Hollowell v. State

David Shane HOLLOWELL v. STATE of Arkansas

CA CR 97-67                                        ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
                Opinion delivered October 8, 1997


1.   Constitutional law -- jury selection -- Batson objection
     discussed. -- In Batson v. Kentucky, 476 U.S. 79 (1986), the
     United States Supreme Court held that the Equal Protection
     Clause of the Fourteenth Amendment forbids the State's use of
     peremptory strikes in a purposeful, racially discriminatory
     way in a criminal prosecution; the procedures to be followed
     when a Batson objection is raised are well established: if a
     defendant makes a prima facie showing that racial
     discrimination is the basis for a juror challenge, the State
     has the burden of showing that the challenge was not based on
     race; if the defendant makes a prima facie case and the State
     fails to give a racially neutral reason for the challenge, the
     court is required to conduct a sensitive inquiry.

2.   Constitutional law -- jury selection -- criminal defendants --
     prohibited from engaging in purposeful discrimination on basis
     of race in exercise of peremptory challenges. -- In Georgia v.
     McCollum, 505 U.S. 42 (1992), the Supreme Court held that the
     Constitution prohibits criminal defendants from engaging in
     purposeful discrimination on the basis of race in the exercise
     of peremptory challenges; if the State demonstrates a prima
     facie case of racial discrimination by the defendant, the
     defendant must articulate a racially neutral explanation for
     peremptory challenges.  

3.   Constitutional law -- jury selection -- equal protection
     clause forbids intentional discrimination based on gender. --
     In J.E.B. v. Alabama, 511 U.S. 127 (1994), the Supreme Court
     held that the Equal Protection Clause forbids intentional
     discrimination on the basis of gender just as it prohibits
     discrimination on the basis of race.  

4.   Constitutional law -- jury selection -- Batson doctrine
     clearly extended -- purposeful gender discrimination in
     exercise or peremptory challenges prohibited. -- It is clear
     that under the decisions of the Supreme Court a defendant in
     a criminal case may not engage in purposeful gender
     discrimination in the exercise of peremptory challenges of
     prospective jurors; the Batson doctrine applies to defense
     counsel in a criminal case when exercising peremptory
     challenges based on gender. 

5.   Jury -- selection of -- use of peremptory strikes -- trial
     court must determine sufficiency of neutral explanation --
     standard of review. -- The trial court must determine from all
     relevant circumstances the sufficiency of a neutral
     explanation, and the standard of review is whether the trial
     court's determination is clearly against a preponderance of
     the evidence; the appellate court affords great deference to
     the trial court's exercise of discretion in determining
     discriminatory intent relating to the use of a peremptory
     strike.

6.   Jury -- selection of -- no abuse of discretion in determining
     appellant had discriminatory intent -- trial court's
     determination not clearly against preponderance of evidence. -
     - Given the exchanges between the trial court and defense
     counsel, the appellate court could not say that the trial
     court abused its discretion in remaining unpersuaded by
     counsel's offer of gender-neutral explanations; the trial
     court's determination was not clearly against a preponderance
     of the evidence; in the typical peremptory challenge inquiry,
     the decisive question will be whether counsel's race-neutral
     explanation for a peremptory challenge should be believed; the
     state of mind of a juror based on demeanor and credibility
     lies peculiarly within a trial judge's province.


     Appeal from Little River Circuit Court; Ted C. Capeheart,
Judge; affirmed.
     Dowd, Harrelson, Moore & Giles, by:  Gene Harrelson, for
appellant.
     Winston Bryant, Att'y Gen., by:  Kelly Terry, Asst. Att'y
Gen., for appellee.

     John E. Jennings, Judge.
     David Shane Hollowell was convicted of two counts of second-
degree battery for abuse of his seven-year-old step-daughter and
was sentenced to six years on each count to be served
consecutively.  He appeals, arguing that the trial court erred in
sustaining the prosecutor's objection to appellant's exercise of
peremptory challenges during jury selection.  We find no error and
affirm.
     In Batson v. Kentucky, 476 U.S. 79 (1986), the United States
Supreme Court held that the Equal Protection Clause of the
Fourteenth Amendment forbids the State's use of peremptory strikes
in a purposeful, racially discriminatory way in a criminal
prosecution.  The procedures to be followed when a Batson objection
is raised are well established: if a defendant makes a prima facie
showing that racial discrimination is the basis for a juror
challenge, the State has the burden of showing that the challenge
was not based on race.  If the defendant makes a prima facie case
and the State fails to give a racially neutral reason for the
challenge, the court is required to conduct a sensitive inquiry. 
See Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996) cert.
denied, 136 L. Ed. 2d 862, 117 S. Ct. 979 (1997); Prowell v. State,
324 Ark. 335, 921 S.W.2d 585 (1996).
     In Georgia v. McCollum, 505 U.S. 42 (1992), the Supreme Court
held that the Constitution prohibits criminal defendants from
engaging in purposeful discrimination on the basis of race in the
exercise of peremptory challenges.  The Court held that if the
State demonstrates a prima facie case of racial discrimination by
the defendant, the defendant must articulate a racially neutral
explanation for peremptory challenges.  
     In J.E.B. v. Alabama, 511 U.S. 127 (1994), the Supreme Court
held that the Equal Protection Clause forbids intentional
discrimination on the basis of gender just as it prohibits
discrimination on the basis of race.  The Court stated:
          As with race-based Batson claims, a party
          alleging gender discrimination must make a
          prima facie showing of intentional
          discrimination before the party exercising the
          challenge is required to explain the basis for
          the strike.  When an explanation is required,
          it need not rise to the level of a "for cause"
          challenge; rather, it merely must be based on
          a juror characteristic other than gender, and
          the proffered explanation may not be
          pretextual. 

511 U.S. 127, 144-45 (citations omitted).  The Arkansas Supreme
Court has recognized the applicability of the principles announced
in J.E.B. in criminal cases in Arkansas.  See Cleveland v. State,
318 Ark. 738, 888 S.W.2d 629 (1994).
     In the case at bar, the prosecutor raised a Batson-type
objection to the defendant's apparently gender-based use of
peremptory challenges to strike prospective jurors who were women. 
Ultimately, the court refused to allow two of defendant's
peremptory challenges finding that they were based on gender.  The
jury that was seated consisted of seven women and five men, with
the State having used five peremptory strikes and the defendant
having used seven.
     Appellant's first argument on appeal is that the trial court
erred in applying the Batson standard to the prosecutor's objection
of gender discrimination regarding the defense's use of
peremptories.  While recognizing that McCollum prohibits a criminal
defendant from exercising peremptories in a discriminatory way
based on race, and that J.E.B. expanded the Batson doctrine to
prohibit prosecutors from exercising peremptories in a
discriminatory way based on gender, appellant argues that neither
the Supreme Court nor courts in Arkansas have ruled that the Batson
doctrine applies to defense counsel in a criminal case when
exercising peremptory challenges based on gender.  Therefore,
appellant argues, the trial court abused its discretion in
sustaining the prosecutor's objection "because there was no legal
basis upon which to object or sustain an objection."  
     We disagree.  In J.E.B. the Supreme Court said:
          Today, we reaffirm what, by now, should be
          axiomatic: Intentional discrimination on the
          basis of gender by state actors violates the
          Equal Protection Clause[.]

          . . . .

          [T]he Equal Protection Clause prohibits
          discrimination in jury selection on the basis
          of gender, or on the assumption that an
          individual will be biased in a particular case
          for no reason other than the fact that the
          person happens to be a woman or happens to be
          a man.
511 U.S.  at 130-31, 146.
     The equal protection right referred to in all the cases
belongs to the prospective juror.  See, e.g., Batson v. Kentucky,
supra.  The juror has a right not to be struck peremptorily solely
on the basis of race or gender.  The standards governing proof of
discriminatory intent established by Batson for racially motivated
strikes apply to gender based strikes.  J.E.B., supra; Cleveland v.
State, supra.  A defendant in a criminal case may not exercise his
peremptory challenges in a racially discriminatory manner.  Georgia
v. McCollum, supra.  In McCollum the Court held that the defendant
is a "state actor" in this context and that the State has standing
to raise the issue.  McCollum, 505 U.S.  at 55-56.  It is
sufficiently clear that under the decisions of the Supreme Court a
defendant in a criminal case may not engage in purposeful gender
discrimination in the exercise of peremptory challenges of
prospective jurors.  Other state courts have reached the same
conclusion.  State v. Turner, 879 S.W.2d 819 (Tenn. 1994);
Commonwealth v. Fruchtman, 633 N.E.2d 369 (Mass. 1994), cert.
denied, 513 U.S. 951 (1994) (based, at least in part, on state
law).
     Appellant's remaining argument is that, if the Batson standard
applies, the trial court erred in its application of the standard
and that its findings were clearly against a preponderance of the
evidence.  We disagree.
     In the case at bar, the prosecutor objected when the defense
struck the first female prospective juror.  The trial court
indicated that there had yet been no pattern shown.  When the
defense struck the second female potential juror, the prosecution
again objected.  The following exchange took place:
          COURT:  Is there any other excuse other than
          being women?
          DEFENSE COUNSEL:  No.  I didn't like her look.
          COURT:  What about her looks?
          DEFENSE COUNSEL:  Pregnant.
          COURT:  If you are going to excuse all the
          women, I'm not going to let you unless there's
          some kind of reasoning.
          DEFENSE COUNSEL:  I have only excused two.
          COURT:  I know.  I'm just telling you.  Next
          one I'd like to have some reasoning for cause
          from something said or something you can tell
          me that you --
          DEFENSE COUNSEL:  All right.

The defense attempted to strike the third female potential juror,
and the prosecution again objected:
          PROSECUTOR:  Your Honor, we would object once
          again that there's definitely a pattern that's
          developed.  We've had three women coming up
          and three struck for no reason other than that
          I could tell other than they were women.
          DEFENSE:  She's from Wisconsin and I've just
          always had -- Army.
          COURT:  I'm not going to let you strike her
          for that reason.  Do you have a better reason?
          DEFENSE:  You're going to make me put some
          women on the jury.  I guess I just -- 
          . . . .

          DEFENSE:  I have got to take Mrs. Wilson, huh? 
          You don't want me to strike any woman?
          COURT:  What's the real reason?
          DEFENSE:  How about she works at the Christian
          Academy School.
          COURT:  No.
          DEFENSE COUNSEL:  These are peremptory
          challenges, Your Honor.  These aren't --
          PROSECUTOR:  It's the same as having a black
          juror now.  It's the same standard, exactly
          the same.
          DEFENSE COUNSEL:  I don't like this particular
          one.
          PROSECUTOR:  We always have to have a reason
          to use a peremptory challenge on any --
          COURT:  Some reason.
          DEFENSE COUNSEL:  All right.
          COURT:  Well, if she works with little kids
          there, it may be -- it's close.  I may let you
          strike her, but this other one, just because
          she's from Wisconsin.
          DEFENSE COUNSEL:  All right.
          PROSECUTOR:  Yes, sir.

After that juror was seated, two more women were seated without
objection from the defense.  The prosecution then struck a female,
and the defense was allowed to excuse the next female potential
juror.  When another female potential juror was called and the
defense attempted to strike, the following exchange took place:
          PROSECUTOR:  Your Honor, once again, we'd just
          ask for some type of reason.
          COURT:  What's your reason?
          DEFENSE COUNSEL:  She has grown children at
          home and I feel like she was going to start
          thinking about her children.  This little girl
          -- and they're all girls.  If they weren't all
          girls, but I just feel like she's going to
          start having a bias against him.
          PROSECUTOR:  Your Honor, in response to that,
          that could apply to any female with children. 
          I think -- I realize it's not reason for
          cause, but there has to be some real reason. 
          That's -- like I said, having children would
          apply to anybody out there with children.  I
          think you're still talking about class of
          women.  I think that he would need, although
          not enough for cause, something more than
          that.
          DEFENSE COUNSEL:  Well, what it is, Judge, if
          I strike one and you put them back on there,
          you're going to get the jury mad at me because
          I struck them.
          PROSECUTOR:  Well, from our point --
          COURT:  If you want to strike one, you
          probably ought to come up here like he's been
          doing.
          DEFENSE COUNSEL:  All right.  We'll do this
          one then.
          PROSECUTOR:  We just voiced our objection as
          to this juror.  I think there hasn't been
          reason shown to strike Mrs. Samson.
          COURT:  I don't think so either.
          DEFENSE COUNSEL:  That's going to be two that
          you made me put on there.  They're going to be
          biased against me.  I'm afraid -- I'll start
          coming up here when we do that.
          COURT:  You excused one without cause.
          DEFENSE COUNSEL:  Well, I think that is cause. 
          She's got three little girls and --
          COURT:  Enough reason would be a good question
          to appeal on.  It appears you're trying to get
          rid of all the women with the slightest of
          excuses.
          DEFENSE COUNSEL:  I'm not going to object to
          that.

     The trial court must determine from all relevant circumstances
the sufficiency of a neutral explanation, and the standard of
review is whether the trial court's determination is clearly
against a preponderance of the evidence.  See Colbert v. State, 304
Ark. 250, 801 S.W.2d 643 (1990).  We afford great deference to the
trial court's exercise of discretion in determining discriminatory
intent relating to the use of a peremptory strike.  Sonny v. Balch
Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997).  In Sonny the court
said:
          In the typical peremptory challenge inquiry,
          the decisive question will be whether
          counsel's race-neutral explanation for a
          peremptory challenge should be believed. 
          There will seldom be much evidence bearing on
          that issue, and the best evidence often will
          be the demeanor of the attorney who exercises
          the challenge....  [T]he state of mind of a
          juror...based on demeanor and credibility lies
          "peculiarly within a trial judge's province."

328 Ark. 321, 326 (1997) (quoting Hernandez v. New York, 500 U.S. 352 (1991), in turn quoting Wainwright v. Witt, 469 U.S. 412
(1985)).  Given the exchanges between the trial court and defense
counsel, we cannot say that the trial court abused its discretion
in remaining unpersuaded by counsel's offer of gender-neutral
explanations.  Nor can we say that the trial court's determination
is clearly against a preponderance of the evidence.
     Affirmed.
     Meads, J., agrees.
     Roaf, J., concurs.