Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019 Page 1 of 22

ATTORNEY FOR APPELLANT

Mark Small

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caroline G. Templeton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Ronald Richardson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 18, 2019

Court of Appeals Case No.

18A-CR-2263

Appeal from the Fayette Circuit

Court

The Honorable Hubert Branstetter, 

Jr., Judge

Trial Court Cause No.

21C01-1512-F2-968

Bradford, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019 Page 2 of 22

Case Summary

[1] On December 2, 2015, Ronald Richardson sold approximately $70 worth of 

heroin to Shannon Burroughs. When he was arrested a short time later, he was 

in possession of heroin, cocaine, and marijuana. He was subsequently 

convicted of Level 4 felony dealing in a narcotic drug and sentenced to a tenyear term of incarceration. On appeal, he contends (1) that the trial court 

abused its discretion in allowing the State to strike the only African-American 

member of the venire (the “potential juror”) from the jury, (2) the trial court 

abused its discretion in admitting certain evidence, (3) his rights protecting the 

prohibition against double jeopardy were violated, and (4) the evidence is 

insufficient to sustain his convictions. Concluding that trial court properly 

found that the State proffered a race-neutral reason for striking the potential 

juror from the jury; the trial court did not abuse its discretion in admitting the 

challenged evidence; Richardson was only convicted of one crime and, thus, 

was not subjected to double jeopardy; and the evidence is sufficient to sustain 

his conviction for Level 4 felony dealing in a narcotic drug, we affirm.

Facts and Procedural History

[2] On December 2, 2015, Burroughs was associating with Ciera Golay and Robert 

Thomas when she arranged to purchase heroin from Richardson. Burroughs 

arranged to purchase seven “caps” from Richardson for $10 per cap. A cap is 

about a tenth of a gram of heroin packaged in a clear capsule. Burroughs 
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agreed to meet Richardson at a Village Pantry in Wayne County to complete 

the purchase. 

[3] Richardson arrived at the Village Pantry with his girlfriend Comfort Bair and 

one of Bair’s friends. Bair was driving and Richardson was sitting in the 

backseat. When she arrived, Burroughs sat in the front passenger seat of the 

vehicle and gave Bair the money. Richardson gave Burroughs a “hand full” of 

caps, more than the seven they had discussed. Tr. Vol. I p. 124. Burroughs 

took the caps and returned to Golay’s vehicle. Once in the vehicle, Burroughs 

told Golay to “go” because she “knew the $50.00 bill” that she had given to 

Bair “was fake.” Tr. Vol. I p. 127. 

[4] Bair followed when Golay left the Village Pantry. The vehicles traveled 

“erratically” and at a high rate of speed. While Bair was following Golay, 

Department of Natural Resources Conservation Officer Grahm Selm received a 

dispatch from the Union County Sheriff’s Department that two white vehicles 

traveling southbound on State Road 27 were traveling at a high rate of speed, 

passing multiple vehicles at once, blocking oncoming traffic, and making the 

oncoming traffic go onto the shoulder. Officer Selm observed the two vehicles 

near Liberty and started following them. Both vehicles turned westbound onto 

State Road 44 towards Connersville. Officer Selm continued to follow the 

vehicles, at one point reaching 100 miles per hour. The vehicles were 

eventually stopped on 5th Street in Connersville by Connersville Police Officers, 

including Officer Brad Rosser. 
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[5] Recognizing that his vehicle was about to be stopped by police, Richardson 

threw a baggie containing capsules of heroin and cocaine to Bair and instructed 

her to hide the drugs. Bair complied by putting the baggie containing the drugs 

“inside” her. Tr. Vol. I p. 151. Also at Richardson’s instruction, Bair’s friend 

put a baggie containing marijuana “inside” her. Tr. Vol. I p. 152.

[6] Once the vehicles had been stopped, Officer Rosser searched the vehicle in 

which Burroughs had been a passenger. During the search, he found a coat that 

had twenty-three capsules in the pocket. Subsequent testing revealed that the 

capsules contain heroin. After Bair was arrested and transported to the Fayette 

County Jail, she removed the baggie containing the capsules of heroin and 

cocaine from her vagina. 

[7] On December 4, 2015, the State charged Richardson with Level 2 felony 

dealing in a narcotic drug, Class A misdemeanor dealing in marijuana, and 

Class B misdemeanor visiting a common nuisance. Prior to trial, the State 

dismissed the dealing-in-marijuana and visiting-a-common-nuisance charges 

and amended the remaining dealing charge to a Level 3 felony. At the 

conclusion of trial, the jury returned guilty verdicts for the lesser-included 

offenses of Level 4 and Level 5 felony dealing in a narcotic. The trial court 

entered judgment on the Level 4 dealing charge and sentenced Richardson to a 

ten-year term of imprisonment. 

Discussion and Decision
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I. Jury Selection

[8] “Purposeful racial discrimination in selection of the venire violates a 

defendant’s right to equal protection because it denies him the protection that a 

trial by jury is intended to secure.” Batson v. Kentucky, 476 U.S. 79, 86 (1986). 

“The exclusion of even a sole prospective juror based on race, ethnicity, or 

gender violates the Fourteenth Amendment’s Equal Protection Clause.” 

Addison v. State, 962 N.E.2d 1202, 1208 (Ind. 2012). 

[9] “A defendant’s race-based Batson claim involves a three-step process.” Id. “At 

the first stage the burden is low, requiring that the defendant only show 

circumstances raising an inference that discrimination occurred.” Id. “This is 

commonly referred to as a ‘prima facie’ showing.” Id. 

[10] At the second stage, “the burden shifts to the prosecution to offer a race-neutral 

basis for striking the juror in question.” Id. at 1209 (internal quotation omitted). 

“Unless a discriminatory intent is inherent in the prosecutor’s explanation, the 

reason offered will be deemed race neutral.” Id. (internal quotation omitted). 

“Although the race-neutral reason must be more than a mere denial of improper 

motive, the reason need not be particularly persuasive, or even plausible.” Id.

(internal quotation omitted). “At this second step 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.” Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam) (internal 

brackets and quotation omitted).
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[11] At the third stage, the trial court must determine whether, in light of the parties’ 

submissions, the defendant has shown purposeful discrimination. Cartwright v. 

State, 962 N.E.2d 1217, 1221 (Ind. 2012). “The trial court, not the appellate 

court, is in the best position to consider the juror’s demeanor, the nature and 

strength of the parties’ arguments, and the attorney’s demeanor and 

credibility.” Blackmon v. State, 47 N.E.3d 1225, 1234 (Ind. Ct. App. 2015). 

“The issue is whether the trial court finds the prosecutor’s race-neutral 

explanation credible.” Roach v. State, 79 N.E.3d 925, 929 (Ind. Ct. App. 2017). 

“Although the burden of persuasion on a Batson challenge rests with the party 

opposing the strike, the third step—determination of discrimination—is the

‘duty’ of the trial judge.” Cartwright, 962 N.E.2d at 1221 (internal citations 

omitted). “The trial court evaluates the persuasiveness of the step two 

justification at the third step.” Id. “It is then that implausible or fantastic 

justifications may (and probably will) be found to be pretexts for purposeful 

discrimination.” Id. (internal quotation omitted). “Also, at the third stage, the

defendant may offer additional evidence to demonstrate that the proffered 

justification was pretextual.” Id. 

[12] In this case, at the first stage, it is undisputed that Richardson made a prima 

facie case that the State’s peremptory challenge suggested an inference of 

discrimination because the potential juror was the only African-American 

member of the venire. See id. at 1222 (noting that removal of the only AfricanAmerican juror that could have served on the jury is sufficient to establish a 

prima facie case under Batson). The first stage was therefore satisfied, and the 
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burden then shifted to the State to present a race-neutral reason for striking the 

potential juror.

[13] As for the second stage, the record reveals that during voir dire, the potential

juror indicated that she liked to read and watch television. When asked what 

she liked to read and watch, the potential juror indicated “stories about the 

law.” Tr. Vol. I p. 62. She indicated that she “really like[d] Law & Order” and 

had “seen every episode of Perry Mason.” Tr. Vol. I p. 62. The potential juror 

then told the deputy prosecutor that she thought “beyond [a] reasonable doubt” 

meant “[t]hat you have sufficient evidence to convince us that your case is 

bigger than the other persons in that this person is guilty.” Tr. Vol. I p. 62. The 

deputy prosecutor responded by clarifying that the jurors “will not be 

comparing cases ... [t]hats not how a criminal case works” and informed the 

venire that she, as the State’s representative, had the “burden to prove each of 

the elements of the crime charged.” Tr. Vol. I pp. 62, 63. In explaining her 

desire to strike the potential juror, the deputy prosecutor indicated that she 

observed the potential juror (1) enjoys reading and watching books and 

programs that are law-related, (2) to be aggressive and dominant, and (3) to 

have dominant body language. Defense counsel responded, stating “Judge, 

(inaudible) her ethnicity (inaudible) uh, State proper reason uh, I think um, I 

don’t have any other (inaudible).” Tr. Vol. I p. 77. The State’s reasons for 

striking the potential juror were facially valid and race neutral. Thus, the 

second stage was satisfied. 
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[14] Once the first and second stages had been satisfied, the issue proceeded to the 

third stage. Again, at this stage, the trial court evaluated the persuasiveness of 

the State’s justification and considered whether the justification was valid or 

mere pretext. See Cartwright, 962 N.E.2d at 1221. After considering the State’s 

proffered justification, the trial court granted the State’s request to strike the 

potential juror, stating, “We’ll note [defense counsel’s] objection for the record 

and we’ll find that the reasons articulated by the State are appropriate reasons 

for striking [potential juror] at this time.” Tr. Vol. I p. 77.

[15] Upon review, we conclude that the trial court properly determined that the 

State articulated a race-neutral reason for using a peremptory challenge to strike 

the potential juror from the jury. The potential juror indicated during voir dire 

that she had an interest in law-related books and television shows, and her 

enjoyment of these mediums may have left her with an inaccurate 

understanding of criminal proceedings. The potential juror’s interest in lawrelated books and television shows has been found to be a permissible ground 

for the State’s peremptory challenge. See United States v. Farhane, 634 F.3d 127, 

157–58 (2d Cir. 2011) (providing that it was plausible for the prosecutor to think 

that a juror who regularly watched television shows such as CSI might be more 

inclined to think that forensic evidence is necessary to prove guilty); United 

States v. Murillo, 288 F.3d 1126, 1136 (9th Cir. 2002) (finding that the juror’s 

statement that Judge Judy was her favorite television show was a permissible 

ground for the prosecutor’s peremptory challenge).
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[16] Further, despite Richardson’s claim to the contrary, when making its 

determination as to whether the State provided a race-neutral reason for striking 

the potential juror, the trial court was not required to make factual findings to 

support its reasoning. See Cartwright, 962 N.E.2d at 1222 (providing that neither 

state nor federal law require a trial court to make explicit findings when

deciding whether the State offered a race-neutral reason for striking a potential 

juror); Blackmon, 47 N.E.3d at 1234 (indicating that the trial court is not 

required to make explicit findings every time the prosecution justifies a 

peremptory strike based on a juror’s demeanor). The trial court made its ruling 

immediately following the parties’ questioning of the potential juror during voir 

dire and its observations and memories of the potential juror’s demeanor would 

have been fresh in the trial court’s mind. Nothing in the record calls into 

question the deference owed to the trial court’s evaluation of the demeanor of 

the individuals and parties appearing before it. Richardson has failed to 

establish error in this regard.

II. Admission of Evidence

[17] “We review the trial court’s ruling on the admission of evidence for an abuse of 

discretion.” Espinoza v. State, 859 N.E.2d 375, 381 (Ind. Ct. App. 2006). “We 

reverse only where the decision is clearly against the logic and effect of the facts 

and circumstances.” Id. According to Richardson, the trial court abused its 

discretion by admitting Exhibits 3, 6, and 7 because the State failed to present 

an adequate chain of custody for the items.
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[18] An adequate foundation establishing a continuous chain of 

custody is established if the State accounts for the evidence at 

each stage from its acquisition, to its testing, and to its 

introduction at trial. Under the chain of custody doctrine, an 

adequate foundation is laid when the continuous whereabouts of 

an exhibit is shown from the time it came into the possession of 

the police.

To establish a proper chain of custody, the State must give 

reasonable assurances that the evidence remained in an 

undisturbed condition. However, the State need not establish a 

perfect chain of custody, and once the State strongly suggests the 

exact whereabouts of the evidence, any gaps go to the weight of 

the evidence and not to admissibility. Moreover, there is a 

presumption of regularity in the handling of evidence by officers, 

and there is a presumption that officers exercise due care in 

handling their duties. To mount a successful challenge to the 

chain of custody, one must present evidence that does more than 

raise a mere possibility that the evidence may have been 

tampered with. 

Id. at 382 (internal citations and quotations omitted).

[19] Richardson claims that the trial court abused its discretion in admitting the 

challenged Exhibits because of a gap in the chain of custody of the evidence, 

thereby suggesting that the evidence may have been tampered with. Exhibit 3 

was an evidence bag containing capsules of heroin that were found in the 

pocket of a coat recovered from Burroughs’s vehicle. Officer Rosser collected 
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the capsules at the scene, placed them in a tamper-proof evidence bag,1sealed 

the bag, and filled out the necessary identifying information. Exhibit 6 was a 

white rock-like substance, which was subsequently determined to be 3.66 grams 

of cocaine, and Exhibit 7 was a number of capsules containing heroin. Exhibits 

6 and 7 were recovered from Bair’s person. Nancy Bohlander, a jail officer at 

the Fayette County Jail who observed Bair remove a bag containing the cocaine 

and the capsules from her person upon being booked into custody, placed the 

contraband in an evidence bag and gave it to Officer Rosser. 

[20] In challenging the chain of custody of Exhibits 3, 6, and 7, Richardson argues 

that the Exhibits were unaccounted for from April 10, 2017 to August 8, 2018. 

We disagree. The following dates detail the custody chain of the challenged 

Exhibits:

December 2, 2015 Officer Rosser deposited Exhibits 3, 6, and 7 into a 

secure storage in the evidence room of the Connersville 

Police Department (“the Department”). The Exhibits 

were subsequently logged into the evidence room by 

the Department’s evidence custodian and continued to 

be stored in the secure evidence room.

April 10, 2017 Exhibits 3 and 6 were transported and relinquished to 

the Indiana State Police (“ISP”) Lab for testing. 

June 2, 2017 Exhibits 3 and 6 were returned to the Department and 

placed in the evidence room.

 

1

 While markings on the evidence bag indicated that it contained twenty-one capsules, Exhibit 4, which 

depicted the contents of Exhibit 3 together with the other items recovered from the coat shows twenty-three 

capsules. Considering Exhibits 3 and 4 together with the evidence that the bag was sealed and did not appear 

to have been tampered with and Officer Rosser’s acknowledgment that it was possible that he miscounted the 

capsules when he logged the evidence, one may reasonably assume that the indication that the bag contained 

only twenty-one capsules was a scrivener’s error and that the bag actually contained twenty-three capsules. 
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June 2, 2017 Exhibit 7 was transported and relinquished to the ISP 

Lab for testing.

July 7, 2017 Exhibit 7 was returned to the Department and placed in 

the evidence room.

August 8, 2018 Exhibits 3, 6, and 7 were removed from evidence room 

for court and returned the same day.

August 13, 2018 Exhibits 3, 6, and 7 were removed from the evidence 

room for court.

[21] The record demonstrates that the Exhibits were placed in the Department’s 

evidence room on December 2, 2015. The Exhibits remained in the evidence 

room until being sent to the ISP Lab for testing. Once testing was complete, the 

Exhibits were returned to the evidence room. The Exhibits then remained in 

the Department’s evidence room until being removed for trial. The technician 

who tested the Exhibits at the ISP Lab testified that the Exhibits appeared in the 

same condition as on the day when she concluded her testing. The record does 

not include any gaps in the chain of custody for Exhibits 3, 6, or 7.

[22] Moreover, even if Richardson had been able to establish some gap in the chain 

of custody, his challenge to the admission of the Exhibits fails. Again, to 

mount a successful challenge to the chain of custody, Richardson was required 

to present evidence that does more than raise a mere possibility that the 

evidence may have been tampered with. Id. He did not do so. As such, the 

alleged gap in the chain of custody goes to the weight of the evidence and not to 

admissibility. Id. The trial court, therefore, did not abuse its discretion by 

admitting Exhibits 3, 6, or 7 into evidence. See Troxell v. State, 778 N.E.2d 811, 

815 (Ind. 2002) (concluding that while the defendant had pointed to potential 
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gaps in the chain of custody and alleged that the evidence may have been 

subject to tampering during said gaps, he presented no evidence supporting the 

allegation and, because of the presumption of regularity in handling evidence, 

there was no error in admitting the challenged evidence). 

III. Double Jeopardy

[23] Both the Fifth Amendment of the United States Constitution and Article I, 

Section 14 of the Indiana Constitution provide that no one shall be put in 

jeopardy twice for the same offense. (Emphasis added). Richardson claims that 

he was convicted of both Level 4 felony and Level 5 felony dealing and that 

because these convictions punished him for the same offense, punishment for 

both “inherently violates [his] rights to be free from double jeopardy.” 

Appellant’s Br. p. 25. While the original sentencing order did reference 

convictions for both Level 4 felony dealing and Level 5 felony dealing, both the 

trial court’s amended sentencing order and the abstract of judgment indicate 

that Richardson was convicted of only the Level 4 felony dealing charge. 

Given that Richardson was convicted of only one count of Level 4 felony 

dealing, his double jeopardy claim fails, as he was not punished twice for his 

actions in violation of Article I, Section 14 or the Fifth Amendment.

IV. Sufficiency of the Evidence

[24] When reviewing the sufficiency of the evidence to support a 

conviction, appellate courts must consider only the probative 

evidence and reasonable inferences supporting the verdict. It is 

the fact-finder’s role, not that of appellate courts, to assess 

witness credibility and weigh the evidence to determine whether 
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it is sufficient to support a conviction. To preserve this structure, 

when appellate courts are confronted with conflicting evidence, 

they must consider it most favorably to the trial court’s ruling. 

Appellate courts affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a 

reasonable doubt. It is therefore not necessary that the evidence 

overcome every reasonable hypothesis of innocence. The 

evidence is sufficient if an inference may reasonably be drawn 

from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (citations, emphasis, and 

quotations omitted). 

[25] Initially, we note that Richardson’s claim regarding the sufficiency of the 

evidence was based entirely on his claim that the trial court abused its discretion 

in admitting Exhibits 3, 6, and 7. However, given our conclusion that the trial 

court did not abuse its discretion in that regard, the jury could consider the 

Exhibits in determining that the State produced sufficient evidence to prove 

Richardson’s guilt.

[26] In order to convict Richardson of Level 4 felony dealing in a narcotic drug, the 

State was required to prove that Richardson knowingly or intentionally 

delivered or possessed with the intent to deliver between one and five grams of 

heroin. Ind. Code § 35-48-4-1. The evidence establishes that Richardson 

possessed 4.29 grams of heroin, which he instructed Bain to hide when his 

vehicle was stopped by police. He also sold 3.0 grams of heroin to Burroughs. 

The evidence is sufficient to sustain Richardson’s conviction.

[27] The judgment of the trial court is affirmed.
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Tavitas, J., concurs.

Crone, J., concurs in part and concurs in result in part with opinion.
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I N T H E

COURT OF APPEALS OF INDIANA

Ronald Richardson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

Court of Appeals Case No.

18A-CR-2263

Crone, Judge, concurring in part and concurring in result in part.

[28] I fully concur as to issues II through IV, but I write separately to express my 

concerns regarding the Batson analysis in issue I.

[29] With respect to the first stage of the three-stage Batson process, I agree with my 

colleagues that “Richardson made a prima facie case that the State’s 

peremptory challenge suggested an inference of discrimination because the 

potential juror was the only African-American member of the venire.” Slip op. 

at 6.

[30] Once the defendant makes a prima facie showing, the burden then shifts to the 

State in the second stage to come forward with a race-neutral explanation for 

challenging a venireperson. In this case, the prosecutor gave the following 

reasons for striking the potential juror:
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[W]e found [the potential juror] to be um, aggressive and 

dominant in the conversation um, in her answering she was 

always the first to speak out um, she’s—was very um, in her 

language it was “I” uh, we’re looking for a group so when we’re 

analyzing juries we’re looking for more of what we will decide. 

She had dominant body language and under our system of what 

we look for in life experience, in personality what is exhibited 

here in um, the kinds of t.v. shows that she enjoys, the kinds of 

reading um, and the kinds of hobby activities she fits into the 

category um, for us to strike and not want on the jury.

Tr. Vol. 1 at 76. At that point, the trial court did not make a specific finding 

that these reasons were race neutral.

[31] “At the third and last stage of a Batson inquiry, ‘in light of the parties’ 

submissions, the trial court must determine whether the defendant has shown 

purposeful discrimination.’” Addison, 962 N.E.2d at 1209 (quoting Snyder v. 

Louisiana, 552 U.S. 472, 477 (2008)). “Although the burden of persuasion on a 

Batson challenge rests with the party opposing the strike, the third step—

determination of discrimination—is the ‘duty’ of the trial judge.” Id. at 1210 

(citation omitted). “The trial court evaluates the persuasiveness of the step two 

justification at the third step. It is then that ‘implausible or fantastic 

justification may (and probably will) be found to be pretexts for purposeful 

discrimination.’” Id. (quoting Purkett, 514 U.S. at 768). “The issue is whether 

the trial court finds the prosecutor’s race-neutral explanation credible.” Id. 

“‘[T]he rule in Batson provides an opportunity to the prosecutor to give the 

reason for striking the juror, and it requires the judge to assess the plausibility of 

that reason in light of all evidence with a bearing on it.’” Id. (quoting Miller-El 
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v. Dretke, 545 U.S. 231, 251-52 (2005)). “Also, at the third stage, the defendant 

may offer additional evidence to demonstrate that the proffered justification 

was pretextual.” Id.

[32] Here, Richardson apparently offered no additional evidence to demonstrate that 

the prosecutor’s proffered justifications for striking the potential juror were 

pretextual. See Tr. Vol. 1 at 77 (“Judge, (inaudible) her ethnicity (inaudible) uh, 

State proper reason uh, I think um, I don’t have any other (inaudible).”).2 And 

ultimately, the trial court found “that the reasons articulated by the [prosecutor 

were] appropriate reasons for striking [the potential juror] at [that] time.” Id. 

(emphasis added). In this context, I presume that “appropriate” means both 

“race neutral” and “credible” for Batson purposes.3

[33] The prosecutor’s reasons for striking the potential juror are race neutral on their 

face. But the transcript flatly contradicts the prosecutor’s assertion that the 

potential juror was “aggressive and dominant in the conversation” and “was 

always the first to speak out.” She spoke only when spoken to and succinctly 

answered the questions asked of her. Tr. Vol. 1 at 61-63, 68, 75. As for the 

potential juror’s allegedly “dominant body language,” i.e., demeanor, the trial 

 

2 As this excerpt suggests, the quality of the voir dire transcript leaves much to be desired. Cf. Childress v. 

State, 96 N.E.3d 632, 636-37 (Ind. Ct. App. 2018) (noting “significant deficiencies in the transcript” of voir 

dire proceedings in addressing appellant’s Batson argument).

3

I do not share Richardson’s concern that the trial court conflated the second and third stages of the Batson

process. We presume that a trial court knows and follows the applicable law. Tharpe v. State, 955 N.E.2d 836, 

842 (Ind. Ct. App. 2011), trans. denied.
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court made no specific finding to support the prosecutor’s assessment. We have 

acknowledged that U.S. Supreme Court precedent does not require “a trial 

court to make explicit findings every time the prosecution justifies a peremptory 

strike based on a juror’s demeanor[,]” Blackmon, 47 N.E.3d at 1234, but making 

such findings is clearly the better practice in light of an appellate court’s 

inability to judge a potential juror’s demeanor, and I urge the Indiana Supreme 

Court to require such findings in Indiana trial courts to promote both fairness 

and judicial economy. Cf. Roach, 79 N.E.3d at 931-32 (remanding for 

determination regarding credibility of prosecutor’s demeanor-based reason for 

striking juror, where second reason for striking juror was not supported by the 

record).

[34] Regarding the potential juror’s media preferences, my colleagues state that a 

“potential juror’s interest in law-related books and television shows has been 

found to be a permissible ground for the State’s peremptory challenge.” Slip 

op. at 8 (citing Farhane, 634 F.3d at 157-58, and Murillo, 288 F.3d at 1136). In 

Farhane, the prosecutor specifically argued that the potential juror’s “frequent 

television viewing of the three ‘CSI’ television shows might make him reluctant 

to convict in the absence of scientific evidence.” 634 F.3d at 157. Here, 

however, the prosecutor made no specific argument regarding the potential 

juror’s choice of books and television shows. My colleagues merely speculate 

that the potential juror’s “enjoyment of these mediums may have left her with 

an inaccurate understanding of criminal proceedings,” slip op. at 8, and 
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overlook her apparent willingness to maintain an open mind and follow the 

law:

[PROSECUTOR]: ... Uh, Ms. Smithson, what do you think 

beyond reasonable doubt is?

[POTENTIAL JUROR]: That you have sufficient evidence to 

convince us that your case is bigger than the other persons in that 

this person is guilty or what you (inaudible)

[PROSECUTOR]: Okay um, (inaudible) first part agree with 

that. There’s one little place where I disagree. You will not be 

comparing cases (inaudible)

[POTENTIAL JUROR]: Oh.

[PROSECUTOR]: That’s not how a criminal case works. 

(Inaudible) but a criminal case it’s my burden to prove each of 

the elements of the crime charged. (Inaudible) and you have to 

deliberate, what would your verdict be?

[POTENTIAL JUROR]: Not guilty.

[PROSECUTOR]: Because there’s not any evidence. You have 

to be convinced by the evidence and beyond a reasonable doubt 

(inaudible) but it’s not beyond all doubt but it’s a high burden.

Tr. Vol. 1 at 62-63. Although the transcript’s quality is poor, one could 

reasonably infer that the prosecutor asked the potential juror what her verdict 

would be if she had to render one before any evidence was presented, and she 

correctly answered that she would have to find the defendant not guilty.
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[35] In Murillo, the appellate court ruled that the potential juror’s “statement that 

Judge Judy was her favorite TV show” was a “permissible ground[] for the 

prosecutor’s peremptory challenge[,]” in that it “did not inherently suggest a 

discriminatory intent” and was “race-neutral.” 288 F.3d at 1136. But the 

opinion does not say why the prosecutor found the potential juror’s fondness 

for Judge Judy objectionable. Although a prosecutor’s explanation for 

exercising a peremptory strike “need not rise to the level justifying exercise of a 

challenge for cause[,]” Batson, 476 U.S. at 97, I believe that a prosecutor facing 

a Batson challenge should be required to offer some justification as to why a 

potential juror’s media preferences could affect that person’s fitness to be a 

juror. Otherwise, we risk allowing such preferences to become shorthand, 

Batson-proof bases for exercising peremptory strikes (e.g., anyone who likes to 

watch Judge Judy is unfit to be a juror). See Minetos v. City Univ. of N.Y., 925 F. 

Supp. 177, 184-85 (S.D.N.Y. 1996) (“Subjective reasons offered by counsel to 

justify peremptory challenges (such as the juror’s hairstyle, bad facial 

expression, body language, or over-responsiveness to opposing counsel) will be 

evaluated by the trial court and the peremptory challenge will be sustained if the 

trial court confirms there is a sound and credible basis for it. Of course, listing 

in this manner has the unfortunate effect of creating a how-to guide for 

defeating Batson challenges. Such guidelines do not ensure that juror strikes are 
Court of Appeals of Indiana | Opinion 18A-CR-2263 | April 18, 2019 Page 22 of 22

not racially motivated—only that advocates are on notice of which reasons will 

best survive judicial review.”) (footnote omitted).4

[36] All that being said, absent any existing requirement for trial courts to make 

findings regarding a potential juror’s demeanor or for prosecutors to offer some 

justification for striking a potential juror based on his or her media preferences, 

I must reluctantly defer to the trial court, who was uniquely situated to assess 

the potential juror’s allegedly “dominant body language” and determine the 

credibility of the prosecutor’s objection to her choice of books and television 

shows. My reluctance is heightened by the lack of evidence supporting the 

prosecutor’s assertion that the potential juror was “aggressive and dominant in 

the conversation,” but in the end I must conclude that Richardson has failed to 

establish that the trial court clearly erred in denying his Batson challenge. 

Accordingly, I concur in result as to issue I.

 

 

4 The district judge in Minetos echoed Justice Thurgood Marshall’s call in his concurring opinion in Batson to 

end “peremptory challenges and the racial discrimination they perpetuate.” 925 F. Supp. at 185.