Bosquet v. State

Judith Rogers, Judge. The appellant, Mary Bousquet, was convicted in a jury trial of two counts of delivering a controlled substance (cocaine), for which she was sentenced to consecutive terms of fifteen years in prison.1 She contends on appeal that the trial court erred in allowing the State to exercise its peremptory challenges to exclude black persons in violation of Batson v. Kentucky, 476 U.S. 79 (1986). We find no merit in her argument and affirm. As an initial matter, we note that the “venerable practice” of peremptory challenges is designed to promote the goal of fairness injury trials. Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997) (citing Holland v. Illinois, 493 U.S. 474 (1990)). It is a custom which dates back beyond the founding of the Republic to origins in the common law. Id. The historical practice of allowing a litigant to strike jurors for any reason came into being for the purpose of fostering both the perception and the reality of an impartial jury. Id. However, the exercise of peremptory chahenges is not without qualification. In Batson, supra, the United States Supreme Court held that the Equal Protection Clause of the United States Constitution forbids a prosecutor in a criminal case to use his or her peremptory challenges to exclude jurors solely on the basis of race. Id. at 84. This prohibition has been extended to litigants in private matters as well. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991). Under Batson jurisprudence, as recently enunciated by the Court in Purkett v. Elem, 514 U.S. 765 (1995), once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a'race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful discrimination.2 In Purkett, the Court restated the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Our courts have adhered to the guidelines prescribed by the Supreme Court and have developed specific procedures to be followed when considering a Batson challenge. Sonny v. Balch Motor Co., supra. As was reiterated by the court in Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996), cert. denied 117 S.Ct. 979 (1997): First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event that the defendant makes a prima facie case, the State has the burden of showing that the challenge was not based upon race. Only if the defendant makes a prima facie case and the State fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry. Id. at 514, 931 S.W.2d at 410 (quoting Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996). The standard of review for reversal of a trial court’s Batson ruling is whether the trial court’s findings are clearly against the preponderance of the evidence. Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996). Appellant is an African-American. At trial, she raised Batson objections to the State’s use of peremptory challenges to exclude four African-Americans from the jury. The first objection came when the State struck prospective juror John Johnson. The prosecutor explained that this juror was excluded because he was fidgety, refused to make eye contact with him, and seemed to be uncomfortable and inattentive. The prosecutor further stated that Mr. Johnson “looked away when asked if he agreed with the law against selling cocaine. I interpreted that to be possibly some hesitancy on his part.” The court found that the prosecution had stated a race-neutral reason for the exclusion of this juror and overruled appellant’s objection, noting that one African-American had been seated and that the State had not used its remaining strikes to exclude that juror. The second objection was made when the State used a strike to eliminate Peter Ware from the jury. The prosecutor responded to the motion by saying: [t]he juror on the questionnaire gives his age 25. He says, Education, and next to that he says “general, plus 41 hours.” I don’t know any other juror that I’ve seen a questionnaire where that answer seems to be so unresponsive. I don’t know what “general, plus 41 hrs.,” meaning hours, means. Secondly, on the line where its says “number of children,” this defendant, this juror, excuse me, has drawn a, what I would call a “smiley face,” which consists of a circle with a little smiley face therein, similar to those types of faces which are on those little stickers which previously might have said, “Have a nice day.” The fact that this juror has filled out this questionnaire in what I consider to be a very cavalier fashion, also the fact that his occupation being a waiter and cook at Shug’s Riverhouse, and he’s a 25 year old person, indicates to me, Your Honor, that this juror does not take this particular exercise very seriously, nor is he the type of person who, when asked questions, responds in a reasonable manner. I would conclude from that that this juror is not the type of person that I want on this jury where he could listen to certain testimony and make decisions and make responses in his own mind that would be reasonable. Secondly, when I sat down with Ms. Fowler, who is a deputy prosecuting attorney, about this questionnaire which I saw, Ms. Fowler looked at me and said, “You know, because all during your voir dire this juror stared at me and never quit staring.” And, Your honor, based on that, it has absolutely nothing to do with the fact that this is a black person. And the court would recall that just on these last people who were called there was a black female, probably close to the age of this defendant which was, who was looking at me all during the voir dire, was answering questions by nodding yes or no like the other jurors were, and there was, I have no problem with that because of her race. But I do have a problem with this juror because of the questionnaire and that I because of what Ms. Fowler said that this person never looked at me once when I was asking him questions. The trial court accepted the State’s explanation as being racially neutral and overruled appellant’s objection, observing that the State had not used one of its remaining strikes to exclude another black juror in the group and that there were currently two black persons who had been selected for service on the jury. Appellant’s third objection was made when the State excluded juror Ruth King. In explaining the exclusion of Ms. King, the prosecutor stated that she had been the foreperson of the jury on a previous drug-related case that had resulted in a hung jury. He said that he had been surprised by that outcome because the case was a strong one where police officers had seen the defendant dispose of cocaine as they approached him. He recalled that Ms. King seemed hostile to him during closing arguments in that case, and he had learned that she had voted to acquit. He also pointed out that he had used a peremptory challenge to exclude from this jury a white person, Kathy Bolán, who had sat on the hung jury with Ms. King and had also voted to acquit. The final objection was raised to the State’s use of a strike against juror James Bledsoe. In response to the objection, the prosecutor explained that Mr. Bledsoe had sat on the same hung jury with Ms. King and Ms. Bolán and that he, too, had voted to acquit. The prosecutor further stated that Mr. Bledsoe had seemed antagonistic toward him in the previous case, which pitted the credibility of the police against .that of the defendant. He felt that Mr. Bledsoe bore hostility toward the police. The court accepted the State’s explanation as being race-neutral and overruled appellant’s objection. The court observed that the previous case and the case at bar both involved narcotics and the credibility of the police and that the State had struck a white juror for the same reason. At the conclusion of voir dire, the court stated: In order to complete the record on the Batson objections, I would note that there are three black jurors seated on this current jury, namely Mrs. Laura Montgomery, Mrs. Catherine Burns, and Mrs. Geneva Higgins. Two of these black jurors were seated and accepted while the State still had strikes remaining and could have struck them. As one court put it, this is not a monochromatic jury. The percentage or proportion of the jurors on this jury, on the seated jury, exceeds the racial make-up of this community, which, I understand, is less than 20%, about 16%. Prima Facie Case A prima facie case may be established by: (1) showing that the totality of relevant facts gives rise to an inference of discriminatory purpose; (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury; or (3) showing a pattern of strikes, questions, or statements by a prosecuting attorney during voir dire suggesting racial motivation. Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996). In the case at hand, the trial court asked the prosecutor to enunciate his reasons for the strikes immediately after each objection was made. In this situation, once a prosecutor has offered 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 becomes moot. Prowell v. State, supra; see also Cleveland v. State, 326 Ark. 46, 930 S.W.2d 316 (1996). Consequently, we will assume the existence of a prima facie case for purposes of our review. Race-Neutral Explanations According to the decision in Purkett v. Elem, supra, at this stage of the analysis the proponent of a peremptory challenge is not required to offer an explanation that is either plausible or persuasive. The issue is the facial validity of the prosecutor’s explanation; it must be a reason that does not implicate the denial of equal protection. Unless discriminatory intent is inherent in the State’s explanation, the reason offered is to be considered race-neutral. In Purkett, the explanation offered for excusing the juror was that he had long, unkempt hair, as well as a mustache and beard. The Court held that the explanation was race-neutral in that shagginess and the wearing of facial hair is not peculiar to any race. Here, although the appellant presents no direct challenge to the trial court’s findings that the reasons offered by the State were race-neutral, we have no hesitancy in concluding that they were. None of the reasons advanced are peculiarly associated with race, and we can discern no discriminatory intent inherent in the prosecutor’s explanations. See e.g., Hugh Chalmers Chevrolet-Cadillac-Toyota, Inc. v. Lang, 55 Ark. App. 26, 928 S.W.2d 808 (1996). A juror’s hesitancy to follow the law has been accepted as a race-neutral explanation, Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996), as well as a prosecutor’s feeling that he “had gotten some mixed signals about what [a prospective juror] would require in terms of the State’s proof.” Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995). Striking a juror for the reason that the juror had been on a jury that had acquitted a criminal defendant has been accepted as a race-neutral explanation. Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994). Also, our supreme court has recognized that challenges based on a juror’s age, demeanor during voir dire, and employment background are acceptable as race-neutral explanations. Sonny v. Balch Motor Co., supra. The trial court’s findings concerning the racial neutrality of the State’s explanations are not clearly against the preponderance of the evidence. Discriminatory Intent Appellant’s argument for reversal is directed toward this stage of the inquiry. She argues that the reasons offered by the State for excluding these jurors were merely a pretext for racial discrimination. At this juncture, the persuasiveness of the State’s reasons becomes relevant in determining whether the opponent of the strike has carried her burden of proving purposeful discrimination. Purkett v. Elem, supra. The trial court must consider the evidence and explanations presented along with its observations of the proceedings to determine whether the neutral explanations given are genuine or pretextual. Sonny v. Balch Motor Co., supra. Our standard of review affords great deference to the trial court’s exercise of discretion in determining discriminatory intent relating to the use of a peremptory strike. This is so because the question turns largely on the issue of credibility, and the trial court is in a superior position to judge the truthfulness of the prosecutor’s explanation with respect to the demeanor of the juror involved. Id. The trial court in this instance considered the overall facts and circumstances and found the prosecutor’s explanations to be persuasive. In finding the absence of discriminatory intent, the court observed that the first two jurors in question were struck at a time when black persons had been seated on the jury, even though the State had strikes available which it could have used to remove them. The court also found that the remaining jurors were struck for the same reason that a white person was excluded. The court further found that there were three black persons seated on the jury and that the percentage of black persons on the jury exceeded that found in the community. It has been said that a prosecutor’s failure to apply a stated reason for striking black jurors to similarly situated white jurors may evince a pretext for excluding jurors solely on the basis of race. Ford v. Norris, 67 F.3d 162 (8th Cir. 1995). We think the converse is equally true - that the exclusion of a white juror for the same reason that black jurors are excluded may indicate the lack of discriminatory intent. Also, the non-use of available peremptory strikes to exclude black persons from a jury is considered cogent evidence indicating the absence of discriminatory motivation. See e.g. Cleveland v. State, supra; Watson v. State, 318 Ark. 603, 887 S.W.2d 518 (1994); Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993). And, the presence of minority members on the jury, while by no means determinative, is significant. Cooper v. State, supra. When these elements are combined with the explanations given by the prosecutor, we cannot say that the trial court’s finding is clearly against the preponderance of the evidence. Therefore, we must reject appellant’s contention that the reasons offered by the State were pretextual. With all due respect for the dissenting judge’s opinion, it is one that exceeds the bounds of the argument raised on appeal. The appellant does not contend that the trial court failed to adequately delve into the reasons asserted by the State for its exercise of the strikes. It is appellant’s sole contention that the reasons, based on this record, were pretextual and that the trial court’s finding to the contrary is clearly erroneous. Under longstanding procedure, this court is to consider only the arguments raised by the parties, and we are not to consider reversing a trial court for unargued reasons. Hancock v. First Stuttgart Bank, 53 Ark. App. 150, 920 S.W.2d 36 (1996). By confining ourselves to the arguments that are raised, we are striving to avoid the mistaken role of being a “super trial court” or an advocate of one party to the appeal. That is not our function as an appellate court. In sum, when we examine the facts and circumstances surrounding the exercise of the strikes and give due deference to the trial court’s superior position to evaluate the prosecutor’s responses, we are in no position to say that the explanations given were so fantastic or implausible as to compel a conclusion of improper discriminatory intent. Affirmed. Neal, Pittman, Arey, and Crabtree, JJ., agree. Griffen, J., dissents. Footnotes [1] Appellant’s conviction occurred in 1991. However, in 1992, we dismissed her direct appeal for failure to prosecute. In 1996, appellant retained new counsel and sought reinstatement of her appeal. We granted that request on November 27, 1996. [2] Appellant raises the issue that we must apply the law of Batson as it existed at the time of her trial in 1991. We reject that argument as it is contrary to the decision in Griffith v. Kentucky, 479 U.S. 314, 328 (1987), where the Court specifically addressed the retroactivity of its ruling in Batson and held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.”