ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Ruth Ann Johnson Gregory F. Zoeller

Marion County Public Defender Agency Attorney General of Indiana

Ellen M. O‟Connor Michael Gene Worden

Marion County Public Defender Agency Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court 

_________________________________

No. 49S05-1105-CR-267

JOEY ADDISON,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).

_________________________________

Appeal from the Marion Superior Court, No. 49G04-0812-MR-289345

The Honorable Lisa F. Borges, Judge

_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-1006-CR-354

_________________________________

February 22, 2012

Rucker, Justice.
2

We grant transfer in this case to explore whether and to what extent a defendant‟s racebased Batson claim may be reviewed on appeal where at trial the defendant failed to rebut the 

State‟s proffered race-neutral reason for striking a black venireperson. 

Facts and Procedural History

On the evening of December 19, 2008, in response to a noise he heard in front of his 

house, forty-year-old Joey Addison walked outside, found Gerrod Scott Scales walking near two 

parked cars in front of Addison‟s home, shot Scales fourteen times with two handguns, stated 

“Now what you motherf***ers think about that?,” and turned and calmly walked back into his 

home – all while dressed in a tuxedo. Once inside, Addison sat down on the bed, placed the 

handguns beside him, and calmly came to the door minutes later when police arrived. Addison 

appeared “pretty spacey” to police after the shootings and told the interviewing detective he was 

“bullet proof.” Tr. at 471. In subsequent interviews with court-appointed psychiatrists, Addison 

declared that the FBI had reprogrammed his brain and that he had been sending text messages to 

the FBI to inform them of his movements. 

Until shortly before the shooting, Addison‟s neighbors knew him as a kind and outgoing 

person. He frequently socialized with his neighbors. He worked as a part-time security guard at 

a gas station and employed himself and neighborhood youth by doing construction, painting, 

mowing, and similar jobs. Addison graduated from high school, had earned 106 hours of college 

credit, and had no prior criminal record. Addison was a large man and kept his long hair 

braided, but those who knew him noticed a dramatic change in his appearance and behavior 

beginning in early to mid 2008. Over a period of several months, Addison lost approximately 

120 pounds, shaved his head bald, stopped working, stopped eating, and stopped socializing with 

his friends and neighbors. He believed that the renters in the home across the street from him 

were keeping him under surveillance and that there were surveillance cameras in the street lamps 

outside his home. Addison believed there had been 75 attempts on his life between July and 

December of 2008, that he was hooked up to a lie detector machine, and that the FBI was 

sending him messages and instructions through daily events. 
3

On December 22, 2008, the State charged Addison with Count I murder, and Count II 

carrying a handgun without a license. The State subsequently dismissed Count II after proof of 

Addison‟s valid handgun permit. On January 27, 2009, Addison filed a notice of insanity 

defense and the trial court appointed two psychiatrists to evaluate him. After delays largely 

attributable to a finding that Addison lacked present comprehension to assist counsel in his 

defense, jury selection for Addison‟s trial began on April 19, 2010. The venirepersons were 

questioned in groups of fourteen, and the parties made their strikes after each group had been 

questioned. Because “the issue of insanity might develop a lot of side issues,” the trial judge 

allowed both sides flexibility concerning the normal time limit of thirty minutes per side for 

questioning of prospective jurors. Tr. at 9.

After both the prosecution and the defense had questioned the first panel of fourteen 

venirepersons, the parties approached the bench with their challenges to this group. On its own 

motion, the trial court excused one venireperson for cause. The State exercised its peremptory 

challenges to remove five venirepersons, three of which were against the only three African 

Americans on the panel – venirepersons Pettigrew, Henderson, and Turner. See Tr. at 89. 

Addison, an African American, lodged a Batson objection, noting that the State “just now struck 

all three blacks that were on the panel.” Tr. at 88. The trial court temporarily excused the jurors 

to hear the parties‟ arguments. The State agreed “that there is a prima facie case of a pattern on 

the State‟s part and so the State is required to articulate a non-race specific reason” for the 

strikes. Tr. at 90. The State articulated reasons for the strikes, and Addison conceded that two of

the strikes were permissible but argued the third was not. Tr. at 91. (“Judge, I‟ll give them the 

first two, Ms. Pettigrew and Mr. Henderson,1but there [is] absolutely no reason to cut Mr. 

Turner.”). In explaining its reason for striking venireperson Turner, the State declared, 

And as for Mr. Turner, he indicated, when asked what he would 

like on making a determination (indiscernible) [on the insanity 

defense,] was he going to go by what the professionals say[?] And 

he – when asked what else would contribute to making his 

 

1 The record shows that a relative of venireperson Pettigrew had a pending criminal charge, and 

venireperson Henderson “acknowledged . . . bias against the State” because one of his relatives had a 

prior involvement with the State. Tr. at 90-91. 
4

decision, he had trouble articulating anything other than, well, I‟ll 

just go by whatever the professionals say, which obviously in this 

case, would present a problem for the State. 

Tr. at 91. Addison responded:

There is – all of his other responses – it seemed to me that once 

they get – the State often does, once they get a question they don‟t 

like from a black juror, they fail to follow-up on that. I don‟t think 

there was any clear follow-up on that. When I asked the questions

[on the insanity defense] of the – generally of the jurors to consider 

other factors, they seemed all in agreement. So I‟ll give him the 

first two, but I think they don‟t . . . state any race neutral reason on 

Mr. Turner. 

Tr. at 92. When pressed by the trial court as to why its reason was race-neutral, the State replied,

Because of what he said and the reason we removed him had 

absolutely nothing to do with his race. It had to do with the fact 

that when he‟s – when the question was put to him about how he‟s 

going to make a determination about – at the time we were talking 

about insanity, that generally we were talking about someone‟s 

ability to determine the wrongfulness of their actions. All he did 

was to articulate is, “Well, I‟d just go with the doctors. I‟d just go 

with the doctors.” And could not add any more to his analysis or 

what he‟d look at than that, which leaves the State extreme –

extremely [sic] misgivings about somebody who has that much 

deference to the doctors, where as some other jurors articulated, 

you know, that‟s – it‟s just a piece – things to look at and went to 

other things right off the bat.

Tr. at 93. The trial court then declared, “Well, I do think the State‟s articulated race neutral 

reasons for striking all three jurors, so I‟m going to deny the Batson motion.” Tr. at 93-94.

The court then seated the remaining eight members of the panel as jurors. Voir dire of 

the second panel of fourteen venirepersons followed, and two of these were stricken for cause. 

The parties then exercised eight peremptory strikes, one of which was a prosecution strike 

against the only African American on the second panel, venireperson Swanigan. Addison lodged 

a Batson objection and the court again heard arguments outside the presence of the jury. The 

State explained that it had misgivings about venireperson Swanigan because he had previously 
5

served as a juror in a homicide/feticide trial that resulted in a not guilty verdict. See Tr. at 137 

(“I‟m suspicious of any juror who[ ] acquitted in a jury trial . . . .”). Addison essentially replied 

that the reason was not race-neutral. See Tr. at 138-39 (“Judge, that is not a sufficient enough 

reason to strike this juror in the face of – the fact that three other jurors have now been stricken 

that are black.”). After the arguments concluded, the trial court overruled Addison‟s objection to 

the strike of venireperson Swanigan. The trial court seated the remaining four panel members as 

jurors. A final group of seven venirepersons was then questioned, and the trial court seated two 

alternate jurors from that group, completing the jury selection process. 

A two-day jury trial ensued. The evidence included testimony of the two psychiatrists 

appointed by the trial court to examine Addison. Both concluded that at the time of the offense, 

Addison suffered a mental disease that rendered him unable to appreciate the wrongfulness of his 

conduct. In essence they concluded Addison was insane. However the jury rejected his insanity 

defense and found Addison guilty but mentally ill. At the sentencing hearing, the trial court 

imposed the minimum sentence for murder: forty-five years in the Department of Corrections. 

Addison appealed raising two issues: (1) whether the trial court erred in denying his Batson

challenge; and (2) whether the trial court erred in excluding from evidence the deposition of a 

defense witness. The Court of Appeals rejected the Batson claim but agreed the trial court erred 

in excluding the deposition from evidence. However, finding this error harmless, the Court of 

Appeals affirmed the judgment of the trial court in an unpublished memorandum decision. See

Addison v. State, 49A05-1006-CR-354 (Ind. Ct. App. Feb. 16, 2011). Having previously 

granted transfer thereby vacating the opinion of the Court of Appeals, see Ind. Appellate Rule 

58(A), we now reverse the judgment of the trial court with respect to Addison‟s Batson claim. 

We summarily affirm that portion of the Court of Appeals opinion concerning Addison‟s 

remaining claim. Additional facts are set forth below as necessary.
6

Discussion

A. The Batson Framework

“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. See Snyder v. Louisiana, 552 U.S. 472, 478 (2008).

A defendant‟s race-based Batson claim involves a three-step process. At the first stage 

the burden is low, requiring that the defendant only show circumstances raising an inference that 

discrimination occurred. See Johnson v. California, 545 U.S. 162, 170 (2005). This is 

commonly referred to as a “prima facie” showing. In this case the record shows that in the first 

round of voir dire, the State used its peremptory challenges to strike the only three African 

Americans on the venire panel. Over Addison‟s objection, the State acknowledged “that there is 

a prima facie case of a pattern on the State‟s part.” Tr. at 90. The State‟s acknowledgment was 

certainly appropriate. Although the removal of some African American jurors by the use of 

peremptory challenges does not, by itself, raise an inference of racial discrimination, see Kent v. 

State, 675 N.E.2d 332, 340 (Ind. 1996), the removal of “„the only . . . African American juror 

that could have served on the petit jury‟ does „raise an inference that the juror was excluded on 

the basis of race.‟” McCormick v. State, 803 N.E.2d 1108, 1111 (Ind. 2004) (quoting McCants 

v. State, 686 N.E.2d 1281, 1284 (Ind. 1997)). See also Johnson, 545 U.S. at 173 (finding that 

striking all three African Americans in the venire was sufficient to constitute a prima facie case 

of discrimination). In this case Addison carried his burden of demonstrating an inference that

purposeful discrimination occurred.2

 

2 Even if Addison had not made a prima facie showing of purposeful discrimination the issue is now of no 

moment. Where, as here, the State offers a “race-neutral explanation for the peremptory challenges and 

the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of 

whether the defendant had made a prima facie showing [of purposeful discrimination] becomes moot.”

Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality opinion).
7

At the second stage, if the first stage showing has been satisfied, then the burden shifts to 

the prosecution to “offer a race-neutral basis for striking the juror in question.” Snyder, 552 U.S. 

at 477 (quoting Miller-El v. Dretke, 545 U.S. 231, 277 (2005) (Thomas, J., dissenting)). “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) (quoting 

Hernandez, 500 U.S. at 360). 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.

Here, the State explained that it exercised its peremptory strike of venireperson Turner 

because, according to the State, Turner essentially said that he would simply follow the 

recommendation of the health care professionals on the question of the insanity defense. This of 

course was of particular concern to the State because both doctors would later testify that 

Addison was insane at the time of the offense. And this Court has noted that expert opinion is 

not dispositive on the question of insanity. See Thompson v. State, 804 N.E.2d 1146, 1150 (Ind. 

2004) (affirming defendant‟s conviction of guilty but mentally ill notwithstanding that all the 

experts who examined the defendant were of the opinion that defendant was insane at the time of 

the crime). Accord Barany v. State, 658 N.E.2d 60, 63 (Ind. 1995) (noting that the trier of fact is 

free to disregard the unanimous testimony of experts and rely on conflicting testimony of lay 

witnesses). An explanation that a venireperson has expressed an unwillingness to be fair to one 

side or another is facially race-neutral. See Highler v. State, 854 N.E.2d 823, 827-28 (Ind. 

2006) (declaring that prosecutor‟s explanation that statements juror made in his questionnaire 

and during voir dire raised questions about juror‟s ability “to be fair and impartial to the State” 

was facially race-neutral). In sum, the State carried its burden of offering a race-neutral reason 

for striking venireperson Turner.

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.” Snyder, 

552 U.S. at 477 (quoting Miller-El, 545 U.S. at 277 (Thomas, J., dissenting). Accord Jeter v. 

State, 888 N.E.2d 1257, 1263 (Ind. 2008). Although the burden of persuasion on a Batson

challenge rests with the party opposing the strike, Jeter, 888 N.E.2d at 1264, the third step –

determination of discrimination – is the “duty” of the trial judge. See Miller-El, 545 U.S. at 239
8

(quoting Batson, 476 U.S. at 98); Jeter, 888 N.E.2d at 1264. The trial court evaluates the 

persuasiveness of the step two justification at the third step. It is then that “implausible or 

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

discrimination.” Purkett, 514 U.S. at 768. The issue is whether the trial court finds the 

prosecutor‟s race-neutral explanation credible. “[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.” Miller-El, 545 U.S. at 

251-52 (citations omitted). Also, at the third stage, the defendant may offer additional evidence 

to demonstrate that the proffered justification was pretextual. 

Here, in response to the State‟s explanation, Addison essentially complained that he did 

not think the explanation was race-neutral. But he offered nothing to substantiate his position 

other than to say that the State did not “follow-up” on its questioning of Turner. Tr. at 92. And 

Addison did not explore how or why failing to “follow-up” was evidence of pretext. However, it 

is not at all clear that the trial court properly discharged its third-stage duty of determining 

whether Addison had shown purposeful discrimination. For example the trial court did not 

indicate whether or why it found the State‟s proffered explanation credible. Although at least 

one federal circuit court has declared “federal law has never required explicit fact-findings 

following a Batson challenge, especially where a prima facie case is acknowledged and the 

prosecution presents specific nondiscriminatory reasons on the record,” Stenhouse v. Hobbs, 631 

F.3d 888, 893 (8th Cir. 2011) (quoting Smulls v. Roper, 535 F.3d 853, 860 (8th Cir. 2008) (en 

banc)), nonetheless by simply declaring, without more, that the State “articulated race neutral 

reasons for striking all three jurors,” Tr. at 93-94, the trial court appears to have combined stages 

two and three of the Batson inquiry. This was incorrect. “The analytical structure established by 

Batson cannot operate properly if the second and third steps are conflated.” United States v. 

Rutledge, 648 F.3d 555, 559 (7th Cir. 2011) (remanding cause to the trial court for an explicit 

step-three credibility finding to support its decision denying a Batson challenge). In any event 

other than essentially contending that the State‟s explanation was pretextual Addison offered the 

trial court no reason to cast doubt on the State‟s explanations for the strike. And without any 

specific objections or further evidence from Addison, the trial court accepted the State‟s reasons 

for striking juror Turner as legitimate and race-neutral. 
9

On appeal however Addison advances a slightly different claim. He contends that the 

State‟s explanation for striking juror Turner was pretextual because, according to Addison, the

voir dire record in this case shows that non-minority venirepersons gave the same or similar 

answers as those given by Turner and they were not stricken. 

It is certainly true that “[i]f a prosecutor‟s proffered reason for striking a black panelist 

applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence 

tending to prove purposeful discrimination to be considered at Batson‟s third step.” Miller-El, 

545 U.S. at 241. But how should we treat a defendant‟s appellate claim in this regard where the 

defendant offered no substantive argument to the trial court as to why the State‟s proffered 

reason for striking a black panelist is pretextual? 

Our appellate courts have not been presented with this precise question. There is of 

course ample authority for the proposition that “a defendant may not argue one ground for 

objection at trial and then raise new grounds on appeal.” Gill v. State, 730 N.E.2d 709, 711 (Ind. 

2000); see, e.g., Jester v. State, 551 N.E.2d 840, 843 (Ind. 1990); Phelan v. State, 406 N.E.2d 

237, 239 (Ind. 1980). In such circumstances the issue is waived. Gill, 730 N.E.2d at 711. And

to be sure both this Court and the Court of Appeals have ruled that Batson challenges were 

waived given the facts in a particular case. See, e.g., Weekly v. State, 496 N.E.2d 29, 31 (Ind. 

1986) (declaring defendant waived his Batson claim where the only information in the record on 

appeal was that the defendant objected to the jury – no reason was given); Chambers v. State,

551 N.E.2d 1154, 1158 (Ind. Ct. App. 1990) (holding a race-based Batson claim waived where 

“[t]he record of voir dire is silent regarding the race of any prospective jurors challenged” and 

“[t]rial counsel did not make a contemporaneous objection to any of the prosecutor‟s 

[peremptory] challenges”). But in this case the defendant did make a specific Batson objection, 

and there is a trial record of the voir dire. 
10

B. Examination of Approaches to Waiver of Batson Claims 

Although reaching differing results, because several federal courts have been confronted 

with this issue, we rely on their authority for this discussion.3 A number of circuit courts require 

that the party opposing a peremptory strike on the basis of similar non-struck jurors must make 

an explicit side-by-side juror comparison to the trial court to preserve a Batson claim on appeal. 

For example, the Eighth Circuit “will not consider claims of pretext based upon the failure to 

strike similarly situated jurors unless the point was raised in the district court.” United States v. 

Walley, 567 F.3d 354, 358 (8th Cir. 2009). See Swope v. Razzaq, 428 F.3d 1152, 1155 (8th Cir. 

2005) (noting that the opposing party “failed . . . to make the district court aware of any similarly 

situated jurors who had not been struck”); United States v. Hunt, 372 F.3d 1010, 1012 (8th Cir. 

2004) (“Because Hunt did not identify any similarly situated jurors at trial, we do not consider 

the claim on appeal.”). Similarly, the Eleventh Circuit has noted that the Batson burden-shifting 

framework mandates that “[o]nce the prosecution has offered a legitimate, non-discriminatory 

reason for exercising its strikes, [Batson‟s burden of proof] requires the party contesting the 

strike to demonstrate that the prosecution‟s stated reasons are pretextual.” United States v. 

Houston, 456 F.3d 1328, 1338 (11th Cir. 2006). The court rejected defendant‟s Batson claim on 

appeal where the defendant “did not suggest to the trial judge that there were similarly situated 

white venire members whom the prosecution did not strike.” Id. The Fourth and Fifth Circuits 

have reached similar results. See, e.g., Davis v. Baltimore Gas & Elec. Co., 160 F.3d 1023, 

1028, 1027 (4th Cir. 1998) (declaring that a plaintiff “waived his Batson challenge” where he 

“stood mute” after the prosecution presented a seemingly race-neutral justification); United 

States v. Arce, 997 F.2d 1123, 1127 (5th Cir. 1993) (holding that “[b]y failing to dispute the 

prosecutor‟s [race-neutral] explanation in the district court, defendants have waived their right to 

object to it on appeal”). 

 

3 We note in passing that the few state courts addressing this issue have also reached differing results. 

See, e.g., People v. Jones, 247 P.3d 82, 98 (Cal. 2011) (conducting comparative juror analysis where the 

issue is raised for the first time on appeal); State v. Pona, 926 A.2d 592, 609 (R.I. 2007) (refusing to 

conduct comparative juror analysis argued for the first time on appeal); State v. Hugueley, 185 S.W.3d 

356, 369, 375 (Tenn. 2006) (finding waiver as to strikes to which defendant failed to raise any objection 

during voir dire, but performing “[a] close review of the transcript of the voir dire” and finding that “[n]o 

other person expressed such [views] and was left unchallenged” as to a strike to which defendant objected 

but failed to rebut). 
11

Several circuits examine on appeal otherwise waived Batson claims under either a “plain 

error” or a “clear error” standard of review. The First Circuit describes the difference this way:

A preserved Batson claim is one in which contemporaneous 

objection was raised at trial; an unpreserved Batson claim is one in 

which no such objection was raised at trial. We review preserved 

Batson claims for clear error . . . . We will not find clear error 

unless, after reviewing all of the evidence, we are left with the 

definite and firm conviction that a mistake has been committed. 

We . . . apply plain error review to unpreserved Batson claims. In 

applying this standard of review, we have observed a Supreme 

Court ruling that, unless a discriminatory intent is inherent in the 

prosecutor‟s explanation, the reason offered will be deemed race 

neutral.

United States v. Charlton, 600 F.3d 43, 50, 47 (1st Cir. 2010) (internal quotation marks and 

citations omitted) (emphasis added) (performing a side-by-side juror comparison where the only 

objection to a particular strike was “she‟s one of the two black jurors seated in the jury, and I 

think one of the few black jurors in the jury pool” and finding neither clear error nor plain error). 

The Sixth Circuit examined a defendant‟s Batson claim on appeal for plain error where the 

defendant “made no response” “when faced with the government‟s seemingly race-neutral 

explanation.” United States v. Jackson, 347 F.3d 598, 605 (6th Cir. 2003) (noting “[i]f a 

defendant fails to rebut a race-neutral explanation at the time it was made, the district court‟s 

ruling on the objection is reviewed for plain error” and after performing a comparative juror 

analysis, concluding no error occurred). The Ninth Circuit has taken the same approach. See

United States v. Contreras-Contreras, 83 F.3d 1103, 1105 (9th Cir. 1996) (declaring “[w]e 

review for plain error because [defendant‟s] counsel not only failed to make an initial objection 

to the challenge, but also failed to object to the prosecution‟s volunteered explanation,” and 

noting that “„[p]lain error‟ is an actual error that is „clear‟ and „obvious‟ under current law” 

which “should be employed only in those cases „in which a miscarriage of justice would 

otherwise result‟” (quoting United States v. Olano, 507 U.S. 725, 734, 736 (1993)). 

Similarly, addressing a trial court‟s denial of a defendant‟s Batson challenge, the District 

of Columbia Circuit reviewed for clear error those strikes to which the defendant objected at 

trial, and reviewed for plain error those strikes the defendant objected to only on appeal. United 
12

States v. Moore, 651 F.3d 30, 42, 43 (D.C. Cir. 2011). In both types of review, the court fully 

examined the voir dire record, made extensive juror comparisons, and quoted the jurors‟ voir dire 

statements from the trial transcript. See id. at 42-44. By contrast in United States v. Hendrix, 

the defense objected generally to the prosecutor‟s exercise of a peremptory challenge of the only 

two African Americans in the venire, however it offered no substantive rebuttal to the State‟s 

race-neutral explanation for the strikes. 509 F.3d 362, 367 (7th Cir. 2007). The Seventh Circuit 

reviewed the defendant‟s Batson challenge on appeal for clear error rejecting the Government‟s 

argument that it should review the claim for plain error. Id. at 367 n.3. The Court ultimately 

concluded the prosecutor‟s peremptory challenges did not violate defendant‟s right to equal 

protection. Id. at 372. 

C. The Indiana Approach to an Otherwise Waived Batson Claim 

As noted above, Addison made a timely Batson objection to the State‟s use of its 

peremptory challenges to remove venireperson Turner. He failed however to make any 

substantive rebuttal argument in response to the State‟s facially race-neutral reason for the 

removal. Instead he advances this argument for the first time on appeal. And he does so by 

inviting the Court to make a side-by-side comparison of similarly situated non-African American 

jurors who were permitted to serve. See Br. of Appellant at 14-19.

4

Rather than treating this failure as a waiver of Addison‟s Batson claim and thus forfeited 

for appellate consideration, we align ourselves with those jurisdictions that examine such claims 

on appeal, albeit under a more rigorous standard of review. Our fundamental error doctrine is 

equal to the task. See Smylie v. State, 823 N.E.2d 679, 689 n.16 (Ind. 2005) (“Like the federal 

„plain error‟ doctrine, our „fundamental error‟ rule sometimes affords relief to claimants who did 

 

4

The Court of Appeals rejected Addison‟s “side-by-side” comparison argument on grounds that “[h]e 

invites us to employ a more stringent legal test than has been prescribed by the United States Supreme 

court.” Addison, 49A05-1006-CR-354, slip op. at 7. We disagree with our colleagues on this point.

Indeed, one way for a defendant to establish that the State‟s proffered reasons for a peremptory challenge 

are pretextual is to compare the African Americans who were struck to Caucasians who were empaneled. 

See Miller-El, 545 U.S. at 241 (“If a prosecutor‟s proffered reason for striking a black panelist applies just 

as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove 

purposeful discrimination to be considered at Batson‟s third step.”); see also Snyder, 552 U.S. at 483-84 

(conducting side-by-side juror comparison in evaluating a Batson claim even though no such comparison 

was made to the trial court).
13

not preserve an issue before the trial court and seek to raise it for the first time on appeal.” ). A 

claim that otherwise has been waived by a defendant can be reviewed on appeal if the reviewing 

court determines that fundamental error occurred. See Brown v. State, 929 N.E.2d 204, 207 

(Ind. 2010). The fundamental error exception is “extremely narrow, and applies only when the 

error constitutes a blatant violation of basic principles, the harm or potential for harm is 

substantial, and the resulting error denies the defendant fundamental due process.” Mathews v. 

State, 849 N.E.2d 578, 587 (Ind. 2006). The error claimed must either “make[] a fair trial 

impossible” or constitute “clearly blatant violations of basic and elementary principles of due 

process.” Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009). Further, “[f]undamental error applies 

only when the actual or potential harm cannot be denied.” Id. (internal quotation marks and 

citation omitted). With these principles in mind, we proceed to examine Addison‟s Batson

claim.

D. Analysis 

In proffering its race-neutral reason for excluding juror Turner, the State contended that 

in response to a question concerning the insanity defense Turner replied that he was “going to go 

by what the professionals say” and “when asked what else would contribute to making his 

decision, he had trouble articulating anything other than, well, I‟ll just go by whatever the 

professionals say.” Tr. at 91. According to the State “[a]ll he did was to articulate is, „Well, I‟d 

just go with the doctors. I‟d just go with the doctors.‟” Tr. at 93. In point of fact this is not an 

accurate characterization of Turner‟s voir dire response. The record shows that Turner was first 

examined by the State. The following exchange occurred: 

[Lead Deputy Prosecutor]: I‟m sorry, Mr. Turner, your

questionnaire didn‟t come through, I can barely read the writing. I 

think it‟s the pen. How are you currently employed, sir?

[Venireperson Turner]: I work with GPC Parts Company.

[Lead Deputy Prosecutor]: Oh, a parts company, okay.

[Venireperson Turner]: Yes.
14

[Lead Deputy Prosecutor]: Someone close to you has been 

charged with a crime and committed a crime; is that correct?

[Venireperson Turner]: No. I got the wrong check box or 

something?

[Lead Deputy Prosecutor]: I see something here for forgery is 

what‟s listed.

[Venireperson Turner]: No.

[Lead Deputy Prosecutor]: Okay. Maybe I have the wrong 

questionnaire here.

[Venireperson Turner]: I think you‟re asking the wrong question.

[Lead Deputy Prosecutor]: I apologize. No, the one I‟ve got here, 

I don‟t think it‟s him.

[Second Deputy Prosecutor]: That‟s okay. Why don‟t you ask 

him individually.

[Lead Deputy Prosecutor]: All right. Anything that we‟ve 

discussed here that might affect your ability to sit here today?

[Venireperson Turner]: No. I‟m totally okay.

[Lead Deputy Prosecutor]: No. Ready to go, listen, and make 

judgments accordingly?

[Venireperson Turner]: Yes, sir.

[Lead Deputy Prosecutor]: All right. Well, thank you very much 

for your time. I‟m going to pass the jury for cross at this time, 

Your Honor.

Tr. at 62-63. Turner was the final juror in the first group of venirepersons questioned by the 

State. The record shows that although questioning individually all fourteen venirepersons, the 

State only briefly touched upon the issue of the insanity defense, and then with only two 

venirepersons. See Tr. at 42-45.
15

The defense then began its questioning, and individually questioned each venireperson 

concerning his or her thoughts and opinions about the insanity defense. Turner was the ninth 

person to be so questioned. The following exchange occurred. 

[Defense Counsel]: Okay Mr. Turner, you‟ve been awful quiet up 

there, haven‟t – well, let me pick on you a little bit, what do you 

think about it?

[Venireperson Turner]: Oh, I don‟t know.

[Defense Counsel]: You think it‟s selling you a bunch of 

hogwash?

[Venireperson Turner]: Huh – no, it‟s not, no, it‟s not for me to 

say, you know, who‟s – who‟s sane and who‟s not. I guess you

just would have to go by what the professionals say and kind of 

interpret all the facts and take it all in. It‟s a whole lot to take in.

. . . 

[Defense Counsel]: Would you agree that it would be important to 

look at the facts surrounding the crime?

[Venireperson Turner]: Yes.

[Defense Counsel]: Okay. And a little bit about my client‟s 

history of mental illness. Do you think that would be important?

[Venireperson Turner]: Uhm-hmm. 

Tr. at 77-78 (emphasis added).

As can be seen by the foregoing exchange, it is true that Turner did say in part that he 

would “go by what the professionals say.” But contrary to the State‟s assertion, this was not the

only consideration that Turner indicated he would take into account. “I guess you just would 

have to go by what the professionals say and kind of interpret all the facts and take it all in” 

including the facts surrounding the crime and information about the defendant‟s history of 

mental illness. Tr. at 78. And the State is incorrect in its assertion that Turner responded, “Well, 

I‟d just go with the doctors. I‟d just go with the doctors.” This mischaracterization of Turner‟s 

voir dire testimony is troubling and undermines the State‟s proffered race-neutral reason for the 
16

strike. See Miller-El, 545 U.S. at 244. In addition, although the State initially had passed the 

venire for defense questioning, once Turner made statements the State contends were of concern, 

the State made no effort to examine him further. And this is so in spite of the trial court advising 

the parties it would allow flexibility concerning the usual time limit allowed for voir dire 

because, “the issue of insanity might develop a lot of side issues.” Tr. at 9. As the Supreme 

Court has observed, “„[t]he State‟s failure to engage in any meaningful voir dire examination on 

a subject the State alleges it is concerned about is evidence suggesting that the explanation is a 

sham and a pretext for discrimination.‟” Miller-El, 545 U.S. at 246 (quoting Ex parte Travis, 

776 So. 2d 874, 881 (Ala. 2000)). 

Just as important, the record supports Addison‟s contention that non-African American 

venirepersons on the same panel on which juror Turner served gave answers strikingly similar to 

those given by Turner and were not peremptorily challenged. For example, before questioning 

Turner, the Defense had questioned venireperson Copelen.5

[Defense Counsel]: What do you think about the insanity defense?

[Venireperson Copelen]: Well, I think you’d have to hear from the 

doctors and see what the background is, get all the facts from 

professionals.

[Defense Counsel]: Okay. Would you agree – I think there is 

going to be an instruction and the State will certainly point that 

out. Ultimately, whether or not my client was insane is up to you 

guys to decide. You don‟t have to accept the expert‟s word, you 

can look at other things. But would you agree, ma’am, that a 

trained psychiatrist has a little bit more experience in terms of 

whether or not somebody’s mentally ill or not, than we are?

[Venireperson Copelen]: Yes, that’s right.

Tr. at 70. 

 

5 The record shows that on individual questioning of venireperson Copelen the State did not mention the 

subject of insanity. See Tr. at 51-52.
17

After questioning venireperson Turner, the Defense questioned venireperson Weber:

[Defense Counsel]: [W]hat do you think about the insanity 

defense.

[Venireperson Weber]: I think it‟s a valid defense and I wouldn‟t 

have trouble applying it.

[Defense Counsel]: Okay. All right. What kind of things would 

you like to see to make your judge – other than the fact that 

somebody shot somebody and killed them?

[Venireperson Weber]: I‟d have to look at all of the facts. 

Certainly the testimony of experts would, uhm, have credence with 

me.

Tr. at 81 (emphasis added). Weber was one of the two venirepersons whom the State questioned 

concerning insanity. The exchange follows. 

[Deputy Prosecutor]: What‟s your thought [not only on the 

question of mental illness, but on the question of severity as well], 

ma‟am?

[Venireperson Weber]: No, I would think as – it‟s some of the 

evidence that we would have to consider would be that testimony 

given by the doctors (indiscernible).

[Deputy Prosecutor]: And – and you understand – 

[Venireperson Weber]: I would consider it as part of the totality of 

the evidence.

[Deputy Prosecutor]: So incorporate it as part of the evidence; is 

that correct?

[Venireperson Weber]: Uhm-hmm.

Tr. at 44.

We see little distinction between the responses given by venirepersons Copelen and 

Weber and those given by venireperson Turner. Although phrasing their responses slightly 
18

differently6all three noted the importance of expert witness testimony on the question of 

insanity, and all three agreed that additional evidence should be considered as well. But Turner 

was stricken and Copelen and Weber were not. In essence the same rationale offered by the 

State to remove Turner applied equally to jurors Copelen and Weber. We reiterate the Supreme 

Court‟s admonition, “If a prosecutor‟s proffered reason for striking a black panelist applies just 

as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to 

prove purposeful discrimination to be considered at Batson‟s third step.” Miller-El, 545 U.S. at 

241. We recognize, as has the Supreme Court, that “a retrospective comparison of jurors based 

on a cold appellate record may be very misleading when alleged similarities were not raised at 

trial. In that situation, an appellate court must be mindful that an exploration of the alleged 

similarities at the time of trial might have shown that the jurors in question were not really 

comparable.” Snyder, 552 U.S. at 483. 

Here, however, not only does an examination of the record show that the State failed to 

strike apparently similarly situated non-black venirepersons, but also the State mischaracterized 

Turner‟s voir dire testimony when offering its race-neutral reason for striking him from the panel 

and failed to engage Turner in any meaningful voir dire examination on the issue of his reliance 

on expert witness testimony. Considered individually or in isolation, these factors likely would 

not be sufficient under our fundamental error standard of review to undermine the State‟s claim 

that its reason for striking Turner was race-neutral. As we have noted, the fundamental error 

exception is “extremely narrow, and applies only when the error constitutes a blatant violation of 

basic principles, the harm or potential for harm is substantial, and the resulting error denies the 

defendant fundamental due process.” Mathews, 849 N.E.2d at 587. But, the potential harm of a

Batson violation is inescapable. “[T]he harm from discriminatory jury selection extends beyond 

that inflicted on the defendant and the excluded juror to touch the entire community.” Georgia v. 

McCollum, 505 U.S. 42, 49 (1992) (quoting Batson, 476 U.S. at 87). “Active discrimination . . . 

during th[e] process [of jury selection] condones violations of the United States Constitution 

within the very institution entrusted with its enforcement, and so invites cynicism respecting the 

 

6

In Miller-El the Court noted, “A per se rule that a defendant cannot win a Batson claim unless there is 

an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set 

of cookie cutters.” 545 U.S. at 247 n.6. 
19

jury‟s neutrality and its obligation to adhere to the law.” Powers v. Ohio, 499 U.S. 400, 412 

(1991). Thus, “[r]acial discrimination has no place in the courtroom.” Edmonson v. Leesville 

Concrete Co., 500 U.S. 614, 630 (1991). As one federal circuit has observed there is usually 

“little question that any Batson error we find would affect a defendant‟s substantial rights the 

violation of which would result in manifest injustice.” United States v. Brown, 352 F.3d 654, 

664 (2d Cir. 2003) (internal quotation marks and citation omitted). And “[f]or the same reason 

(since no court can countenance a violation of the Equal Protection Clause of the Constitution) 

any such error would „seriously affect[ ] the fairness, integrity, or public reputation of judicial 

proceedings.‟” Id. (quoting Olano, 507 U.S. at 732).

The State‟s mischaracterization of Turner‟s voir dire testimony, its failure to engage 

Turner in any meaningful voir dire examination to explore his alleged undue reliance on the 

testimony of professionals, and the comparative juror analysis, when taken collectively, leave us 

with the firm impression that the State‟s proffered explanation for striking venireperson Turner 

was a mere pretext based on race, making a fair trial impossible. “Peremptory challenges based 

on race . . . require a retrial.” Highler, 854 N.E.2d at 826.7

Conclusion

We reverse the judgment of the trial court and remand this cause for a new trial.

Shepard, C.J., and Dickson, Sullivan and David, JJ., concur.

 

7 Because we find a Batson violation as to venireperson Turner, we do not address Addison‟s argument 

with respect to venireperson Swanigan. See Snyder, 552 U.S. at 478.