Clint Lammers v. State of Arkansas

Annotate this Case
Clint LAMMERS v. STATE of Arkansas

CR 97-417                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 23, 1997


1.   Appeal & error -- sufficiency of evidence considered first. -- The
     appellate court does not consider trial errors until after it
     has considered arguments regarding the sufficiency of the
     evidence, including that which perhaps should not have been
     admitted.

2.   Motions -- directed verdict -- general motion not sufficient -- sufficiency
     argument procedurally barred. -- Although there was an abundance of
     evidence to support appellant's conviction, his sufficiency
     argument was not preserved for appeal because his motions
     lacked the requisite specificity; a general motion such as the
     one made by appellant is not sufficient to apprise the trial
     court of the missing proof so that it can be made aware of any
     deficiency; the argument was procedurally barred from
     appellate review.

3.   Appeal & error -- capital murder cases -- review of errors. -- In
     capital murder cases, the supreme court is required by Ark.
     Sup. Ct. R. 4-3(h) to review all errors prejudicial to the
     appellant in accordance with Ark. Code Ann.  16-91-113(a); 
     pursuant to the requirements of this rule, the court makes its
     own examination of the record and rejects or accepts on their
     merits all objections made at trial, whether or not argued on
     appeal, but does not consider a matter in the absence of an
     objection; the court reviews prejudicial, erroneous rulings
     even when such objections are not briefed by either the
     appellant or the State.

4.   Jury -- Batson challenge -- prima facie case of discrimination --
     requirements for establishing. -- In a challenge based on Batson v.
     Kentucky, 476 U.S. 79 (1986), the threshold question is
     whether a prima facie case of discrimination has been
     presented by the State; the requirements for establishing a
     prima facie case entail (1) showing that the totality of the
     relevant facts gives rise to an inference of discriminatory
     purpose, (2) demonstrating total or seriously disproportionate
     exclusion of the group in question from the jury, or (3)
     showing a pattern of strikes, questions or statements by the
     proponent of the strike during voir dire.

5.   Jury -- Batson challenge -- age and occupation neutral -- trial court's
     focus was on middle-aged white males -- trial court's ruling in error. --
     Under Batson v. Kentucky, age and occupation are neutral
     criteria; it was obvious from the record that the trial
     court's focus was on the exclusion of middle-aged white males
     as it inquired into the age of each juror; therefore, the
     supreme court held that the trial court erred in ruling that
     appellant's peremptory challenge of a middle-aged white male
     juror violated Batson and in ordering the juror to serve over
     appellant's objection.

6.   Jury -- Batson challenge -- determination of sufficiency of explanation not
     made. -- When a racially neutral explanation is offered to
     rebut a prima facie case, the trial court must then determine
     from all relevant circumstances the sufficiency of the
     explanation; this was not done here; the trial court
     erroneously ended its inquiry after appellant's race-neutral
     explanation and seated the juror over appellant's objection.

7.   Jury -- Batson challenge -- no constitutional violation in appellant's
     peremptory strike -- trial court erred in overruling. -- Where the
     juror seated as first alternate over appellant's objection
     replaced a juror before trial commenced and participated in
     the decision, and where appellant received a life sentence
     without parole, the supreme court could not say that the error
     was harmless; as there was no constitutional violation in
     appellant's peremptory strike, the trial court erred in
     overruling it.

8.   Search & seizure -- standing -- what must be shown. -- The rights
     secured by the Fourth Amendment are personal in nature; before
     a search can be challenged on Fourth Amendment grounds, the
     challenger must have standing; to have standing, appellant
     must show that (1) he manifested a subjective expectation of
     privacy in the area searched and (2) society is prepared to
     recognize that expectation as reasonable.

9.   Search & seizure -- standing -- finding of lack of standing supported by
     preponderance of evidence. -- Where neither appellant nor his
     mother owned or rented the house with the shed that was
     searched at the time of the offense and where the duplex in
     which appellant lived, while in close proximity to the house
     and the shed, was not a "common area," and each tenant was
     responsible for a fifty-foot lot that surrounded each
     residence, the supreme court concluded that appellant did not
     have a reasonable expectation of privacy in the storage
     building because he neither owned nor rented the property; the
     trial court's decision that appellant did not have standing to
     object to the search was supported by a preponderance of the
     evidence presented in the suppression hearing.

10.  Criminal procedure -- voluntary statement -- waiver of rights -- arguments
     distinguished. -- A voluntary-statement argument addresses
     whether the statements were made as the result of coercion; a
     waiver-of-rights argument focuses upon whether the waiver was
     made with a full awareness of both the nature of the right
     being abandoned and the consequences of the decision to
     abandon it, as well as whether the accused made the choice,
     uncoerced by police, to waive his rights; they are clearly
     different arguments.

11.  Appeal & error -- ruling must be obtained for appellate consideration. --
     It is incumbent upon a movant to obtain a ruling for his
     argument to be considered on appeal.

12.  Judges -- recusal -- trial court did not abuse discretion in declining to
     recuse. -- The supreme court saw no evidence of bias in the
     record that would cause it to conclude that the trial court
     abused its discretion in declining to recuse; the mere
     presence of a complaint or suit against a judge, is not, by
     itself, a reason to require recusal; recusal is appropriate
     when a party has acted contemptuously toward a judge,
     embroiling him in a personal dispute, or when a judge cannot
     lay aside attitudes toward individual practitioners; there was
     no such showing here.

13.  Judges -- recusal -- no showing of objective bias. -- Bias is a
     subjective matter that is to be confined to the conscience of
     the judge; unless there is an objective showing of bias, there
     must be a communication of bias in order to require recusal
     for implied bias; there was no such showing on the record in
     this appeal.

14.  Appeal & error -- prejudicial error required new trial. -- The supreme
     court determined that the trial court's error in not allowing
     appellant to exercise his peremptory strike against a juror
     was prejudicial error requiring a new trial; the matter was
     reversed and remanded.


     Appeal from Arkansas Circuit Court; Russell Rogers, Judge;
reversed and remanded.
     J.W. Green, Jr., for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     Ray Thornton, Justice.
     Appellant Clint Lammers was tried and convicted of capital
murder in the slaying of Lois Wallace, a clerk at a grocery store
in Stuttgart.  He was convicted at a jury trial and sentenced to
life imprisonment without parole.  He argues four points on appeal,
none of which contains reversible error.  However, pursuant to the
provisions of Ark. Sup. Ct. R. 4-3(h), we have examined the
complete record for any prejudicial error that was objected to
below, but not argued on appeal.  We have concluded that there was
reversible error when the trial court ruled that appellant's
peremptory challenge of a middle-aged white male juror violated the
requirements of Batson v. Kentucky, 476 U.S. 79 (1986), and ordered
the juror to serve over appellant's objection.
     Appellant's conviction was based upon evidence that he and two
accomplices, Sean Smith and Brandon Isbell, who were tried
separately, planned to rob Goacher's IGA grocery store and shoot
the clerk to eliminate her as a witness.  They went to the grocery
store on the morning of October 28, 1994, where they first
purchased batteries and remained in the store while they discussed
their next move.  Isbell picked up a pair of gloves and went to the
front of the store, while appellant and Smith remained in the back. 
Isbell had a gun with him.  He went to the cash register to pay for
the gloves and shot the clerk, Ms. Wallace, in the head.  When they
could not open the cash register, they grabbed some cigarettes and
fled to appellant's home.  They took the gun, cigarettes,
batteries, and gloves to a shed near appellant's house, where they
hid the gun.  They called police from appellant's house and turned
themselves in.  All three gave statements while in custody.
     After the police arrived at the house, Smith told them what
was hidden in the shed.  The officers immediately conducted a
warrantless search of the shed and found a .357 caliber revolver
hidden under a stuffed animal and a .22 caliber handgun in a paper
bag.  They found the cigarettes, batteries, and gloves lying
outside on the ground.  Appellant argues that the confession and
search were illegal, and that without this evidence, there was not
substantial evidence to convict him.
     Before we discuss the error upon which we reverse, or any of
the other points on appeal, we must first consider his challenge to
the sufficiency of the evidence.  We do not consider trial errors
until after we have considered arguments regarding the sufficiency
of the evidence, including that which perhaps should not have been
admitted.  Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993).
     There was an abundance of evidence to support a conviction.
Appellant's argument that the evidence was insufficient because
some of it should have been suppressed is based upon a mistaken
premise.  See Scroggins v. State, supra.  Further, this issue was
not preserved for appeal because his motions lacked the requisite
specificity.  At the close of the State's case, appellant stated
that he moved for "a directed verdict of dismissal based on the
sufficiency of the evidence."  He renewed his motion at the close
of his case.  We cannot consider this argument because his motions
did not state "the specific grounds therefor."  Walker v. State,
318 Ark. 107, 108, 883 S.W.2d 831, 832 (1994).  A general motion
such as the one made by appellant is not sufficient to apprise the
trial court of the missing proof so that it can be made aware of
any deficiency.  Id.  Therefore, the argument is procedurally
barred from our review.
     In capital murder cases, we are required by Ark. Sup. Ct. R.
4-3(h) to " . . . review all errors prejudicial to the appellant in
accordance with Ark. Code Ann.  16-91-113(a)."  Pursuant to the
requirements of this rule, we make our own examination of the
record and reject or accept on their merits all objections made at
trial, whether or not argued on appeal, but we do not consider a
matter in the absence of an objection.  Fretwell v. State, 298 Ark.
91, 708 S.W.2d 630 (1996).  We review prejudicial, erroneous
rulings even when such objections are not briefed by either the
appellant or the State.  Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995).  We have concluded that the trial court committed
prejudicial error in denying appellant's peremptory challenge of
Mr. Clifford Burdett on the basis of the principles established by
Batson v. Kentucky, 476 U.S. 79 (1989).
     We note that before Mr. Burdett was challenged, the selection
of twelve jurors had been completed without an objection being
preserved as to any peremptory challenge or dismissal for cause. 
However, the trial court determined that two alternate jurors
should be chosen in the event that one or more of the jurors could
not serve.  Appellant, a seventeen-year-old white male, attempted
to exercise a peremptory challenge of Mr. Burdett, and the
prosecutor asked for a bench conference, arguing that appellant
struck Mr. Burdett because he is a "white male of middle age."  The
following colloquy ensued:
Mr. J.W. Green, Jr.: My client told me to strike
him, Your Honor.  My client sits here facing a
possible death sentence.  My client does not
feel comfortable with this gentleman sitting
as a juror.  And in this particular case, I
follow my client's recommendation.
[A recess was taken in order for the court to
review J.E.B. v. T.B. ex rel. Alabama, 114 S. Ct. 1419 (1994)]
                   . . . 
Mr. Dittrich [prosecutor]:  . . . there have been
a large number of middle age, or older, white
males struck by the defendant regardless of
the answers to their questions.  And it is our
position that a conscious pattern to strike
those individuals.  I realize J.E.B. versus
Alabama does not deal with the age issue, but
we would make both a gender and an age based
discrimination argument.  
                   . . . 
The Court:  Well, for the record, we should note
that Mr. Harris is on the jury, and he is
thirty -- in his thirties?  Do you all have a
questionnaire?

Mr. Dittrich:  Mr. Harris is thirty-two years
old, Your Honor --- I'm sorry, Your Honor,
forty-two.  He was born in 1954.

The Court:  Forty-two.  And . . . let's see, Mr.
Stovesand -- Mr. Stovesand was struck by the
defendant, and I know he is in his twenties. 
Mr. Winfrey was excused by the defendant, and
he is in his fifties.

The Court:  Ms. Sells was excused by the
defendant.  She is a white woman.  Mr. Berry
was seated on the jury.  Do we know how old
Mr. Berry is?

Mr. Dittrich:  Mr. Berry . . . Let me look just
a minute, Your Honor. . . .Mr. Berry is
thirty-six years old.  But I would point out
for the record that Mr. Berry is an African-
American.
     The court then proceeded to inquire into the age of each of
the white males who had been peremptorily challenged.  Appellant's
attorney asked whether the State's Batson challenge was based upon
race, gender, or age, and the prosecutor replied that it was based
upon all three.  The court disallowed the peremptory challenge. 
Appellant's attorney then explained his objection for the record as
follows:
Mr. J.W. Green, Jr.:  Your honor, the defendant's
objection goes not only to the fact that he is
a white man.  It wouldn't make any difference
if it was a white female.  The defendant's
objection goes to the fact -- further to the
fact that he did not feel comfortable with the
answers that were asserted by Mr. Burdett up
there.  The defendant is sitting here in a
capital murder case.  His life is on the line. 
And he is exercising a peremptory challenge
that he thought, and believes that he has a
right to exercise.  If it had been a black
man, or if it had been a black woman, if it
had been a white man, or if it had been a
white woman, would the, what he perceived and
what he heard from where he sits, he would
have excluded that person from the juror --
jury.
Although there was no finding by the court that this explanation
was pretextual, Mr. Burdett was seated on the jury without further
inquiry.
     The threshold question is whether a prima facie case of
discrimination has been presented by the State.  In Mitchell v.
State, 323 Ark. 116, 913 S.W.2d 264 (1996), we articulated the
requirements for establishing a prima facie case as follows:
(1) showing that the totality of the relevant
facts gives rise to an inference of
discriminatory purpose, (2) demonstrating
total or seriously disproportionate exclusion
of [the group in question] from the jury, or
(3) showing a pattern of strikes, questions or
statements by [the proponent of the strike]
during voir dire.
Id. at 123-24, 913 S.W.2d  at 268.  By trying to discern a pattern,
the trial court followed the correct procedure in attempting to
determine whether a prima facie case had been established. 
However, its ruling was based upon a faulty premise, which was that
age can be a basis for a Batson challenge.
     In Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 7
(1997), we approved the trial court's finding that no Batson
violation existed when the proponent of the strike in question
there explained to the court that it was looking for mature,
conservative business people.  We noted that age and occupation are
neutral criteria.  Id.; accord United States v. Ross, 872 F.2d 249
(8th Cir. 1989); United States v. Garrison, 849 F.2d 103 (4th. Cir.
1988).  While we recognize that the United States Supreme Court has
expanded Batson, as provided in Georgia v. McCollum, 505 U.S. 42
(1992), and extended the principles to a consideration of gender,
J.E.B. v. T.B. ex rel. Alabama, 511 U.S. 127 (1994), it is obvious
from the record that the trial court's focus here was on the
exclusion of middle-aged white males, as it inquired into the age
of each juror.  Therefore, its ruling was in error.
     Had there been a prima facie case, the court failed to
properly apply the remaining parts of the Batson test.  The
explanation offered by appellant was both race and gender neutral. 
There was no finding by the trial court that it was pretextual. 
When a racially neutral explanation is offered to rebut a prima
facie case, the trial court shall then determine from all relevant
circumstances the sufficiency of the explanation.  Colbert v.
State, 304 Ark. 250, 801 S.W.2d 643 (1990).  This was not done; the
trial court ended its inquiry after appellant's race-neutral
explanation, and seated the juror over appellant's objection.
     Mr. Burdett, who was originally the first alternate, replaced
a juror before the trial commenced and participated in the
decision.  As appellant received a life sentence without parole, we
cannot say this error was harmless.  We pointed out the following
in Sonny:
The goal of fairness in jury trials is also
enhanced by the venerable practice of
peremptory challenges, which dates back beyond
the founding of the Republic to origins in the
common law.  The historical practice of
allowing the litigant to strike jurors for any
reason came into being for the purpose of
fostering both the perception and the reality
of an impartial jury.  The rationale
supporting this practice remains valid except
where the constitutional principles
articulated by Batson and its progeny are
violated.
Sonny v. Balch Motor Co., 328 Ark. at 325, 944 S.W.2d  at 90
(citations omitted).  As there was no constitutional violation in
appellant's peremptory strike, the trial court erred in overruling
it.
     We will address appellant's remaining points on appeal, as
they are likely to arise on retrial.  Prior to trial, appellant
filed a motion to suppress evidence seized during the warrantless
search of a metal building located behind the duplex where he and
his mother lived.  In his motion, he contended that the search and
seizure violated his Fourth Amendment rights because it was made
"without the consent of the defendant or his mother, the other
occupant of the premises and with the absence of any exigent
circumstances to justify a warrantless search."  The trial court
denied the motion, finding that because neither appellant nor his
mother had a property interest in the shed, he lacked standing to
object to the search.  The trial court was correct.
     "The rights secured by the Fourth Amendment are personal in
nature."  Littlepage v. State, 314 Ark. 361, 368, 863 S.W.2d 276,
280 (1993) (citing Rakas v. Illinois, 439 U.S. 128 (1978)).  Before
a search can be challenged on Fourth Amendment grounds, the
challenger must have standing.  Id.  To have standing, appellant
must show that (1) he manifested a subjective expectation of
privacy in the area searched and (2) society is prepared to
recognize that expectation as reasonable.  Dixon v. State, 327 Ark.
105, 937 S.W.2d 642 (1997).
     The testimony at the suppression hearing revealed that
appellant's mother had once rented the house to which the shed
belonged from Ray Freeman.  Mr. Freeman also owned the duplex that
Mrs. Lammers was renting at the time of the offense, and it is
located near the house and the shed.  However, Freeman testified
that the shed went with the house.  After Mrs. Lammers moved out of
the house and into the duplex, the house was sold, but Mr. Freeman
re-acquired it when the buyer was unable to keep up with the
payments.  He said that Mrs. Lammers had put a motorbike in the
shed at one time and left it there when the property was sold, but
that the buyer had taken the motorbike and sold it.  
     It is not clear from the testimony whether Freeman or the
buyer owned the house at the time of the offense, but the following
facts are clear: (1) neither appellant nor his mother owned or
rented the house with the shed at the time of the offense and (2)
the duplex where appellant lived, while in close proximity to the
house and the shed was not a "common area," and each tenant was
responsible for a fifty-foot lot that surrounded each residence. 
It follows that appellant did not have a reasonable expectation of
privacy in the storage building, as he neither owned nor rented the
property.  The trial court's decision that appellant did not have
standing to object to the search is supported by a preponderance of
the evidence, as presented in the suppression hearing.
     Appellant next argues that the statement he made to police
while in custody should have been suppressed because he did not
knowingly and voluntarily waive his Fifth Amendment right to remain
silent.  Appellant contended in his motion to suppress that he did
not knowingly, intelligently, or voluntarily waive his rights; that
he was not properly or sufficiently advised of his rights; and that
he was not capable of understanding those rights, due to his age
and his mental and emotional state.  However, the trial court's
ruling stated that there was "no evidence whatsoever of
involuntariness."  It appears that appellant made an argument that
his waiver was involuntary, but he received a ruling that his
statement was not involuntary.  The arguments are not the same. 
     In Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994), we
discussed the difference between the contention that a statement
was made involuntarily and the contention that an accused did not
knowingly and voluntarily waive his right to remain silent.  The
"voluntary statement" argument addresses whether the statements
were made as the result of coercion.  Id. at 129, 883 S.W.2d  at
826.  The "waiver of rights" argument focuses upon whether the
waiver was made with a "full awareness of both the nature of the
right being abandoned and the consequences of the decision to
abandon it," as well as whether the accused made the choice,
"uncoerced by police, to waive his rights."  Id., 883 S.W.2d  at
825-26. (emphasis added)  We pointed out in Clay that while we
sometimes do not take time to point out the distinctions between
the two arguments, they are clearly different arguments.  Id.; see,
e.g., Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989) (reaching
the waiver issue but not the voluntariness issue because the
voluntariness argument had not been made to the trial court).  It
is incumbent upon a movant to obtain a ruling in order for his
argument to be considered on appeal.  Foreman v. State, 328 Ark.
583, 945 S.W.2d 926 (1997).  Appellant should be mindful of the
distinction between the two arguments and should he make this
argument at his retrial, he will need to obtain a specific ruling
on either or both arguments if he wishes to preserve the issues for
our review.  See Foreman v. State, supra.
     Appellant's final argument is that the trial court abused its
discretion in denying his motion to recuse.  Prior to trial,
appellant filed a motion requesting that the trial judge recuse
from the case because one of appellant's attorneys, J.W. Green,
Jr., who was also Stuttgart City Attorney, had approved a charge of
battery against the judge, resulting from an incident at a night
club in Stuttgart.  The Stuttgart Municipal Court had issued a
warrant for the judge's arrest, but the charge was nolle prossed at
the request of the alleged victim.
     At a hearing, appellant noted that after the incident, the
judge had recused from another case in which the defendant was
represented by Mr. Green.  After hearing the arguments, the judge
declined to recuse, stating that he had no argument with Mr. Green,
as he was only doing his job, and that he did not have any
prejudice against appellant as a result of the incident in
municipal court.  
     We see no evidence of bias in the record that would cause us
to conclude that the trial court abused its discretion in declining
to recuse.  The mere presence of a complaint or suit against a
judge, is not, by itself, a reason to require recusal.  Smith v.
State, 296 Ark. 451, 757 S.W.2d 554 (1988).  When a party has acted
contemptuously toward a judge, embroiling him in a personal
dispute, or when a judge cannot lay aside attitudes toward
individual practitioners, we have said that he should recuse.  E.g,
Rosenzweig v. Lofton, 295 Ark. 573, 751 S.W.2d 729 (1988); Clark v.
State, 287 Ark. 221, 697 S.W.2d 895 (1985).  There was no such
showing here.
     Bias is a subjective matter which is to be confined to the
conscience of the judge.  Bradford v. State, 328 Ark. 701, 947 S.W.2d 1 (1997).  Unless there is an objective showing of bias,
there must be a communication of bias in order to require recusal
for implied bias.  There is no such showing on the record before us
in this appeal.
     In summary, we determine that the trial court's error in not
allowing appellant to exercise his peremptory strike against Mr.
Burdett was prejudicial error requiring a new trial.  We reverse
and remand.
     Newbern, Glaze, and Imber, J.J., dissent.


     Tom Glaze, Justice, dissenting.  The majority court reverses
this case on a Batson issue the trial court favorably decided in
the State's favor.  See Georgia v. McCollum, 505 U.S. 42 (1992);
Batson v. Kentucky, 476 U.S. 79 (1986).  In sum, when defendant
Lammers peremptorily challenged venireman Mr. Burdett, the
prosecutor objected that Lammers' strike was based solely on race,
gender, and age.  The prosecutor pointed out that of Lammers' nine
peremptory strikes, seven were against white males.  He also
emphasized that, in making his strikes, Lammers' counsel announced,
"It is widely known in the community that black individuals tend to
be less severe than white people in criminal juries in Arkansas
County."  Considering Lammers' pattern of strikes and his
discriminatory statement regarding race and gender when striking
veniremen, I believe the trial court was correct in finding the
State had shown a prima facie case of discrimination.  
     While the majority opinion seems to find fault with the trial
court's reference to middle-aged white males, the record is clear
that the judge's ruling dealt with gender and race.  
     The Court in J.E.B. v. T.B. ex rel Alabama, 511 U.S. 127
(1994), extended the Batson principle to gender-based strikes, and
the trial court here determined Lammers improperly utilized gender
in striking white males.  The trial judge then required Lammers to
provide a gender-neutral explanation in striking Mr. Burdett. 
Lammers failed to do so, but instead he gave the following general,
rather rambling, statement:
     Mr. J. W. Green, Jr.:  Your honor, the defendant's
     objection goes not only to the fact that he is a white
     man.  It wouldn't make any difference if it was a white
     female.  The defendant's objection goes to the fact --
     further to the fact that he did not feel comfortable with
     the answers that were asserted by Mr. Burdett up there. 
     The defendant is sitting here in a capital murder case. 
     His life is on the line.  And he is exercising a
     peremptory challenge that he thought, and believes that
     he has a right to exercise.  If it had been a black man,
     or if it had been a black woman, if it had been a white
     man, or if it had been a white woman, would the, what he
     perceived and what he heard from where he sits, he would
     have excluded that person from the juror -- jury.
     Lammers' foregoing statement merely conflicts with his earlier
remarks and preconceived notions that white males are more severe
than black males in criminal cases.  And while Lammers mentions his
case is a capital murder case, he made no suggestion that Mr.
Burdett could not decide the case fairly.  In fact, Lammers'
statement made no specific reference to Mr. Burdett that could be
categorized as a gender-neutral explanation for his striking
Burdett.  
     In conclusion, I would not reverse the trial court's ruling on
the Batson issue.  The trial judge was correct in finding that the
State made a prima facie case of discrimination, and that Lammers
offered no articulate explanation for his peremptory strike of
Burdett.
     NEWBERN and IMBER, JJ., join this dissent.