Elmira Howard v. State of Arkansas

Annotate this Case
ar04-949

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

ELMIRA HOWARD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-949

March 23, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR2003-2139]

HON. TIMOTHY DAVIS FOX, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Elmira Howard appeals her convictions for robbery and theft of property. Her sole argument on appeal is that the trial court erred in denying her motion objecting to the State's use of its peremptory challenges based on Batson v. Kentucky, 476 U.S. 79 (1986) (holding Equal Protection Clause forbids prosecutor from challenging potential jurors solely on account of their race). We affirm.

During voir dire, the State posed a hypothetical situation involving the prosecutor's elderly grandmother. The prosecutor asked the potential jurors to assume that her grandmother, "a wonderful old lady," had glaucoma and smoked marijuana occasionally for medical purposes. She asked the prospective jurors if they could convict her grandmother of possession. Two panelists, Juror Williams and Juror Harris, answered in the negative. Juror Alexander stated that she did not know if she could convict because of the health issue

involved. Juror Williams was the only black panelist. In making peremptory challenges, the State struck Juror Williams and Juror Harris. Appellant made a Batson challenge to the striking of Juror Williams. In her challenge, appellant questioned the removal of Juror Williams because she was the only African-American on the jury panel. The State countered that it struck both Juror Williams and Juror Harris for the same reason-because they each stated that they could not follow the law in the grandmother hypothetical. It argued that appellant had not made her prima-facie case for discrimination because she had not shown a purpose or pattern to discriminate in the jury selection. The trial judge in this case found that appellant did not make a prima-facie case of discrimination because appellant could not show Juror Williams was struck because of a discriminatory purpose, and that even if she had, the State had a racially-neutral, legitimate reason for striking Juror Williams and therefore did not violate Batson. On appeal, we reverse a trial court's Batson ruling only when the trial judge's findings of fact are clearly against the preponderance of the evidence. Holder v. State, 354 Ark. 364, 124 S.W.3d 439 (2003).We accord the trial court deference in making those rulings, as it is in a superior position to make such determinations because it has an opportunity to observe the parties and jurors and determine their credibility. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999).

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. at 398, 978 S.W.2d at 296. 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., 978 S.W.2d at 296. Should the trial court determine that a prima-facie case has been made, the inquiry proceeds to the next step, however, if the determination by the trial court is to the contrary, that ends the inquiry. Id., 978 S.W.2d at 296.

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., 978 S.W.2d at 296. 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., 978 S.W.2d at 296. The reason will be deemed race neutral unless discriminatory intent is inherent in the proponent's explanation. Id., 978 S.W.2d at 296. A juror's hesitancy to follow the law is an acceptable race-neutral explanation. Bosquet v. State, 59 Ark. App. 54, 953 S.W.2d 894 (1997). However, the trial court must not end the Batson inquiry at this stage. MacKintrush, 334 Ark. at 399, 978 S.W.2d at 296.

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., 978 S.W.2d at 296. 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., 978 S.W.2d at 296. The opponent may do this by presenting further argument or other proof relevant to the inquiry. Id., 978 S.W.2d at 297. 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., 978 S.W.2d at 297. 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.2dat 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., 978 S.W.2d at 297. It is clear that the burden of persuasion establishing purposeful discrimination never leaves the opponent of the strike. Id. at 398, 978 S.W.2d at 296. If the strike's opponent does not present further evidence, no additional inquiry by the trial court is required. Id. at 400, 978 S.W.2d at 297. 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., 978 S.W.2d at 297.

Appellant argues that the trial court erred by allowing the State to strike Juror Williams because it treated Juror Williams (an African-American panelist) differently than Juror Alexander (a Caucasian panelist) when they answered the same way as to the grandmother hypothetical. However, appellant's argument rests on inaccurate facts. Juror Williams unequivocally answered no to the question of whether she could convict the grandmother. She stated she could not convict for health reasons. Juror Harris, who was also struck, answered similarly that he unequivocally could not convict because he had friends that used marijuana. Juror Alexander, however, answered that she did not know if she could convict the grandmother. When asked what caused her to be unsure, she said the health issue. The prosecutor then asked Juror Alexander if she was sympathetic to the grandmother, and she said yes. Therefore, the State struck the only two panelists that unequivocally stated that they could not follow the law and convict the hypothetical grandmother, even though the scenario outlined an irrefutable violation of the law. The State chose not to strike Juror Alexander, who only cast some doubt on her ability to convict, but did not definitively decline to do so.

In objecting pursuant to Batson, the only reason appellant put forth was that Juror Williams, the only African-American prospective juror, was struck by the State. Under MacKinstrush, appellant's first step in making a Batson challenge was to show purposeful discrimination. Because both jurors who indicated that they could not follow the law were struck, appellant failed to show that the strike of Juror Williams was part of a process or pattern designed to discriminate or that Juror Williams was excluded solely because of her race. Therefore, the trial judge's finding that appellant did not make a prima-facie case for discrimination was clearly supported by the preponderance of the evidence, and we affirm.

Affirmed.

Hart and Crabtree, JJ., agree.