Court of Appeals of Indiana | Opinion 49A04-1608-CR-1918| June 20, 2017 Page 1 of 13

ATTORNEY FOR APPELLANT

Suzy St. John

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

James B. Martin

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Eugene Roach,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 20, 2017

Court of Appeals Case No.

49A04-1608-CR-1918

Appeal from the Marion Superior 

Court

The Honorable Ronnie Huerta, 

Commissioner

Trial Court Cause No.

49G09-1601-F6-5

Barnes, Judge.

Case Summary

[1] Eugene Roach appeals his conviction for Class A misdemeanor resisting law 

enforcement. We remand.
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Issues

[2] Roach raises two issues, but we address one dispositive issue, which we restate 

as whether the trial court properly denied his Batson challenge.1

Facts

[3] Indiana State Police Trooper Thomas Bennett was involved in a traffic stop in 

Marion County when a woman alerted him to a nearby situation. Trooper 

Bennett saw Roach and a woman near a bicycle and saw Roach hit the woman. 

Trooper Bennett yelled, “[H]ey, stop, police!” Tr. p. 135. Roach made eye 

contact with Trooper Bennett, got on his bicycle, and pedaled away. A 

bystander intervened and blocked Roach from leaving, and Trooper Bennett 

arrested Roach. The State charged Roach with Level 6 felony criminal 

confinement, Class A misdemeanor battery, and Class A misdemeanor resisting 

law enforcement. The State later dismissed the criminal confinement and 

battery charges. 

[4] During voir dire of Roach’s jury trial on the resisting law enforcement charge, 

the State asked, “What are some duties of law enforcement officers that you can 

think of? Mr. James, what are some duties of law enforcement officers that you 

can think of?” Tr. p. 68. After discussing the matter with a couple of 

prospective jurors, the State asked, “Mr. Wilson, you got anything to add to 

 

1 Roach also argues that the trial court’s order to pay probation fees was improper. Given our resolution of 

the Batson issue, we need not address the probation fees issue.
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that?” Id. Prospective Juror Wilson (“Juror Wilson”) responded, “Do the right 

thing.” Id. Defense counsel also gave a hypothetical about the victim of an 

assault walking away from a police officer. She then asked, “How about you, 

Mr. Wilson? How do you feel about it?” Id. at 81. Juror Wilson responded, “I 

INAUDIBLE press charges.” Id. These were the only verbal interactions with 

Juror Wilson evident on the record.

[5] The State apparently used a peremptory challenge to strike Juror Wilson. 

Defense counsel then told the trial court, “[I]t’s possible we’re raising a Batson

challenge, because he was the only African American on the panel.” Id. at 97. 

The trial court said, “It’s a little premature still. INAUDIBLE juror seven.” Id. 

Defense co-counsel then said, “I was about to say he was the only black man in 

the Jury pool . . . .” Id. Defense co-counsel then noted, “For the record, I note 

that Mr. Kevin Wilson, who is juror number fourteen is the only black male in 

the Jury pool. Our client is a black male.” Id. at 98-99. Defense co-counsel 

argued that Juror Wilson’s answers during voir dire were not different than two 

white males—Mr. Bercot and Mr. Coble—that were also questioned. In 

response, the State said:

First, the reason that Mr. Wilson was struck was Mr. Wilson’s 

body language throughout the entirety of voir dire, particularly 

given when Mr. Clapp was asking [a] question. The first thing 

that I wrote on my Jury questionnaire was skeptical and then I 

wrote disengaged. In addition to that, which I found problematic 

given the way that he was acting in the Jury box, given that 

combined with the fact that when Ms. Zuran questioned him 

about whether or not he would stop if a police officer asked him 

to stop, he said no, I wouldn’t stop. So, given the facts of this 
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case, I think those two things combined lead to our strikes. Now, 

additionally, Ms. Frick said that she took some notes about Mr. 

Wilson not saying anything different from Mr. Bercot and from 

Mr. Coble. As far as I recall, Mr. Wilson didn’t say anything 

different from juror, Jason Costa, who is a white male who we 

struck for the same reason that we struck Mr. Wilson. Those 

being that he tended to agree with the questions that defense was 

asking and his general attitude.

Id. at 99-100. Defense co-counsel responded:

I would note that in fact, Mr. Bercot did say that you would have 

a right to walk away and that there was no need to respond [to] 

an officer and again, for the record, I will note Mr. Bercot is a 

white male and I’d also note, I say this for respectively, but Mr. 

Seitz is not a mind reader. He can’t tell whether or not Mr. 

Wilson was disengaged and skeptical. In fact, Ms. Eder, who is 

on the Jury said, she seemed reluctant in her responses. So, I 

would argue that her body language and responses were quite

similar.

Id. at 100. The trial court then found: “Having listened to the arguments of 

both side[s], I don’t see that the State struck him with a purposeful act of 

discrimination. So, I’m going to deny your challenge.” Id. at 100-101. 

[6] The jury found Roach guilty as charged of Class A misdemeanor resisting law 

enforcement. The trial court sentenced Roach to 365 days with credit of fortytwo days with the remainder suspended to non-reporting probation. Roach 

now appeals. 
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Analysis

[7] Roach argues that the trial court erred by overruling his Batson objection to the 

striking of Juror Wilson. It is well-settled that using a peremptory challenge to 

strike a potential juror solely on the basis of race violates the Equal Protection 

Clause of the Fourteenth Amendment to the United States Constitution. Jeter v. 

State, 888 N.E.2d 1257, 1262 (Ind. 2008) (citing Batson v. Kentucky, 476 U.S. 79, 

106 S. Ct. 1712 (1986)), cert. denied. In Batson, the United States Supreme Court

provided a three-step process for determining when a strike is discriminatory:

“First, a defendant must make a prima facie showing that a 

peremptory challenge has been exercised on the basis of race; 

second, if that showing has been made, the prosecution must 

offer a race-neutral basis for striking the juror in question; and 

third, in light of the parties’ submissions, the trial court must 

determine whether the defendant has shown purposeful 

discrimination.”

Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016) (quoting Snyder v. Louisiana, 552 

U.S. 474, 476-477, 128 S. Ct. 1203, 1207 (2008)). “[I]n considering a Batson

objection, or in reviewing a ruling claimed to be Batson error, all of the 

circumstances that bear upon the issue of racial animosity must be consulted.” 

Id. at 1748. 

[T]his procedure places great responsibility in the hands of the 

trial judge, who is in the best position to determine whether a 

peremptory challenge is based on an impermissible factor. This is 

a difficult determination because of the nature of peremptory 

challenges: They are often based on subtle impressions and 

intangible factors.
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Davis v. Ayala, 135 S. Ct. 2187, 2208 (2015). “[T]he trial court’s decision as to 

whether a peremptory challenge was discriminatory is given ‘great deference’

on appeal . . . .” Collier v. State, 959 N.E.2d 326, 329 (Ind. Ct. App. 2011) 

(quoting Killebrew v. State, 925 N.E.2d 399, 401 (Ind. Ct. App. 2010), trans. 

denied). The trial court’s ruling on “the issue of discriminatory intent must be 

sustained unless it is clearly erroneous.” Snyder, 552 U.S. at 477, 128 S. Ct. at

1207.

[8] In the first step, “the burden is low, requiring that the defendant only show 

circumstances raising an inference that discrimination occurred.” Addison v. 

State, 962 N.E.2d 1202, 1208 (Ind. 2012) (citing Johnson v. California, 545 U.S. 

162, 170, 125 S. Ct. 2410, 2417 (2005)). “This is commonly referred to as a 

‘prima facie’ showing.” Id. “Although the removal of some African American 

jurors by the use of peremptory challenges does not, by itself, raise an inference 

of racial discrimination, 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.’” Id. at 1208-09 (quoting McCormick v. State, 

803 N.E.2d 1108, 1111 (Ind. 2004)) (internal citations omitted). 

[9] Here, the record indicates that Juror Wilson was the only African American 

male in the jury pool. It is unclear, however, whether there was an African 

American female in the jury pool. The State concedes that this issue is “now 

moot because the trial court directed the parties to step two . . . .” Appellee’s 

Br. p. 14 (citing Addison, 962 N.E.2d at 1209 n.2). Consequently, we will move 

on to step two.
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[10] In step two, “the burden shifts to the prosecution to ‘offer a race-neutral basis 

for striking the juror in question.’” Addison, 962 N.E.2d at 1209 (quoting 

Snyder, 552 U.S. at 477, 128 S. Ct. 1203). “‘Unless a discriminatory intent is 

inherent in the prosecutor’s explanation, the reason offered will be deemed race 

neutral.’” Id. (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771

(1995)). 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. 

[11] The State responded that it struck Juror Wilson based on his “body language . . 

. combined with the fact that when [defense counsel] questioned him about 

whether or not he would stop if a police officer asked him to stop, he said no, I 

wouldn’t stop.” Tr. p. 99. Roach concedes that “[n]either reason was based on 

Juror Wilson’s race so the explanation was facially race-neutral.” Appellant’s 

Br. p. 10. 

[12] In the final step of the analysis, the trial court “must determine whether the 

defendant has shown purposeful discrimination.” Addison, 962 N.E.2d at 1209. 

The trial court must evaluate the persuasiveness of the step two justification. Id. 

at 1210. “It is then that ‘implausible or fantastic justifications may (and 

probably will) be found to be pretexts for purposeful discrimination.’” Id. 

(quoting Purkett, 514 U.S. at 768, 115 S. Ct. at 1771). “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 
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reason in light of all evidence with a bearing on it.’” Id. (quoting Miller–El v. 

Dretke, 545 U.S. 231, 251-52, 125 S. Ct. 2317, 2331 (2005)). “Also, at the third 

stage, the defendant may offer additional evidence to demonstrate that the 

proffered justification was pretextual.” Id. 

[13] One reason offered by the State as a reason for the strike was that “when 

[defense counsel] questioned [Juror Wilson] about whether or not he would 

stop if a police officer asked him to stop, he said no, I wouldn’t stop.” Tr. p. 99. 

In this interaction, defense counsel had proposed a hypothetical about whether 

a victim of a battery could walk away from a police officer. Defense counsel 

then asked, “How about you, Mr. Wilson? How do you feel about it?” Id. at 

81. Juror Wilson responded, “I INAUDIBLE press charges.” Id. The record 

does not, in fact, reveal that Juror Wilson said he would not stop for the police 

officer. “This mischaracterization of [the juror’s] voir dire testimony is 

troubling and undermines the State’s proffered race-neutral reason for the 

strike.” Addison, 962 N.E.2d at 1215 (citing Miller-El, 545 U.S. at 244, 125 S.

Ct. at 2327).

[14] The second reason offered by the State for the strike was a demeanor-based 

explanation. Roach argues that the proffered “body language” reason for 

striking Juror Wilson cannot support the strike because the trial court failed to 

make a finding that the demeanor-based reason was credible. The trial court 

here stated only: “Having listened to the arguments of both side[s], I don’t see 

that the State struck him with a purposeful act of discrimination. So, I’m going 

to deny your challenge.” Tr. p. 100-101.
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[15] In support of his argument, Roach relies on Snyder, 552 U.S. at 477, 128 S. Ct. 

at 1208. There, the prosecutor struck an African American prospective juror 

because of his “nervousness” and student-teaching obligation. Snyder, 552 U.S. 

at 478, 128 S. Ct. at 1208. The trial court denied the Batson challenge without 

explanation. On appeal, the United States Supreme Court noted:

[R]ace-neutral reasons for peremptory challenges often invoke a 

juror’s demeanor (e.g., nervousness, inattention), making the trial 

court’s firsthand observations of even greater importance. In this 

situation, the trial court must evaluate not only whether the 

prosecutor’s demeanor belies a discriminatory intent, but also 

whether the juror’s demeanor can credibly be said to have 

exhibited the basis for the strike attributed to the juror by the 

prosecutor. We have recognized that these determinations of 

credibility and demeanor lie “‘peculiarly within a trial judge’s 

province,’” and we have stated that “in the absence of 

exceptional circumstances, we would defer to [the trial court].”

Id. at 477, 128 S. Ct. at 1208 (internal citations omitted).

[16] Despite the deference given to trial courts, the Supreme Court noted that “the 

record [did] not show that the trial judge actually made a determination 

concerning [the juror’s] demeanor.” Id. at 479, 128 S. Ct. at 1209. 

Rather than making a specific finding on the record concerning 

[the juror’s] demeanor, the trial judge simply allowed the 

challenge without explanation. It is possible that the judge did 

not have any impression one way or the other concerning [the 

juror’s] demeanor. [The juror] was not challenged until the day 

after he was questioned, and by that time dozens of other jurors 

had been questioned. Thus, the trial judge may not have recalled 

[the juror’s] demeanor. Or, the trial judge may have found it 
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unnecessary to consider [the juror’s] demeanor, instead basing 

his ruling completely on the second proffered justification for the 

strike. For these reasons, we cannot presume that the trial judge 

credited the prosecutor’s assertion that [the juror] was nervous.

Id., 128 S. Ct. at 1209. 

[17] In addressing the second reason for the strike—the student teaching 

obligations—the Court compared the juror’s situation to the situations of other 

jurors that were not stricken and concluded that the second reason was 

“pretextual” and gave “rise to an inference of discriminatory intent.” Id. at 485, 

128 S. Ct. at 1212. The Court then held:

[I]n light of the circumstances here—including absence of 

anything in the record showing that the trial judge credited the 

claim that [the juror] was nervous, the prosecution’s description 

of both of its proffered explanations as “main concern[s],” and 

the adverse inference noted above—the record does not show 

that the prosecution would have pre-emptively challenged [the 

juror] based on his nervousness alone. Nor is there any realistic 

possibility that this subtle question of causation could be 

profitably explored further on remand at this late date, more than 

a decade after petitioner’s trial.

Id. at 485-86, 128 S. Ct. at 1212 (internal citations omitted). Consequently, the 

Court reversed the defendant’s conviction.

[18] Following Snyder, the federal circuit courts are split regarding whether 

credibility findings by the trial court are required on the record. See Morgan v. 

City of Chicago, 822 F.3d 317, 330 n.30 (7th Cir. 2016). The Seventh Circuit has 

held: “When the stated basis for a strike is predicated on subjective evidence 
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like the juror’s demeanor, we typically have held that a trial court clearly errs by 

neglecting to state expressly its credibility findings on the record.” Id. at 329.

[19] Our supreme court also relied on Snyder when it decided Addison, 962 N.E.2d 

1202. In addressing the third step of the Batson analysis and whether findings 

were necessary, the court noted:

[I]t 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). 

Addison, 962 N.E.2d at 1210. Ultimately, our supreme court determined: “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, 
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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.” Id. at 1217. The court reversed and 

remanded for a new trial based on the Batson violation. 

[20] Then, in Blackmon v. State, 47 N.E.3d 1225 (Ind. Ct. App. 2015), this court held, 

relying on Addison and Snyder, that “a trial court is not required to make explicit 

fact-findings following a Batson challenge.” Blackmon, 47 N.E.3d at 1233. We 

distinguished Snyder because of the short amount of time between the challenge 

and the questioning of the juror and the trial court’s ability to remember the 

juror’s demeanor. We assumed that the trial court listened to and considered 

the parties’ arguments and held that “[t]he 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.” Id. at 

1234. Consequently, we concluded that the trial court did not err by denying 

the defendant’s Batson challenge.

[21] Although Indiana courts have not specifically required credibility findings in all 

Batson challenges involving demeanor-based reasons, we are left here with little 

ability to review the trial court’s decision without such findings. Although the 

State professed two reasons for striking Juror Wilson, we have concluded that 

one of the reasons was not supported by the record, leaving only the demeanorbased reason for Juror Wilson’s dismissal. It is impossible for us to determine 

which reason the trial court used to deny the Batson challenge or if it found both 

reasons persuasive. As in Snyder, we cannot presume that the trial court 
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“credited the prosecutor’s assertion” that Juror Wilson’s body language was 

inappropriate. Snyder, 552 U.S. at 479, 128 S. Ct. at 1209. Recognizing the 

difficulty in exploring the credibility of the State’s demeanor-based explanation 

long after a trial, the United States Supreme Court reversed in Snyder. Here, 

however, less than one year has passed since the trial as compared to the decade 

that had passed in Snyder. The Seventh Circuit has resolved such situations 

where there is “an evidentiary gap at step three” by “remanding the case to 

‘find out what the district court perceived.’” Morgan, 822 F.3d at 331 (quoting 

Rutledge, 648 F.3d at 560). Although we recognize the difficulty, and perhaps 

impossibility, of a trial court recalling a prospective juror’s demeanor months 

after the trial, given our deference to the trial court in such matters, we believe 

this course should be our first step. If, of course, the trial court is unable to 

recall the prospective juror’s demeanor and make a determination regarding the 

credibility of the State’s reason for the strike, a new trial is required.

Conclusion

[22] We remand for the trial court to make findings regarding the State’s demeanorbased reason for striking Juror Wilson. Remanded.

Kirsch, J., and Robb, J., concur.