# Ashabraner v. Bowers

> Indiana Supreme Court · August 30, 2001 · 753 N.E.2d 662

URL: https://www.frixlaw.com/law-library/cases/9505528

## Case

- **Full name:** Madonna ASHABRANER, Appellant (Plaintiff Below), v. Gary W. BOWERS and Rumpke of Indiana-Shelbyville, Inc., Appellees (Defendants Below)
- **Court:** Indiana Supreme Court
- **Decided:** August 30, 2001
- **Citations:** 753 N.E.2d 662; 2001 Ind. LEXIS 780; 2001 WL 989078
- **Precedential status:** Published
- **Opinion:** Dissent by Dickson
- **Judges:** Sullivan, Boehm, Rucker, Dickson, Shepard
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9505528

## How later opinions describe it (automated extraction)

- noting that the preemptory removal of the "only black member of the panel" standing alone "establishes a prima facie case" of discrimination
- observing that the removal of the "only black member of the panel" standing alone "establishes a prima facie case" of discrimination
- observing- that Batsoñ applies to civil Cases

## Opinion text

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 *669 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:
[Olnee 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 pri-ma 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, 514 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:
*670 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-ubh-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. 1 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 an 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," 2 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 persuasgiveness 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. 3
*671 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 cireumstances, 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 Bat-son 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, 168 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. 4 Per *672 emptory 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 amother'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 plaintiffs 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.
. 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.
. 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 prospéctive 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.
. 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 *671 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.
. 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 vite, 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 *672 of another; and how necessary it is that a prisoner (when put ito 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 Commentaries 353).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9505528. Public record. Not legal advice.