MATHIAS, Judge.
Terral Lerron Golden ("Golden") was convicted in St. Joseph Superior Court of murder and attempted murder. Golden appeals and presents two issues, which we restate as: (1) whether Golden knowingly and intelligently waived his right to counsel, and (2) whether the trial court erred in overruling Golden's Batson challenge.
We affirm.
On September 15, 2015, Lacy Patton ("Patton") and his friend Arles Slaven ("Slaven") went to a home on Douglas Road in St. Joseph County, Indiana. The home was known as a drug house, and Patton and Slaven went there to locate Haeli Stevenson ("Stevenson"), the mother of Patton's infant son. Stevenson had gone to the house with her baby so that she could buy marijuana from Tristan Gill ("Gill"), who lived at the home. Also at the home was the defendant, Golden, who was Gill's cousin.
Stevenson saw Patton and Slaven coming toward the home and warned Gill before trying to leave. Before she could leave, Stevenson ran into Patton. Patton saw Stevenson breastfeeding their child while smoking, and the two began to argue. Gill became involved, and he and Patton began to fight, with Patton punching Gill. Golden then asked Gill for his gun. Shortly thereafter, Patton heard Slaven say, "put the gun down, punk, put the gun down." Trial Tr. pp. 396-97. Patton ran to the room where Slaven was and saw Golden pointing the gun at Slaven. Golden then alternated pointing the gun at Slaven and Patton, which Patton described as if Golden were playing "eenie meenie miney mo." Id. at 397.
Patton then ran back to Stevenson to tell her that Golden had a gun. After Patton left the room, Golden shot Slaven, who died as a result of his injuries. After the gunshot, Gill, who had witnessed the shooting, was asked by the owner of the home what had happened. Gill told him, "a murder just happened." Trial Tr. p. 387.
On September 18, 2015, the State charged Golden with murder and attempted murder. At a pretrial hearing on October 6, 2015, Golden informed the trial court that he wished to represent himself. The trial court then engaged in an extensive colloquy with Golden regarding the dangers of self-representation:
Pretrial Tr. pp. 3-7.
Golden then asserted his right to a speedy trial, which caused the court to warn him that a speedy trial might be helpful, but also might put pressure on him to get his case together in a short period. The court repeated its warning regarding self-representation, to which Golden responded, "I know what I'm doing." Pretrial Tr. p. 9. The trial court then set a trial date of December 14, 2015.
At another pretrial hearing held on October 27, 2015, Golden reasserted his right to self-representation, yet he also informed the trial court that he needed time to hire private counsel. At the subsequent November 5, 2015 hearing, Golden informed the trial court that he had been unable to retain private counsel. The trial court then appointed a public defender, Mark Lenyo, to represent Golden. At the next pretrial hearing on November 9, 2015, Golden's appointed public defender indicated that he could not prepare for Golden's trial in time for the December 14 trial date. The following exchange then occurred:
Pretrial Tr. pp. 19-20.
The following day, the trial court brought the parties back into court to discuss the matter further. The court noted that requiring the public defender to prepare for the speedy trial date of December 14 "puts him kinda behind the eight-ball." Pretrial Tr. p. 24. The trial court therefore wanted to ensure that Golden understood that he had "an absolute right to represent" himself. Id. at 25. Golden indicated that he understood. The trial court further informed Golden:
Pretrial Tr. pp. 25-26.
Golden then interrupted: "This is my problem. . . . My kid, my baby mother doesn't want him. So I'm the only one that can take care of the baby. I want to go through this while this trial is being done." Pretrial Tr. p. 26. The trial court warned Golden that, if convicted, he faced a long sentence and would never get to see his child. Golden responded, "And I'm willing to take that chance." Id. The court then noted that there was a hold on Golden from another jurisdiction and that, even if he were acquitted in this case, he might still be in custody. The court continued:
Pretrial Tr. pp. 26-27. Golden responded in no uncertain terms, "I want to keep my trial date." Id. at 27. The court also asked if Golden desired to continue to proceed pro se, to which Golden responded, "Yes, sir." Id. The trial court again asked, "I want to make sure that you are really clear about that," to which Golden again responded in the affirmative. Id.
Still, the trial court was concerned about the situation, and on the next pretrial hearing on November 24, 2015, the court stated:
Pretrial Tr. p. 31. Golden responded, "Yes." The court then had the following discussion with Golden:
Pretrial Tr. pp. 33-36.
The trial court again warned Golden about the dangers of self-representation at yet another pretrial hearing on December 9, 2015, shortly before the trial was to begin. This time, the trial court noted for the record that it had ordered Mr. Lenyo and Mr. Korpal, another public defender, to visit Golden in jail and speak with him regarding the procedures at trial. The court then went over the history of Golden's request to represent himself, his request for a public defender, and his rejection of the public defender who would be unprepared by the time of the speedy trial date. The court also noted that it had the probation department run a records check and confirmed that, contrary to Golden's earlier assertions, there were still two pending parole holds on Golden from California. Thus, the trial court told him, "no matter what happens in this case, you have to understand that you're not going to be getting out of custody." Pretrial Tr. p. 40. Golden seemed unconcerned and stated "I got to take one at a time." Id. The court again warned Golden of the dangers of self-representation, stating:
Pretrial Tr. pp. 40-41. Golden responded simply, "I'm ready for trial." Id. at 41.
One last time, at the very beginning of Golden's trial, the court repeated its history of warnings regarding Golden's decision to represent himself. The court also reiterated that Golden had holds from California that would mean that he would not go free if acquitted, but instead be turned over to California authorities. The court then asked Golden yet again, "And you still said that you did not want to delay the trial, in order to have a lawyer assist you. Is that true?" Golden replied, "Yes." Trial Tr. p. 8. The court then advised Golden about the severity of the sentence he was facing if convicted, and Golden indicated that he understood this. The court continued its discussion with Golden as follows:
Trial Tr. pp. 9-11. The case then proceeded to trial.
During voir dire of the jury panel, the prosecuting attorney asked Juror 49 several questions. Juror 49 indicated that, although he was not enthusiastic about being selected as a juror, he would do so if asked. The prosecuting attorney then asked him, "Okay. On your form I think you also indicated that someone you knew or someone close to you had either the victim or a defendant in a criminal case; is that correct?" Juror 49 responded, "Yes, sir." Id. at 162. When the prosecuting attorney asked, "Can I ask which side it was?" Juror 49 responded, "No, you cannot." Id. Juror 49 then continued:
Id. at 162-63.
The prosecutor continued to question Juror 49 regarding how life experiences can influence one's view of things, and eventually asked, "If your moral feelings doesn't [sic] agree with the law a hundred percent, which one are you going to follow, sir?" Id. at 165. Juror 49 responded:
Id. at 165-66.
Subsequently, the State used a peremptory strike against Juror 49, who was African-American. The trial court determined that the State had a race-neutral reason for using the peremptory strike on the juror: that the stricken juror had told the prosecuting attorney that he was wasting time by asking him questions.
At the end of the three-day trial, the jury found Golden guilty as charged. At the January 15, 2016, sentencing hearing, the trial court entered judgments of conviction on the jury's verdict and sentenced him to sixty-five years on the murder conviction and a consecutive term of forty years on the attempted murder conviction, for an aggregate sentence of 105 years.
Golden first argues that the trial court failed to properly advise him of the risks of representing himself and that his waiver of his right to counsel was therefore not made knowingly and intelligently.
The Sixth Amendment, applicable to the states by way of the Fourteenth Amendment, guarantees a criminal defendant the right to counsel before he may be tried, convicted, and punished. Hopper v. State, 957 N.E.2d 613, 617 (Ind. 2011) (citing Faretta v. California, 422 U.S. 806, 807 (1975)). The Sixth Amendment right to counsel also encompasses the affirmative right for a defendant to represent himself in a criminal case. Id. However, it is "undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts." Id. (internal quotations omitted). Because a defendant who waives his right to counsel forgoes many of the traditional benefits associated with the right to counsel, the defendant must "knowingly and intelligently" forgo these benefits. Id. Accordingly, a defendant who wishes to proceed pro se should be made aware of the dangers and disadvantages of self-representation such that the record will show that he "knows what he is doing and his choice is made with eyes open." Id. (internal quotations omitted).
No particular formula or script must be read to the defendant; instead, the information that must be given depends on a range of case-specific factors, including the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding." Id. (citing Iowa v. Tovar, 541 U.S. 77, 88 (2004)).
Drawing on precedent from the federal Seventh Circuit, our supreme court has held that courts determining whether a waiver of counsel was made knowingly and intelligently must consider: (1) the extent of the court's inquiry into the defendant's decision, (2) other evidence in the record that establishes whether the defendant understood the dangers and disadvantages of self-representation, (3) the background and experience of the defendant, and (4) the context of the defendant's decision to proceed pro se. Id. (citing United States v. Hoskins, 243 F.3d 407, 411 (7th Cir. 2001)).
Here, the trial court engaged in a repeated, extensive inquiry into Golden's desire to represent himself. The trial court repeatedly warned Golden of the dangers of self-representation and of the court's willingness to delay the trial as little as possible for counsel to prepare in order to accommodate Golden's desire for a speedy trial. Still, Golden repeatedly and steadfastly insisted on representing himself. Thus, Golden was well advised of the dangers of self-representation, and the court went out of its way to inquire into Golden's decision to proceed pro se.
Moreover, the record indicates that Golden has an extensive criminal history. Indeed, at sentencing the trial court noted that Golden had a history of delinquent behavior as a juvenile, including brandishing a weapon and assault with a deadly weapon, which would be serious felonies if committed by an adult. He also had several adult felony convictions in California. In other words, Golden had extensive experience in the criminal justice system, further indicating that he knew the dangers and disadvantages of self-representation. Moreover, nothing in the record suggests that Golden suffers from any mental or intellectual problems, and he went to school through the twelfth grade and had no difficulties in understanding the English language.
Golden was insistent on a speedy trial date, as was his right. See Ind. Crim. Rule 4(B)(1).
Under the facts and circumstances present in this case, we have little difficultly in saying that Golden knowingly and intelligently waived his right to counsel. Indeed, we have encountered few cases where a trial court was more thorough in its repeated warnings regarding the dangers of self-representation. Accordingly, we reject Golden's claim that he was denied his right to counsel. See Butler v. State, 951 N.E.2d 255, 261 (Ind. Ct. App. 2011) (holding that defendant knowingly and intelligently waived his right to counsel where trial court, even though it did not repeat its advisements, advised him that defendant had the right to an attorney and that an attorney would be appointed for him if he could not afford one, and where the record indicated that defendant had extensive experience with the criminal justice system and asked for and received appellate counsel); Castel v. State, 876 N.E.2d 768, 771 (Ind. Ct. App. 2007) (holding that defendant did not knowingly and intelligently waiver her right to counsel where trial court neither advised her at trial about her right to counsel nor warned her about the dangers of self-representation and record was devoid of any evidence showing defendant's understanding of the disadvantages of self-representation, her background and experience, or the context of her decision to proceed pro se); Atkinson v. State, 810 N.E.2d 1190, 1192 (Ind. Ct. App. 2004) (holding that defendant did not knowingly and intelligently waive his right to counsel where he was not advised of his right to counsel or the dangers of self-representation).
Golden also claims that the trial court erred in overruling his Batson challenge to the State's use of one of its peremptory challenges to remove an African-American from the jury venire. "Purposeful racial discrimination in selection of the jury 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 Equal Protection Clause of the Fourteenth Amendment. Addison v. State, 962 N.E.2d 1202, 1208 (Ind. 2012) (citing Snyder v. Louisiana, 552 U.S. 472, 478 (2008)). In Batson, the United States Supreme Court set forth a three-part process to address claims of the improper use of peremptory challenges. See id.
First, the defendant need only show circumstances raising an inference that improper discrimination occurred. Id. (citing Johnson v. California, 545 U.S. 162, 170 (2005). At this stage, the defendant's burden is relatively low and commonly referred to as a "prima facie" showing. Id. Using a peremptory strike to remove some African-American jurors does not, by itself, raise an inference of racial discrimination. Addison, 962 N.E.2d at 1208 (citing Kent v. State, 675 N.E.2d 332, 340 (Ind. 1996)). However, the removal of the only African-American juror on the panel does raise an inference that the juror was excluded on the basis of race. Id. (citing McCormick v. State, 803 N.E.2d 1108, 1111 (Ind. 2004); McCants v. State, 686 N.E.2d 1281, 1284 (Ind. 1997)).
If the requirements of the first stage are met, then, at the second stage, the burden shifts to the prosecution to offer a race-neutral basis for striking the juror in question. Addison, 962 N.E.2d at 1208 (citing Synder, 522 U.S. at 477). An explanation is considered race-neutral if, on its face, it is based on something other than race. Id. (citing Forrest v. State, 757 N.E.2d 1003, 1004 (Ind. 2001)). Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral. Id. (citing Purkett v. Elem, 514 U.S. 765, 768 (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.
Third, the trial court must then determine, in light of the parties' submissions, whether the defendant has shown purposeful discrimination. Id. 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 court judge. Id. (citing Jeter, 888 N.E.2d at 1264-65; Miller-El v. Dretke, 545 U.S. 231, 239 (2005)). It is for the trial court to evaluate the persuasiveness of the proffered race-neutral justification at the third step of the analysis. Id. It is at this stage that "`implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.'" Cartwright v. State, 962 N.E.2d 1217, 1221 (Ind. 2012) (quoting Purkett, 514 U.S. 765 at 768. At this final step, the defendant may offer additional evidence to demonstrate that the proffered justification was pretextual. Id.
Upon appellate review, we give great deference to the trial court's decision concerning whether a peremptory challenge is discriminatory, and the trial court's decision will be set aside only if it is clearly erroneous. Id. (citing Forrest, 757 N.E.2d at 1004; Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
Here, Golden challenges the State's use of a peremptory strike to remove Juror 49 from the venire. However, Golden acknowledges that, had Juror 49 not been stricken, he would not have served on the jury; instead, he would have been selected as the second alternate juror.
Neither the United States Supreme Court nor the Seventh Circuit Court of Appeals has yet extended Batson to alternate jurors. See United States v. Canoy, 38 F.3d 893, 899 n.6 (7th Cir. 1994); see also Carter v. Kemna, 255 F.3d 589, 592-93 (8th Cir. 2001). More importantly, this court has held that Batson does not apply to peremptory strikes of alternate jurors who do not participate in deliberations. See Johnson v. State, 722 N.E.2d 382, 382 (Ind. Ct. App. 2000) ("because the alternate juror [on whom the State used a peremptory challenge] did not participate in jury deliberations, Johnson could not have been harmed by the trial court's decision."). Based on this reason alone, we could affirm the trial court's decision. However, even if Batson did apply, Golden would not prevail.
Golden argues that the trial court failed to require the State to meet its burden under the second step of the Batson analysis by offering a race-neutral reason.
We disagree. The prosecuting attorney explained his reason for striking Juror 49 was that the juror, "basically told me that I had been wasting everybody's time by asking all these questions all day, so. . . ." Id. at 174. The trial court also noted that Juror 49 had refused to answer one of the prosecutor's voir dire questions.
Under these facts and circumstances, we cannot say that the trial court's conclusion that the State offered a race-neutral reason was clearly erroneous. The prosecuting attorney's exchanges with Juror 49 were, at times, contentious. Also, the prosecuting attorney gave a facially non-race-based explanation for the use of his peremptory challenge on Juror 49, i.e., that the juror had a negative attitude toward the prosecuting attorney. See Ross v. State, 665 N.E.2d 599, 602 (Ind. Ct. App. 1996) (holding that State's use of peremptory strike on African-American juror was facially race-neutral where it was based on juror's "body language" and the general "lack of rapport" between the juror and the prosecutor). Nor is there any indication here that the State failed to challenge non-African Americans who had given similar responses to Juror 49. Cf. Addison v. State, 962 N.E.2d 1202, 1215 (Ind. 2012) (holding that trial court erred in ruling that State's use of peremptory strike to remove African-American juror was permissible where non-African-American jurors gave answers "strikingly similar" to the answers given by the stricken juror that formed the State's proffered "race-neutral" reason for striking the juror). We therefore conclude that the trial court did not clearly err in rejecting Golden's Batson claim.
The trial court gave repeated and detailed warnings and advisements to Golden regarding his decision to represent himself at trial, and Golden had extensive prior experience in the criminal justice system. His decision to proceed pro se also appears to have been strategic. We accordingly reject Golden's claim that his waiver of his right to counsel was not knowingly or intelligently made. Also, even if Batson were to apply to alternate jurors, the State gave a facially race-neutral reason for its use of a peremptory challenge. Therefore, we cannot say that the trial court's rejection of Golden's Batson claim was clearly erroneous.
Affirmed.
Robb, J., and Brown, J., concur.