Bousquet v. State

Mary BOSQUET v. STATE of Arkansas

CA CR 92-89                                        ___ S.W.2d ___

                  Court of Appeals of Arkansas
                       Divisions I and IV
                Opinion delivered October 8, 1997


1.   Jury -- peremptory challenges -- historical purpose. -- The venerable
     practice of peremptory challenges is designed to promote the
     goal of fairness in jury trials; it is a custom that dates
     back beyond the founding of the Republic to origins in the
     common law; 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.

2.   Jury -- peremptory challenges -- Batson prohibition. -- The exercise of
     peremptory challenges is not without qualification; under the
     holding in Batson v. Kentucky, 476 U.S. 79 (1986), 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; this
     prohibition has been extended to litigants in private matters
     as well.

3.   Jury -- Batson challenge -- three-step procedure. -- Under Batson
     jurisprudence, 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; the ultimate
     burden of persuasion regarding racial motivation rests with,
     and never shifts from, the opponent of the strike.

4.   Jury -- Batson challenge -- when sensitive inquiry required. -- Specific
     procedures must be followed when considering a Batson
     challenge: 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.

5.   Jury -- Batson ruling -- standard of review. -- 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.

6.   Jury -- Batson challenge -- establishment of prima facie case. -- In a
     Batson challenge, a prima facie case of discrimination 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.

7.   Jury -- Batson challenge -- when issue of prima facie showing becomes
     moot. -- 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.

8.   Jury -- Batson challenge -- State's explanation considered race-neutral
     unless discriminatory intent is inherent. -- 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.  

9.   Jury -- Batson challenge -- race-neutral explanations -- trial court's
     findings not clearly against preponderance of evidence. -- Where none of
     the reasons advanced by the State regarding its peremptory
     challenges were peculiarly associated with race, and where no
     discriminatory intent was inherent in the prosecutor's
     explanations, the appellate court concluded that the trial
     court's findings concerning the racial neutrality of the
     State's explanations were not clearly against the
     preponderance of the evidence.

10.  Jury -- Batson challenge -- discriminatory intent -- what trial court must
     consider in determining. -- When a party argues that the reasons
     offered by the State for excluding jurors were merely a
     pretext for racial discrimination, 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; 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.

11.  Jury -- Batson challenge -- discriminatory intent -- great deference
     afforded trial court's exercise of discretion in determining. -- The
     appellate 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 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.

12.  Jury -- Batson challenge -- discriminatory intent -- appellate court
     rejected appellant's contention that State's reasons were pretextual. --
     The exclusion of a white juror for the same reason that black
     jurors are excluded may indicate the lack of discriminatory
     intent; the nonuse of available peremptory strikes to exclude
     black persons from a jury is considered cogent evidence
     indicating the absence of discriminatory motivation; and the
     presence of minority members on the jury, while by no means
     determinative, is significant; when these elements were
     combined with the explanations given by the prosecutor, the
     appellate court could not say that the trial court's finding
     an absence of discriminatory intent was clearly against the
     preponderance of the evidence and therefore rejected appel-
     lant's contention that the reasons offered by the State were
     pretextual.

13.  Appeal & error -- appellate court considers only arguments raised by
     parties. -- Under longstanding procedure, the appellate court is
     to consider only the arguments raised by the parties and is
     not to consider reversing a trial court for unargued reasons;
     by confining itself to the arguments that are raised, it
     strives to avoid the mistaken role of being a "super trial
     court" or an advocate of one party to the appeal.

14.  Jury -- Batson challenge -- State's explanations did not compel conclusion
     of improper discriminatory intent. -- Upon examining 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, the appellate court was
     in no position to say that the explanations given by the State
     were so fantastic or implausible as to compel a conclusion of
     improper discriminatory intent.    


     Appeal from Pulaski Circuit Court, Fourth Division; John
Langston, Judge; affirmed.
     Jeff Rosenzweig, for appellant.
     Winston Bryant, Att'y Gen., by:  Kelly Terry, Asst. Att'y
Gen., for appellee.

     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.  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
in jury 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
challenges 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.  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 Bolan, 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. Bolan 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
long-standing 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.

             Wendell L. Griffen, Judge, dissenting.


PRETEXT (n.)  A reason put forward to conceal one's true
reason.

TRUE (adj.)
1.  In accordance with fact.
2.  In accordance with correct principles or an accepted
standard, rightly so called, genuine and not false.

             Oxford American Dictionary 528, 738 (1980)

[T]he trial court in this case had a duty to do more than
accept without comment, inquiry, or finding of fact the
prosecutor's explanation.  To say that such an
explanation, or any other explanation, may be regarded as
sufficient without any judicial inquiry makes a mockery
of the Batson decision . . . .  Surely any prosecutor can
offer neutral reasons . . . .

                         Colbert v. State, 304 Ark. 250,
                         257, 801 S.W.2d 643 (1990)
                         (Newbern, J., concurring).

     The majority opinion shows that trial courts in Arkansas are
not obligated to conduct any inquiry concerning the genuineness of
racially neutral explanations offered after people of color have
been peremptorily excluded from jury service.  Arkansas follows
this approach despite the promise in Batson v. Kentucky, 476 U.S. 79 (1986), that, in deciding if a party has carried her burden of
persuasion of intentional race discrimination by the way that an
opponent peremptorily excludes minority group members from jury
service, "a court must undertake a `sensitive inquiry' into such
circumstantial and direct evidence of intent as may be available." 
Id. 476 U.S.  at 93 (emphasis added).  I respectfully dissent.
     The State exercised peremptory challenges to exclude four
African-Americans in appellant's trial.  John Johnson and Peter A.
Ware were struck without questioning.  Ruth King and James Bledsoe
were excluded after being questioned.  The prosecutor used four of
his five peremptory challenges to strike African-Americans.  Three
other African-Americans were part of the jury.
     The prosecutor contended that John Johnson was "fidgety," and
that Johnson did not make eye contact during voir dire.  He
asserted that Peter Ware's answer on a juror questionnaire was
unresponsive when it indicated that his education was "general,
plus 41 hours," and that Ware's answer was unresponsive concerning
whether he had children when it contained a zero with a "smiley
face."  The prosecutor also stated concerning Ware:
The fact that his occupation being waiter and cook at
Shug's River House, and he a (sic) 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. . . . Secondly, when I sat down and
I began to tell 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."

The prosecutor explained that he peremptorily challenged King and
Bledsoe because King had been the foreperson and Bledsoe had served
in another drug case that resulted in a hung jury (six votes for
conviction and six votes to acquit).  
     The trial judge simply "accepted" the prosecutor's reasons for
exercising the peremptory challenges as racially neutral.  Despite
argument by appellant's trial counsel (appellant is represented by
different counsel on appeal) that the prosecutor's reasons were
"simply a pretext for the impermissible use of the peremptory
challenge," the trial court made no effort to determine the
genuineness of the racially neutral explanations, and it made no
findings for us to review on that critical issue.  Rather, the
trial judge stated as to John Johnson:  
All right.  The State has stated a racially neutral
reason, which this Court accepts based upon the overall
circumstances of this case, including the fact that there
was--that the State did not strike a black juror for
which it had an opportunity to strike, namely Mrs. Geneva
Higgins.

I notice that Mrs. Higgins has been here on several other
occasions.  But, based upon that, the overall
circumstances of the case, I accept that as a racially
neutral reason as has been previously accepted in other
cases, even other cases out of this Court.  So not
regarding the untimeliness of the motion, this Court
would not -- would have overruled the Batson objection in
any event.

     As to Ware, the trial judge stated:
The Court accepts the State's explanation as being
racially neutral, and based in (sic) the obvious evidence
in this case, I would note that also at this point the
State has several challenges left. . . . There are now
two black jurors seated on this jury that the defense, I
mean that the State could have struck because they had
peremptory challenges available to them, and so motion,
your objection based upon Batson v. Kentucky is denied.

     As to Ruth King, the trial court stated concerning appellant's
Batson objection:
The Court finds that [King's vote to acquit in a
different case] to be a racially neutral and acceptable
reason in this matter, and so your motion is overruled,
Sir.

     The court's ruling as to James Bledsoe was as follows:
The fact that the State has stated that Mr. Bledsoe sat
on the same jury with Mrs. King and Mrs. Bolan [a white
person also peremptorily challenged], which they have
also struck, Mrs. Bolan being white, and Mrs. King and
Mr. Bledsoe being black, that is a racially neutral
reason that has been accepted in other cases, the fact
that they have sat on hung juries.  They have also struck
a white for the same reason that they say was on the same
jury, and it is their information that these folks also
voted against them somehow.  But, they say that other
reasons against Mr. Bledsoe, the statement that they have
previously sat on juries which did not reach a verdict,
and feeling that they were a cause of it, and because it
is a similar case involving narcotics, and it was
undercover agents versus other persons.  In other words,
the same or similar circumstances the Court feels that
that's a racially neutral reason, and your motion will be
overruled.

     However, Batson v. Kentucky and other cases clearly require
that trial courts do more than "accept" a prosecutor's racially-
neutral explanations for using peremptory challenges to exclude
persons of color from jury service.  The Supreme Court observed in
Batson that trial courts must undertake a "sensitive inquiry" into
available circumstantial and direct evidence of discriminatory
intent in deciding if a criminal defendant has carried the burden
of persuasion on the discrimination claim.  Batson, 476 U.S.  at 93. 
The Court recognized that using peremptory challenges to exclude
persons of color from jury service violates the Equal Protection
Clause of the Fourteenth Amendment to the Constitution of the
United States.  As Justice Powell stated in the majority opinion:
Although a prosecutor ordinarily is entitled to exercise
permitted peremptory challenges "for any reason at all,
as long as that reason is related to his view concerning
the outcome" of the case to be tried, the Equal
Protection Clause forbids the prosecutor to challenge
potential jurors solely on account of their race or on
the assumption that black jurors as a group will be
unable impartially to consider the State's case against
a black defendant.

Batson, supra, 476 U.S.  at 89 (citations omitted).  
     The decisions in Ward v. State, 293 Ark. 88, 733 S.W.2d 728
(1987), and Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988),
show that the Arkansas Supreme Court once followed the Batson
standard by requiring that trial judges conduct a "sensitive
inquiry" aimed at evaluating the genuineness and sufficiency of a
prosecutor's racially neutral explanations for using peremptory
challenges to exclude persons of color from jury service.  In Ward,
the supreme court reversed and remanded Ronald Ward's convictions
and death sentences for murdering three people.  The prosecutor
exercised all eight of his peremptory challenges to strike African-
Americans from the jury, but the trial court failed to rule on the
prosecutor's race-neutral explanations.  Our supreme court relied
on Batson v. Kentucky and the requirement that a trial judge
undertake a "sensitive inquiry" into the direct and circumstantial
evidence available to decide if the prosecutor's racially neutral
explanations were genuine.  Ward, at 93, 733 S.W.2d  at 730.
     A year later the supreme court reversed and remanded Lonnie
Mitchell's convictions for kidnapping, rape, and battery for which
he had received separate life sentences on the kidnapping and rape
convictions, and thirty years' imprisonment on the battery
conviction.  Mitchell, supra.  In that case the prosecutor
peremptorily struck the only African-American from the jury and
explained that the black juror was struck because the prosecutor
doubted his truthfulness and candor in responding to direct
questions during voir dire.  Writing for the court, Justice Newbern
stated:
Mitchell made a prima facie case of discrimination in the
prosecution's use of its peremptory challenge to remove
the only black prospective juror after questioning him
closely on whether his race would affect his vote. 
Absent inquiry by the court, we have before us no factual
determination whether the prosecutor was assuming Mr.
Petty could not withstand the racial pressures and thus
assuming he could not have been answering truthfully on
that subject.  The court has a duty to go beyond the
prosecutor's explanation and make a "sincere and
reasoned" effort to evaluate its genuineness and
sufficiency "in the light of all the circumstances of the
trial." 
                    . . .

Because the trial court accepted the prosecutor's
explanation at face value and made no inquiry, we need
not consider the explanation's validity to decide this
case.  We must note, however, that the explanation was
one which could have been given with respect to any
venire person and could be used to screen improper
motive.

Mitchell v. State, 295 Ark. at 348-49, 750 S.W.2d  at 940 (emphasis
added, citations omitted).
     However, since 1990, Arkansas has followed the procedure that
when a racially neutral explanation is offered (step 2), the trial
court must then merely determine from all relevant circumstances
whether the racially neutral explanation is sufficient.  Colbert v.
State, 304 Ark. 250, 801 S.W.2d 643 (1990).  In Colbert, our
supreme court reversed and remanded a conviction for delivery of a
controlled substance -- rock cocaine -- and a sentence of life
imprisonment and fine of $25,000, because a trial judge failed to
rule on the sufficiency or insufficiency of racially neutral
explanations offered by a prosecutor who struck two black members
of the venire, leaving the defendant to be tried by an all-white
jury.  The court focused on whether the trial judge should have
ruled on whether the prosecutor's explanation for excluding the
black venire persons was sufficient to be racially neutral, as the
following excerpt from the majority opinion demonstrates:
We could infer from the fact that the trial proceeded
without any action being taken that the court accepted as
sufficient the prosecutor's "racially neutral"
explanation, and we could then discuss whether we agree
or disagree with the trial court that the reasons given
by the state were sufficient to satisfy the issue raised
by the appellant.  Under our previous holdings, however,
even if the state's explanation satisfied the trial
court, the court was still required to make a sensitive
inquiry to eliminate any possibility of racial bias. See
Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988).

                      . . .

We now hold that upon a showing by a defendant of
circumstances which raise an inference that the
prosecutor exercised one or more of his peremptory
challenges to exclude venire persons from the jury on
account of race, the burden then shifts to the State to
establish that the peremptory strike(s) were for racially
neutral reasons.  The trial court shall then determine
from all relevant circumstances the sufficiency of the
racially neutral explanation.  If the State's explanation
appears insufficient, the trial court must then conduct
a sensitive inquiry into the basis for each of the
challenges by the State.

The standard of review for reversal of the trial court's
evaluation of the sufficiency of the explanation must
test whether the court's findings are clearly against a
preponderance of the evidence.  In every instance,
however, the court shall state, in response to the
defendant's objection, its ruling as to the sufficiency
or insufficiency of the racially neutral explanation
provided by the State.

Colbert at 254-55, 801 S.W.2d  at 645-46 (emphasis added).  In a
separate concurring opinion, joined by Justices Dudley and Glaze,
Justice Newbern agreed that the racially neutral explanations given
by the prosecutor were "thin," and that reversal was justified
because the trial court did not conduct the "sensitive inquiry"
prescribed in Batson.  However, Justice Newbern objected that the
majority opinion had gone "out of its way to strike with crippling
blows" the opinions in Ward and Mitchell, stating:
This case is a good example of the kind in which the
requirement for a sensitive inquiry by the trial court is
proper, and it is a good example to show why it is
required.

While the defendant may have an overall burden of proof
on the issue of discrimination in the selection of
jurors, I believe it is clear, and the majority opinion
here recognizes, that once the prima facie display has
been brought to the court's attention, the burden of
going forward with the evidence clearly shifts to the
prosecution.  When a pattern or other evidence of
discrimination, either in the case at hand, or
historically, appears, the defendant has demonstrated the
need for a factual inquiry . . .

The majority opinion recognizes that the trial court in
this case had a duty to do more than accept without
comment, inquiry, or finding of fact the prosecutor's
explanation.  To say that such an explanation, or any
other explanation, may be regarded as sufficient without
any judicial inquiry makes a mockery of the essence of
the Batson decision.

Had the trial court inquired behind the prosecution's
racially neutral explanations, we would probably not have
this issue before us.  While I agree with the majority
opinion that the explanations appear to be "thin," given
other factors in the record, I am not certain that they
might not have been wholly racially neutral.  The problem
is that the trial court, despite his much better position
than ours for doing so, did not attempt to find out. 
Surely any prosecutor can offer neutral reasons . . . .

Colbert at 257, 801 S.W.2d  at 647 (emphasis added).
     Since Colbert, our supreme court has held that Batson
challenges do not require a trial court to undertake a "sensitive
inquiry" into the genuineness of racially neutral explanations
offered when black members of a venire are peremptorily excluded
where it has found the racially neutral explanations "sufficient." 
See Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997);
Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996); Prowell v.
State, 324 Ark. 335, 921 S.W.2d 585 (1996); and Hollamon v. State,
312 Ark. 48, 846 S.W.2d 663 (1993).
     However, in Purkett v. Elem, 514 U.S.    , 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995), the United States Supreme Court issued a per
curiam opinion that explains when the plausibility of racially
neutral explanations should be examined: 
Under our Batson jurisprudence, once the opponent of a
peremptory challenge has made out a prima facie case of
racial discrimination (step 1), the burden of production
shifts to the proponent of the strike to come forth with
a race-neutral explanation (step 2).  If a race-neutral
explanation is tendered, the trial court must then decide
(step 3) whether the opponent of the strike has proved
purposeful racial discrimination. . . . The second step
of this process does not demand an explanation that is
persuasive, or even plausible.  "At this [second] step of
the inquiry, the issue is the facial validity of the
prosecutor's explanation.  Unless a discriminatory intent
is inherent in the prosecutor's explanation, the reason
offered will be deemed race neutral. . . .

It is not until the third step that the persuasiveness of
the justification becomes relevant -- the step in which
the trial court determines whether the opponent of the
strike has carried his burden of proving purposeful
discrimination.  At that stage, implausible or fantastic
justifications may (and probably will) be found to be
pretexts for purposeful discrimination.

Id., 131 L. Ed. 2d  at 839 (citations omitted, emphasis added).
     Thus, Batson and Purkett show that trial judges must make
explicit findings about the sufficiency and genuineness of the
racially neutral explanations given by parties whose peremptory
challenges raise prima facie claims of race discrimination. 
Purkett shows that trial courts are obligated to scrutinize
racially neutral explanations for genuineness -- not mere
sufficiency -- as part of the third step of the Batson analytical
process, and before deciding if the Batson movant has met her
burden of proving intentional race discrimination by a
preponderance of the evidence.  That position is simply consistent
with the Supreme Court's requirement in Batson that trial courts
undertake a "sensitive inquiry" into the available evidence
regarding a prosecutor's allegedly discriminatory intent before
deciding if a Batson movant has carried her burden of persuasion. 

     The Effect of Failing to Undertake a "Sensitive Inquiry"
     Regarding Genuineness of Racially Neutral Explanations

     Here the trial court undertook no inquiry, sensitive or
otherwise, designed to assess the genuineness of the prosecutor's
racially neutral explanations.  It made no findings about the
genuineness of the racially neutral explanations.  Had the trial
court conducted the required "sensitive inquiry" and made findings,
then we could review the totality of the circumstances surrounding
each challenge and the racially neutral explanations to decide
appellant's claim that the trial court's Batson rulings are clearly
against the preponderance of the evidence.  But without the
requisite inquiry and findings mandated by Batson and Purkett, we
have nothing to review on the crucial pretext question that is
central to deciding whether discriminatory purpose has been
established under equal protection analysis.  See Washington v.
Davis, 426 U.S. 229 (1976).
     Like the situations in Ward and Mitchell, the trial court in
this case "accepted" the prosecutor's explanations for peremptorily
challenging Johnson, Ware, King, and Bledsoe at face value, did not
"go beyond the prosecutor's explanation," and failed to make "a
`sincere and reasoned' effort to evaluate [their] genuineness and
sufficiency `in the light of all the circumstances of the trial.'" 
Mitchell v. State, supra, 295 Ark. at 348, 750 S.W.2d  at 940.  As
in Mitchell, the prosecutor's racially neutral explanations for
excluding Johnson, Ware, King, and Bledsoe could have been given to
screen a discriminatory motive.  But without the "sensitive
inquiry" mentioned in Batson that Purkett held proper at the third
step of the Batson process, the trial court could not possibly have
found that the prosecutor's explanations withstood pretext scrutiny
and were genuine. 
     Merely because a jury includes one or more members of a racial
minority does not mean that racially neutral explanations for
excluding others are genuine.  Yet, in ruling on appellant's Batson
objections, the trial court repeatedly mentioned that the
prosecutor had not struck other African-Americans.  The Fourteenth
Amendment's equal protection guarantee, as Batson and Purkett show,
means that whenever a prosecutor presents a race-neutral
explanation for peremptorily excluding a person of color from the
jury within the context of a Batson challenge, then a trial judge
must make findings concerning the explanation based upon a
"sensitive inquiry" into its genuineness.  That duty does not
depend on whether there are other persons of color seated on the
jury.  The United States Supreme Court recognized this truth in
Batson when it stated:
"A single invidiously discriminatory governmental act" is
not "immunized by the absence of such discrimination in
the making of other comparable decisions."  For
evidentiary requirements to dictate that "several must
suffer discrimination" before one could object would be
inconsistent with the promise of equal protection to all.

Id. at 95-96 (quoting Arlington Heights v. Metropolitan Hous. Dev.
Corp., 429 U.S. 252, 266 (1977), and McCray v. New York, 461 U.S. 961, 965 (1983)) (Marshall, J., dissenting from denial of
certiorari).  Equal protection for all requires equal protection
for everyone.
     Justice Newbern was right in Colbert, supra, that "any
prosecutor can offer neutral reasons" for exercising peremptory
challenges.  That is why trial judges must, under Batson and
Purkett, "distinguish bona fide reasons for such peremptories from
sham excuses belatedly contrived to avoid admitting acts of [race]
discrimination."  People v. Wheeler, 22 Cal. 3d 258, 282, 148 Cal. Rptr. 890, 583 P.2d 748 (1978).  The "sensitive inquiry" required
by Batson and Purkett obligates trial courts to inspect racially
neutral explanations and determine if they are genuine, or simply
shams offered to conceal discriminatory intent contrary to the
constitutional guarantee of equal protection for every litigant and
every potential juror.  
     Race discrimination in the "venerable" practice of peremptory
challenges was legal for almost 370 years before Batson was decided
in 1986.  It has hidden behind racially neutral explanations for
barely more than a decade.  Given the widespread and longstanding
practice of peremptorily eliminating persons of color from juries,
it is both unrealistic and unreasonable to expect that prosecutors
who articulate racially neutral explanations for exercising
peremptory challenges will not do so to conceal discriminatory
intent.  Justice Thurgood Marshall addressed this reality in his
concurring opinion in Batson as follows:
     Any prosecutor can easily assert facially neutral reasons
     for striking a juror . . . Nor is outright prevarication
     by prosecutors the only danger here.  "[I]t is even
     possible that an attorney may lie to himself in an effort
     to convince himself that his motives are legal."  A
     prosecutor's own conscious or unconscious racism may lead
     him easily to the conclusion that a prospective black
     juror is "sullen," or "distant," a characterization that
     would not have come to his mind if a white juror had
     acted identically.  A judge's own conscious or
     unconscious racism may lead him to accept such an
     explanation as well supported . . . . [P]rosecutors'
     peremptories are based on their "seat-of-the-pants
     instincts" as to how particular jurors will vote.  Yet
     "seat-of-the-pants instincts" may often be just another
     term for racial prejudice. 
Batson, supra, 476 U.S.  at 106 (quoting King v. County of Nassau,
581 F. Supp. 493, 502 (E.D. NY. 1984)(citations omitted).
     Discriminatory intent will seldom be apparent.  Trial judges
are not clairvoyant.  Therefore, the "sensitive inquiry" that
Batson and Purkett  command is vital to ensure that equal
protection is provided every litigant and venire person.  When
trial judges "go beyond the prosecutor's explanation and make a
sincere and reasoned effort to evaluate its genuineness and
sufficiency in the light of all the circumstances of the trial,"
Mitchell v. State, supra, they are more likely to uncover a sham
than by blindly accepting the prosecutor's explanation at face
value.  "[S]eek and ye shall find," (Luke 9:11) is as valid
regarding discriminatory intent and pretext as it is for moral
truth.  Likewise, those who look for nothing usually find it. 
     Had the trial judge conducted a "sensitive inquiry" aimed at
evaluating the genuineness of the prosecutor's racially neutral
reasons for peremptorily challenging Johnson, Ware, King, and
Bledsoe, he could have asked the prosecutor to explain why he
determined Ware to be "unresponsive" about his education and
parental status, especially after failing to question Ware during
voir dire.  The prosecutor could have been asked why Ware's
occupation as a restaurant cook and waiter suggested that he did
not consider jury service "seriously," particularly when the
prosecutor did not challenge John Yates, a white man who worked as
a stocker for Sam's Wholesale.  Why was the way that Ware looked at
the deputy prosecutor so different from the way that other persons
in the venire looked at her that Ware was unlikely to be fair and
impartial?  If Ware was "staring" at the deputy prosecutor rather
than paying attention, why didn't the lead prosecutor notice it? 
Why were King and Bledsoe deemed unfit to fairly and impartially
weigh the evidence and apply jury instructions based on their
service on an evenly divided jury that had disagreed on whether the
prosecution met its burden of proof in a previous and unrelated
drug case?  The trial judge could have compared his assessment of
Johnson's attentiveness during voir dire with the prosecutor's
claim that Johnson was "fidgety" and inattentive.  These questions,
by no means exhaustive, illustrate the type of inquiry that the
trial court should have undertaken under the Batson and Purkett
holdings to decide whether the prosecutor's racially neutral
explanations were genuine or merely pretexts made to mask
discriminatory intent.  The prosecutor's responses to these
questions would have not only provided the trial judge with the
information needed to determine if the racially neutral
explanations were pretextual, but they would have also been part of
the total record for appellate review of the trial court's findings
on the pretext issue.  It is regrettable that this type of inquiry
is no longer deemed necessary or worthwhile in Arkansas.
     Frederick Douglass once said, "There is no Negro problem.  The
problem is whether the American people have loyalty enough, honor
enough, patriotism enough, to live up to their own Constitution  
. . . ."  His words ring painfully true as one considers the
references to the "venerable" practice of peremptory challenges in
the majority opinion.  Judging from those references, one would
think that the peremptory challenge is part of our fundamental
rights and equal protection a lesser thing.  When one considers
that the reverse is the case, then Douglass's words not only ring
true, they bring to mind the words of Stephen Vincent Bent, who
wrote, "The loves we had were far too small."
     Despite Batson's requirement for a "sensitive inquiry,"
peremptory challenges in Arkansas can now exclude persons of color
from jury service, and Batson objections will be overruled, without
inquiries and findings concerning whether implausible, fantastic,
superstitious or otherwise racially neutral explanations are merely
pretexts for discriminatory intent.  Batson and Purkett show that
the equal protection guarantee demands much more than that.  At a
minimum, the equal protection guarantee, forged into our
fundamental notion of rights after 250 years of slavery and another
120 years of legalized discrimination, demands that claims of
discriminatory motive in exercising peremptory challenges not be
trivialized.
     I respectfully dissent.