Attorneys for Appellee
Attorney General of Indiana
Adam M. Dulik
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
July 19, 2001
After his confrontation with the occupants of the car, Defendant walked towards the
house. At this time, Moore left the house and passed by Defendant.
Defendant made a comment to Moore about the occupants of the car,
to which Moore made no reply. This lack of response
apparently insulted Defendant. He cocked a gun, pointed it at Moore, and
pulled the trigger. The gun misfired. Defendant later told police that
Moores eyes bulged like he was angry or scared. Moore then dove
into his car. Defendant fired again, this time striking Moore in the
face and killing him.
Defendant was charged with Murder See footnote and Carrying a Handgun without a License. See footnote A jury convicted him on both counts and the trial court sentenced him to 60 years on the murder charge and 365 days for the handgun offense, which was to be served concurrently with the murder sentence.
To contest an opposing partys use of peremptory challenges under
Batson, a litigant
must establish a prima facie case of racial discrimination. Lee v. State,
689 N.E.2d 435, 440-41 (Ind. 1997), rehg denied. The moving party will
make out such a prima facie case by showing (1) that the prosecutor
used peremptory strikes to remove members of a cognizable racial group from the
jury pool; and (2) that the facts and circumstances raise an inference that
the prosecutor used those strikes to exclude potential jury members from the jury
because of their race. Williams, 700 N.E.2d at 786. Once the moving
party establishes this prima facie case, the burden of production shifts to the
non-moving party, who must provide a race-neutral explanation for challenging [a] juror.
McCants v. State, 686 N.E.2d 1281, 1284 (Ind. 1997). This second step
of [the Batson] process does not demand an explanation that is persuasive, or
. Purkett v. Elem, 514 U.S. 765, 768 (1995) (per
curium). Instead, the prosecutor must provide a facially valid explanation for the
use of the peremptory challenge and [u]nless a discriminatory intent is inherent in
the prosecutors explanation, the reason offered will be deemed race neutral. Id.
at 768 (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality
opinion)). Although the burden of production shifts to the non-moving party to
present a facially valid reason for the peremptory challenge, the moving party retains
the overall burden of proof to establish purposeful discrimination. Id.
Defendant claims the State violated these principles by using peremptory challenges to remove
two black women from the jury.
The trial court concluded that Defendant
made a prima facie case that the challenges were based on race and
the State does not contest this conclusion. See Appellees Br. at 6-8.
The trial court then accepted the States explanations for both challenges, which
Defendant contends was error. Therefore, we must determine whether the trial court
could conclude that the State offered facially valid race-neutral reasons for the challenges.
First, Defendant contests the exclusion of potential juror Chandra Sherrell. The State contends that it had a race-neutral reason for challenging this potential juror in that she indicated that she would have trouble judging credibility and therefore would hold the State to a high burden of proof. See Appellees Br. at 8 (citing Supp. R. at 122.) The State points to the potential jurors statements during voir dire to the effect that she wasnt prepared to judge anybody and that she couldnt possibly be sure a hundred percent that someone was guilty or not guilty. Appellees Br. at 8 (citing Supp. R. at 110-11.) Further, the potential juror said that she would have trouble gauging credibility and that she wouldnt feel comfortable deciding whos guilty and whos not guilty. (Supp. R. at 111-13.) Therefore, the potential juror said, the States proof would have to be a strong thing, without a shadow of a doubt . (Supp. R. at 112.) See footnote It is evident from these statements that the potential juror believed that she would have difficulty judging credibility, and that she would favor Defendant to co mpensate for this perceived deficiency. The State therefore presented a valid race-neutral reason for removing the potential juror from the panel.
Second, Defendant challenges the removal of potential juror Catherine Reynolds. The State
contends that it used a peremptory challenge on this potential juror because she
said that she would rather not be a juror because she had a
niece who was killed by her nieces son. Appellees Br. at 7 (citing
Supp. R. at 72.) During voir dire, the State asked the potential
juror for her thoughts on the jury selection process. The potential juror
replied that she would rather not sit on the jury because her grandnephew
had killed her niece, who was a police officer. She stated that
she would have personal difficulty sitting on the panel, as she did when
she had served on a previous jury. While it is clear that
the potential juror believed that she had a bias and should not serve
on the jury, it is unclear whether this bias cut for or against
the State. The trial judge acknowledged as much by noting that we
dont know whether or not she would be prejudiced against the State or
. (Supp. R. at 96.) It is conceivable
that she would be biased against Defendant because a member of her family
had been the victim of the crime with which Defendant was charged.
However, it is equally conceivable that she would be biased against the State
because another member of her family had been the accused of the crime
with which Defendant was charged. The latter scenario is a valid race-neutral
explanation for the peremptory challenge. See, e.g., Willoughby, 660 N.E.2d at 578
(An explanation is neutral if it is based on something other than the
race of the juror. At [the explanation stage] of the inquiry, the
issue is the facial validity of the prosecutors explanation. Unless a discriminatory
intent is inherent in the prosecutors explanation, the reason offered will be deemed
race neutral.) (quoting Hernandez, 500 U.S. at 358-59). Because the moving party
bears the overall burden of proving racial discrimination, we resolve this conflict in
favor of the State and conclude that the State has presented a valid
race-neutral explanation for the peremptory challenge. See Bradley v. State, 649 N.E.2d
100, 105-06 (Ind. 1995), rehg denied.
The State introduced Defendants confession based on a waiver of Defendants Fifth Amendment
right to remain silent. Defendant did not speak to an attorney prior
to this waiver and he was not emancipated at the time. See
id. § 31-32-5-1(1) and (3). Therefore, the confession is admissible only if
the State shows that a parent waived Defendants rights after providing Defendant meaningful
consultation. See id. § 31-32-5-1(2). Defendant spoke with his father before
he gave his statement to police and his father was present during the
interrogation. However, Defendant argues that this was not the meaningful consultation contemplated
by Indiana Code § 31-32-5-1(2)(C) because his father had not been advised of
Defendants constitutional rights prior to the consultation. See Appellants Br. at 10-11.
In reviewing this claim, we note that the State bears the burden of
showing that a juvenile defendant received all of the protections of Indiana Code
§31-32-5-1. See Graham v. State, 464 N.E.2d 1, 4 (Ind. 1984), Hickman
v. State, 654 N.E.2d 278, 281 (Ind. Ct. App. 1995) (We require strict
compliance with the statute in order to protect the juveniles rights.). However,
as with any review of the admissibility of a confession, we review the
evidence in the light most favorable to the trial courts decision. See
Carter v. State, 686 N.E.2d 1254, 1258 (Ind. 1997). Cf. Appellants Br.
at 10 (On review, the court looks at the evidence which supports the
trial courts decision.).
The meaningful consultation requirement will be met when the State demonstrates actual consultation of a meaningful nature or the express opportunity for such consultation, which is then forsaken in the presence of the proper authority by the juvenile, so long as the juvenile knowingly and voluntarily waives his constitutional rights. Williams v. State, 433 N.E.2d 769, 772 (Ind. 1982). See also Patton v. State, 588 N.E.2d 494, 496 (Ind. 1992) (The consultation requirement is designed to afford the juvenile a stabilizing and comparatively relaxed atmosphere in which to make a serious decision that could affect the rest of his life.), rehg denied.
Our review of the record shows that Defendant received meaningful consultation with his
father. Defendants confession was obtained after police informed Defendants father that Defendant
was to be arrested for murder. The police gave Defe
ndants father fifteen
to 20 minutes to consult with his son. The detective who took
Defendants statement testified that he informed Defendant that this time was set aside
so that Defendant could consult with his father. The detective testified that
the first thing he did after this consultation was to show Defendant and
his father a written waiver of rights and he read those rights to
He asked both of them if they understood their rights and
they said that they did. After explaining these rights, the detective offered
Defendants father more time to consult with his son, but Defendants father declined.
Under these facts, we hold that Defendant received a meaningful opportunity to
consult with his father. See Trowbridge v. State, 717 N.E.2d 138, 146-51
(Ind. 1999), rehg denied.
As Defendant notes, we have expressly left open the question of whether a consultation with a parent is meaningful under Indiana Code § 31-32-5-1 if the parent is unaware of the childs rights prior to the consultation. See Cherrone v. State, 726 N.E.2d 251, 255 n.1 (Ind. 2000). See footnote We reiterate that the usual, and in our view the better, practice is to pr ovide the consultation after advising the juvenile and his or her parents of the rights to be waived. Id. (citations omitted). However, the record shows that after advising Defendants father of Defendants rights, the detective who took Defendants statement offered Defendants father a second opportunity to consult with his son. Having learned of the pertinent constitutional rights, Defendants father apparently saw no gain to be had from further consultation. Under these circumstances, the lack of an advisement of rights prior to the consultation did not affect the quality of consultation that Defendant received and therefore he is not entitled to relief. See footnote
We have held that sudden heat is characterized as anger, rage, resentment, or
terror sufficient to obscure the reason of an ordinary person, preventing deliberation and
tion, excluding malice, and rendering a person incapable of cool reflection. Dearman,
743 N.E.2d at 760. We find no such evidence in the present
record. To establish sudden heat, Defendant relies on the fact that he
had returned to the house to find his friend Caruthers, who had been
in an argument earlier in the day. He also cites the fact
that both Moore and the occupants of the car were rude to him.
None of this evidence paints a scenario where sudden circumstances caused Defendant
to loose control of his rational senses. First, while Defendant might have
been afraid for his friend Caruthers as a result of the argument Caruthers
had with Moores associates, this fact alone does not suggest that Defendant was
acting under sudden heat when he returned to the house several hours later.
Cf. Isom v. State, 501 N.E.2d 1074, 1075 (Ind. 1986) (Forty minutes
after the initial confrontation, Appellant found Payton, threatened him, and shot him numerous
times, knowing him to be unarmed. This evidence is sufficient to support
the inference that an adequate cooling off period had elapsed, and that therefore,
the shooting was not done in a sudden heat.). Second, while Defendant
might have been insulted by the conduct of Moore and his friends, these
personal slights were not the type of provocation that the law recognizes as
sufficient to cause one to abandon all reason under sudden heat. Cf.
White v. State, 699 N.E.2d 630, 635 (Ind. 1998) (In the present case,
defendant can only point to the exchange of words and insults as evidence
of provocation. This was an ordinary argument gone bad. There is
no evidence to support an attempted voluntary manslaughter instruction.). Having reviewed the record,
we find that there is no appreciable evidence of sudden heat that would
justify an instruction on voluntary manslaughter under Wright. Dearman, 743 N.E.2d at
Footnote: In discussing his Batson claims, Defendant notes that no blacks served on his jury. Appellants Br. at 12. However, while the State did remove two black jurors from the panel, the trial court repeatedly noted that minorities were almost completely missing from the venire. The potential jurors at issue here were two of only three blacks in the 32-person venire.
Footnote: In argument before the trial court, the State made clear that its challenge was based on the fact that the potential juror indicated that she could not judge, that she was not the right person to judge, that she would have to be proved beyond a shadow of [a] doubt. (Supp. R. at 122.)
Footnote: Defendant was seventeen at the time he gave his confession.
Footnote: The officer informed the Browns that
You have the right to have one or both parents present. You have the right to remain silent; anything you may say can be used against you in court. You have the right to have a lawyer present now, if you do not have the money to retain a lawyer, you have the right to have one appointed for you by the court before any questions are asked. If you decide to answer questions now without a lawyer pr esent you still have the right to stop questioning at any time.
(R. at 314.) Both Defendant and his father signed a written waiver to this effect.
Footnote: But cf. Graham v. State, 464 N.E.2d 1, 11 (Ind. 1984) (DeBruler, J., dissenting) (It is crystal clear from our statute and the cases cited that the consultation of the juvenile with his parent, guardian, or counsel must come after the advisement of rights are given, so that there is assurance that the two know what is at stake in the waiver which police are attempting to get, and prior to the manifestation by the juvenile or his parent, guardian, or counsel to the police that a decision on the waiver question has been reached.) (emphasis in original).
Footnote: Defendant also contends that his father was incapable of providing meaningful consultation because his father was diagnosed as paranoid schizophrenic and antisocial. Defendant does not explain how this condition would affect his fathers ability to provide meaningful advice. See Appellants Br. at 11. In fact, the record reflects that Defendants father dealt with numerous offenses committed by his children and had appeared with them in juvenile court. The detective testified that the father said at the time that he understood what was occurring. These facts show that Defendants father was not incompetent to provide meaningful consultation. Cf. Fortson v. State, 270 Ind. 289, 298, 385 N.E.2d 429, 436 (1979) (holding that a mother who was an outpatient at a mental health clinic provided meaningful consultation in part because she did not appear ill and was in control of herself and aware of her sons rights and of her surroundings and the consequences of what was happening at the time of the waivers and because she had provided such assistance on previous occasions.).