James Allen Long, Jr. v. State of Arkansas

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ar04-089

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

JAMES ALLEN LONG, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-89

DECEMBER 15, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

FIRST DIVISION

[NO. CR 2002-2757]

HON. MARION ANDREW HUMPHREY, JUDGE

AFFIRMED

Terry Crabtree, Judge

A jury sitting in the Pulaski County Circuit Court convicted the appellant, James Allen Long, of aggravated robbery and first-degree battery on June 12, 2003. The trial court sentenced appellant as an habitual offender to thirty years' imprisonment for having committed aggravated robbery and to fifteen years' imprisonment for having committed first-degree battery. The circuit judge ordered that appellant's sentences run concurrently to each other. On appeal, appellant contends that the trial court erred by granting the State's Batson objection. We affirm.

On August 8, 2002, the State filed a three-count information against appellant alleging that appellant committed aggravated robbery, first-degree battery, and being a felon in possession of a firearm. At trial, just before the members of the jury were selected, appellant moved for a severance on the charge of being a felon in possession of a firearm, and the trial court granted the motion.

The victim, Jesse Green, provided the majority of the State's proof at trial. Green testified that on June 19, 2002, he was working in a Shell Station Superstop along with his brother, Josh. Green testified that at about 9:00 p.m. two masked, black men entered the store, one of whom had a gun. One of the men, the one without a gun, jumped up on the store counter and "started messing with the cash register." At this time, Josh ran to the telephone and called the police. The man who had jumped up on the counter ran out of the store. As the first man ran out of the store, he urged the other man to leave because they could not get any money. Green testified that the other man replied, "No, I'm getting some. We came this far." The other man began firing his gun, and Green was struck three times in the back of the leg. Green and his brother attacked the gunman, beat him, and held him until the police arrived. Green specifically identified appellant as the man who had come into the Superstop and shot him. Green's testimony was corroborated by a videotape taken from the Superstop's security cameras, which was played for the jury.

Appellant claims that the trial court erred in granting the State's Batson objection. Under Batson v. Kentucky, 475 U.S. 79 (1986), and its progeny, neither a prosecutor nor a defendant in a criminal case can use peremptory strikes to exclude jurors solely on the basis of race. See Holder v. State, 354 Ark. 364, 124 S.W.3d 439 (2003). Likewise, parties cannot exercise peremptory strikes to discriminate against jurors solely on the basis of gender. See Cleveland v. State, 318 Ark. 738, 888 S.W.2d 629 (1994).

In MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), the Arkansas Supreme Court set forth the three-step process to be followed in Batson challenges. In more recent cases, the court has summarized the process as follows:

First, strike's opponent must present facts to raise an inference of purposeful discrimination; that is, the opponent must present a prima facie case of racial discrimination. Second, once the strike's opponent has made a prima facie case, the burden shifts to the proponent of the strike to present a race-neutral explanation for the strike. If a race-neutral explanation is given, the inquiry proceeds to the third step, wherein the trial court must decide whether the strike's opponent has proven purposeful discrimination. Here, 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.

Anderson v. State, ___ Ark. ___, ___, ___ S.W.3d ___, ___ (Apr. 29, 2004) (quoting Hinkston v. State, 340 Ark. 530, 538, 10 S.W.3d 906, 911 (2000)).

The exchange between trial counsel, the deputy prosecuting attorney, and the trial judge regarding the Batson challenge occurred as follows:

Prosecution: Your Honor, looking at the defense strikes, it looks like they're striking Mr. Lounsberry and Mr. Starr on the back row. At this point, I would note that every single strike the defense has made at this point has been a white male. I think enough of a pattern has been shown. We'd like to make a Batson challenge of the strikes at this time and ask that a . . . legal reason for the strikes be shown at this time by defense.

Defense: Likewise, your Honor, the prosecution has exercised four strikes, three of those against blacks. There's eights blacks on the panel. They've struck almost fifty percent of the blacks on the jury panel as a whole. There are still plenty of white males in the audience and on the jury.

The Court: What about it?

Prosecution: Your Honor, I don't think they've shown a prima facie case in that we've kept blacks on this panel, Mr. Daniels and Mr. McDowell specifically. I don't think at this point I have to articulate any non-biased reason for the strikes I've made because I don't think any pattern was shown. But every single strike for the defense has been a white male.

The Court: With respect to Ophelia Johnson, she specifically indicated a hesitation in using judgment against people.

Prosecution: That's correct.

The Court: With respect to Hazel Bragg, she indicated she had something to do tomorrow that was pressing.

Prosecution: Correct.

The Court: I don't know anything about Mr. Hornes though on this case. What is the State's reason for striking him?

Prosecution: Your Honor, he said he'd been up to Ninth Street Shell and had prior contact perhaps with Mr. Green. We saw Mr. Green was pretrial (sic). I don't know the nature of the contact, didn't want to explore it. But out of an abundance of caution, I exercised a peremptory strike against him.

The Court: He indicated no bias, though. We'll go on with the jurors and also grant what the State has said with respect to defendant's use of strikes. They have been used against all white males. So, we'll keep Mr. Lounsberry and Mr. Starr and Mr. Hornes.

Then, after choosing one more juror from the panel, both the prosecution and the defense pronounced the panel to be "good" upon inquiry of the Court, and the jury was sworn to try the case.

Appellant maintains that the circuit judge erred in granting the State's Batson challenge "because the State did nothing more than point out every single strike the defense has made at this point has been a white male." However, at the trial level, appellant did not make any objection to the way in which the State's Batson challenge was handled by the trial court; in fact, defense counsel ultimately pronounced the jury "good for the defense." Issues raised for the first time on appeal, even constitutional ones, will not be considered because the trial court never had an opportunity to rule on them; this is true for objections regarding the trial court's handling of Batson challenges as well. See Lewis v. State, 84 Ark. App. 327, 139 S.W.3d 810 (2004) (objection waived where appellant failed to object when trial court improperly cut off State's attempt to give neutral reason for striking one juror and supplied a reason on behalf of the State for the second strike); London v. State, 354 Ark. 313, 125 S.W.3d 813 (2003) (objection waived where appellant failed to object when prosecutor offered neutral reasons for only two of the three jurors stricken; objection also waived where appellant failed to object to court's analysis on the basis of pattern and failed to argue that he was not required to show a pattern of discrimination); Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996) (objection waived where appellant failed to object when State did not provide neutral reason for removal of black juror and similarly-situated white juror was not stricken). Below, appellant failed to make a specific argument regarding the way the trial court handled the Batson objection. Thus, none of the issues raised in this appeal are preserved for appellate review. As a result, we affirm the trial court.

Affirmed.

Pittman and Roaf, JJ., agree.