Brown v. State

Attorney for Appellant

Katherine A. Cornelius

Indianapolis, IN

Attorneys for Appellee

Karen Freeman-Wilson

Attorney General of Indiana

Adam M. Dulik

Deputy Attorney General

Indianapolis, IN

IN THE

INDIANA SUPREME COURT

DOUGLAS BROWN,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).

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) Supreme Court No.

) 49S00-0004-CR-256

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APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Tanya Walton Pratt, Judge

Cause No. 49G01-9812-CF-205847

ON DIRECT APPEAL

July 19, 2001

SULLIVAN, Justice.

Defendant Douglas Brown was convicted of murder for shooting another

man to death. In affirming his conviction, we agree with the trial court

that the prosecution offered sufficient race-neutral justifications for

peremptorily excluding two potential African-American jurors; that

Defendant was provided with his statutory right to consult with his father;

and that there was no evidence to support instructing the jury on voluntary

manslaughter.

Background

The facts most favorable to the verdict show that on December 26,

1998, Defendant shot one Porter Moore outside an Indianapolis home from

which Moore sold drugs. That evening, Moore drove to the house with some

friends and went inside while his companions remained in the car. Soon

after Moore went into the house, Defendant and another man approached the

occupants of Moore’s car and asked where they could find a friend of

Defendant’s named Roosevelt Caruthers. Moore’s friends replied in a rude

manner. Defendant later told police that he had witnessed Caruthers argue

with several of Moore’s associates at the house earlier in the day.

Defendant told police he came to the house in order to find Caruthers.

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 Moore’s 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[1] and Carrying a Handgun without a

License.[2] 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.

Discussion

I

Defendant argues that his conviction must be reversed because the

prosecutor made what he contends were racially-based peremptory challenges

in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Batson held that a

State denies a “defendant equal protection of the laws when it puts him on

trial before a jury from which members of his race have been purposefully

excluded.” Id. at 85. For that reason, a litigant may not use peremptory

challenges “to exclude potential jurors from serving solely because of

race.” Williams v. State, 700 N.E.2d 784, 786 (Ind. 1998). See also

Willoughby v. State, 660 N.E.2d 570, 578 (Ind. 1996) (“Race-based

peremptory challenges are a form of racial discrimination which the State

cannot condone.”).

To contest an opposing party’s 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), reh’g

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

even plausible … .” 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 prosecutor’s 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.[3] 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 Appellee’s Br. at 6-8. The trial court then accepted the

State’s 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 Appellee’s Br. at 8 (citing Supp. R. at 122.) The

State points to the potential juror’s statements during voir dire to the

effect that she “wasn’t prepared to judge anybody” and that she “couldn’t

possibly be sure a hundred percent that someone was guilty or not guilty.”

Appellee’s Br. at 8 (citing Supp. R. at 110-11.) Further, the potential

juror said that she would have trouble gauging credibility and that she

“wouldn’t feel comfortable deciding who’s guilty and who’s not guilty.”

(Supp. R. at 111-13.) Therefore, the potential juror said, the State’s

proof “would have to be a strong thing, without a shadow of a doubt … .”

(Supp. R. at 112.)[4] 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 compensate 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 niece’s son.” Appellee’s 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 don’t know whether or

not she would be prejudiced against the State or the Defense … .” (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

prosecutor’s explanation. Unless a discriminatory intent is inherent in

the prosecutor’s 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), reh’g denied.

II

Defendant contends that his conviction must be reversed because the

trial court admitted his statement to police despite what Defendant

characterizes as a violation of Indiana Code § 31-32-5-1 (1998). This

statute provides that rights guaranteed to a child[5] under the United

States Constitution, the Indiana Constitution, or “any other law” may be

waived only under a narrow set of circumstances:

(1) by counsel retained or appointed to represent the child if the

child knowingly and voluntarily joins with the waiver;

(2) by the child’s custodial parent, guardian, custodian, or guardian

ad litem if:

(A) that person knowingly and voluntarily waives the right;

(B) that person has no interest adverse to the child;

(C) meaningful consultation has occurred between that person and

the child; and

(D) the child knowingly and voluntarily joins with the waiver;

or

(3) by the child, without the presence of a custodial parent,

guardian, or guardian ad litem, if:

(A) the child knowingly and voluntarily consents to the waiver;

and

(B) the child has been emancipated under IC 31-34-20-6 or IC 31-

37-19-27, by virtue of having married, or in accordance with the

laws of another state or jurisdiction.

Id.

The State introduced Defendant’s confession based on a waiver of

Defendant’s 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 Defendant’s 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

Defendant’s constitutional rights prior to the consultation. See

Appellant’s 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 juvenile’s

rights.”). However, as with any review of the admissibility of a

confession, we review the evidence in the light most favorable to the trial

court’s decision. See Carter v. State, 686 N.E.2d 1254, 1258 (Ind. 1997).

Cf. Appellant’s Br. at 10 (“On review, the court looks at the evidence

which supports the trial court’s 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.”), reh’g

denied.

Our review of the record shows that Defendant received meaningful

consultation with his father. Defendant’s confession was obtained after

police informed Defendant’s father that Defendant was to be arrested for

murder. The police gave Defendant’s father fifteen to 20 minutes to

consult with his son. The detective who took Defendant’s 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 them.[6] He

asked both of them if they understood their rights and they said that they

did. After explaining these rights, the detective offered Defendant’s

father more time to consult with his son, but Defendant’s 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), reh’g 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 child’s rights prior to the

consultation. See Cherrone v. State, 726 N.E.2d 251, 255 n.1 (Ind.

2000).[7] We reiterate that “the usual, and in our view the better,

practice … is to provide 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 Defendant’s father of

Defendant’s rights, the detective who took Defendant’s statement offered

Defendant’s father a second opportunity to consult with his son. Having

learned of the pertinent constitutional rights, Defendant’s 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.[8]

III

Finally, Defendant argues that the trial court committed reversible

error when it refused to instruct the jury on voluntary manslaughter.

Initially, we note that:

When a defendant requests a lesser-included offense instruction,

a trial court applies a three-part analysis: (1) determine whether

the lesser-included offense is inherently included in the crime

charged; if not, (2) determine whether the lesser-included offense is

factually included in the crime charged; and, if either, (3) determine

whether a serious evidentiary dispute exists whereby the jury could

conclude that the lesser offense was committed but not the greater.

Culver v. State, 727 N.E.2d 1062, 1070 (Ind. 2000) (citing Wright v. State,

658 N.E.2d 563, 566-67 (Ind.1995)), reh’g denied. As for the first two

steps, we have already determined that voluntary manslaughter is a lesser

included offense of murder. See Dearman v. State, 743 N.E.2d 757, 760-61

(Ind. 2001) (noting that element of sudden heat distinguishes voluntary

manslaughter from murder), Crain v. State, 736 N.E.2d 1223, 1237 (Ind.

2000), Wilkins v. State, 716 N.E.2d 955, 956-57 (Ind. 1999). Therefore,

Defendant must demonstrate that there was a serious evidentiary dispute as

to the existence of sudden heat.

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 premeditation, 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 Moore’s 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 760.

Conclusion

We affirm the judgment of the trial court.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.

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[1] See Ind. Code § 35-42-1-1 (1998).

[2] See id. § 35-47-2-1.

[3] In discussing his Batson claims, Defendant notes that no blacks

served on his jury. Appellant’s 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.

[4] 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.)

[5] Defendant was seventeen at the time he gave his confession.

[6] 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 present 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.

[7] 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).

[8] 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 father’s ability to provide meaningful advice.

See Appellant’s Br. at 11. In fact, the record reflects that Defendant’s

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 Defendant’s 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 son’s 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.).