Cleveland v. State

Bennie Lamar CLEVELAND v. STATE of Arkansas

CR 96-186                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 23, 1996


1.   Jury -- Batson argument -- issue of prima facie showing moot
     where no challenge is raised and court hears race-neutral
     explanations. -- The supreme court held that where no
     challenge to a prima facie case is raised and where the trial
     court proceeds to hear the prosecutor's race-neutral
     explanations and then denies a Batson motion, the issue of a
     prima facie showing is moot.

2.   Jury -- Batson argument -- standard of review for reversal of
     trial court's ruling. -- Where the issue of a prima facie
     showing was moot, the relevant Batson inquiry then became
     whether the trial court was correct in denying the mistrial
     motion based on the reasons given; the supreme court's
     standard of review in such matters is whether the court's
     finding of satisfactory reasons was clearly against the
     preponderance of the evidence.

3.   Jury -- Batson argument -- no fault in trial court's
     acceptance of prosecutor's reasons for peremptory strikes. --
     The supreme court found no fault in the trial court's
     acceptance of the prosecutor's reasons for exercising
     peremptory strikes where two prospective jurors were seen
     making eye contact with or mouthing words to appellant; where
     another prospective juror had been charged with second-degree
     battery and was believed to be prejudiced against the State;
     where another prospective juror knew members of both
     appellant's and the victim's families; and where one minister
     expressed concern about sitting in judgment of others, and a
     second minister contended that it would be a hardship to serve
     on the jury, vote to convict appellant, and then counsel other
     prisoners, including appellant.

4.   Jury -- Batson argument -- presence of members of race in
     question and State's use of only seven of ten peremptory
     challenges satisfied Batson. -- One of the best answers to a
     challenge of racial discrimination is to point to a jury that
     is comprised of members of the race in question; where
     appellant's jury contained eight black members and two black
     alternates, and the State had used only seven of its ten
     peremptory strikes, these two elements, combined with the
     explanations given by the prosecutor at trial, required that
     the case be affirmed.


     Appeal from Desha Circuit Court; Sam Bird, Judge; affirmed.
     Alvin Schay, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.

     Robert L. Brown, Justice.
     This is the third time that we have considered matters
relating to appellant Bennie Lamar Cleveland's crimes committed on
December 29, 1991.  We first affirmed the judgments against
Cleveland for capital murder, attempted capital murder, kidnapping,
aggravated robbery, and theft of property.  See Cleveland v. State,
315 Ark. 91, 106-A, 865 S.W.2d 285, 292 (1993).  The United States
Supreme Court, however, vacated our decision and requested that we
reconsider the appeal in light of J.E.B. v. Alabama, 511 U.S. ___,
114 S. Ct. 1419 (1994).  We did so and reversed the judgments and
remanded the matter for a new trial.  See Cleveland v. State, 318
Ark. 738, 888 S.W.2d 629 (1994).  In July 1995, Cleveland was
retried and convicted of first-degree murder, attempted capital
murder, and theft of property.  He was sentenced to life in prison
for first-degree murder, twenty years for attempted capital murder,
and five years on the theft-of-property charge, with all sentences
to run consecutively.  Cleveland now raises one issue on appeal:
that the trial court erred in failing to declare a mistrial based
on his Batson objection.  We hold that there is no basis for
reversal, and we affirm.
     On December 29, 1991, at approximately 9:00 p.m., Wendall
Moten got out of a car driven by Cleveland and entered Cash's Quick
Check, a convenience store in McGehee.  Moten later testified that
his purpose was to determine whether Paula Easter, who was employed
as a cook at Cash's, was there.  Moten returned to the car,
informed Cleveland that Easter was in the store, and shortly
thereafter, Cleveland entered Cash's brandishing a loaded .22
caliber pistol.  Moten accompanied him armed with a shotgun, which
was fired into the wall.  Easter, Michelle Nagle, who was a cashier
at Cash's, and a customer named Willard Blackmon were in Cash's at
the time.  
     Cleveland approached the booth where Easter, Nagle, and
Blackmon were talking and said: "I told you that no police could
keep me away from you."  By the time the three realized what was
happening, he fired a single shot at Michelle Nagle.  The bullet
entered her right arm and exited into her upper chest, which caused
her to die almost immediately.  The State's firearms expert
testified that, in his opinion, the shot was fired from a distance
of two to four feet.
     Willard Blackmon attempted to escape through a door at the
rear of Cash's, but Cleveland prevented this by shooting Blackmon
in the back and in the arm.  Blackmon testified that he lay silent
and still on the floor to feign death and avoid being shot again. 
He also stated that he saw Cleveland attempting to open the cash
register with a key, but that Cleveland failed to do so.
     Easter attempted to escape too but did not succeed.  She
testified that she ran to the kitchen to get hot grease to throw on
Cleveland but that the grease was cold.  She stated that she threw
a trash can at him and then ran and hid in the store's cooler. 
Easter came out of the cooler after Cleveland told her that if she
did not do so, she would never see her daughter again.  Easter,
Moten, and Cleveland then left Cash's and went to the car parked in
front of the store.  Cleveland returned to the store and came back
to the car with Easter's purse and a metal box from Cash's that
contained money and food stamps.  The testimony was unclear as to
whether he also returned with a .357 magnum pistol taken from the
store.
     After leaving Cash's, the three went to Little Rock, where
they stopped for crack cocaine and later checked into a Motel 6. 
Moten left Easter and Cleveland and did not return.  The next
morning, Cleveland stole a truck and drove with Easter to
Tennessee, Ohio, New York, and Jew Jersey.  They were arrested in
New Jersey.  Easter told the arresting state trooper that she had
been kidnapped.  The trooper recovered two .22 caliber pistols from
the truck and found Easter in possession of cocaine.
     The pair were returned to Arkansas, and Cleveland was charged
with capital felony murder or first-degree premeditated murder,
attempted capital felony murder or attempted first-degree murder,
aggravated robbery, kidnapping, and theft of property.  On retrial,
after reversal by this court, Cleveland defended himself pro se. 
He was convicted as set out above and sentenced.
     For his sole point on appeal, Cleveland argues that the State
violated the mandate of the Supreme Court in Batson v. Kentucky,
476 U.S. 79 (1986), by exercising six peremptory strikes against
six black members of the venire.  He contends that he made a prima
facie showing of racial discrimination in jury selection, and that,
with the exception of one of the six explanations, the prosecutor's
reasons "could well be characterized as implausible or fantastic." 
He concludes that the State did not meet its burden of providing
racially neutral explanations.
     The State initially emphasizes in its brief: (1) Cleveland is
black; (2) the State used only seven of its ten peremptory strikes;
(3) the resulting jury consisted of eight black and four white
members; and (4) the two alternate jurors were black.  The State
further argues on appeal that no prima facie case was made and that
a prima facie case is a necessary first step for mounting a Batson
objection.  See Prowell v. State, 324 Ark. 335, 921 S.W.2d 585
(1996); Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993).  The
State's argument, however, was never made to the trial court.  When
Cleveland objected to the six peremptory strikes by the prosecutor,
the trial court immediately asked the prosecutor for a racially
neutral explanation.  The prosecutor proceeded to explain his
strikes, and the trial court subsequently denied Cleveland's motion
for a mistrial.  The prosecutor never argued that a prima facie
case was not made, and, thus, the issue was not developed below.
     This court addressed this identical point in Prowell v. State,
supra, when we stated:
          Although the defendant must first make a prima facie
     case that racial discrimination is the basis of a juror
     challenge, here, the prosecutor volunteered explanations
     for the challenges; the trial court made no rulings on
     whether a prima facie case was made.  In Hernandez v. New
     York, 500 U.S. 352 (1991), the Court stated that 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.  Id.; see also Sims v.
     State, 320 Ark. 528, 900 S.W.2d 508 (1995).
324 Ark. at 345, 921 S.W.2d  at 591.  That is what occurred in the
instant case.  We hold that where no challenge to a prima facie
case is waged and where the trial court proceeds to hear the
prosecutor's race-neutral explanations and then denies the Batson
motion, the issue of a prima facie showing is moot.
     The relevant inquiry then becomes whether the trial court was
correct in denying the mistrial motion based on the reasons given. 
Our standard of review in such matters is whether the court's
finding of satisfactory reasons was clearly against the
preponderance of the evidence.  Prowell v. State, supra; Bradley v.
State, 320 Ark. 100, 896 S.W.2d 425 (1995).  We, therefore, turn to
the six challenges and individually examine the reasons given.
     The prosecutor stated that he struck Jacqueline Wade because
a deputy sheriff with the Desha County Sheriff's Department had
seen her making eye contact and "mouthing words" to Cleveland
during voir dire.  Though the trial court, the prosecutor, and
Cleveland all assumed in their discussions about Batson
explanations that members of the venire were initially asked
whether they knew Cleveland, this precise question does not appear
in the record.  Nevertheless, we conclude that this communication
between a prospective juror and the defendant provided ample
justification for a peremptory strike.  The prosecutor challenged
Clementine Martin because he had previously charged her with
second-degree battery and believed that she was prejudiced against
the State.  Yvette Anderson was struck because she was seen by the
prosecutor "mouthing words" to Cleveland when her group walked by
Cleveland's table in the courtroom.  The prosecutor argued that it
was appropriate to strike Sharon Pickett because she knew members
of Cleveland's family and the victim's family.  And the prosecutor
struck two ministers, Charles Taylor and Donnie Burns.  Reverend
Taylor was seriously concerned about sitting in judgment of others. 
Reverend Burns contended that it would be a hardship to serve on
the Cleveland jury, vote to convict him, and then counsel other
prisoners at the state penitentiary, including Cleveland.  We find
no fault in the trial court's acceptance of these reasons as
satisfying the requirements of Batson v. Kentucky, supra.
     As a final point, this court has noted that one of the best
answers to a challenge of racial discrimination is to point to a
jury that is comprised of members of the race in question.  See
Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995); Tucker v.
State, supra.  In Watson v. State, 318 Ark. 603, 887 S.W.2d 518
(1994), we held that the State gave a sufficient racially neutral
explanation after noting not only the composition of the jury,
which contained black members, but also that the State had not used
all of its peremptory strikes.  See also Tucker v. State, supra. 
In the case at bar, the State used only seven of its ten peremptory
strikes.  When these two elements are combined with the
explanations given by the prosecutor at trial, this case must be
affirmed.           
     The record in this case has been examined pursuant to Ark. S.
Ct. R. 4-3(h), and no rulings adverse to Cleveland which constitute
prejudicial error have been found.
     Affirmed.
     Glaze, JJ., concurs.  I concur.  I disagree only with the
conclusion that this court on review cannot decide the prima facie
issue and, therefore, reach the same result as the trial court, but
for a different reason.  Newbern, J., joins in this concurrence.