Patterson v. State, No. 46A03-9907-CR-252.

• Docket Nº: No. 46A03-9907-CR-252.
• Citation: 729 N.E.2d 1035
• Case Date: June 14, 2000
• Court: Court of Appeals of Indiana

729 N.E.2d 1035

Samuel PATTERSON, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff

No. 46A03-9907-CR-252.

Court of Appeals of Indiana.

June 14, 2000.

729 N.E.2d 1038

Donald W. Pagos, Michigan City, Indiana, Attorney for Appellant

Karen M. Freeman-Wilson, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

729 N.E.2d 1036

729 N.E.2d 1037

OPINION

KIRSCH, Judge

After a jury trial, Samuel Patterson was convicted of attempted burglary,¹ a Class B felony, and was adjudged to be a habitual offender. He appeals his conviction, raising the following issues for review:

I. Whether the State purposefully excluded a juror because of her race, thereby denying Patterson a fair trial.

II. Whether there was a sufficient foundation for the introduction of genetic typing evidence and statistical analysis.

III. Whether the trial court erred in refusing to instruct the jury on the defense of abandonment.

IV. Whether the trial court erred in refusing to answer a jury question.

V. Whether there was sufficient evidence to support his conviction.

We reverse Patterson's attempted burglary conviction and remand with instructions.

FACTS AND PROCEDURAL HISTORY

Around 4:00 a.m. on December 6, 1997, eighty-two year old Julia Maciejewski was awakened by the sound of breaking glass. She went to investigate, and found a broken window in her sunroom, glass on the floor, and blood on the curtains. She called the police.

When the police responded to the call, they discovered Patterson at the back of Maciejewski's house. After a chase on foot, police apprehended the bleeding Patterson, who commented that he knew he should not have broken the window. Maciejewski identified Patterson as the man who had come to her door several days earlier looking for work shoveling snow.

Patterson was charged and convicted of attempted burglary with the intent to commit theft. He was adjudged to be a habitual offender and was sentenced to fifty years imprisonment. He now appeals.

DISCUSSION AND DECISION

I. Peremptory challenge

Patterson, an African American, first argues that he was denied a fair trial because the State purposefully excluded the only potential African American juror because of her race through the exercise of its peremptory challenges. The juror, Mrs. Gerron, stated that she knew the defendant, and did not want to serve, but that she would try to be fair. When the court asked her if there was anything she wanted to say, she stated that she was uncomfortable and felt like Patterson would not receive a fair trial with only one African American on the jury. She also felt uncomfortable about being the only African American on a jury with eleven Caucasians. The State challenged her for cause, but the trial court denied it. The State then used a peremptory strike to remove her from the panel.

The exercise of racially discriminatory peremptory challenges is constitutionally impermissible. Wright v. State, 690 N.E.2d 1098, 1104 (Ind.1997) (citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.

729 N.E.2d 1039

1712, 90 L.Ed.2d 69 (1986)). To establish a prima facie case of racial discrimination in the use of peremptory challenges, a defendant must show the trial court: 1) that the prosecutor used peremptory challenges to remove members of a cognizable racial group from the jury pool; and 2) that the facts and circumstances raise an inference that the prosecutor used those strikes to exclude potential jury members from the jury because of their race. Williams v. State, 700 N.E.2d 784, 786 (Ind.1998)

Once the prima facie case is made, the burden shifts to the State to provide a race-neutral explanation for challenging the juror. McCants v. State, 686 N.E.2d 1281, 1284 (Ind.1997). If the prosecution's explanation on its face is based on something other than race, the explanation will be deemed race neutral. Id. Although the prosecutor's reason must relate to the particular case to be tried, it need not rise to the level justifying a challenge for cause, nor need it be particularly persuasive, so long as it constitutes a valid reason for excluding the juror in question. Brown v. State, 684 N.E.2d 529, 537 (Ind. Ct.App.1997), trans. denied, cert. denied, Brown v. Indiana, 523 U.S. 1027, 118 S.Ct. 1316, 140 L.Ed.2d 479 (1998).

The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Lee v. State, 689 N.E.2d 435, 440 (Ind.1997). The trial court must then decide whether the defendant, as the opponent of the strike, has proved purposeful racial discrimination. Williams, 700 N.E.2d at 786. The trial court's finding on this issue is entitled to great deference and will be set aside on appeal only when found to be clearly erroneous. McCants, 686 N.E.2d at 1284.

Here, only one of the eighteen potential jurors was African American. The State used one of its two peremptory challenges to strike her from the panel. Our supreme court has held that these facts and circumstances do raise an inference that the juror was excluded on the basis of race. See id. (facts and circumstances do support inference of exclusion based on race where prosecutor used peremptory challenge to strike only African American from jury in panel of eighteen).

Thus, the burden then shifted to the prosecutor to offer a race neutral reason for striking the juror. Mrs. Gerron stated that she knew the defendant and did not want to serve on the jury. The State also noted that Mrs. Gerron had a prior relationship with the prosecutor's office. The trial court's decision that this satisfied the prosecutor's burden to offer a race neutral reason for striking the juror was not clearly erroneous. See Barnett v. State, 637 N.E.2d 826, 830-31 (Ind.Ct.App. 1994) (juror's acknowledgement that she did not want to serve and felt uncomfortable in making judgments of other people was valid race-neutral reason for exercising peremptory challenge); Isom v. State, 585 N.E.2d 1347, 1350-51 (Ind.Ct.App. 1992), trans. denied (juror's acquaintance with defendant was sufficient race neutral reason to sustain peremptory challenge).

II. DNA evidence and statistical analysis

Patterson next contends that the trial court erred in admitting genetic typing (DNA) evidence and statistical analysis because the State failed to demonstrate an adequate foundation for the evidence. As our supreme court explained in Ingram v. State, 699 N.E.2d 261, 262 (Ind. 1998):

"DNA evidence is not automatically admissible. Under Indiana Evidence Rules 403 and 702(b), before expert scientific evidence may be admitted in Indiana, the trial court must be satisfied that: (1) the scientific principles upon which the expert testimony rests are reliable; (2) the witness is qualified; and (3) the testimony's probative value is not substantially outweighed by the dangers of unfair prejudice."

Id. at 262 (footnotes and citations omitted). The decision of the trial court as to reliability

729 N.E.2d 1040

is reviewed for an abuse of discretion. Id.

At trial, the State presented the testimony of Lisa Black, DNA supervisor for the North Zone of the Indiana State Police Laboratory. She testified in detail about her qualifications, her work, her laboratory methods, and DNA analysis in general. She testified that she received a bachelor's degree in biochemistry from Purdue University and joined the State Police in 1985. She worked for ten years in forensic serology before joining the DNA Unit in 1995 and completing a State Police course in DNA analysis. In addition, she has taken three or four classes through the Federal Bureau of Investigation on polymerase chain reaction (PCR) DNA analysis. She is a member of professional organizations and has testified in court approximately eighty times as a forensic examiner, including seven times regarding PCR DNA analysis.

She explained that DNA analysts examine evidence from crime scenes for the presence of blood or other body fluids. They then analyze the samples for DNA, develop a profile based on the DNA, and compare the profile to known standard samples. She then testified about the quality control mechanism in place at her laboratory, DNA, PCR DNA analysis, and DNA profiles. She testified that PCR analysis was first presented in court in 1986 and has been used extensively since that time. She stated that the method used by her laboratory has been validated by a number of other laboratories, including the one operated by the FBI. She explained that in PCR analysis, the examiner looks to certain areas of the DNA for markers. This method is nationally recognized and standardized so the results can be used to track criminals in a national database. She testified that PCR is an accepted method in the scientific community and that she has testified in seven...