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1995 OK CR 71
909 P.2d 68
Case Number: F-94-712
Decided: 12/08/1995
Oklahoma Court of Criminal Appeals

Appeal from the District Court of Tulsa County, B.R. Beasley, J.

[909 P.2d 69]

Steve Barnes, Assistant Public Defender, Tulsa, for Defendant at trial.

Sarah Day Smith, Assistant District Attorney, Tulsa, for the State at trial.

Barry L. Derryberry, Assistant Tulsa County Public Defender, Tulsa, for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma and Elaine K. Sander, Assistant Attorney General, Oklahoma City, for Appellee on appeal.


CHAPEL, Vice Presiding Judge:

¶1 Ted Ezell was tried by jury in the District Court of Tulsa County, Case No. CRF-88-3173. He was convicted of Count I First Degree Rape in violation of 21 O.S. 1991 § 1114 [21-1114], and Count II Lewd Molestation in violation of 21 O.S. 1991 § 1123 [21-1123](4). In accordance with the jury's recommendation, the Honorable B.R. Beasley sentenced Ezell to two hundred (200) years imprisonment [909 P.2d 70] for Count I and twenty (20) years imprisonment for Count II, to be served consecutively. Ezell raises six propositions of error in support of his appeal.

¶2 After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs (including all six of Ezell's propositions of error) and exhibits of the parties, we have determined that neither reversal nor modification is warranted under the law and the evidence.

¶3 During voir dire, one African-American juror was excused for cause with no objection. The State excused two African-American jurors with peremptory challenges, giving race-neutral reasons for each challenge. Ezell does not contest those rulings on appeal. Ezell, who is African-American, used his fourth peremptory challenge to excuse an African-American male juror. The State objected, and the trial court told Ezell to go ahead and state his reasons for the challenge. Ezell insisted that he need not give a race-neutral reason. The trial court did not require Ezell to articulate a racially neutral reason for the challenge and excused the juror. Ezell and the trial court each erred.

¶4 Batson v. Kentucky

¶5 Finally, Georgia v. McCollum

¶6 This Court held in Black v. State

¶7 The analysis in McCollum ends with the determination that Batson applies to criminal defendants, and subsequent comment has focused on whether this determination is correct and whether it heralds the ultimate demise of the peremptory challenge.

¶8 This Court has not considered the appropriate remedy at trial for a Batson/McCollum violation. The Supreme Court suggested two potential remedies upon a finding of discrimination but specifically refused to suggest how trial courts might implement the Batson requirements.

¶9 Reversal is the only appellate remedy for a Batson violation.

¶10 Other jurisdictions have recognized this dilemma. Several jurisdictions have indeed reversed and remanded cases where a trial court erred in deciding a McCollum issue.

¶11 This Court also refuses to countenance relief for invited error.26 Ezell should not have refused to give a race-neutral reason when he attempted to excuse an African-American juror with a peremptory challenge. The trial court erred when it took no action on Ezell's refusal. However, Ezell got what he wanted that juror was excused. To reverse on the basis of this double error would be to hold that two wrongs make a right. This Court refuses to twice benefit Ezell by reversing his conviction on the basis of his own voluntary error.

¶12 In summary, the State established a prima facie case that Ezell was attempting to use a peremptory challenge in a racially discriminatory manner. Ezell erroneously refused to give a racially neutral explanation for the challenge. The trial court erred in failing to take action after this refusal. As a result, Ezell got the jury he wanted. This Court will not grant him further relief. Ezell's Proposition I is denied.


¶13 The Judgment and Sentence of the trial court is AFFIRMED.

JOHNSON, P.J., LUMPKIN and LANE, JJ., concur.

STRUBHAR, J., concurs in result.


1 In Proposition IV Ezell alleges that prosecutorial misconduct denied him a fair trial. The prosecutor, Sarah Smith, committed error throughout the course of the trial. The State's arguments otherwise must be without merit since the trial court sustained Ezell's objection to every instance of error, almost always admonished the jury not to consider the erroneous statement or evidence, and often admonished Smith as well. Careful review of the record shows that the cumulative misconduct did not have a grossly unfair effect on the jury, and we do not grant relief on these grounds. However, we are compelled to chastise the prosecutor for her conduct. Smith was also the prosecutor in Cheney v. State, 909 P.2d 74 (Okl.Cr. 1995). In that case she also flouted the law and ignored the direct and explicit rulings of the trial court (Cheney, 909 P.2d at 88). These cases suggest a pattern. Smith appears to be playing "chicken" with the trial court and this Court. With a less vigilant trial judge Smith's actions could very well have resulted in reversible error. We hope this admonishment may forestall reversible error in a future case.

2 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). This Court recently reaffirmed the constitutionality of 22 O.S. 1981 § 654 [22-654], granting peremptory challenges in a criminal trial. Moore v. State, 900 P.2d 996 (Okl.Cr. 1995).

3 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991).

4 Powers, 499 U.S. at 415; 111 S. Ct. at 1373.

5 ___ U.S. ___, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994).

6 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991).

7 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992).

8 The Powers decision established that defendants no longer need be members of a cognizable racial group.

9 McCollum, 505 U.S. at 59, 112 S. Ct. at 2359; Batson, 476 U.S. at 96-98, 106 S. Ct. at 1723-24.

10 McCollum, 505 U.S. at 55-56, 112 S. Ct. at 2357. This finding was necessary because the Equal Protection Clause applies only to state action. Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S. Ct. 1965, 1971, 32 L. Ed. 2d 627 (1972).

11 McCollum, 505 U.S. at 55-56, 112 S. Ct. at 2357.

12 Black v. State, 871 P.2d 35, 42 (Okl.Cr. 1994). Black cites McCollum in its discussion of defendant's waiver of a Batson claim, but does not address the problem posed where the State responds to a defendant's peremptory challenge.

13 See, e.g., The Equal Protection Clause of the Fourteenth Amendment Prohibits a Criminal Defendant's Exercise of Racially Discriminatory Peremptory Challenges, 23 Seton Hall L.Rev. 1160 (1993); The Discriminatory Effect of the "Color-Blind" Jury Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348 (1992), 16 Hamline L.Rev. 975 (1993); Limiting a Defendant's Peremptory Challenges: Georgia v. McCollum and the Problematic Extension of Equal Protection, 42 Catholic U.L.Rev. 389 (1993).

14 Batson, 476 U.S. at 99, n. 24, 106 S. Ct. at 1725, n. 24.

15 See, e.g., State v. Franklin, 456 S.E.2d 357 (S.C. 1995); U.S. v. Bentley-Smith, 2 F.3d 1368 (5th Cir. 1993).

16 Bentley-Smith, 2 F.3d at 1372; Franklin, 456 S.E.2d at 359 (citing State v. Jones, 293 S.C. 54, 358 S.E.2d 701 (1987) (Batson violation requires jury be quashed and selection begin de novo)). In each case, the defendant was prohibited during the second voir dire from striking jurors he had unsuccessfully attempted to strike the first time. Bentley-Smith, 2 F.3d at 1372; Franklin, 456 S.E.2d at 360.

17 The Court of Special Appeals of Maryland initially held it was proper for a trial court to quash the entire panel and seat a new panel. Brogden v. State, 649 A.2d 1196 (Md. App. 1994); Gilchrist v. State, 627 A.2d 44 (Md. App. 1993). Subsequently the same court treated the issue as one of first impression and held the trial court should disallow the peremptory strike and reseat the individual juror. Jones v. State, 105 Md. App. 257, 659 A.2d 361 (1995).

18 See, e.g., United States v. Sowa, 34 F.3d 447 (7th Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 915, 130 L. Ed. 2d 796 (1995); Maxwell v. State, 620 So. 2d 93 (Ala.Cr.App. 1992), cert. denied, No. CR-91-1448 (Ala. April 23, 1993); McKibbons v. State, 216 Ga. App. 389, 455 S.E.2d 293 (1995), cert. denied, No. A94A2796, (Ga. May 25, 1995); Currin v. State, 638 N.E.2d 1319 (Ind. App. 5 Dist. 1994); State v. Moore, 640 So. 2d 561 (La. App. 3 Cir. 1994), writ denied, 651 So. 2d 858 (La. 1995); Jones v. State, 105 Md. App. 257, 659 A.2d 361 (1995); Griffin v. State, 610 So. 2d 354 (Miss. 1992); State v. Gray, 887 S.W.2d 369 (Mo. 1994), cert. denied, Gray v. Missouri, ___ U.S. ___, 115 S. Ct. 1414, 131 L. Ed. 2d 299 (1995); People v. Stiff, 206 A.D.2d 235, 620 N.Y.S.2d 87 (1994), appeal denied, 85 N.Y.2d 867, 648 N.E.2d 806, 624 N.Y.S.2d 386 (1995), cert. denied, ___ U.S. ___, 116 S. Ct. 107, 133 L. Ed. 2d 60 (1995).

19 Commonwealth v. Fruchtman, 418 Mass. 8, 633 N.E.2d 369, cert. denied, Fruchtman v. Massachusetts, ___ U.S. ___, 115 S. Ct. 366, 130 L. Ed. 2d 319 (1994); Commonwealth v. Reid, 384 Mass. 247, 424 N.E.2d 495 (1981); State ex rel. Curry v. Bowman, 885 S.W.2d 421 (Tex.Cr.App. 1993), cert. denied, ___ U.S. ___, 115 S. Ct. 184, 130 L. Ed. 2d 118 (1994).

20 Batson, 476 U.S. at 100, 106 S. Ct. at 1725; Powers, 499 U.S. at 416, 111 S. Ct. at 1373-74.

21 See, e.g., Guy v. State, 778 P.2d 470, 476 (Okl.Cr. 1989); Brown v. State, 762 P.2d 959, 962 (Okl.Cr. 1988); Johnson v. State, 761 P.2d 484, 490 (Okl.Cr. 1988); Johnson v. State, 731 P.2d 993, 1004 (Okl.Cr.), cert. denied, 484 U.S. 878, 108 S. Ct. 35, 98 L. Ed. 2d 167 (1987).

22 Green v. State, 862 P.2d 1271 (Okl.Cr. 1993); Manuel v. State, 751 P.2d 764 (Okl.Cr. 1988), overruled on other grounds, Green, 862 P.2d at 1273.

23 State v. Wilson, 632 So. 2d 861 (La. App. 2 Cir. 1994); State v. Foust, 857 P.2d 1368 (Kan. App. 1993); State v. Knox, 609 So. 2d 803 (La. 1992). See also Gilchrist v. State, 97 Md. App. 55, 627 A.2d 44, 55 (1993), cert. granted, 332 Md. 741, 633 A.2d 102 (1993) (noting that McCollum applies same remedy to defense as to the prosecution).

24 Owes v. State, 638 So. 2d 1383 (Ala.Cr.App. 1993); Rowe v. State, 625 So. 2d 1210 (Ala.Cr. App. 1993).

25 Owes, 638 So. 2d at 1385; Rowe, 625 So. 2d at 1213.

26 See, e.g., Allen v. State, 871 P.2d 79, 95 (Okl.Cr.), cert. denied, ___ U.S. ___, 115 S. Ct. 370, 130 L. Ed. 2d 322 (1994); Harris v. State, 841 P.2d 597, 602 (Okl.Cr. 1992).

[909 P.2d 73]

LUMPKIN, Judge, concurring:

¶1 I concur in the Court's decision as a proper application of stare decisis. However, the facts of this case point out an almost untenable application of the United States Supreme Court jurisprudence regarding a juror's right to serve rather than the parties' right to select a jury to try the case. It is an example of reaching out and embracing a novel legal idea which in practice paints the Court into the proverbial corner. The problem is the paint never dries to allow the painter to leave the room.