Hugh Chalmers Chevrolet-Cadillac-Toyota, Inc. v. Lang

HUGH CHALMERS CHEVROLET-CADILLAC-TOYOTA, INC.
v. Margaret Turner LANG  

CA 95-424                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
              Opinion delivered September 25, 1996


1.   Jury -- Batson objection -- proof required to sustain. -- When
     a Batson objection is raised, the party making the objection
     must demonstrate a prima facie case that racial discrimination
     is the basis of a juror challenge; if the party is able to
     demonstrate a prima facie case, then the burden shifts to the
     party exercising the peremptory challenges to establish that
     the peremptory strikes were for racially neutral reasons; the
     trial court must then determine from all relevant
     circumstances the sufficiency of the striking party's
     explanation; if the party's explanation appears insufficient,
     then the trial court must conduct a sensitive inquiry into the
     basis for each of the peremptory challenges.  

2.   Jury -- Batson inquiry  -- second and third steps of process
     discussed. -- The second step of a Batson inquiry does not
     demand an explanation that is persuasive, or even plausible;
     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; that a trial judge may choose
     to disbelieve a silly or superstitious reason at step three is
     quite different from saying that a trial judge must terminate
     the inquiry at step two when the race-neutral reason is silly
     or superstitious; the latter violates the principle that the
     ultimate burden of persuasion regarding racial motivation
     rests with, and never shifts from, the opponent of the strike.

3.   Jury -- reasons given by prosecutor for striking prospective
     juror were sufficient to satisfy second prong of Batson --
     trial court's ruling reversed and remanded. -- Where the
     reasons proffered by appellant's counsel for striking the
     prospective juror were racially neutral, they were sufficient
     to satisfy the second prong of Batson; the standard of review
     for reversal of a trial court's Batson ruling is whether the
     court's findings are clearly against the preponderance of the
     evidence; here, the trial court's ruling was clearly against
     the preponderance of the evidence and prevented the court from
     taking the Batson inquiry to the third step in the process,
     which involves determining whether the opponent of the strike
     has carried the overall burden of proving purposeful
     discrimination.

4.   Jury -- trial court's finding was against preponderance of
     evidence -- case reversed and remanded for new trial on cross
     appeal. -- The reasons asserted by appellee for striking the
     juror were race-neutral and were sufficient to satisfy the
     second prong of Batson; therefore, the trial court's finding
     that appellee did not provide a sufficiently independent,
     neutral basis for the peremptory strike of the juror was
     clearly against the preponderance of the evidence.

5.   Appeal & error -- tentative ruling on motion made at trial --
     definite ruling necessary. -- Where, at the pretrial
     conference on the motion, the trial court directed the parties
     to avoid mentioning the evidence in opening statements until
     the court had a chance to rule on the motion in limine, and it
     never went beyond this tentative ruling, the appellate court
     declared that it would be incumbent upon the parties to obtain
     a definite ruling on the motion at retrial.

6.   Evidence -- denial of motion in limine an abuse of discretion
     -- statement should be prohibited on retrial. -- The trial
     court's denial of a second motion in limine that sought to
     exclude any reference to appellee's statement in a discovery
     deposition that she had purchased another car from appellant
     after the fire loss was an abuse of discretion where it was
     clear that any probative value the evidence might have would
     be substantially outweighed by the danger of unfair prejudice. 
     

     Appeal from Crittenden Circuit Court; Gerald Pearson, Judge;
reversed and remanded on appeal and on cross-appeal.
     Barber, McCaskill, Amsler, Jones & Hale, P.A., by:  William H.
Edwards, Jr. and Derek J. Edwards, for appellant and cross-
appellee. 
     David Hodges, for appellee and cross-appellant.

     John F. Stroud, Jr., Judge.
     This appeal and cross-appeal arise from a lawsuit filed by
Margaret Turner Lang, appellee/cross-appellant, against Hugh
Chalmers Chevrolet-Cadillac-Toyota, Inc., appellant, and General
Motors Corporation, cross-appellee.  The case was tried and
submitted to the jury on interrogatories.  The jury found Chalmers
liable on theories of strict liability, breach of implied warranty
of merchantability, and breach of implied warranty of fitness for
a particular purpose.  Lang was awarded $37,500.00 in damages. 
General Motors was exonerated of any liability.  Following the
verdict the trial court held a hearing on the issue of attorney's
fees and awarded Lang $18,500.00.  This appeal and cross-appeal
followed.
     In January 1992, Lang purchased a previously owned 1991
Chevrolet Lumina from Chalmers.  At the time of purchase, the
automobile had been driven approximately 13,000 miles.  It was
manufactured by General Motors.  In February 1992, it was destroyed
by fire and portions of Lang's carport and house were damaged.  On
the day of the fire, Lang returned home from work and parked her
car in her carport at approximately 4:00 p.m.  At approximately
11:00 p.m. she heard a loud bang, and her neighbors informed her
that her car and carport were on fire.
     For reversal, appellant Chalmers argues:  (1) that the trial
court erred in denying the motion for directed verdict on the
implied warranty theories, (2) that the trial court erred in
granting Langþs request for attorneyþs fees, (3) that the trial
court erred in overruling Chalmersþ peremptory strike pursuant to
a Batson challenge, and (4) that the trial court erred in denying
Chalmersþ motion for a mistrial based on reports of other engine
fires that were the subject of a motion in limine.
     Cross-appellant Lang argues:  (1) that the trial court erred
in overruling her peremptory strike pursuant to a Batson challenge,
(2) that the trial court erred in denying her motion in limine and
permitting reference to subsequent, irrelevant acts, and (3) that
the juryþs verdicts in favor of General Motors, cross-appellee,
were not supported by substantial evidence.
     We find merit in the arguments raised by both appellant
Chalmers and cross-appellant Lang with respect to their efforts to
exercise peremptory strikes in the jury selection process.  We
therefore reverse and remand on both the appeal and the cross-
appeal.  Moreover, because we are reversing the judgment based on
the trial courtþs failure to excuse two jurors, we discuss only the
points likely to arise at a new trial.
             APPELLANT CHALMERSþ PEREMPTORY STRIKES
     Lang is an African-American woman.  Following voir dire,
Chalmers exercised peremptory strikes against three African-
American women.  Lang challenged those strikes pursuant to Batson
v. Kentucky, 476 U.S. 79 (1986) and Edmonson v. Leesville Concrete
Co., 500 U.S. 614 (1991).  With respect to two of the three
peremptory challenges, either Lang conceded that there was an
independent, non-discriminatory basis for the strike, or the trial
court so determined.  With respect to Margie Brown, the third
juror, however, the trial court overruled Chalmersþ peremptory
strike.  The trial court erred in doing so.
     In Batson, the United States Supreme Court held that the Equal
Protection Clause guarantees a criminal defendant that the State
will not use peremptory challenges to exclude members of the
defendantþs race from the jury venire based solely on race.  This
principle has been extended to protect private litigants in civil
cases.  Edmonson, 500 U.S. 614; see Wingate Taylor-Maid Transp.,
Inc. v. Baker, 310 Ark. 731, 840 S.W.2d 179 (1992); Sonny v. Balch
Motor Co., 52 Ark. App. 233, 917 S.W.2d 173 (1996). 
     When a Batson objection is raised, the party making the
objection must demonstrate a prima facie case that racial
discrimination is the basis of a juror challenge.  If the party is
able to demonstrate a prima facie case, then the burden shifts to
the party exercising the peremptory challenges to establish that
the peremptory strikes were for racially neutral reasons.  The
trial court must then determine from all relevant circumstances the
sufficiency of the striking partyþs explanation.  If the partyþs
explanation appears insufficient, then the trial court must conduct
a sensitive inquiry into the basis for each of the peremptory
challenges.  Sonny v. Balch Motor Co., 52 Ark. App. 233, 917 S.W.2d 173 (1996).
     Chalmers does not challenge whether a prima facie case for
discrimination was established; rather, it asserts error in the
trial courtþs rejection of the reason proffered by Chalmers for the
strike.  The following exchange took place in pertinent part
between the trial court and Chalmersþ counsel:
          THE COURT:  In view of our hearing before commencing
     voir dire and in light of the development in voir dire
     and your strikes, the Court will require the defendant to
     make some offer or showing of some independent reason for
     exercising your peremptory challenges to exclude the two
     female black American prospective jurors other than based
     on race.

          [COUNSEL FOR CHALMERS]:  Your honor, I think voir
     dire and the process goes not just to the questions asked
     by the lawyers, but also questions asked by the Court in
     qualifying these jurors.  

          The voir dire process extends not just to verbal
     responses but also visual clues, body language, general
     appearance of the witnesses.  

                              . . .

     I exercised my strikes based on the non-responsiveness of
     her attitude, failure to make eye contact during voir
     dire and appearance.

                              . . .

          [THE COURT]:  The reason stated by the defense for
     the exercise of the peremptory challenge of Ms. Brown
     certainly does not meet that standard, if there be a
     standard.  I perceive there is some standard at least
     established by the Supreme Court, the U.S., as well as
     local, for reasons of race.  

          While I personally think there needs to be some
     preservation of the peremptory challenge, that feeling
     based on simply appearance and response or lack of
     response of a juror which could give one a strong
     feeling, justified or otherwise, whether or not they
     would or would not be a good juror, a fair and impartial
     juror, that alone does not come up to the standard,
     standards prescribed by the Court to justify and the
     Court so holds.

     The United States Supreme Court has provided guidance with
respect to the second step of a Batson inquiry:
     The second step of this process does not demand an
     explanation that is persuasive, or even plausible.  þAt
     this [second] step of the inquiry, the issue is the
     facial validity of the prosecutorþs explanation.  Unless
     a discriminatory intent is inherent in the prosecutorþs
     explanation, the reason offered will be deemed race
     neutral.þ    . . .

          The [Eighth Circuit] Court of Appeals erred by
     combining Batsonþs second and third steps into one,
     requiring that the justification tendered at the second
     step be not just neutral but also at least minimally
     persuasive, i.e., a þplausibleþ basis for believing that
     þthe personþs ability to perform his or her duties as a
     jurorþ will be affected.  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.  But to say that a trial judge may choose
     to disbelieve a silly or superstitious reason at step 3
     is quite different from saying that a trial judge must
     terminate the inquiry at step 2 when the race-neutral
     reason is silly or superstitious.  The latter violates
     the principle that the ultimate burden of persuasion
     regarding racial motivation rests with, and never shifts
     from, the opponent of the strike.

                              . . .

          The prosecutorþs proffered explanation in this     
     case -- that he struck juror number 22 because he had
     long, unkempt hair, a mustache, and a beard -- is race-
     neutral and satisfies the prosecutionþs step 2 burden of
     articulating a nondiscriminatory reason for the strike. 
     þThe wearing of beards is not a characteristic that is
     peculiar to any race.þ [Citation omitted.] And neither is
     the growing of long, unkempt hair.  Thus, the inquiry
     properly proceeded to step 3, where the state court found
     that the prosecutor was not motivated by discriminatory
     intent.

Purkett v. Elem, ____ U.S. _____, _____, 115 S. Ct. 1769, 1771
(1995).
     The reasons proffered by Chalmersþ counsel for striking the
prospective juror were that she was not responsive, she lacked eye-
contact, and she was unkempt in appearance.  These reasons are race
neutral.  They are not peculiar to any race, and they were
sufficient to satisfy the second prong of Batson. The standard of
review for reversal of a trial courtþs Batson ruling is whether the
courtþs findings are clearly against the preponderance of the
evidence.  Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995).
Here, the trial courtþs ruling was clearly against the
preponderance of the evidence and prevented the court from taking
the Batson inquiry to the third step in the process, which involves
determining whether the opponent of the strike has carried the
overall burden of proving purposeful discrimination.  We therefore
reverse and remand for a new trial on this basis in the direct
appeal.
            CROSS-APPELLANT LANGþS PEREMPTORY STRIKES
     Following voir dire, cross-appellant Lang exercised peremptory
strikes against three white prospective jurors.  Cross-appellee
General Motors challenged those strikes pursuant to Batson.  With
respect to two of the three peremptory strikes, either General
Motors withdrew the Batson challenge or the trial court determined
there was an independent, non-discriminatory basis for the strike. 
With respect to Charles Barfield, the third juror, however, the
trial court denied Langþs peremptory strike pursuant to the Batson
challenge.  The trial court erred in doing so.
     During voir dire of the prospective jurors, counsel for Lang
asked the potential jurors how they felt about lawsuits and if
anyone had a problem awarding damages to his client for a fair
amount under the circumstances.  The following exchange took place:
          JUROR [BARFIELD]:  How much?

          [COUNSEL FOR LANG]:  Weþre suing for in excess of
     $70,000.  It will be between $70,000 and $80,000.

          JUROR [BARFIELD]:  Itþs a damage suit, then?

          [COUNSEL FOR LANG]:  Itþs a damage suit.  We had the
     car which was--we bought it for about $13,000 and it was
     a total loss.  We had repairs to the home.  She was out
     of the home from February 26th till Good Friday and had
     to extensively remodel it.  Weþre essentially asking you
     for the property involved, okay.  Weþre not having pain
     and suffering or things like that.  You see what Iþm
     getting at?  Do you have any problem with that and that
     situation?

          JUROR [BARFIELD]:  Do you know the reason for the
     question?

          [COUNSEL FOR LANG]:  I understand.  I take it from
     that that you sort of feel like that if I had a sore neck
     and wanted a million dollars you would have some problems
     with it.  But from what I stated, do you have any
     problems sitting as a juror in this case?

          JUROR [BARFIELD]:  I probably donþt.

     Counsel for Lang subsequently exercised a peremptory strike to
excuse Mr. Barfield.  Counsel for General Motors then challenged
the strike pursuant to Batson, noting that three whites had been
struck with peremptory challenges.  
     The following exchange took place in pertinent part between
the trial court and counsel for Lang:
          THE COURT:  While one might certainly infer from his
     question and response that he had some difficulties, as
     counsel put it, complaining of a sore neck and seeking a
     million dollars, he might have some difficulty for
     personal injury, pain and suffering or mental anguish,
     matters or elements of damage of that nature.  But stated
     he would not have any difficulty in being fair and
     impartial in assessing, considering damages for loss of
     property.

          Again, the Court finds that that is not a
     sufficiently independent reason justifying peremptor[ily]
     excusing a prospective juror who is a white male along
     with a white defendant and corporate defendant who is
     representative or of the white race.  So that challenge
     will be denied.

                              . . .

          What is the ultimate make up of the jury, if you
     have your list there and I assume designated or know
     which is black, which is white?  Is there an inference,
     any support to your allegation that heþs striking whites
     and has that effectively increase[d] the black members of
     the jury?

                              . . .

          [COUNSEL FOR LANG]:  Four out of the 12 would be
     black, ....

     [T]he jury questionnaire for Barfield shows that he is
     65, retired.  ...  He has never served as a juror before
     and he also ... has sued another party for loan default.

     Lang argues that none of the three prongs of the Batson
analysis were satisfied by the evidence, and therefore the trial
courtþs denial of her peremptory strike of Charles Barfield was
clearly against the preponderance of the evidence.  The reasons
asserted by Lang for striking this juror were that he seemed to be
one of those people who had some reservations about lawsuits
involving damages, he was an older man that was more conservative,
he had never served on a jury before, and he had sued another party
for loan default.  These reasons are race-neutral.  They are not
peculiar to any race, and they were sufficient to satisfy the
second prong of Batson.  We therefore agree with Lang that the
trial courtþs finding that Lang did not provide a sufficiently
independent, neutral basis for the peremptory strike of Mr.
Barfield is clearly against the preponderance of the evidence.  We
find it unnecessary to discuss the first and third Batson prongs
with respect to this juror, and we reverse and remand for a new
trial on this basis in the cross-appeal.
                ISSUES LIKELY TO RECUR ON RETRIAL
     Of the remaining issues raised on appeal and cross-appeal,
only two are likely to arise again at retrial since the evidence
presented at the second trial may well be different from the first. 
Both involve motions in limine.  
     Chalmers sought to exclude by a motion in limine reports
regarding other engine-compartment fires.  At the pretrial
conference on the motion, the trial court directed the parties to
avoid mentioning the evidence in opening statements until the court
had a chance to rule on the motion.  In connection with that
tentative ruling, the trial court commented that as a guide thereþs
got to be some similarity for engine-compartment fires to be
relevant.  On at least two occasions during the trial, the reports
were mentioned and Chalmers sought a mistrial, which was denied by
the court.  Chalmers argues that the trial court erred in refusing
to grant a mistrial on that basis.  We do not address the mistrial
issue, nor do we rule on the merits of the motion in limine, but we
point out that it is incumbent upon the parties to obtain a
definite ruling on the motion at retrial.
     The second motion in limine sought to exclude any reference to
Langþs statement in a discovery deposition that she had purchased
another Chevrolet Lumina from Chalmers after the fire loss.  Lang
contended that the evidence was not relevant and that any probative
value it might have would be substantially outweighed by the danger
of unfair prejudice.  The trial court denied the motion.  It abused
its discretion in doing so because any probative value the evidence
might have is substantially outweighed by the danger of unfair
prejudice.  On retrial, reference to Langþs statement in this
regard should be prohibited.
     Reversed and remanded on appeal and on cross-appeal.  
     Robbins and Griffen, JJ., agree.