Attorney for Appellees

Edward R. Hannon
Hannon Centers Roop & Hutton
Indianapolis, IN

Appellant (Plaintiff below),

                           v.
                            

                           GARY W. BOWERS and RUMPKE OF 
 

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)    Supreme Court No.
)    49S02-0010-CV-00603
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)    Court of Appeals No.
)    49A02-9905-CV-00330
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)
)

Ashabraner sued Bowers for negligence. The jury returned a verdict in favor of Bowers. Ashabraner appealed, claiming that Bowers used a racially-based peremptory challenge, an expert witness was not qualified, and the trial court erred in regard to two instructions. The Court of Appeals affirmed in an unpublished memorandum opinion. See Ashabraner v. Bowers, No. 49A02-9905-CV-330, 725 N.E.2d 167 (Ind. Ct. App. March 15, 2000). We granted transfer.

(R. at 180-81.) The trial court overruled Ashabraner’s objection by stating: “I think the case puts the Court in an untenable position and peremptory challenges can be utilized for any reason.” (R. at 182.)

    This colloquy demonstrates that the trial court did not adhere fully to the princ iples enunciated in Batson and subsequent cases. Specifically, the trial court refused to analyze Ashabraner’s objection to the peremptory challenge, indicating that the court did not follow Batson even though it applies to civil cases. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616 (1991). Edmonson held that a trial court is so intertwined with jury selection that its imprimatur is placed on any peremptory challenges that it allows. See id. at 624. This interconnection makes racially-based peremptory challenges a form of state action susceptible to federal constitutional analysis even if the state is not a party to the litigation. See, e.g., id. (“As we have outlined here, a private party could not exercise its peremptory challenges absent the overt, significant assistance of the court.”). Because Batson applies to civil cases, the trial court was clearly wrong to conclude that “peremptory challenges can be utilized for any reason.” (R. at 182.)

    We also note that Bowers argued in the trial court that the peremptory challenge was permissible because the juror was not the same race as Ashabraner. This argument misa pplies Batson. Trial courts must employ the Batson methodology regardless of the race of the parties. See Powers v. Ohio, 499 U.S. 400, 416 (1991), Wright v. State, 690 N.E.2d 1098, 1104 (Ind. 1997), Willoughby v. State, 660 N.E.2d 570, 578 (Ind. 1996). This result obtains because under Batson a race-based peremptory challenge violates not only the equal protection rights of the adverse party, but those of the juror as well. See Powers, 499 U.S. at 415. See footnote Batson therefore prevents parties from using racially-based peremptory challenges regardless of the race of the opposing party. See Williams v. State, 669 N.E.2d 1372, 1377 (Ind. 1996), cert. denied, 520 U.S. 1232 (1997) (“While Batson itself appeared to be based upon the right of the criminal defendant to a trial free of racial taint, the doctrine has evolved into one designed to protect the right of the prospective juror to serve.”)

The Court of Appeals did not rely on the misunderstandings of the trial court, but a pplied Batson and concluded that the circumstances surrounding the peremptory challenge did not demonstrate a prima facie case of discrimination. We hold that this conclusion was error.

Three factors must be established before a party makes out a prima facie case under Batson. The first two – that the juror was a member of a cognizable group and that the party removed jurors of this group – are not at issue. The heart of Ashabraner’s Batson claim is the third factor – whether “the facts and any other relevant circumstances of the defendant’s case raise an inference that [a party] used [challenges] to exclude venirepersons from the jury due to their race.” Bradley v. State, 649 N.E.2d 100, 105 (Ind. 1995) reh’g denied. The record shows that Bowers removed the only black member of the venire. We have held that this fact alone establishes a prima facie case, see McCants v. State, 686 N.E.2d 1281, 1284 (Ind. 1997), and, at a minimum, it is evidence of discrimination that must weigh in the balance.

Ashabraner also asserts that the juror gave “neutral” answers that were similar to a nswers given by other panel members who were not removed. Appellant’s Br. at 8, 14.See footnote Bowers does not contest Ashabraner’s assertion that the juror gave neutral answers to questions during voir dire and in the jury questionnaire, although the record does not reflect what those answers were. Appellee’s Br. at 6-12. This evidence, coupled with the juror’s status as the only black member of the panel, suffices to establish Ashabraner’s prima facie case. See footnote See 50A C.J.S. § 452 at 488 (“The challenger’s questions and statements during voir dire examination and in exercising challenges may support or refute an inference of discriminatory purpose.”); Henry M. Greenberg, Criminal Procedure, 44 Syracuse L. Rev. 189, 226 (1993) (“[T]here is no single litmus test for determining when a prima facie Search Term Begin Search Term End case of discriminatory intent has been established; There are no fixed rules for determining what evidence will give rise to an inference sufficient to establish a Search Term Begin Search Term End case of discrimination.”). See footnote While the case is close, Ashabraner put forth sufficient facts to require Bowers to provide a race neutral reason for the challenge. See footnote The trial court and the Court of Appeals did not reach the issue of whether Bowers could offer a race neutral explanation. Because the trial court applied the wrong standard and the Court of Appeals held that Ashabraner had not made out a prima facie case, we reverse and remand for a new trial. See footnote

Purkett, 514 U.S. at 767, 115 S.Ct. at 1770-71, 131 L.Ed.2d at 839. This three-step procedure "permits prompt rulings on objections to peremptory challenges without substantial disruption of the jury selection process." Hernandez, 500 U.S. at 358, 111 S.Ct. at 1865-66, 114 L.Ed.2d at 405. If the trial court rules that the party challenging the peremptory challenge has not made out a prima facie case, then no explanation is required of the proponent of the challenge. However, if the proponent of the challenge, without waiting for a ruling by the court, volunteers an explanation, and the trial court rules on the issue of discriminatory intent, then the "preliminary issue of whether [a party] had made a prima facie showing becomes moot." Id. at 359, 111 S.Ct. at 1866, 114 L.Ed.2d at 405; see also Morse v. Hanks,172 F.3d 983, 985 (7th Cir. 1999)(finding that when the State offered the reason for using peremptory challenge, trial court's misstep for failing to rule on prima facie case is a "no-harm, no-foul situation"). That is what happened here. Defense counsel proffered a purported race-neutral explanation prior to any ruling by the trial court as to whether the plaintiff had presented a prima facie case of discrimination. Thus, as in Hernandez, there is no trial or appellate issue as to whether the plaintiff presented a sufficient prima facie case. The fact that the defense interjected its reason for exercising the peremptory challenge undermines the majority's conclusion that the trial court failed to require one.
    When the party exercising the peremptory challenge presents a purported race-neutral explanation, the only requirement is that the explanation be neutral; it need not be "persuasive, or even plausible." Purkett, 514 U.S. at 768, 115 S.Ct. at 1771, 131 L.Ed.2d at 839. "Unless a discriminatory intent is inherent in the [party]'s explanation, the reason offered will be deemed race neutral." Hernandez, 500 U.S. at 360, 111 S.Ct. at 1866, 114 L.Ed.2d. at 406. The Supreme Court explains:
It is not until the third step that the persuasiveness of the justification becomes relevant—the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. [citations omitted.] At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step three is quite different from saying that a trial judge must terminate the inquiry at step two when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.

Purkett, 519 U.S. at 768, 115 S.Ct. at 1771, 131 L.Ed.2d at 839 (emphasis in original).
    In addition to denying any discriminatory intent, the attorney for the defendants stated:
I went through the panel. I decided who I thought plaintiff would strike, and I saw her [sic] was left and I saw-uh-went through who I had available to me, and Ms. Brown was the last one-uh-before Mr. Watts that-uh-that I can to to [sic] make up the panel that I though would be the best for my situation and my client in this case.

Record at 181. Defense counsel's expressed reason for the peremptory challenge was strategic. See footnote For purposes of step two of the analysis, there is no inherent discriminatory intent in the explanation provided by the defendants, and as stressed in Purkett, the credibility or persuasiveness of the explanation is not in issue. 514 U.S. at 768, 115 S.Ct. at 1771, 131 L.Ed.2d at 839.
    In response to the defendants' proffer of a race-neutral explanation and in support of her objection to the defendants' peremptory challenge, the plaintiff argued to the trial court that the challenged juror was an African-American and that, because the juror's demeanor and answers were "neutral," See footnote the "only reason" the defendants "could have used the peremptory challenge is basically because of this person's race." Record at 180.     With the presentation of defendants' explanation for their peremptory challenge and the plaintiff's responding argument, the issue thereby proceeded to step three, in which the trial court must determine whether the party objecting to the peremptory challenge has carried the burden of proving purposeful discrimination. Credibility and persuasiveness of the explanation are appropriate considerations in step three.
After plaintiff's argument, the trial court ruled: "I think the case puts the court in an u ntenable position and peremptory challenges can be utilized for any reason. I'll show the motion denied." Record at 182. See footnote
    Under step three, many factors are available for a trial judge's consideration. A judge may consider the mix of other selected jurors, their backgrounds, personalities, etc. The judge would be aware of the issues and witnesses expected to come before the court, and may have had available the questionnaires completed by the summoned prospective jurors. Furthermore, the judge may have had prior trial experience with the parties' counsel including their past practices and strategies. It is from the totality of circumstances, many of which are not reflected in an appellate record, that a trial judge must decide in step three whether the opponent of the peremptory challenge has proved purposeful racial discrimination.
    The breadth of this evaluation underscores the wisdom of the requirement that such trial court determinations be "accorded great deference" on appeal. McCants v. State, 686 N.E.2d 1281, 1284 (Ind. 1997); Williams v. State, 669 N.E.2d 1372, 1379 (Ind. 1996)(quoting Hernandez v. New York, 500 U.S. at 364, 111 S.Ct. at 1868-69, 114 L.Ed.2d at 409; see also Batson v. Kentucky, 476 U.S. 79, 98 n.21, 106 S.Ct. 1712, 1724 n. 21, 90 L.Ed.2d 69, 88-89 n.21 (1986)(trial court's finding "largely will turn on evaluation of credibility [and should be given] great deference."); Kent v. State, 675 N.E.2d 332, 339-40 (Ind. 1996); (trial court's determination of Batson challenge is reviewed deferentially under the clearly erroneous standard); Morse, 172 F.3d at 985 ("When in response to a Batson challenge the prosecutor gives a race-neutral reason that persuades the judge, there is no basis for reversal on appeal unless the reason given is completely outlandish or there is evidence which demonstrates its falsity."). Judge Easterbrook has similarly explained:
Batson requires the judge to determine whether a race-neutral reason offered for a challenge is honest, and di strict judges are much better situated than appellate judges to evaluate the honesty of the lawyers who practice in district court. In the end, although the jury selection raises substantial questions about the conduct and candor of the prosecutor who selected this jury, the district judge's decision that the explanation was honest must be accepted.

United States v. Roberts, 163 F.3d 998, 1000 (7th Cir. 1998).
    This three step trial methodology and deferential appellate review represents a thoughtful and cautious balance of the interests in preventing racial discrimination in the jury selection process and preserving the peremptory challenge as a vital component of our jury trial system. See footnote Peremptory challenges traditionally have been viewed as one means of assuring the selection of a qualified and unbiased jury. Batson, 476 U.S. at 91, 106 S.Ct. at 1720, 90 L.Ed.2d at 84. By permitting parties to exercise even a limited number of peremptory challenges, our system of justice acknowledges that one person may perceive from another's eye-contact, affect, demeanor, and other ever-so-subtle body language—perhaps cognizable only at an intuitive level—reliable information regarding the prospective juror's probable personal resistance or hostility, openness to the evidence, or other factors relevant to the juror's suitability. Even if these sub-cognitive perceptions may occasionally be inaccurate as to the prospective juror's actual attitude and fairness, they remain an extremely important element in assuring a party's trust and confidence that the jury about to decide the case is one that is fair and unbiased. This trust and confidence of the parties in the jury is a crucial component of the justice system and of our citizens' willingness to forgo self-help and to entrust strangers to determine their personal interests and precious concerns.
    If the trial court had sustained the plaintiff's objection to the defendants' perem ptory challenge by finding that the plaintiff had proven purposeful racial discrimination, such a determination, deferentially reviewed, would require affirmance. Likewise, here, where the trial court heard argument of both counsel and was in a unique position to assess the totality of circumstances and then denied the objection and permitted the peremptory challenge, we should accord great deference to the judge's decision, as required by the decisions of this Court and the United States Supreme Court. I believe that the trial court should be affirmed.

SHEPARD, C.J., concurs.