MacKintrush v. State
Annotate this Case
Walter Ray MacKINTRUSH v. STATE of Arkansas
CA CR 97-145 ___ S.W.2d ___
Court of Appeals of Arkansas
Divisions III and IV
Opinion delivered December 22, 1997
1. Criminal procedure -- continuing duty to disclose -- sanctions for failure
to comply. -- Rule 19.2 of the Arkansas Rules of Criminal
Procedure imposes upon a party a continuing duty to disclose,
after compliance with the rules of discovery or a court order,
if it discovers additional material or information
comprehended by a previous request to disclose; Rule 17.1(d)
requires a prosecutor to disclose promptly any material or
information tending to negate the guilt of a defendant or
tending to reduce his punishment; under Rule 19.7, the trial
court may order any of four sanctions against a party that
fails to comply with a discovery rule or order: the discovery
or inspection of materials not previously disclosed, a
continuance, prohibition from introducing in evidence the
undisclosed material, or such other order as the court deems
proper.
2. Criminal procedure -- discovery -- trial court's discretion -- appellant
must show actual prejudice resulting from violation. -- The trial court
has broad discretion in matters pertaining to discovery, which
will not be second-guessed by the appellate court absent an
abuse of discretion that is prejudicial to the appealing
party; it is incumbent upon appellant to demonstrate actual
prejudice resulting from an asserted discovery violation; even
where a discovery violation has occurred, the appellate court
will not reverse if the error is harmless.
3. Criminal procedure -- discovery -- trial court did not err in refusing to
grant sanctions regarding asserted failure to disclose witness. -- Where
a witness never testified, appellant was not prejudiced by any
alleged discovery violations regarding her statement;
additionally, the witness's statement was inculpatory because
it referred to appellant's alleged threat to kill his wife;
thus, the State had no obligation to disclose it as an
exculpatory statement under Arkansas Rule of Criminal
Procedure 17.1; even had the appellate court found that a
discovery violation existed, which it did not, the error was
clearly harmless; the appellate court found no error in the
trial court's refusal to grant sanctions regarding an asserted
failure to disclose the witness.
4. Appeal & error -- review of trial court's findings of fact. -- A trial
courtþs findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of
the trial court to judge the credibility of the witnesses.
5. Criminal procedure -- discovery -- trial court did not clearly err in
finding that defense counsel had received document before trial. -- Where
the trial court conducted lengthy, thorough hearings on an
alleged discovery violation before finding that defense
counsel had received a facsimile document before trial, and
where the key in determining if a reversible discovery
violation exists is whether the appellant was prejudiced by
the prosecutor's failure to disclose, the appellate court
could not say that the trial court clearly erred.
6. Mandamus -- standard of review upon denial of petition for writ -- court's
discretion. -- The standard of review upon denial of a petition
for a writ of mandamus is whether the trial court abused its
discretion; mandamus is not a writ of right but is within the
discretion of the court, and the party applying for it must
show a specific legal right and the absence of any other
adequate remedy.
7. Mandamus -- appellant failed to show legal right -- another remedy existed
-- no abuse of discretion in trial court's refusal to issue writ. --
Where appellant failed in his effort to show his legal right
to have the Pulaski County Sheriff serve a subpoena outside of
the county, and where another adequate remedy existed in that
appellant could have requested service through the Garland
County Sheriff or through a private process server, the
appellate court found no abuse of discretion in the trial
court's refusal to issue the writ of mandamus.
8. Witnesses -- determination of qualifications of expert lies within trial
court's discretion -- scope of expert testimony. -- The determination
of the qualifications of an expert witness lies within the
discretion of the trial court, and the trial court's decision
will not be reversed unless that discretion has been abused;
Arkansas Rule of Evidence 702 allows a witness qualified as an
expert to testify, in the form of an opinion or otherwise, to
scientific, technical, or other specialized knowledge that
will assist the trier of fact to understand the evidence or to
determine a fact in issue.
9. Witnesses -- trial court did not abuse discretion in permitting expert to
express opinion that victim died by strangulation. -- Where an expert
in forensic pathology based his opinion upon injuries he had
observed while performing the autopsy on appellant's wife, and
his opinion helped determine how she died, his testimony about
the cause of death was proper under Rule 702 of the rules of
evidence; the appellate court found no abuse of discretion by
the trial court in permitting the expert witness to express
his opinion that the victim died by strangulation.
10. Constitutional law -- Batson principles outlined. -- Under 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 peremptory strikes to exclude jurors
solely on the basis of race; 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 forward 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;
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.
11. Constitutional law -- Batson ruling -- standard of review for reversal of.
-- 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.
12. Constitutional law -- Batson challenge -- shifting burden -- when sensitive
inquiry is required. -- Upon a showing by a defendant of
circumstances that 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
strikes were for racially neutral reasons; the trial court
must 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.
13. Constitutional law -- Batson challenge -- limitations on sensitive inquiry.
-- No sensitive inquiry is required when the neutral
explanation given by the State is sufficient; 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; if the trial court is
not satisfied with the State's explanation, it must conduct a
sensitive inquiry, and the defendant must explain how the
state's racially neutral explanation is merely a pretext.
14. Constitutional law -- Batson challenge -- great deference accorded trial
court's exercise of discretion in determining discriminatory intent. --
The appellate court accords great deference to the trial
court's exercise of discretion in determining discriminatory
intent relating to the use of a peremptory strike, and it
reverses only if it is clearly against a preponderance of the
evidence; once the trial court determines that explanations
offered by the striking party are racially neutral, there
simply is no requirement of a sensitive inquiry.
15. Constitutional law -- Batson challenge -- trial court's decision regarding
racially neutral explanations not clearly against preponderance of
evidence. -- Where the trial court examined all relevant
evidence and determined that the explanations offered by the
State were racially neutral, there was no requirement that the
trial court undertake a sensitive inquiry; the appellate court
found that the trial court's decision regarding racially
neutral explanations was not clearly against a preponderance
of the evidence.
16. Jury -- selection process -- no requirement that jury reflect distinctive
groups in community. -- The trial court correctly denied
appellant's motion for a mistrial on the ground that the jury
panel did not represent the county's racial make-up; there is
no requirement that the jury actually chosen mirror the
community and reflect the distinctive groups in the
population.
Appeal from Pulaski Circuit Court, Fourth Division; John W.
Langston, Judge; affirmed.
McCullough Law Firm, by: R.S. McCullough, for appellant.
Winston Bryant, Att'y Gen., by: Kelly Terry, Asst. Att'y
Gen., for appellee.
John F. Stroud, Jr., Judge.
Ogretta MacKintrush, wife of Walter MacKintrush, died at home
at approximately 3:00 a.m. on October 17, 1994. Mr. MacKintrush,
who had called 911 to report that his wife was not breathing, was
subsequently charged with first-degree murder. A trial was held in
October 1995, but the jury deadlocked 11-1 and a mistrial was
declared. A second trial was continued when a witness did not
appear and was reset for July 30, 1996. At the trial which began
on that date, Mr. MacKintrush was found guilty of murder in the
second degree and he was sentenced to twenty years in the Arkansas
Department of Correction.
Mr. MacKintrush appeals the conviction, raising five points of
error. He contends that the trial court erred when it 1) denied
him relief for alleged discovery violations by the State, 2)
refused to grant a writ of mandamus to compel the sheriff to serve
a subpoena, 3) allowed the medical examiner to testify outside his
area of qualification, 4) permitted the State to use a peremptory
challenge against a potential black juror, and 5) denied his
mistrial motion based upon the racial make-up of the jury panel.
Mr. MacKintrush filed a motion to transfer his appeal to the
Arkansas Supreme Court. Although we determined that none of his
asserted reasons supported the request, we recommended
certification under Ark. Sup. Ct. R. 1-2(a)(5) because the case
involved a petition for mandamus directed to "state, county, or
municipal officials." Certification was refused on June 9, 1997.
We affirm the conviction, addressing the points as they were
presented by appellant.
I. The trial court erred by not granting relief on the fact
of the Stateþs failure to provide witness information and in
particular, exculpatory information.
Rule 19.2 of the Arkansas Rules of Criminal Procedure imposes
upon a party a continuing duty to disclose, after compliance with
the rules of discovery or a court order, if it discovers additional
material or information comprehended by a previous request to
disclose. Rule 17.1(d) requires a prosecutor to disclose promptly
any material or information tending to negate the guilt of a
defendant or tending to reduce his punishment. Under Rule 19.7,
the trial court may order any of four sanctions against a party
that fails to comply with a discovery rule or order: the discovery
or inspection of materials not previously disclosed, a continuance,
prohibition from introducing in evidence the undisclosed material,
or such other order as the court deems proper.
In the instant case, appellant filed a motion for discovery
before the first trial. The State responded with an open file
policy, and the trial court ordered that discovery be supplied by
June 12, 1995. Appellant complains on appeal, as he did during his
trial, that the State violated its discovery obligations by failing
to inform him of the existence of statements by Cynthia Marks and
Jewel Williams.
Cynthia Marks's statement was that the victim had told her
that appellant had filed for divorce previously, in the spring of
1994; that appellant thought the victim was having an affair; that
he would kill her if he found it to be so, and no one would know
how; and that appellant was "crazy." Ms. Williams's statement was
that about two weeks before the murder the victim had said that
appellant was going to divorce her, and that she had come to work
a few days before her death with a cut inside her bottom lip and
with scratches and bruises on her neck resembling a hand print.
We address discovery of the two statements separately,
beginning with that of Ms. Marks.
Statement of Cynthia Marks
When the State called Ms. Marks to testify, appellant objected
on the basis that the State had not disclosed her as a witness.
The prosecutor responded that she had been disclosed at the current
trial and at the previous one, where she had been introduced but
had not testified. The State was unable at that time to show that
the defense had been notified, withdrew Ms. Marks as a witness, and
stated that it would call her later. The trial court conducted
hearings on the issue of disclosure, which we review below.
Finding that the State had notified defense counsel of Ms. Marks's
statement, the trial court ruled that she could testify after
defense counsel visited with her. The State, however, later
decided that it would not call Ms. Marks, and she never testified
at trial.
At a hearing the day after his objection to Ms. Marks's
testimony, defense counsel reiterated his position that her
statement was a surprise. The prosecutor stated that her name had
not been in the file originally supplied under the open file policy
but had appeared on papers of "names provided" and that the
prosecutor's policy was always to call about a new witness and
leave a message. Defense counsel responded that the name had not
been in the file and that no message had been left about Ms. Marks.
The court told the prosecutor that until she could show "something
that shows that you have had it in your file or that you notified
him of it," the witness could not testify. The court noted that
Ms. Marks appeared to be a major witness and announced that it
would take a short recess to research the matter of allowing her to
testify after defense counsel had a chance to visit with her.
When the proceedings continued, the prosecutor produced a
photocopy of a June 19, 1995, fax that summarized Ms. Marks's
testimony. The prosecutor explained that the assistant prosecutor
had found it in his file, that the assistantþs file contained only
copies of her file, and that she had overlooked the photocopy.
Defense counsel stated that he had never seen it before, nor had he
seen the statement of Jewell Williams which was attached as another
page. The prosecutor stated that the State did not plan to call
Ms. Williams. When the court asked defense counsel when he had
reviewed the State's file, defense counsel said that his
investigator had reviewed it after June 19.
The trial court accepted into evidence Exhibit No. 2, which is
a photocopy of pages 2 and 3 of a fax dated June 19, 1995. At the
top of both pages a line of print reads, "LRPD DETECTIVE DIV FAX
NO. 5013993448." One page summarizes Ms. Williams's statement and
the other summarizes the statement of Cynthia Marks.
After taking a recess to examine the evidence, the rules of
criminal procedure, and case law, the court issued the following
ruling on allowing Ms. Marks to testify:
According to the photocopies of the statements . . .
dated June 18th, '95, 10:45, this states the existence of this
witness, Marks, and a general statement of what she was to
testify to. This would have been after a Court Order closing
discovery some six days before. A fax mark on both of these
two pages . . . shows June 19th of '95, although it doesn't
directly say it's faxed to the prosecutor's office, that is
the indication of it. So that means under 19.2 the State had
a duty to disclose this. The State has an open file policy.
And the Defense affirmatively states that after that date they
did review or a member of their staff . . . reviewed that
file, which means there was opportunity there . . . .
Now, Rule 19.7 says that if there was a violation of this
Order, which the Court is not finding, . . . the Court has
about four different things that it can do . . . . I think
that the proper order in this case would be to allow the
defendant an opportunity to interview this witness before we
go further. Therefore, I'm going to recess this jury until
9:15 in the morning to give counsel an opportunity to do that,
and order the State to make this witness available to them in
the interim.
The trial court has broad discretion in matters pertaining to
discovery, which will not be second-guessed by the appellate court
absent an abuse of discretion that is prejudicial to the appealing
party. Banks v. Jackson, 312 Ark. 232, 848 S.W.2d 408 (1993). It
is incumbent upon appellant to demonstrate actual prejudice
resulting from an asserted discovery violation. Johninson v.
State, 317 Ark. 431, 878 S.W.2d 727 (1994). Even where a discovery
violation has occurred, we will not reverse if the error is
harmless. See Mosley v. State, 323 Ark. 244, 914 S.W.2d 731.
Here, because Ms. Marks never testified, appellant was not
prejudiced by any alleged discovery violations regarding her
statement. Additionally, her statement was inculpatory because it
referred to appellant's alleged threat to kill his wife. Thus, the
State had no obligation to disclose it as an exculpatory statement
under Arkansas Rule of Criminal Procedure 17.1. Even if we were to
find that a discovery violation existed, which we do not, the error
was clearly harmless. We find no error in the trial court's
refusal to grant sanctions regarding this matter.
Statement of Jewell Williams
The trial court heard testimony by the prosecutor, Terry
Raney-Ball, and defense counsel, R. S. McCullough, regarding
discovery of the statement of Jewell Williams. Mr. McCullough
asked the court to dismiss the charges, declare a mistrial, or
grant a continuance because of the State's failure to inform him
about her statement. He based his motion on Arkansas Rule of
Criminal Procedure 17.1, contending that the statement was
exculpatory and that the State was therefore obligated to inform
him of its existence. He argued that the statement could implicate
someone else because, several days before her death, appellantþs
wife had injuries and she did not attribute them to appellant. Ms.
Ball asserted that the State had faxed Ms. Jewell's statement to
defense counsel on March 5, 1996. She produced a fax cover sheet
and the written statement, which was introduced into evidence as
Exhibit No. 15. A heading on the cover sheet reads, "Prosecuting
Attorney's Office," and the word "Faxed" appears upon the page.
The sheet contains the signature of assistant prosecutor John
Johnson, the date 3/5/96, and the following handwritten remarks:
R. S.
I'm faxing you the name and number of a witness that
we may call. I believe you were given this name before,
but I wanted to be sure. Call if you have any questions.
Jewel Williams
376-4694
The exhibit's second page, a summary of Jewel Williams's statement,
is identical to that previously introduced in Exhibit No. 2 and
discussed above.
Mr. McCullough noted that the cover sheet "doesnþt show a
machine fax sign or anything.þ The prosecutor again denied that
the State had failed to provide the statement to defense counsel.
She also said that the State did not plan to use the statement and
that she had made that decision because Ms. Williams was living
with appellant, the statement was too prejudicial, and there was
"not enough link." The trial court found that defense counsel
possessed the document before trial and denied appellant's motion
for a mistrial, dismissal of charges, or a continuance.
A trial courtþs findings of fact shall not be set aside unless
clearly erroneous, and due regard shall be given to the opportunity
of the trial court to judge the credibility of the witnesses.
Shibley v. State, 324 Ark. 212, 920 S.W.2d 10 (1996). Here, the
trial court conducted lengthy, thorough hearings on the alleged
discovery violation before finding that defense counsel had
received the document before trial. Furthermore, the key in
determining if a reversible discovery violation exists is whether
the appellant was prejudiced by the prosecutorþs failure to
disclose. Mosley v. State, 323 Ark. 244, 914 S.W.2d 731 (1996).
We cannot say that the trial court clearly erred.
II. The trial court erred by not granting mandamus against the
sheriff for failure to serve defense witness subpoena.
At appellant's request, the Pulaski County Circuit Clerk
issued a subpoena for a witness whose address was 109 Chestnut in
Hot Springs, which is in Garland County. The Pulaski County
Sheriff refused to serve the subpoena because the residence was
outside of Pulaski County. Appellant then petitioned the trial
court to issue a writ of mandamus to compel the sheriff to serve
the subpoena. The court refused to do so.
Appellant argues that Arkansas Code Annotated 16-43-208
(Repl. 1994) imposes upon the sheriff a duty to serve subpoenas
authorized by the statute. An examination of the statute shows it
to be silent regarding service of subpoenas. The statute addresses
only a) the duty of the clerk of the court to issue subpoenas,
b) the number of witnesses subpoenaed at the expense of the county,
c) a partyþs right to recall subpoenas, and d) the number of
character witnesses to be subpoenaed at the expense of the county.
Ark. Code Ann. 16-43-208 (Repl. 1994).
The standard of review upon denial of a petition for a writ of
mandamus is whether the trial court abused its discretion. State
v. Sheriff of Lafayette County, 292 Ark. 523, 731 S.W.2d 207
(1987). Mandamus is not a writ of right but is within the
discretion of the court, and the party applying for it must show a
specific legal right and the absence of any other adequate remedy.
Hicks v. Gravett, 312 Ark. 407, 849 S.W.2d 946 (1993). Here,
appellant has failed in his effort to show his legal right to have
the Pulaski County Sheriff serve a subpoena outside of the county.
Additionally, another adequate remedy existed in that appellant
could have requested service through the Garland County Sheriff or
through a private process server. We find no abuse of discretion
in the trial courtþs refusal to issue the writ of mandamus.
III. The trial court erred by allowing the medical examiner to
testify outside his area of qualification.
The trial court accepted State's witness Dr. Charles Paul
Kokes as an expert in forensic pathology. Appellant objected when
Dr. Kokes, the medical examiner who performed the victimþs autopsy,
was asked to state his conclusion as to how the victim died. Out
of the hearing of the jury, the State said that Dr. Kokes would
testify that the victim died of strangulation. Appellant contended
that such testimony was beyond the expertise of Dr. Kokes, who had
been qualified as a forensic pathologist rather than a
reconstructionist; therefore, he argued, Dr. Kokes could testify
only that the manner of death was asphyxiation, and not that the
asphyxiation resulted from strangulation. He also contended that
the testimony should not be allowed because it reached the ultimate
issue in the case.
The trial court allowed testimony within the bounds of a legal
degree of certainty within the field of expertise, and it overruled
appellant's objection as to reaching the ultimate issue. Dr. Kokes
subsequently testified within those bounds that the cause of death
was strangulation. He based his opinion upon his observation of
petechial hemorrhages on the surfaces of the victim's eyes and
eyelids, hemorrhage in her þcricoid thyroid muscle,þ and hemorrhage
behind both horns of her thyroid. He stated that petechial
hemorrhages on eyes and eyelids are common when force is applied to
the neck, and that internal hemorrhages such as those he had found
are caused by external pressure to the neck. Finally, he voiced
his opinion, based upon the autopsy he had performed, that there
was no other reasonable explanation for her cause of death.
It is well settled that the determination of the
qualifications of an expert witness lie within the discretion of
the trial court, and the trial court's decision will not be
reversed unless that discretion has been abused. Suggs v. State,
322 Ark. 40, 907 S.W.2d 124 (1995). Arkansas Rule of Evidence 702
allows a witness qualified as an expert to testify, in the form of
an opinion or otherwise, to scientific, technical, or other
specialized knowledge that will assist the trier of fact to
understand the evidence or to determine a fact in issue.
In the present case, an expert in forensic pathology based his
opinion upon injuries he had observed while performing the autopsy
on appellant's wife, and his opinion helped determine how she died.
Thus, his testimony about the cause of death was proper under Rule
702 of our rules of evidence. We find no abuse of discretion by
the trial court in permitting Dr. Kokes to express his opinion that
the victim died by strangulation.
IV. The trial court erred by not granting appellantþs Batson
motion regarding venireperson Orji.
The State used its first two peremptory strikes against a
black male and a white female, and its third strike against Stephen
Orji, a black male. Appellant, who is an African-American,
objected that the strike was a racial one in violation of Batson v.
Kentucky, 476 U.S. 79 (1986).
In Batson 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 peremptory strikes to exclude
jurors solely on the basis of race. Sonny v. Balch Motor Co., 328
Ark. 321, 944 S.W.2d 87 (1997). Batson was somewhat refined by
Purkett v. Elem, 514 U.S. 765 (1995), which reads in part as
follows:
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 forward 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.
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
Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct., at 1866
(plurality opinion); id., at 374 111 S. Ct. at 1874 (OþCONNOR,
J., concurring in judgment).
514 U.S. at 767 (citations omitted) (emphasis added). The standard
of review for reversal of a trial courtþs Batson ruling is whether
the trial courtþs findings are clearly against the preponderance of
the evidence. Prowell v. State, 324 Ark. 335, 921 S.W.2d 585
(1996).
Appellant focuses upon the second step, which requires the
State to come forward with a race-neutral reason for the strike.
At trial, the prosecutor listed the following reasons for the
strike: in a group of six jurors, only Mr. Orji did not shake his
head þyesþ or þnoþ when questioned; he was not frank with her, and
she thought his answers perhaps to be evasive; and the assistant
prosecutor informed her that the State had struck Mr. Orji on a
previous panel for inappropriate answers about sitting in judgment
of someone or about the issue of self-defense. The trial court
noted that two of the nine jurors already selected were of African
descent, that the State had exercised one peremptory strike against
a Caucasian and two against people of African descent, and that
there remained on the panel another African-American to be called
as a possible juror. The court ruled the Stateþs response to be
racially neutral and denied the Batson motion.
Appellant contends that the reasons offered by the State were
the type that Batson says are lukewarm, seemingly benign reasons
that could always be used, if permitted, to discriminatorily use
the peremptory strike. Our dissenting colleague agrees with
appellantþs position and, as he did in Bosquet v. State, faults
the trial court for failing to make a sensitive inquiry into the
Stateþs explanation. Bosquet v. State, 59 Ark. App. 54, 64,
S.W.2d , (1997), (Griffen, J., dissenting), rev. denied,
(Ark. Sup. Ct., December 4, 1997). A review of decisions regarding
the trial courtþs duty to make such an inquiry is therefore
appropriate.
The Arkansas Supreme Court initially interpreted Batson as
requiring, in every instance, a sensitive inquiry into the direct
and circumstantial evidence available to decide if the State had
made an adequate explanation. See Mitchell v. State, 295 Ark. 341,
750 S.W.2d 936 (1988); Ward v. State, 293 Ark. 88, 733 S.W.2d 728
(1987). Later, however, that requirement was modified as follows:
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
stateþs explanation appears insufficient, the trial court must
then conduct a sensitive inquiry into the basis for each of
the challenges by the state.
Colbert v. State, 304 Ark. 250, 255, 801 S.W.2d 643, 646 (1990)
(emphasis added).
In recent years, the Arkansas Supreme Court has consistently
held that no sensitive inquiry is required when the neutral
explanation given by the State is sufficient. One year after the
Purkett decision, our supreme court stated, þOnly 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.þ Wooten v. State, 325 Ark. 510, 514, 931 S.W.2d 408, 410 (1996) (quoting Mitchell v. State, 323 Ark. 116,
913 S.W.2d 264 (1996), cert. denied, 117 S. Ct. 979 (1997)). In a
very recent Batson decision, our supreme court reiterated, "If the
trial court is not satisfied with the State's explanation, it must
conduct a sensitive inquiry, and the defendant must explain how the
state's racially neutral explanation is merely a pretext." Roseby
v. State, 329 Ark. 554, 560, 953 S.W.2d 32, 35 (emphasis added)
(1997). The duty of the trial judge is explained as follows:
These procedures have been well established in our case
law and are consistent with the principles set forth in Batson
through Purkett. When the party having the burden of moving
forward declines to proceed further, the trial court decides
whether a prima facie case has been made. If a prima facie
case has been made, the court must require an explanation and
then determine . . . whether the neutral explanations given
are genuine or pretextual.
Sonny v. Balch Motor Co., 328 Ark. 321, 328, 944 S.W.2d 87, 91
(1997).
Our own court recently applied the Batson doctrine in Bosquet
v. State, 59 Ark. App. 54, ___ S.W.2d ___ (1997), rev. denied,
(Ark. Sup. Ct., December 4, 1997), where we followed the cases
discussed above and said:
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)).
Bosquet at 58, ___ S.W.2d at ___ (emphasis added).
The appellate court affords great deference to the trial
courtþs exercise of discretion in determining discriminatory intent
relating to the use of a peremptory strike, and we reverse only if
it is clearly against a preponderance of the evidence. Sonny v.
Balch Motor Co., 328 Ark. at 329, 944 S.W.2d at 92. We emphasize,
with all due respect to the dissenting judge, that we will not
deviate from this standard of review. Nor are we at liberty to
ignore the cases of the United States Supreme Court and the
Arkansas Supreme Court, which clearly state that a sensitive
inquiry is not a requirement in every Batson case. Our careful
review of case law shows that once the trial court determines that
explanations offered by the striking party are racially neutral,
there simply is no requirement of a sensitive inquiry.
Here, the trial court examined all relevant evidence and
determined that the explanations offered by the State were racially
neutral. See Colbert, 304 Ark. at 255, 801 S.W.2d at 646 (1990).
There was no requirement, therefore, that the trial court undertake
a sensitive inquiry. We find that the trial courtþs decision
regarding racially-neutral explanations was not clearly against a
preponderance of the evidence.
V. The trial court erred by not granting a mistrial in regard to
the racially disproportionate jury panel.
During voir dire, appellant moved for a mistrial on the ground
that the jury panel did not represent the racial make-up of Pulaski
County, where the case was tried. He asserted that there were only
five black persons in the panel of thirty-two. The trial court
denied the motion, noting that the Arkansas Supreme Court has
upheld the court's method of calling the jury panel at random from
the voter registration.
The trial court was correct. See Lee v. State, 327 Ark. 692,
699, 942 S.W.2d 231, 234 (1997). Furthermore, we also note that
there is no requirement that the jury actually chosen mirror the
community and reflect the distinctive groups in the population.
Danzie v. State, 326 Ark. 34, 42, 930 S.W.2d 310, 314 (1995).
Affirmed.
Bird and Crabtree, JJ., agree.
Arey and Roaf, JJ., concur.
Griffen, J., dissents.
D. Franklin Arey, III, Judge, concurring.
I join with the majority opinion in its result. To the extent
that the majority relies on Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990), I believe that it is on track. However, I
believe that Judge Roaf correctly identifies an inconsistency in
our interpretation of Batson. At some point, our supreme court
should address the divergent cases identified by Judge Roaf.
Andree Layton Roaf, Judge, concurring.
I agree wholeheartedly with the views expressed by the
dissenting judge. However, I concur with the majority in affirming
this conviction because I believe that we are bound to follow the
precedents of our supreme court, if for no other reason than they
may review, and reverse, any opinion handed down by this court.
However, what that precedent is, or should be in this instance,
warrants further discussion.
In Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990), the
supreme court held for the first time that trial courts would no
longer be required to conduct a þsensitive inquiryþ in every case
where a Batson challenge is raised and a prima facie case made.
The court said that a sensitive inquiry would be required only
where the Stateþs racially neutral explanations þappeared
insufficient.þ
It may well be true that some race-neutral explanations will
be so obviously non-discriminatory as to require little inquiry by
the trial court. It is equally true that other proffered
explanations will be blatantly pretextual and will require little
inquiry, sensitive or otherwise, to uncover the true discriminatory
purposes behind the strikes. However, in 1993, the supreme court
further, and, I think inadvertently, undermined Batson, first in
Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993), and later in
Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993). The latter
opinion contains the all-too-familiar and often-cited sentence,
þOnly 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.þ Id. at 338, 863 S.W.2d
at 273 (emphasis added); see, e.g., Wooten v. State, 325 Ark. 510,
931 S.W.2d 408 (1996); Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996); Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996);
Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996); Mitchell v.
State, 323 Ark. 116, 913 S.W.2d 264 (1996); Heard v. State, 322
Ark. 553, 910 S.W.2d 663 (1995); Reams v. State, 322 Ark. 336, 909 S.W.2d 324 (1995); Sims v. State, 320 Ark. 528, 900 S.W.2d 508
(1995); Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994);
Gilland v. State, 318 Ark. 72, 883 S.W.2d 474 (1994); Bosquet v.
State, 59 Ark. App. 54, 953 S.W.2d 894 (1997); Hall v. State, 59
Ark. App. 39, 953 S.W.2d 588 (1997); Jones v. State, 45 Ark. App.
28, 871 S.W.2d 403 (1994). As the concurring justices in Colbert
pointed out in 1990, þSurely any prosecutor can offer neutral
reasons.þ Colbert, supra, (Newbern, Dudley, Glaze, JJ.,
concurring). The trial courtþs obligation to conduct a sensitive
inquiry was, at least for a time, virtually eliminated in 1993.
Certainly this was not a proper interpretation of Batson as
shown by the United States Supreme Courtþs subsequent decision in
Purkett v. Elem, 514 U.S. 765 (1995), which provides that:
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 forward
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.
Id. at 767 (citations omitted) (emphasis added).
I am not unmindful that in recent cases, the supreme court has
utilized only the pre-1993 language of Colbert in making the Batson
analysis. See Lammers v. State, 330 Ark. 324, ___ S.W.2d ___
(1997); Jackson v. State, 330 Ark. 126, ___ S.W.2d ___ (1997);
Roseby v. State, 329 Ark. 554, 953 S.W.2d 32 (1997); Sonny v. Balch
Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997). If there is a
message in these cases, it has not reached this court, for we are
yet citing the offending language from Franklin, in both published
and unpublished opinions. Our confusion on this issue is only too
apparent in the majority opinion, which employs both Colbert and
the offending language from Franklin in its analysis.
Because of this conflict in our cases, and because we and our
supreme court have in effect instructed trial courts to make the
most crucial determination in the Batson analysis -- whether racial
discrimination occurred -- without conducting any inquiry, as
happened in the MacKintrush case, we have failed to follow either
the spirit or the law of Batson.
Wendell L. Griffen, dissenting.
Why does a judge swear to discharge his duties agreeably
to the constitution of the United States, if that
constitution forms no rule for his government, if it is
closed upon him, and cannot be inspected by him? If such
be the real state of things, this is worse than solemn
mockery.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180, 2 L. Ed. 60 (1803).
I would reverse appellantþs conviction for second-degree
murder and remand his case for retrial because the trial court
failed to conduct the sensitive inquiry clearly mandated by the
United States Supreme Court in Batson v. Kentucky, 476 U.S. 79
(1986). The Supreme Court has also pronounced, with equal clarity,
that the sensitive inquiry mandated by Batson applies to the
genuineness of racially neutral reasons offered by prosecutors
whose peremptory challenges produce prima facie claims of race
discrimination in violation of the Equal Protection Clause to the
Fourteenth Amendment to the Constitution of the United States, and
that the proper time for a trial court to undertake that inquiry is
during the third step of the Batson analytical process when the
trial court is deciding whether the Batson movant has proved
purposeful discrimination. Purkett v. Elem, 514 U.S. , 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995). Therefore, I respectfully
dissent.
Appellant raised a proper objection to the prosecutorþs
peremptory challenge to Stephen Orji, a Black member of the venire.
The prosecutor failed to obtain a ruling from the trial court on
whether appellant made a prima facie case of race discrimination to
satisfy the first step in the Batson decision process. Although
the prosecution did not agree that appellant had made a prima facie
case, it offered a race-neutral explanation on appellantþs
objection concerning the challenge to Orji as if a prima facie case
had been established. Once a prosecutor has offered a race-neutral
explanation for a peremptory challenge and the trial court has
ruled on the ultimate question of intentional discrimination, the
preliminary issue of whether the defendant has made a prima facie
showing of discrimination becomes moot. Hernandez v. New York, 500 U.S. 352 (1991).
The trial court made no inquiry after ruling that the
prosecution had produced a racially neutral explanation for
excluding Orji. The majority, relying upon decisions by our
supreme court beginning with Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990), has affirmed that ruling. Colbert and cases by
our supreme court decided since it was issued, hold that no inquiry
is necessary where a racially neutral explanation is advanced for
excluding a protected person from jury service in the face of a
prima facie claim of discrimination contrary to the Equal
Protection Clause, as I acknowledged in my dissenting opinion in
Bousquet v. State, 59 Ark. App. 54, S.W.2d (1997), rev.
denied, (Ark. Sup. Ct., December 4, 1997).
Courts in Arkansas, including its appellate courts, have never
been exempt from abiding by the United States Supreme Court
decisions concerning rights and remedies under the United States
Constitution. This holds true for questions about claims of race
discrimination in the exercise of peremptory challenges under the
Fourteenth Amendment. The United States Supreme Court has not
declared Arkansas a Batson-free state where prima facie claims of
discrimination in jury selection can be dismissed out-of-hand with
a finding that the party who exercises the questioned peremptory
challenge has advanced a facially neutral explanation. It is
equally obvious that the Supreme Court has never retreated from or
otherwise repudiated its declaration in Batson that trial courts
must undertake a sensitive inquiry into available direct and
circumstantial evidence of discriminatory intent in deciding if a
discrimination claimant has carried his burden of persuasion.
There is an obvious contradiction between the principle and
procedure pronounced by the United States Supreme Court in Batson
and Purkett and the result reached in this case. The majority
opinion cites no decision by the Supreme Court that has limited the
sensitive inquiry requirement to those cases where a facially
neutral explanation has been deemed þinsufficient,þ and one can
readily understand why none exist. Under the Purkett holding, if
discriminatory intent is not inherent in an explanation for
peremptorily excluding a prospective juror, then the explanation
will be deemed facially neutral. Id., 131 L. Ed. 2d at 839. It
necessarily follows, therefore, that all facially neutral
explanations for peremptorily excluding prospective jurors
protected under the Equal Protection Clause must undergo the
sensitive inquiry required by Batson. Any other requirement would
be illogical because it would be absurd to require trial courts to
undertake a sensitive inquiry concerning discriminatory intent when
that intent is inherent. But when discriminatory intent is not
inherent in a prosecutorþs explanation for peremptorily excluding
a venireperson, the sensitive-inquiry requirement is essential if
the trial court is to reach an intelligent decision about whether
the discrimination claimant has proved that intent by a
preponderance of the evidence as required by Batson.
The Stateþs reliance upon Hernandez v. New York, supra, is
misplaced. Hernandez shows that trial court assessments of the
plausibility of racially neutral explanations are crucial, and are
accorded deference on appellate review, as the Supreme Court
explained when it said:
Deference to trial court findings on the issue of
discriminatory intent makes particular sense in this
context because, as we noted in Batson, the finding
þlargely will turn on evaluation of credibility.þ 476
U.S., at 98, n.21. In the typical peremptory challenge
inquiry, the decisive question will be whether counselþs
race-neutral explanation for a peremptory challenge
should be believed.
Id. at 365, emphasis added. The Purkett holding shows that
explanations, despite their plausibility or implausibility, will be
racially neutral under Hernandez if discriminatory intent is not
inherent, and that the proper time for scrutinizing the credibility
of those explanations is during the third stage of the Batson
process. The Stateþs argument would subvert the holdings in
Hernandez and Purkett to mean that racially neutral explanations
for exercising peremptory challenges can never undergo the
sensitive inquiry that Batson compels. The United States Supreme
Court has never held that race-neutral explanations must always be
believed or never questioned. Such a rule would destroy the
sensitive-inquiry requirement in Batson altogether.
We do not disrespect our supreme court by following the
controlling rulings by the United States Supreme Court in Batson
and Purkett, and reversing trial court rulings that fail to
undertake the sensitive inquiry required by Batson. We are bound
to follow Batson and Purkett because the United States Supreme
Court is the foremost and final authority concerning what the Equal
Protection Clause of the Fourteenth Amendment means and requires.
This is a recognized and fundamental principle of American
constitutional law that has even been affirmed by the Arkansas
Supreme Court in the area of race discrimination and jury
selection.
There can be no question that this court, as well as the
trial courts of this state, is bound by the decisions of
the United States Supreme Court concerning rights and
prohibitions under the provisions of the United States
Constitution and, there is no question that the United
States Supreme Court has spoken clearly, and more than
once, on the question of racial discrimination in the
selection of juries in criminal cases.
Williams v. State, 254 Ark. 799, 496 S.W.2d 395 (1973). If the
Arkansas Supreme Court is bound by decisions of the United States
Supreme Court regarding the United States Constitution, the
Arkansas Court of Appeals certainly has no excuse for thinking
otherwise.
Given that Arkansas judges are sworn to support the
Constitution of the United States, including the Equal Protection
Clause of the Fourteenth Amendment, the question raised by Chief
Justice John Marshall in Marbury v. Madison, that was quoted at the
introduction to this opinion, cannot be evaded. As the great Chief
Justice observed almost 200 years ago, for judges sworn to support
the Constitution of the United States to act as if that
Constitution holds no power for their government "is worse than
solemn mockery."
I respectfully dissent.
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