurors from the venire), trans.
not sought. Here, the State used a peremptory challenge to remove the
only African American venire person on the panel. Thus, contrary to the trial
courts determination, it is clear that McCormick made at least a prima facie
showing of purposeful discrimination in the jury selection process.
Nonetheless, where as here, a prosecutor has offered its 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. Hernandez, 500 U.S. at 359
(plurality opinion). We thus examine the States proffered explanation to determine whether
it is in fact race-neutral. A neutral explanation means an explanation based
on something other than the race of the juror. Id. at 360.
The deputy prosecutors offered several reasons for their strike: (i) juror Donaldson was
distraught; (ii) she looked uncomfortable; and (iii) her answers to questions made her
appear uncomfortable with the process. Each of these reasons is a permissible
race-neutral explanation for the exercise of a peremptory challenge. See, e.g., J.E.B.
v. Alabama ex rel. T.B., 511 U.S. 127, 148 (1994) (OConnor, J., concurring)
([A] trial lawyers judgments about a jurors sympathies are sometimes based on experienced
hunches and educated guesses, derived from a jurors . . . bare looks
and gestures.). By contrast, another reason given for the strikethat the juror
would find it difficult passing judgment on a member of ones [sic] own
in the communityis not race-neutral. The challenged juror and McCormick apparently shared
but one thing in common: membership in a cognizable racial group. To
remove the juror because she may find it difficult to sit in judgment
of ones own is an assumption that the jurors objectivity would be impaired
because McCormick is black. This assumption, which is clearly forbidden by the
Equal Protection Clause, Batson, 476 U.S. at 97, is based on a stereotypical
view that African Americans, because of their race, will relate to other African
Americans in a way that may preclude them from basing a verdict solely
on the evidence presented at trial. In sum, the passing judgment on
ones own explanation for striking juror Donaldson was impermissibly race-based.
Because the State gave multiple reasons for its strike, some of which were permissible and one of which was not, we are faced with the question of whether the existence of permissible reasons for exercising a peremptory strike is sufficient to overcome an impermissible one. The United States Supreme Court has yet to address the question of whether the existence of a single discriminatory reason for a peremptory strike results in an automatic Batson violation when race-neutral reasons also have been articulated. However, some federal circuits follow an approach taken from other areas of equal protection jurisprudence and have adopted what is referred to as dual motivation analysis. See footnote This approach proceeds under the theory that [a] person may act for more than one reason and that when a prosecutor offers both legitimate and ill egitimate reasons for a strike, further analysis is required. Howard v. Senkowski, 986 F.2d 24, 26 (2d Cir. 1993). More specifically, under dual motivation analysis, if the trial court finds that the proponent of the strike has articulated both race-based and race-neutral reasons for a peremptory strike, then the proponent bears the burden of demonstrating that the strike would have been exercised even in the absence of any discriminatory motivation. Wallace v. Morrison, 87 F.3d 1271, 1274-75 (11th Cir. 1996); see also King v. Moore, 196 F.3d 1327, 1335 (11th Cir. 1999) (When the motives for striking a prospective juror are both racial and legitimate, Batson error arises only if the legitimate reasons were not in themselves sufficient reason for striking the juror.); accord Gattis v. Snyder, 278 F.3d 222, 235 (3d Cir. 2002), cert. denied, 537 U.S. 1049 (2002); Weaver v. Bowersox, 241 F.3d 1024, 1032 (8th Cir. 2001); Jones v. Plaster, 57 F.3d 417, 421 (4th Cir. 1995).
On the other hand, a number of state courts have rejected the dual
motivation analysis for reviewing Batson claims and instead have adopted what is referred
to as the tainted approach. In simple terms, [r]egardless of how many other
nondiscriminatory factors are considered, any consideration of a discriminatory factor directly conflicts with
the purpose of Batson and taints the entire jury selection process. Arizona
v. Lucas, 18 P.3d 160, 163 (Ariz. Ct. App. 2001); see also Rector
v. Georgia, 444 S.E.2d 862, 865 (Ga. Ct. App. 1994) ([T]he trial court
erred in ruling that other purportedly race neutral explanations cured the element of
the stereotypical reasoning employed by the States attorney in exercising a peremptory strike.);
South Carolina v. Shuler, 545 S.E.2d 805, 811 (S.C. 2001) ([A] racially discriminatory
peremptory challenge in violation of Batson cannot be saved because the proponent of
the strike puts forth a non-discriminatory reason.); Moore v. Texas, 811 S.W.2d 197,
200 (Tex. Ct. Crim. App. 1991) (finding a Batson violation where a juror
would have a problem assessing punishment (valid) and was member of a minority
club (invalid)); Wisconsin v. King, 572 N.W.2d 530, 535 (Wis. Ct. App. 1997)
([W]here the challenged party admits reliance on a prohibited discriminatory characteristic, we do
not see how a response that other factors were also used is sufficient
rebuttal under the second prong of Batson.).
We endorse the approach taken by the foregoing jurisdictions and conclude that it
is not appropriate to apply the dual motivation analysis in the Batson context.
Such an analysis in our view is inconsistent with the facially valid
standard announced by the Supreme Court in Purkett. Further, we recognize that
Batson protects against only the most conspicuous and egregious biases. To excuse
such obvious prejudice because the challenged party can also articulate nondiscriminatory reasons for
the peremptory strike would erode what little protection Batson provides against discrimination in
jury selection. Payton v. Kearse, 495 S.E.2d 205, 210 (S.C. 1998).
Instead, we conclude the tainted approach is the appropriate analytical tool in evaluating
Batson claims. As applied to the facts in this case, the States
impermissible racially based peremptory challenge tainted any nondiscriminatory reasons it may have proffered.
Accordingly, the State failed to meet its burden under the second prong of
Batson to come forward with a race-neutral explanation for its peremptory strike.
McCormick is thus entitled to a new trial.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.