Crone, J.
Antonio R. Whitfield appeals his conviction for level 5 felony burglary following a jury trial. He contends that the trial court clearly erred in determining that he failed to demonstrate that the State’s peremptory challenge to a venireperson was based on her race in violation of the Fourteenth Amendment to the United States Constitution. …
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In February 2018, the State charged Whitfield with level 5 felony burglary, level 6 felony theft, and class B misdemeanor criminal mischief. …
On August 23, 2018, Whitfield’s jury trial commenced. During jury selection, fourteen members of the jury pool were empaneled for questioning. L.M. was the sole African American on the panel. …
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During the first round of strikes, the State sought to peremptorily strike L.M. Whitfield raised a Batson [Batson v. Kentucky, 476 U.S. 79 (1986)] claim; that is, he objected that the prosecution was using a peremptory strike to remove L.M. on account of her race in violation of the Equal Protection Clause of the United States Constitution. Id. The trial court stated that a prima facie showing of racial discrimination had been made given that L.M. was the only minority on the fourteen-person panel. The trial court then asked the State whether it wanted to make a record of its reasons for its peremptory strike of L.M. In support of the strike, the prosecutor said that there were “a handful or reasons”: (1) L.M. wrote on her juror questionnaire that “basically she couldn’t be fair and impartial” and had “a low expectation of minorities receiving justice in the court system[,]” which evidenced a bias against the State; (2) she also wrote that she had family members who had been arrested for or charged with a crime; (3) during voir dire, L.M. seemed “unclear on her ability to be fair and impartial and seemed to waiver [sic] significantly about whether she could find guilt even if the elements were proven beyond a reasonable doubt”; (4) based on her interaction with the prosecutor, she did not seem to want to be in court; (5) she did not seem to be interactive with the prosecutor and was more interactive with defense counsel; and (6) the prosecutor “didn’t get a good vibe from her based on what she was saying.
The trial court then asked whether defense counsel would like to respond. Whitfield’s counsel argued that it was unfair to strike black persons for thinking that the court system was unfair because they have a good reason to think that the system is unfair, and if such a reason was accepted, then black jurors would be disproportionately struck. Defense counsel also argued that L.M.’s body language was no different than that of a white venireperson, and in defense counsel’s opinion, neither venireperson demonstrated an unwillingness to be in court. Further, defense counsel noted that L.M. answered that she could be impartial and render a guilty verdict if the State met its burden of proof.
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… The trial court dismissed L.M., and the trial proceeded. In its final form, the jury included a member of a minority group.
The jury found Whitfield guilty of burglary and criminal mischief, and he pled guilty to being a habitual offender. At sentencing, the trial court vacated the criminal mischief conviction based on double jeopardy considerations. The trial court sentenced Whitfield to three years for the burglary conviction and three years for the habitual offender enhancement. This appeal ensued.
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“Pursuant to Batson and its progeny, a trial court must engage in a three-step process in evaluating a claim that a peremptory challenge was based on race.” Cartwright, 962 N.E.2d at 1220. At the first step, the defendant must make a prima facie showing that there are “circumstances raising an inference that discrimination occurred.” Addison, 962 N.E.2d at 1208. At the second step, if the defendant makes a prima facie showing, the burden shifts to the prosecution to “‘offer a race-neutral basis for striking the juror in question.’” Id. at 1209 (quoting Snyder, 552 U.S. at 477). “A race-neutral explanation means ‘an explanation based on something other than the race of the juror.’” Highler, 854 N.E.2d at 827 … “Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Addison, 962 N.E.2d at 1209 …
Even if the State’s reasons appear on their face to be race-neutral, at the third step, the trial court must perform the essential task of assessing whether the State’s facially race-neutral reasons are credible. Addison, 962 N.E.2d at 1209. The second and third steps must not be conflated. …
… Although this third step requires the trial court to evaluate “the persuasiveness of the justification” proffered by the prosecutor, “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Highler, 854 N.E.2d at 828 … At this stage, the defendant may offer additional evidence to demonstrate that the prosecutor’s reasons are pretextual. Addison, 962 N.E.2d at 1210. …
Here, Whitfield argues that the trial court committed clear error at the third step by failing to explicitly credit the State’s demeanor-based reasons. …
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Although defense counsel challenged the State’s demeanor-based justifications, the trial court did not indicate that it found the State’s demeanor-based reasons credible. Rather, the trial court provided a more general ruling that “because of the reasons the State [had] given,” the State was not “striking [L.M.] solely because of her race.” Whitfield asserts that “without a finding by the trial court regarding the juror’s demeanor, this court cannot conclude that the State’s interpretation of L.M.’s demeanor was accurate.”
Our supreme court has not held that a trial court is required to make explicit factual findings when ruling on a Batson challenge. See Cartwright, 962 N.E.2d at 1222 … However, demeanor-based reasons have at least two unique qualities that would make factual findings particularly helpful to appellate review. First, the trial court’s role in assessing demeanor-based reasons is especially valuable. …
Second, appellate review is based on a cold transcript, which cannot provide a complete picture of a juror’s demeanor. Because of these qualities, circumstances which necessitate factual findings for adequate appellate review are likely to arise. For example, in Roach, 79 N.E.3d 925, another panel of this Court remanded for the trial court to make findings regarding the prosecutor’s demeanor-based reason for striking a potential juror. In that case, the prosecutor sought to strike the only African-American male in the venire based on his body language and because the juror stated that he would not stop if a police officer asked him to stop. … Because the non-demeanor-based reason was not supported by the record and the trial court made no findings as to whether it found the demeanor-based reason credible, the Roach court found it “impossible for us to determine which reason the trial court used to deny the Batson challenge or if it found both reasons persuasive.” Id. at 931. …
Here, in addition to the demeanor-based reasons, the State provided other reasons for the strike. …
Thus, even if we decline to place any weight on the prosecutor’s demeanor-based reasons because the trial court did not explicitly find them to be credible, the prosecutor’s other proffered reasons provide a sound basis to affirm the trial court’s determination that the strike was not motivated by a discriminatory purpose. Although we are able to affirm in this case without explicit findings, making such findings is clearly the better practice. In cases where the State seeks to strike a potential juror based on the juror’s demeanor and the defense disputes the State’s description of the juror’s demeanor, we encourage the trial court to make factual findings regarding its observations of the juror’s demeanor when ruling on a Batson challenge.
Affirmed.
Bradford, J., and Tavitas, J., concur.