Ashabraner v. Bowers

Attorneys for Appellant

Nathaniel Lee

Robert A. Burns

Lee, Burns, & Cossell, LLP

Indianapolis, IN

Attorney for Appellees

Edward R. Hannon

Hannon Centers Roop & Hutton

Indianapolis, IN

IN THE

INDIANA SUPREME COURT

MADONNA ASHABRANER,

Appellant (Plaintiff below),

v.

GARY W. BOWERS and RUMPKE OF

INDIANA-SHELBYVILLE, INC.,

Appellees (Defendants below).

)

) Supreme Court No.

) 49S02-0010-CV-00603

)

) Court of Appeals No.

) 49A02-9905-CV-00330

)

)

)

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Gerald S. Zore, Judge

Cause No. 49D07-9802-CT-207

ON PETITION TO TRANSFER

August 30, 2001

SULLIVAN, Justice.

Plaintiff Madonna Ashabraner sued defendant Gary Bowers and his

employer, Rumpke of Indiana-Shelbyville, Inc., after a collision between

her car and their garbage truck. Ashabraner appeals a jury verdict in

favor of Bowers and Rumpke on grounds that the trial court violated Batson

v. Kentucky by allowing Bowers and Rumpke to remove an African-American

woman from the jury pool without requiring any race neutral justification

in the face of a prima facie case of discrimination. We agree and reverse

the judgment of the trial court.

Background

This case arises out of a collision between a garbage truck and a

small automobile. On November 19, 1992, Plaintiff Madonna Ashabraner was

driving north on Arlington Avenue in Indianapolis. Her compact car trailed

a garbage truck driven by defendant Gary Bowers and owned by defendant

Rumpke of Indiana-Shelbyville (collectively referred to as “Bowers”).

Both vehicles were in the far right lane of the four-lane road. Bowers

slowed the truck because he knew that he had to make a right turn into a

narrow driveway owned by a customer. Before Bowers attempted the turn, he

pulled the truck into the left lane. The parties contest exactly how far

left the truck strayed. Ashabraner testified that she believed Bowers was

changing lanes and continued in the right lane in order to pass the truck.

Bowers testified that he turned on his right turn signal and then straddled

the lanes in order to make the right turn. He said that he did so in order

to avoid lumbering the truck over the curb of the driveway. As Bowers

turned into the driveway, the truck collided with Ashabraner’s car.

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.

Discussion

Ashabraner seeks a new trial because she contends that Bowers used a

racially-based peremptory challenge in violation of Batson v. Kentucky,

which prohibits racial discrimination in the exercise of such challenges.

476 U.S. 79 (1986). See also Wright v. State, 690 N.E.2d 1098, 1104-05

(Ind. 1997), reh’g denied. While that proposition sounds simple on its

face, Batson recognized that parties would have difficulty proving

discriminatory intent because of the discretionary (and often opaque)

nature of such challenges.[1] In response, the Court established a two-

step burden-shifting procedure. See Batson, 476 U.S. at 93-96. First, the

party objecting to the peremptory challenge must set out a prima facie case

of discrimination. To meet this requirement, the party contesting the

challenge must show that:

(1) the juror is a member of a cognizable racial group; (2) [the

challenging party] has exercised peremptory challenges to remove that

group’s members from the jury; and (3) the facts and circumstances of

this case raise an inference that the exclusion was based on race.

Wright, 690 N.E.2d at 1104-05 (citing Batson, 476 U.S. at 96). If the

moving party makes out a prima facie case, the burden shifts to the

challenging party to “come forward with a neutral explanation for [the

challenge].” See Batson, 476 U.S. at 97.[2] The party’s “explanation need

not rise to the level justifying exercise of a challenge for cause.” Id.

Instead, “[i]f the explanation, on its face, is based on something other

than race, the explanation will be deemed race neutral.” McCants v. State,

686 N.E.2d 1281, 1284 (Ind. 1997).[3]

Our experience is that the typical Batson claim turns on the

sufficiency of a proffered race neutral explanation for exclusion of the

juror.[4] Here, however, the trial court and the Court of Appeals did not

reach that step because they resolved the issue by finding no prima facie

case. During jury selection, Ashabraner objected to Bowers’s peremptory

challenge of a juror.[5] To make out a prima facie case of racial

discrimination, Ashabraner told the trial court that:

[The juror] was an African American. [D]uring the course of the voir

dire, [she] gave what appeared to be the most neutral possible

answers.[[6]] She appeared to be intelligent. She appeared to be

attentive and she answered all the questions that were posed to her by

[] counsel. The only reason that he could have used the peremptory

challenge is basically because of this person’s race.

(R. at 180.) In her motion to correct errors and on appeal, Ashabraner

noted that the juror was the only member of the venire who was black.[7]

Bowers’s counsel argued in reply that

I did not strike [the juror] because of race. I struck [the juror]

because of the way I saw the jury panel being made up. And … this is

a situation where [the juror] may be African American. … I don’t

[see] race as being an issue one way or another in this case. And …

it didn’t play into the decision in … any way. There wasn’t a single

panel member, Your Honor, who didn’t give positive responses to both

sides on all questions. … [R]ace didn’t enter into it and … how do

you defend this. How do you defend this argument? … [A]ll I can say is

… there was nothing inappropriate with using that peremptory strike in

this case.

(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 principles 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 misapplies 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.[8] 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 applied 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 answers given by other panel members who were not removed.

Appellant’s Br. at 8, 14.[9] 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.[10] 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.”).[11] While the case is close, Ashabraner put forth

sufficient facts to require Bowers to provide a race neutral reason for the

challenge.[12] 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.[13]

Conclusion

Having granted transfer, thereby vacating the decision of the Court

of Appeals, Ind. Appellate Rule 11(B)(3),[14] we now reverse the judgment

of the trial court and remand for a new trial.

BOEHM, J., and RUCKER, J., concur.

DICKSON, J., dissents with separate opinion in which SHEPARD, C.J.,

concurs.

In The

INDIANA SUPREME COURT

MADONNA ASHABRANER )

Appellant, (Plaintiff below) )

)

v. ) 49S02-0010-CV-603

)

GARY BOWER and RUMPKE OF )

INDIANA-SHELBYVILLE, INC. )

Petioner-Appellee (Defendants below). )

________________________________________________

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Gerald S. Zore, Judge

Cause No. 49D07-9802-CT-207

________________________________________________

On Petition to Transfer

August 30, 2001

DICKSON, Justice, dissenting,

The majority reverses on grounds that the trial court found no prima

facie case of discriminatory intent and failed to require the party

exercising the peremptory challenge to present a race neutral

justification. I believe that the rationale and holding of the majority

are contrary to United States Supreme Court authority in Purkett v. Elem,

514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), and Hernandez v. New

York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

Under the facts of this case, inquiry into whether the plaintiff

established a prima facie case is moot. The trial court made its original

ruling after hearing both the plaintiff's challenge and the defendants'

explanation. The Supreme Court has explained that there are three steps to

the resolution of a Batson charge:

[O]nce the opponent of a peremptory challenge has made out a prima

facie case of racial discrimination (step one), the burden of

production shifts to the proponent of the strike to come forward with

a race-neutral explanation (step two). If a race-neutral explanation

is tendered, the trial court must then decide (step three) whether the

opponent of the strike has proved purposeful racial discrimination.

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.[15] 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,"[16] 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 untenable position and peremptory challenges can be

utilized for any reason. I'll show the motion denied." Record at 182.[17]

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 district 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.[18]

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' peremptory 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.

-----------------------

[1] See, e.g., Julian Abele Cook, Jr., & Tracey Denise Weaver, Closing

Their Eyes to the Constitution: The Declining Role of the Supreme Court in

the Protection of Civil Rights, 1996 Det. C. L. Rev. 541, 555 (1996)

(“[T]he Supreme Court in McDonnell Douglas and BatsonSearch Term Begin

Search Term End , recognizing that invidious discrimination is difficult to

proveSearch Term Begin Search Term End , set forth the prima Search Term

Begin Search Term End facie case as a mechanism by which plaintiffs could

prove Search Term Begin Search Term End discrimination indirectly.”)

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)

(creating similar burden-shifting test for proof of discrimination under

federal employment statutes)).

[2] While the burden of production shifts to the party exercising the

challenge, the overall burden to prove discriminatory use of peremptory

challenges remains on the party who objected to the challenge. See Purkett

v. Elem, 514 U.S. 765, 768 (1995) (per curium).

[3] As Cook and Weaver point out, this framework mirrors the prima

facie case/pretext analysis under McDonnell Douglas. See supra note 1.

[4] See, e.g., Wright v. State, 690 N.E.2d 1098, 1104 (Ind. 1998); Lee

v. State, 689 N.E.2d 435, 440 (Ind. 1997); Kent v. State, 675 N.E.2d 332,

339 (Ind. 1996); Currin v. State, 669 N.E.2d 976, 979 (Ind. 1996); Chubb

vs. State, 640 N.E.2d 44, 50 (Ind. 1994); cf. Williams v. State, 700 N.E.2d

784, 787 (Ind. 1998) (failure to establish prima facie case).

[5] The record is sparse as to what actually occurred during jury

selection because the voir dire does not appear in the record. Moreover,

the record contains several juror questionnaires, but not the one answered

by the juror in question. Instead, the parties rely on a transcript of an

argument that occurred just before the trial started. The record also

contains Ashabraner’s motion to correct errors and Bowers’s response to it,

both of which discuss the Batson issue. Bowers does not argue that

Ashabraner’s Batson claim cannot be reviewed on this record.

[6] Again, the actual voir dire answers are not in the record. See

supra note 3.

[7] Bowers argues on appeal that we should not consider the fact that

the juror was the only black member of the venire because Ashabraner did

not mention this fact before the trial court. (Appellee’s Br. at 8 n.2.)

The Court of Appeals accepted this argument and refused to consider the

juror’s status as the only black member of the venire. See Memorandum

Opinion at 4 n.2. However, Bowers made frequent mention of this fact in

his response to Ashabraner’s motion to correct errors (R. at 48-51) and in

his appellate brief. See Appellee’s Br. at 7. We conclude that Bowers has

conceded that the juror was the only black member of the venire. Indeed,

while Bowers asks us to ignore facts that Ashabraner did not mention during

argument before the trial court, he asserts a race neutral reason for the

challenge that he did not raise until his response to Ashabraner’s motion

to correct errors. See Appellee’s Br. at 10 (“What was not said at trial,

for strategically obvious reasons, but was stated in [Bowers’s] Response in

Opposition to Plaintiff’s Motion to Correct Errors … was that the person

seated in the 14th seat was a third year law student who could be valuable

to [Bowers] in addressing proximate cause issues … .”).

[8] As the Batson Court noted:

[B]y denying a person participation in jury service on account of his

race, the State unconstitutionally discriminate[s] against the

excluded juror. [Moreover, the] harm from discriminatory jury

selection extends beyond that inflicted on the defendant and the

excluded juror to touch the entire community. Selection procedures

that purposefully exclude black persons from juries undermine public

confidence in the fairness of our system of justice. Discrimination

within the judicial system is most pernicious because it is “a

stimulant to that race prejudice which is an impediment to securing to

[black citizens] that equal justice which the law aims to secure to

all others.”

Batson, 476 U.S. at 88 (quoting Strauder v. West Virginia, 100 U.S. 303,

308 (1880) (citations omitted), abrogated by Taylor v. Louisiana, 419 U.S.

522 (1975)). Edmonson resolved in the positive the question of whether a

civil litigant had standing to assert the rights of the juror. 500 U.S. at

628-29.

[9] Bowers conceded as much during argument before the trial court:

“There wasn’t a single panel member, Your Honor, who didn’t give positive

responses to both sides on all questions.” (R. at 181.)

[10] Taking this approach responds to Justice Marshall’s concern that

the prima facie case requirement would leave parties “free to discriminate

against blacks in jury selection provided that they hold that

discrimination to an ‘acceptable’ level.” Batson, 476 U.S. at 105

(Marshall, J., concurring). Cf. Henry M. Greenberg, Criminal Procedure, 44

Syracuse L. Rev. 189, 226 (1993) (“[W]hen a Batson objection has been made,

[the objecting party] is entitled to the benefit of the proposition that

peremptory challenges permit those inclined to discriminate to do so.”).

By finding that a party has established a prima facie case where the only

minority juror gave “neutral” answers to jury selection questions but was

removed anyway, we recognize that there may be unconstitutional

discrimination where the venire contained a single or a small number of

minority jurors. We believe it appropriate that trial courts make a Batson

investigation into potential discrimination in such circumstances. See

infra note 11.

[11] See also Cheryl A. C. Brown, Comment, Challenging the Challenge:

Twelve Years After Batson, Courts Are Still Struggling to Fill in the Gaps

Left By the Supreme Court, 28 U. Balt. L. Rev. 379, 403-04 (1999) (“[T]he

third requirement has been subjected to a number of interpretations. An

inference of discriminatory intent has been drawn from various

circumstances. For example, courts have considered whether the challenged

juror shares membership in a cognizable group with a defendant, victim,

witness, or attorney involved in the case. Courts have also considered the

type and level of voir dire questioning and the juror’s responses.

Challenges that remove all members of a cognizable group have been deemed

improper.”).

[12] This conclusion recognizes that the prima facie case only

entitles the party raising a Batson objection to shift the burden of

production. That is to say, the minimal evidence needed to support a prima

facie case under Batson must be sufficient to warrant a limited inquiry

into the challenging party’s motivations behind a peremptory challenge.

This investigation comes at the cost of the otherwise unconditional nature

of peremptory challenges, but if parties exercising such challenges have

followed constitutional mandates, their power to remove jurors will be

protected by Batson’s second step and by the fact that the moving party

retains the burden of proof to show that the challenge was racially-based.

In this way, the prima facie case requirement – and our application of it –

compromises the parties’ competing needs only so much as is necessary to

ensure that the constitution has not been violated. See, e.g., Stephen R.

Diprima, Note, Selecting a Jury in Federal Criminal Trials After Batson and

McCollum, 95 Colum. L. Rev. 888, 904 (1995) (“[T]he consequence of a

finding that a prima facie case has not been established is that the judge

refuses to ask the challenged party for an explanation, despite the

possibility that the challenged party will offer an explanation that

reveals discriminatory intent.”).

[13] The Court of Appeals expressed no viewpoint as to whether

Bowers’s met the second step of the Batson test, which requires a racially

neutral explanation for the strike. Because we have already vacated the

judgment of the trial court for its failure to correctly analyze

Ashabraner’s prima facie Batson case, we similarly do not reach this second

step. However, it is clear that bald statements such as “I did not strike

[the juror] because of race. I struck [the juror] because of the way I saw

the jury panel being made up” (R. at 180) do not present a sufficient

justification under Batson.

[14] Now App. R. 58(A).

[15] In his memorandum in opposition to the plaintiff's motion to

correct error, the defendants provided the following further explanation:

What was not said, for strategically obvious reasons, was that

the person seated in the 14th seat was a third year law student who,

if made an alternate to the jury panel, could be valuable to the

Defendants in addressing proximate cause issues which were critical to

the damage evaluation in this case if the jury got to the damages

issue.

Record at 49.

[16] The majority correctly notes that this Court has found a prima

facie case established when one party exercises a peremptory challenge to

strike the only prospective African-American that could have served on a

jury. McCants v. State, 686 N.E.2d 1281, 1284-85 (Ind. 1997). However,

the majority's emphasis on the prospective juror's "neutral" answers is

unfortunate. The neutrality of a prospective juror's answers, as well as

his or her demeanor, is not a significant consideration in assessing the

propriety of a peremptory challenge which by its nature is intended to

permit the exclusion of jurors not subject to exclusion for cause. Many

jurors properly excluded on peremptory challenges are likely to have

presented "neutral" answers and demeanor, but are removed based upon the

strategic and intuitive impressions and assessments by parties and counsel.

The fact that a peremptorily challenged juror gave "neutral" answers

therefore does not significantly distinguish the challenged juror from

others who may be properly subject to peremptory challenge.

[17] The majority infers that the trial court refused to apply Batson

principles because this was a civil case. I disagree and read the trial

court's comment merely to reflect its view that the plaintiff was

presenting only minimal circumstances to support her objection and further

to express the court's awareness of the important role of peremptory

challenges. It should also be noted that, at the close of trial, the

plaintiff filed a motion to correct errors that included a claim that the

trial court erred in allowing the defendants to exercise the peremptory

challenge over objection without offering a race-neutral explanation other

than "strategy." Record at 25. Both plaintiff and defendants submitted

memoranda in support of their respective positions. The plaintiff pointed

out in her memorandum, Record at 31-32, and the defendants do not dispute,

that a Batson challenge may be made in a civil case. The defendants

admitted in their memorandum that the plaintiff made a "timely Batson

objection . . . . " Record at 53. While the basis of the trial court's

ruling during trial voir dire may be somewhat imprecise, its later ruling

denying the motion to correct error follows the parties' agreement that a

Batson objection does apply to peremptory challenges in civil cases, thus

indicating that the trial court did not misunderstand the application of

Batson to civil trials.

[18] Describing the historical nature and rationale for the

peremptory challenge, William Blackstone explained:

In criminal cases, or at least in capital ones, there is in favorem

vitæ, allowed to the prisoner an arbitrary and capricious species of

challenge to a certain number of jurors, without showing any cause at

all; which is called a preemptory challenge; a provision full of that

tenderness and humanity to prisoners, for which our English laws are

justly famous. This is grounded on two reasons: 1. As every one must

be sensible, what sudden impressions and unaccountable prejudices we

are apt to conceive upon the bare looks and gestures of another; and

how necessary it is that a prisoner (when put to defend his life)

should have a good opinion of his jury, the want of which might

totally disconcert him; the law wills not that he should be tried to

any one man against whom he has conceived a prejudice even without

being able to assign a reason for such his dislike. 2. Because, upon

challenges for cause shown, if the reason assigned prove insufficient

to set aside the juror, perhaps the bare questioning his indifference

may sometimes provoke a resentment; to prevent all ill consequences

from which, the prisoner is still at liberty, if he pleases,

peremptorily to set him aside.

Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed.

1011, 1014 (1892)(quoting 4 William Blackstone, Commentaries 353).