Ricky McCoy v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION II

CACR05-209

December 14, 2005

RICKY MCCOY

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

APPEAL FROM BRADLEY COUNTY CIRCUIT COURT

[NO. CR-2004-57-1]

HONORABLE SAM POPE,

CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

On December 1, 2004, a jury convicted appellant Ricky McCoy of three counts of theft of property and one count of felony fleeing; McCoy received an enhanced eighty-year prison term. McCoy raises a single issue on appeal, claiming that the prosecution denied him his constitutional right to a trial by a jury of his peers, under Batson v. Kentucky, 476 U.S. 79 (1986), because it used its peremptory challenges to strike a disproportionate amount of black persons from the jury panel. We affirm.

McCoy was charged with three counts of theft of property involving three separate motor vehicles and one count of felony fleeing. McCoy's previous multiple felony convictions subjected him to sentence enhancements.

On December 1, 2004, during voir dire of prospective jurors, the prosecutor asked if anyone knew the defendant personally. Stacy Harding and Alvin Crawford indicated that they did. The prosecutor then asked the prospective jurors if any of them knew McCoy's potential witnesses-his aunt, Berniece Lovette, and his mother, Sally McCoy Atkins. Alvin Crawford, Gloria Belcher and Stacy Harding, along with three others, asserted that they knew at least one of the witnesses. The prosecutor questioned Mr. Crawford, Mr. Harding, and Ms. Belcher quite extensively.

Mr. Harding declared that he knew McCoy's family and had known them "just about all [his] life," but that he would have to hear both sides. Mr. Harding stated he would "work the case" and that that he "probably could" judge McCoy "fairly and impartially." After the prosecutor explained that a defendant must be convicted beyond a reasonable doubt, he asked if anyone believed in the general proposition that reasonable doubt is automatically created when there is conflicting testimonial evidence. Mr. Harding answered that such a situation would create reasonable doubt in his mind. Mr. Crawford and Ms. Belcher agreed that they would also have a doubt. Mr. Harding also indicated that he would not have a problem judging the credibility of a witness and deciding who is right and who is wrong. The defense attorney asked rehabilitative questions of Mr. Harding who averred that he would be able to render a guilty verdict if the evidence presented convinced him of McCoy's guilt. In addition, Mr. Harding stated he believed reasonable doubt came down to witness credibility and that he would be unable to believe McCoy if he thought McCoy's witnesses were not credible.

Mr. Crawford initially indicated that he knew McCoy and his family "real well," as he had been a childhood friend of the potential witnesses and they all currently worked at the same company. Mr. Crawford answered that he "probably could" sit as a fair and impartial juror but thathe did not want to do so. Mr. Crawford, however, did indicate that, regardless, he had an open mind about the possible testimony of Mrs. McCoy and Ms. Lovette.

The State made peremptory five strikes, and McCoy challenged some of the strikes-Alvin Crawford, Stacy Harding, and Gloria Belcher -under Batson, supra. McCoy objected to the removal of Mr. Crawford, who had said that he would keep an open mind about the deliberations. Although McCoy admitted that Mr. Harding hesitated during some of the questioning, he believed that defense counsel had done an adequate job of rehabilitating Mr. Harding. In addition, McCoy contended that because Ms. Belcher had indicated that she could be impartial, the only reason the State struck her was because she was black. Mr. Crawford, Mr. Harding, and Ms. Belcher were the only three black people in the first group of twelve prospective jurors.

The prosecutor claimed that he struck these three venirepersons because he had questioned them "fairly extensively"; they were all acquainted with McCoy and the witnesses; two of them had fairly close relationships with McCoy and the witnesses; and they had some curious ideas about how the system worked. The final impaneled jury consisted of eleven whites and one black.

The court found that McCoy did not make a prima facie showing and that the strikes were race neutral in light of some of the responses given by the stricken prospective jurors, the fact that the State used two of its peremptory strikes against white persons, and the fact that the State did not strike one black juror.

McCoy argues on appeal that he was denied the equal protection afforded by the United States Constitution by the State's use of its peremptory challenges to strike a disproportionate number of black persons from the jury panel. The appellate court will not reverse a trial court's ruling on a Batson challenge unless its findings are clearly against the preponderance of the evidence. See, e.g., Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000); Lewis v. State, 84 Ark.App. 327, 139 S.W.3d 810 (2004). In addition, the reviewing court affords the trial court some measure of deference in making Batson rulings because it is in a superior position to observe the parties and determine their credibility. Hinkston, supra; Lewis, supra.

Arkansas courts have delineated a three-step process for assessing Batson challenges. MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). First, the opponent of the juror strike must present a prima facie case of racial discrimination by presenting facts that "raise an inference of purposeful discrimination." Hinkston, supra. Second, upon a prima facie showing of racial discrimination, the burden of production shifts to the proponent of the strike to offer a race-neutral explanation for the strike. Id. Finally, if the strike's proponent provides a race-neutral explanation, the trial court must decide whether the strike's opponent has proven purposeful discrimination. Id. In this final step, the opponent of the strike has the burden of persuading the trial court that the motives of the proponent of the strike are not genuine but, rather, is the product of discriminatory intent. Id. The opponent of the strike never relinquishes the full burden of establishing purposeful discrimination. Burnett v. State, 71 Ark. App. 142, 27 S.W.3d 454 (2000). In addition, once the strike's proponent offers a race-neutral explanation and the trial court rules on the question of intentional discrimination, the issue of whether the defendant made a prima facie case becomes moot. Id.

The opponent of a strike may establish a prima facie case of racial discrimination by (1) showing that an inference of discriminatory purpose arises from the totality of relevant facts; (2) demonstrating either the total or "seriously disproportionate" exclusion of minority persons from the jury; or (3) establishing that the prosecuting attorney's pattern of strikes, questions, or statements during voir dire illustrate a racial motivation. Bousquet v. State, 59 Ark. App. 54, 953 S.W.2d 894 (1997). When deciding whether the opponent of the strike has made a prima facie showing ofdiscrimination, the trial court should consider all relevant circumstances. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000). The inquiry into the Batson challenge ends if there is no prima facie showing; however, the inquiry proceeds to step two if the trial court determines that a prima facie case of discrimination has been made. Id.

When the proponent of the strike provides a race-neutral explanation for the use of peremptory challenges, the explanation must be more than a mere denial of discrimination. Lewis, supra. The explanation, however, need not be persuasive or even plausible; in fact, it can even be silly or superstitious. Id. The trial court will consider the explanation to be race-neutral unless discriminatory intent is inherent in the proponent's explanation. Id. Some acceptable race-neutral explanations are a potential juror's hesitancy to follow the law; the prosecutor's mixed feelings about what a prospective juror would require in terms of proof; a potential juror's previous service on a jury that had acquitted a criminal defendant; and a juror with unacceptable age, demeanor, and employment background. Bousquet, supra.

When a race-neutral explanation is provided, the opponent of the strike needs to present additional evidence or arguments that the proponent's offered motive is not genuine, but is a product of discriminatory intent. MacKintrush, supra. In this final analysis, the trial court should consider the evidence and the observations of the proceedings in order to determine whether the explanations given are genuine or pretextual. Burnett, supra. The appropriate standard for determining pretext is not whether race was the only motivating factor for the strike, but rather, whether race was the cause of the challenged strike- the question to ask is whether the juror would have been kept but for his race. Id.

One way to establish pretext is to show that the prosecutor failed to consistently apply the stated reasons for striking black jurors to similarly situated white jurors. Id. The prosecutor'snon-use of some of its peremptory strikes to exclude other black persons from the jury is also considered cogent evidence of lack of discriminatory intent. Id. While the presence of minority members on the final jury is not determinative of whether the prosecutor had improper racial motives in utilizing its peremptory challenges to exclude other members of the same minority, the presence of that minority is significant. Bousquet, supra. Although the pattern of exercising peremptory strikes against a particular race provides a prima facie showing of discriminatory intent, the mere pattern or process, alone, is not sufficient to establish a Batson violation unless the pattern shows discriminatory intent. London v. State, 354 Ark. 313, 125 S.W.3d 813 (2003).

Arkansas courts have consistently upheld denials of Batson challenges, even when there are seriously disproportionate numbers of minorities on the final impaneled juries. See e.g. Ratliff v. State, ____ Ark. ____, ____ S.W.3d ____ (Dec. 2, 2004) (upholding denial of a Batson challenge where (1) potential juror had previously served on a jury that acquitted a criminal defendant; (2) potential juror was also a retired military nurse who worked with people with mental defects, and her experiences with these patients could possibly color her perceptions, especially where the appellant raised an insanity defense; (3) the State used only five of its six peremptory challenges; and (4) the final jury included at least one black member); Jackson v. State, 330 Ark. 126, 954 S.W.2d 894 (1997) (denying Batson relief where (1) the prosecutor claimed that he struck one of the venirepersons because the same prosecutor had previously prosecuted her husband and she had been in the prosecutor's office in connection with past serious crimes; (2) another stricken venireperson had been evasive when asked his opinion about the death penalty and also lived in the same household as his nephew, who had also been previously prosecuted by the same prosecutor; (3) the impaneled jury consisted of two black males; and (4) the State only utilized six of its ten peremptory challenges); Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991) (denying Batsonrelief where the state used five of its six peremptory strikes to strike blacks, and the final jury had one black member); but see Burnett, supra (providing Batson relief where (1) use of peremptory strikes resulted in all-white jury; (2) one prospective black juror, although previously convicted for battery and fighting with a police officer, had indicated that he could be fair in judging the case and acknowledged that undercover officers are sometimes necessary to apprehend criminals; and (3) appellant introduced additional evidence that this potential juror had recently served on a jury that returned a guilty verdict and that the prosecutor failed to apply the reasons for the strikes to similarly situated white venirepersons).

In this case, the trial judge claimed that he was unsure whether McCoy had made a prima facie showing of racial discrimination. It is clear from the facts of this case, however, that McCoy did make a proper showing, as the prosecution struck a disproportionate amount of blacks from the jury. Even though the judge claimed to be unsure of the prima facie showing, he still ruled that the prosecution had provided sufficient race-neutral explanations. Once the prosecutor provided his race-neutral explanation, McCoy's attorneys did not provide any additional evidence, but relied on the established prima facie case. The judge found that there was "plenty of reason to strike these folks" and pointed out that the jury consisted of at least one black juror.

McCoy argues the prosecutor directly questioned the three stricken venirepersons and no others. This assertion is not exactly correct. From the record, it appears that the prosecutor presented general questions to the entire panel and only asked follow up questions when a panel member answered the questions in a manner the prosecutor deemed troubling. In addition, McCoy failed to make this argument to the trial judge.

McCoy also argues that in small towns, it is not uncommon for venirepersons to be acquainted with the defendant or his family, but that this is not a sufficient reason for exercising aperemptory challenge. However, even if this reason is insufficient, the prosecutor also claimed that these people were stricken because they had some "curious ideas about the system." While defense counsel did attempt to rehabilitate Mr. Crawford and Mr. Harding, there can be no denying that they were both very uncomfortable with the idea of sitting in judgment of McCoy.

McCoy further asserts that after the prosecution provided a race-neutral explanation, the trial judge should have conducted a sensitive inquiry into the basis for each challenge by the State, as required by Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990). Colbert only required such an inquiry if the explanations appeared insufficient. Furthermore, in 1993, the supreme court eliminated Colbert's requirement of making a sensitive inquiry. Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993). Here, the trial judge found the prosecution's explanations sufficient because they were facially race-neutral, so even under Colbert there would have been no need to conduct a "sensitive inquiry" absent further evidence presented by McCoy.

While it is troubling that the prosecutor used its peremptory strikes to remove a significant number of black venirepersons, we cannot say that the trial judge went against the preponderance of the evidence when it denied McCoy's Batson challenge. The prosecutor provided sufficient race-neutral explanations, and although these explanations may well have been pretextual, McCoy simply relied upon his prima facie showing and failed to provide further evidence to establish discriminatory intent.

Affirmed.

Crabtree and Baker, JJ., agree.