Ashabraner v. Bowers

753 N.E.2d 662, 2001 Ind. LEXIS 780, 2001 WL 989078

• Court: Indiana Supreme Court
• Decided: August 30, 2001
• Docket: 49S02-0010-CV-603
• Status: Published

Opinions

ON PETITION TO TRANSFER

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 Bat-son 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 The Court of Appeals affirmed in an unpublished memorandum opinion.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, 106 S.Ct. 1712, 90 L.Ed.2d 69 (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, 106 S.Ct. 1712. 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 (8) the facts and circumstances of this case raise an inference that the exelusion was based on race.

Wright, 690 N.E.2d at 1104-05 (citing Batson, 476 U.S. at 96, 106 S.Ct. 1712). 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, 106 S.Ct. 1712.² The party's "explanation need not rise to the level justifying exercise of a challenge for cause." Id. Instead, "[ilf 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. [Dluring 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 argued in reply that Bowers's counsel

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.... [Rlace didn't enter into it and ... how do you defend this,. How do you defend this argument? ... [A] 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 Fd-monson v. Leesville Concrete Co., 500 U.S. 614, 616, 111 S.Ct. 2077, 114 L.Ed.2d 660 (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, 111 S.Ct. 2077. 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, 111 S.Ct. 1364, 113 L.Ed.2d 411 (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, 111 S.Ct. 1364.⁸ 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, 117 S.Ct. 1828, 137 L.Ed.2d 1034 (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 fa-cle 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 cireumstances 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) ("[There is no single litmus test for determining when a prima facie 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 case of discrimination.").¹¹ While the case is close, Asha-braner 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.

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) ("[The Supreme Court in McDonnell Douglas and Batson, recognizing that invidious discrimination is difficult to prove, set forth the prima facie case as a mechanism by which plaintiffs could prove discrimination indirectly.") (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct 1817, 36 LEd.2d 668 (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, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam).

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 v. 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 Asha-braner 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 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:

[Bly 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 exiends 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, 106 S.Ct. 1712 (quoting Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1879) (citations omitted), abrogated by Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (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, 111 S.Ct. 2077.

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, 106 S.Ct. 1712 (Marshall, J., concurring). Cf. Henry M. Greenberg, Criminal Procedure, 44 Syracuse L.Rev. 189, 226 (1993) ("[When 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 pri-ma 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) ("[Thhe 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) ("[The 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).