Ray Randle v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

RAY RANDLE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-88

November 3, 2004

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SEVENTH DIVISION [CR2003-834]

HONORABLE BARRY A. SIMS,

CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

A Pulaski County Circuit Court jury convicted appellant, Ray Randle, of theft by receiving and sentenced him to fourteen years in the Arkansas Department of Correction. On appeal, his sole argument is that the trial court erred in denying his Batson motion because the State did not give any reason for exercising peremptory strikes against two prospective African-American jurors. We affirm.

In the case at bar, when the first three venire persons were stricken from the jury panel, the defense counsel stated, "The State has struck two of the three black jurors on the panel, and I would object to that on the basis of it being prejudice." The deputy prosecuting attorney replied, "Your Honor, we struck those jurors for reasons stated during questioning in voir dire and that's the only reason. It has nothing to do with their being black jurors." The

trial judge then stated, "Okay. That means that they've got good reason for striking those two. So, I'm going to deny your motion. Okay? All right. Thank you." Defense counsel made no further arguments or objections.

On appeal, appellant now argues that the trial court erred in denying his Batson motion because the State gave no reason for the peremptory strikes at issue. In Lewis v. State, 84 Ark. App. 327, 332-33, 139 S.W.3d 810, 813-14 (2004), our court set forth in detail Arkansas's Batson procedure and the standard of review used in reviewing such challenges:

In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court held that the Equal-Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits the State from striking a venire person as a result of racially discriminatory intent. ... Our supreme court has established a three-step process to be used in evaluating Batson claims. MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). First, the opponent of the peremptory strike must present facts that show a prima facie case of purposeful discrimination. Id. This can be done by showing (1) that the strike's opponent is a member of an identifiable racial group, (2) that the strike is part of a jury-selection process or pattern designed to discriminate, and (3) that the strike was used to exclude jurors because of their race. Id.

Second, if the opponent has established a prima facie case, the burden of producing a racially neutral explanation then shifts to the proponent of the strike. Id. While this explanation must be more than a mere denial of discrimination, the explanation need not be persuasive or even plausible; indeed, it may be silly or superstitious. Id. The reason will be deemed race neutral unless discriminatory intent is inherent in the proponent's explanation. Id. However, the trial court must not end the Batson inquiry at this stage. Id.

In step three, if a race-neutral explanation is given, the trial court must then decide whether the strike's opponent has proven purposeful discrimination. Id. During this stage, the strike's opponent must persuade the trial court that the expressed motive of the striking party is not genuine, but rather is the product of discriminatory intent. Id. The opponent may do this by presenting further argument or other proof relevant to the inquiry. Id. If the strike's opponent chooses not to present additional argument or proof but simply relies on the prima facie case presented, then the trial court has no alternative but to make its decision based on what has been presented to it, including an assessment of credibility. Id. The court in MacKintrush emphasized that "it is incumbent upon the strike's opponent to present additional evidence or argument, if the matter is to proceed further." Id. at 399, 978 S.W.2d at 297. It is the opponent's

responsibility to "move the matter forward at this stage to meet the burden of persuasion, not the trial court." Id. If the strike's opponent does not present further evidence, no additional inquiry by the trial court is required. Id. However, if the "opponent presents additional relevant evidence and circumstances to the trial court for its consideration, then the trial court must consider what has been presented, make whatever inquiry is warranted, and reach a conclusion." Id. at 400, 978 S.W.2d at 297.

. . .

Appellate courts will reverse a trial court's ruling on a Batson challenge only when its findings are clearly against the preponderance of the evidence. Id. The trial court is accorded some deference in making Batson rulings because it is in a superior position to observe the parties and the determine their credibility. Id.

The record reflects that the jurors who were struck were Stella Brock, Shirley Gordon, and Meredith Grahn. However, there is no indication, either in the abstract or the record, which of these three women were African-American.

The abstract indicates that when asked by the prosecuting attorney whether the testimony of one eyewitness was enough to convict a person, Ms. Brock replied that she was not sure, and that the motive of a person's testimony who had prior convictions would be something that she would consider. The abstract also reveals that Ms. Gordon was asked a direct question during the State's voir dire. The prosecutor asked if someone had prior felony convictions, would that mean that they would not tell the truth, and Ms. Gordon answered no, she did not think so. Neither the abstract nor the record indicate that Ms. Grahn was specifically singled out and asked a question; however, the prospective jurors were asked to nod their heads and raise their hands in response to some of the questions, and we have no way of knowing if any of the three women answered questions in that manner. Furthermore, the record indicates in some places only that a "prospective juror" was asked several questions; we have no way to ascertain whether this juror or jurors were any of the three dismissed or a juror who served on the jury.

Although appellant's objection that the striking of two of the three African-American venire persons was prejudicial may or may not constitute a prima facie case of purposeful discrimination, which is the first step of our Batson process, we need not answer that question because it became moot when the trial court in essence skipped that step and proceeded to steps two and three. In London v. State, 354 Ark. 313, 125 S.W.3d 813 (2003), our supreme court held that when the trial court ignored step one, heard argument on step two, which was the offering of a race-neutral explanation for the strikes, and the trial court ruled on the ultimate issue of whether the strike's opponent had shown intentional discrimination, then the preliminary issue of whether a prima facie case of racial discrimination was shown became moot.

Therefore, our analysis takes us to step two, whether the State presented racially neutral explanations for the strikes. The only statement made by the prosecuting attorney in response to the defense counsel's allegations that the strikes were prejudicial was, "Your Honor, we struck those jurors for reasons stated during questioning in voir dire and that's the only reason. It has nothing to do with their being black jurors." As stated above, although the explanation has to be more than a mere denial of discrimination, it does not have to be persuasive or plausible; the reason will be deemed race neutral unless discriminatory intent is inherent in the explanation. Lewis v. State, supra (citing MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998)). Although there was no elaboration on the reason given by the prosecutor, and the reason was not person specific, we cannot say that discriminatory intent was inherent in the explanation, and therefore we hold that the explanation was race neutral.

As to step three, the Lewis court clearly held that if the strike opponent does not present further argument or proof of discriminatory intent after a race-neutral explanation is given, then the trial court has no alternative but to make a decision on the evidence before it. In the present case, the trial judge found that the State had good cause to strike "those two" and denied appellant's motion. Appellant made no further argument either before or after this ruling, even though the burden of persuasion establishing purposeful discrimination never leaves the opponent of the strike. See MacKintrush v. State, supra.

This court accords deference to the trial court in Batson rulings due to its superior position to observe the parties and make credibility determinations, and a trial court's ruling on a Batson challenge is reversed only when its findings are clearly against the preponderance of the evidence. We affirm the trial court's ruling in this case because we cannot say, given the record before us, that the trial judge's decision was clearly against the preponderance of the evidence.

Affirmed.

Pittman and Crabtree, JJ., agree.