Judgment rendered September 21, 2022. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 54,613-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
TREVOR MARCEL WILLIAMS Appellant
Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana Trial Court No. 19-CR-30181
Honorable Amy Burford McCartney, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Paula Corley Marx
CHARLES B. ADAMS Counsel for Appellee District Attorney
ETHAN P. ARBUCKLE EDWIN L. BLEWER, III Assistant District Attorneys
Before MOORE, ROBINSON, and HUNTER, JJ.
HUNTER, J., dissents with written reasons. MOORE, C.J.
The defendant, Trevor Marcel Williams, was convicted by a jury for
the second degree murder of his twin brother and for the attempted second
degree murder of his girlfriend. Williams was sentenced to life
imprisonment without benefit of probation, parole, and suspension of
sentence consecutive to a sentence of 50 years’ imprisonment without
benefit of probation, parole, and suspension of sentence. He now appeals his
convictions and sentences, assigning error in the trial court’s handling of
jury selection, specifically, its handling of a “reverse-Batson” challenge
from the state.
FACTS
The defendant and his twin brother, Trenton, were involved in a
sexual relationship with Amanda Lowery. On April 29, 2019, Amanda
picked Trenton up in her white van at the family home on Howard Lane in
Frierson, Louisiana. Trenton was driving the vehicle when it stopped at the
“T” intersection of Howard Lane at La. Hwy 175. At that time, Trevor
drove up in a black GMC pickup that he had borrowed from his uncle,
blocking the van. He jumped out of the pickup and fired five shots into the
driver-side window, striking Trenton. Trevor then pulled Trenton out of the
truck and fired six more rounds into him. He then he dragged Trenton’s
body to a ditch, got in the truck and ran over him several times. Amanda
was apparently standing nearby and attempted to run away. Trevor grabbed
her and shot her four times, including in the face (mouth) as she struggled to
escape. She pretended to be dead or unconscious, and Trevor left the scene.
She told police when they arrived that Trevor had shot them. She later gave
a statement to police and testified at trial identifying Trevor as the shooter. Following an investigation, Trevor was charged with second degree
murder and attempted second degree murder.
During voir dire, defense counsel exercised peremptory challenges
against eight white prospective jurors. The state raised a reverse-Batson
challenge to the eight strikes, arguing that the pattern of striking white
prospective jurors implied purposeful discrimination against white jurors.
The court found that the state made a prima facie case of discrimination and
requested defense counsel to articulate race-neutral grounds for each of the
eight strikes. After defense counsel gave its race-neutral reasons for each of
the strikes, the court recessed the proceedings. When the court reconvened,
the trial judge indicated that, during the recess, she had the opportunity to
evaluate each of the individuals who were subject to the reverse-Batson
challenge by the state.1 The court said it found that defense counsel had
given “appropriate, reasonably specific, neutral explanations” for venire
members Galloway, Furlow, Blue,2 Cooper, and Franklin, and it denied
those reverse-Batson challenges. However, the court found that the neutral
reasons given by the defense for Kamilla Brown, Austin Lee, and Robert
Hall were not satisfactory. For those three jurors, it granted the state’s
reverse-Batson challenge. Those three venire members were returned to the
jury, and all three served as jurors in the trial. As noted, the jury
unanimously found Williams guilty as charged.
After sentencing, this appeal followed. Williams’s sole assignment of
error is that the trial court committed legal error by granting the reverse-
1 The transcript later indicates that the court had reviewed the voir dire record of each prospective juror in its evaluation.
2 Blue was ultimately excused for cause by agreement between defense counsel and the state. 2 Batson challenge to the defendant’s peremptory strikes of jurors Hall, Lee,
and Brown. He seeks a judgment vacating his conviction and remanding for
a new trial.
DISCUSSION
The Constitution forbids striking even a single prospective juror for a
discriminatory purpose. Foster v. Chatman, 578 U.S. 488, 136 S. Ct. 1737,
1747, 195 L. Ed. 2d 1 (2016); Snyder v. Louisiana, 552 U.S. 472, 478, 128
S. Ct. 1203, 1208, 170 L. Ed. 2d 175 (2008). An exercise by the state of its
peremptory strikes to remove potential jurors from the venire panel solely on
the basis of race violates the Equal Protection Clause of the United States
Constitution. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712,
1719, 90 L. Ed. 2d 69 (1986). The holding in Batson was adopted by the
Louisiana Supreme Court in State v. Collier, 553 So. 2d 815 (La. 1989), and
has been codified by the legislature in La. C. Cr. P. arts. 795(C) and (D).
While Batson specifically concerned a prosecutor’s use of peremptory
challenges, its holding is equally applicable to criminal defendants. See
Georgia v. McCollum, 505 U.S. 42, 59, 112 S. Ct. 2348, 2359, 120 L. Ed. 2d
33 (1992). McCollum specifically held “the Constitution prohibits a
criminal defendant from engaging in purposeful discrimination on the
ground of race in the exercise of peremptory challenges.” 505 U.S. at 59,
112 S. Ct. 2348. In State v. Knox, 609 So. 2d 803 (La. 1992), the supreme
court applied McCollum, holding that the state may invoke Batson where a
black criminal defendant exercises peremptory challenges against white
prospective jurors. As a result of these cases, an accusation by the state that
defense counsel has engaged in such discriminatory conduct has come to be
known as a “reverse-Batson ” challenge. 3 Batson and its progeny provide a three-step process to guide courts in
evaluating a claim of racial discrimination in the voir dire process:
(1) a defendant [or the State] must make a prima facie showing that a peremptory challenge has been exercised on the basis of race;
(2) if the requisite showing has been made, the prosecution [or defendant] “must demonstrate that ‘permissible racially neutral selection criteria and procedures have produced the monochromatic result;’” and,
(3) in light of the parties’ submissions, the trial court must determine if the “defendant [or State] has established purposeful discrimination.”
State v. Crawford, 14-2153 (La. 11/16/16), 218 So. 3d 1320.
The Batson Inquiry
A violation of a prospective juror’s equal protection rights under
Batson is proven by evidence of a racially discriminatory purpose, not a
racially discriminatory result. State v. Dorsey, 10-0216 (La. 9/7/11), 74 So.
3d 603, cert. denied, 566 U.S. 930, 132 S. Ct. 1859, 182 L. Ed. 2d 658
(2012); State v. Green, 94-0887 (La. 5/22/95), 655 So. 2d 272. Thus, the
sole focus of the Batson inquiry is upon the intent of the prosecutor at the
time he exercised his peremptory strikes. State v. Dorsey, supra; State v.
Green, supra; State v. Hampton, 52,403 (La. App. 2 Cir. 11/14/18), 261 So.
3d 993, writ denied, 19-0287 (La. 4/29/19), 268 So. 3d 1029.
To establish a prima facie case, the objecting party must show: (1) the
striking party’s challenge was directed at a member of a cognizable group;
(2) the challenge was peremptory rather than for cause; and (3) relevant
circumstances sufficient to raise an inference that the peremptory challenge
was used to strike the venire person on account of his or her being a member
of that cognizable group. If the trial court determines the opponent failed to
4 establish the threshold requirement of a prima facie case (step one), then the
analysis is at an end and the burden to articulate neutral reasons never shifts
to the proponent of the strike (step two). State v. Berry, 51,213 (La. App. 2
Cir. 5/17/17), 221 So. 3d 967, writ denied, 17-1146 (La. 12/17/18), 257 So.
3d 1260. The burden to show a prima facie case is not to be so onerous that
a defendant would have to persuade the judge – on the basis of all the facts,
some of which are impossible for the defendant to know with certainty – that
the challenge was more likely than not the product of purposeful
discrimination. Johnson v. California, 545 U.S. 162, 125 S. Ct. 2410, 162
L. Ed. 2d 129 (2005); State v. Broussard, 16-1836 (La. 1/30/18), 318 So. 3d
683; State v. Sparks, 88-0017 (La. 5/11/11), 68 So. 3d 435, cert. denied, 566
U.S. 908, 132 S. Ct. 1794, 182 L. Ed. 2d 621 (2012).
When a Batson challenge is made, it is incumbent upon the trial judge
to address the challenge, either by ruling on whether a prima facie case of
discriminatory intent has been made or by requiring race-neutral reasons for
the strikes. State v. Myers, 99-1803 (La. 4/11/00), 761 So. 2d 498; State v.
Hampton, supra.
The burden of persuasion never shifts from the opponent of the strike.
State v. Nelson, 10-1724 (La. 3/13/12), 85 So. 3d 21; State v. Crawford,
supra. However, after the opponent of the strike establishes a prima facie
case of racial discrimination, the burden of production shifts to the
proponent of the strike to articulate race-neutral reasons for its use of
peremptory challenges. To satisfy this second step, the explanation for the
strike does not have to be persuasive, or even plausible, but must be more
than a mere affirmation of good faith or assumption that the challenged juror
would be partial due to race. Id. A neutral explanation must be clear, 5 reasonably specific, legitimate, and related to the case at bar. State v.
Mamon, 26,337 (La. App. 2 Cir. 12/16/94), 648 So. 2d 1347, writ denied,
95-0220 (La. 6/2/95), 654 So. 2d 1104. The test at the second step is simply
whether the reasons are facially race-neutral, not whether they are
persuasive. Not until steps one and two of Batson have been satisfied is the
trial court’s duty under step three triggered. State v. Crawford, supra. In
step three of the Batson analysis, the court must determine whether the party
objecting to the peremptory challenge has carried his burden of purposeful
discrimination. Id. The trial court’s findings as to purposeful discrimination
depend largely on credibility evaluations and are therefore entitled to great
deference by the reviewing court. State v. Mamon, supra.
Batson was codified and implemented in Louisiana in 1986. The
statute has been amended several times to its current version by 2019 La.
Acts., No. 235, § 1:
C. No peremptory challenge made by the state or the defendant shall be motivated in substantial part on the race or gender of the juror. If an objection is made that a challenge was motivated in substantial part on the basis of race or gender, and a prima facie case supporting that objection is made by the objecting party, the court shall demand a satisfactory race or gender neutral reason for the exercise of the challenge. Such demand and disclosure shall be made outside of the hearing of any juror or prospective juror. The court shall then determine whether the challenge was motivated in substantial part on the basis of race or gender.
D. The court shall allow to stand each peremptory challenge exercised for a race or gender neutral reason either apparent from the examination or disclosed by counsel when required by the court. The provisions of Paragraph C and this Paragraph shall not apply when both the state and the defense have exercised a challenge against the same juror.
E. The court shall allow to stand each peremptory challenge for which a satisfactory racially neutral or gender neutral reason is given. Those jurors who have been peremptorily challenged and for whom no satisfactory racially 6 neutral or gender neutral reason is apparent or given may be ordered returned to the panel, or the court may take such other corrective action as it deems appropriate under the circumstances. The court shall make specific findings regarding each such challenge. (Emphasis supplied.)
In this appeal, Williams contends that the state failed to prove a
“discriminatory purpose” in his peremptory challenges to Kamilla Brown,
Austin Lee, and Robert Hall. He argues that he gave valid, race-neutral
reasons for the strikes, and the trial court erred in finding the reasons given
were not sufficient or race-neutral. We will consider each of the three
peremptorily challenged jurors separately.
Kamilla Brown
The record shows that defense counsel’s race-neutral reason for
striking Kamilla Brown was “she was just young, had no life experiences,
didn’t really say a whole lot. I couldn’t figure out exactly, you know, what
she would do.” After its evaluation, the court found this unsatisfactory. The
court said:
However, as to Brown, the explanation given was not clear, reasonably specific, and it wasn’t a neutral explanation. I would note that, while she does look young, she appears to be twenty-eight years old, based on the information of the questionnaire. So, the Court is going to find there was not a neutral explanation given for that.
In addition to finding that the neutral explanation given by the defense
was not clear and reasonably specific, it found that it was not a neutral
reason due to age discrimination.
The voir dire transcript shows that Ms. Brown is a single mother with
a five-year-old son. When defense counsel posed several scenarios of
different types of evidence, e.g. physical, testimonial, and scientific evidence
of guilt to the venire panel, he asked Ms. Brown if she could convict solely
7 on the testimony of one witness. She answered, “no.” She agreed with
counsel that there are good cops, but some bad cops. Counsel asked Ms.
Brown if she would pick herself as a juror, and why. She answered “yes,”
she would pick herself because she would be fair and listen to both sides of
the story and just get the evidence to base her decision.
Paragraph C of La. C. Cr. P. art. 795 expressly prohibits a peremptory
challenge to a prospective juror on the basis of race or gender. However, the
statute does not mention “age,” although age discrimination, in some cases,
violates the Equal Protection Clause. In State v. Cannon, 19-590 (La.
4/18/19), 267 So. 3d 585, the supreme court held that a system for picking a
jury venire that excluded persons born after June 2, 1993, but otherwise
qualified to serve on a jury, resulted in violation of Equal Protection under
La. Const. art. 1, § 3.
On the other hand, in State v. Mamon, supra, the defendant raised a
Batson challenge to the state’s use of 11 peremptory challenges against
prospective jury members of the same race as the defendant. One of these
challenges was the state’s peremptory challenge of a 21-year-old woman,
Ms. Goldsmith. The state gave the court several reasons for the strike,
including: her youth; possible absence from portions of voir dire; she heard
about the case on the streets; she knew or knew about the defendant; she was
hesitant in answering; her body language suggested inattentiveness; and she
described herself as a follower. The trial court found that the state’s
explanations were race-neutral and denied the Batson challenge. On appeal,
this court observed that while the neutral explanation of “inattentivenesss”
that was based on “body language” was not discernible from an impassive
record, each of the other reasons given by the state was supported by the voir 8 dire record. It concluded, however, that among the various reasons given for
the strike, only “youthfulness and lack of attention” were legitimate race-
neutral explanations. It did not disturb the trial court’s denial of the
defendant’s Batson challenge.
The facts here are distinguishable from State v. Mamon. Ms. Brown
is 28 years old, significantly older than Ms. Goldsmith, who was age 21; the
difference of seven years constitutes one-third of Ms. Goldsmith’s life. In
addition to “youth,” Williams gave two additional neutral reasons for this
peremptory challenge to Ms. Brown: she has “had no life experiences” and
she did not really say a whole lot.
Neither of these assertions is supported by Ms. Brown’s responses to
the questions posed during the voir dire proceedings. Ms. Brown is a single
mother of a five-year-old and has gone through a divorce and custody
determination. One can hardly draw the conclusion that she has led a
sheltered life. She also appeared very willing to answer counsel’s questions.
We conclude counsel may have simply made an assumption based on Ms.
Brown’s youthful appearance that she had no life experiences and that she
could not be a fair and impartial juror.
We conclude that the trial court was correct in finding that defense
counsel’s neutral reasons for exercising a peremptory challenge were not
satisfactory or legitimate neutral reasons. La. C. Cr. P. art. 795(C). In other
words, the reasons were pretextual.
Austin Lee
We reach a similar conclusion with respect to the peremptory
challenge of Austin Lee. Defense counsel’s stated neutral explanation for
exercising this peremptory challenge was, “I just couldn’t get a good vibe 9 from him. I didn’t feel like I could bond with him.” He further noted that he
was bothered that Lee said he had a boss who was the victim of a crime.
Counsel concluded, “I wasn’t too clear on Austin Lee. I mean, he did say
everybody lied, but, you know, once again, it was just the way he answered
about the victim of a crime kind of causes concern.”
The transcript shows that few questions were directed to Austin Lee
during voir dire. At one point, counsel told Lee that he was in his dead zone
because he keeps “missing him” on questions. Lee said he works as a
welder helper and he hopes to be a rig welder one day; his girlfriend works
at a liquor store; he spends his spare time working on his car. When asked
whether he knew anyone who had been a victim of a crime, he said, “yes,
my boss.” Implying that it was not a big deal to him, he stated that he was
not close to his boss – they just worked together. When asked if it turned
out good or bad, he said he felt like he got what he deserved; it was unclear
whether Lee was speaking about his boss or the criminal.
Lee agreed that people could disagree on what constituted beyond a
reasonable doubt. However, he said it did not make anyone more right or
wrong. He said that if 11 jurors disagreed with him, he would try to explain
himself to them. He said that he also would hope they could convince him
he was wrong, but he would stand his ground if he was not convinced.
When asked if being a juror was something that would interest him or
that he would like to learn about, he answered, “No.” He said he did not like
sitting in a courtroom, but could probably do it for a week if required.
Finally, the prosecutor posed to the venire panel examples of “telling small
lies,” and he suggested that it was commonplace. Then he asked Lee alone
10 if he thought that every person, at one time or another, had told a lie. Lee
responded that everybody has told a lie every now and then.
The trial court sustained the state’s Batson challenge, stating:
With respect to Mr. Lee, the information that was provided by [defense counsel] is that he could not get a good vibe and the boss was the victim of a crime. As stated by the state, nearly everybody in here knows someone who has been a victim of a crime and there was no specific discussion with him about how that would impact his ability to be a fair juror. So, the challenge is appropriate with that one.
On appeal, Williams argues that Lee’s answers about crime victims
caused concern and that counsel explained that he did not feel that he could
get a good vibe from Lee. He further argues that Lee believes that people lie
and that his boss, a crime victim, had a bad situation. Although Lee said he
thought he would be a good juror, he also said he did not like being in the
courtroom and was not interested in learning about being a juror. Williams
contends that the reasons he gave for the strike were race-neutral, and
Batson does not require specific reasons so long as they are “race-neutral.”
While the stated reasons for defendant’s peremptory challenge of Lee
appear facially race-neutral, counsel’s explanation that he “did not feel that
he could get a good vibe from Lee” is tantamount to asking the court to
accept his good faith feeling that Lee would not be a fair and impartial juror.
Cf. State v. Nelson, supra (to satisfy the second step of Batson, “this
explanation does not have to be persuasive, or even plausible, but must be
more than a mere affirmation of good faith or assumption that the
challenged juror would be “partial to the defendant because of their shared
race”). The defendant’s burden of production in step two of this reverse-
Batson challenge is to articulate race-neutral reasons for the peremptory
11 challenge, and those reasons must be clear, reasonably specific, legitimate
and related to the case at bar. State v. Mamon, supra.
The question, then, is whether defense counsel’s remaining reasons
meet those criteria. On review, the voir dire record does not support
counsel’s argument that Lee believed that everyone is a liar. Lee’s response
was simply that everyone has told a lie at one time or another, which was
prompted by counsel’s suggestion that everyone has told small lies. We also
find no error in the trial court’s conclusion that everybody knows someone
who has been a victim of a crime, but counsel never discussed how or why
that fact impacted his ability to be a fair juror.
The neutral reasons given by the defense regarding the peremptory
challenge to Lee were neither clear nor legitimate. We therefore agree with
the trial court that they were not sufficient to overcome the state’s prima
facie showing that this peremptory challenge was based on race.
Robert Hall
During voir dire, defense counsel asked the venire panel if anyone had
any bias that could prevent him or her from being a good juror. When one
venire member, Middleton, did not respond to the question, defense counsel
asked him directly if he could be a fair and impartial juror. Middleton said,
“I don’t think I could be.” Counsel asked him why, and Middleton
responded, “Unfortunately, I am very biased against African Americans and
Latinos.” He further said that he already believed the defendant committed
the crime. Both the state and defense counsel agreed, as did the court, that
Middleton would be disqualified for cause.
Prior to that exchange, during early questioning of panel members, it
transpired that Middleton was a member of the family who owned property 12 and lived at some point across the street from another prospective juror,
Robert Hall. Hall said he knew Middleton; when asked, Middleton
acknowledged that he now recognized Hall, but did not initially recognize
him. Hall, who is much older than Middleton, said he used to hunt deer on
property owned by Middleton’s family across the street from his house.
When asked if they were friends, Hall answered affirmatively.
Defense counsel used a peremptory challenge on Hall based on that
fact. He stated, “I mainly cut [Robert Hall] because he was friends with
[juror] Middleton, and I thought Middleton would have followed him.”3
The court concluded that the reason was not valid, and the state’s
Batson challenge should be sustained:
With respect to Mr. Hall, [defense counsel] stated that he was friends with—long term friend of Mr. Middleton. The court would note that Mr. Hall is substantially older than Mr. Middleton. Mr. Middleton, at the time of the peremptory strike, had already been stricken for cause and that was agreed upon by the state and the defense. There was no other explanation given. There was nothing that was in the record to establish that he was a racist or that he would’ve voted the way that Mr. Middleton might would have voted. We won’t even know how Mr. Middleton would vote, because he’s no longer on the jury panel. And so I believe that that also is a good [Batson] challenge and so he will come back on the jury.
As stated above, during voir dire, Hall said he knew Middleton
because he used to hunt on property owned by Middleton’s family, which
had lived across the street from him. Hall said that they were friends, but
that he would have no problem disagreeing with Middleton on whether or
not he thought any element of the crime was proven beyond a reasonable
doubt. He said he would stand his ground if he disagreed with Middleton.
3 It is apparent that defense counsel meant to say that he thought Hall would follow Middleton. This assumes they would both be on the jury. 13 Hall said he did not think the state’s burden of proving the elements of a
crime beyond a reasonable doubt was too high or unfair.
In this appeal, Williams argues that notwithstanding Hall’s assertion
that he would have his own opinion and if he disagreed with Middleton he
would stand his ground, “the fact that Hall was a close personal friend of a
racist was of great concern for defense counsel who was representing a black
man.”
The record confirms that Hall is substantially older than Middleton
and knew the much younger Middleton because his family lived across the
street, and he had permission to hunt on the Middleton family’s property.
Although he said they were friends, the characterization is somewhat
ambiguous since it is not clear whether Hall was talking about his
relationship with the family in general, or specifically Middleton. We do
note, however, that Middleton said he did not recognize Hall until after a
while in the courtroom. This is hardly characteristic of two “close personal”
friends, as defense counsel depicts the relationship. Given the substantial
age difference between Hall and Middleton, Hall probably knew Middleton
as one of the now-grown children in the Middleton household. The court
specifically noted the substantial age difference for the record when it gave
its reason for upholding the Batson challenge.
Finally, and perhaps most importantly, the court pointed out that by
the time defense counsel exercised the peremptory strike on Hall, Middleton
had already been struck for cause and would not be on the jury. There was
nothing in the record to establish that Hall was a racist or would have voted
the same way Middleton would have voted, which was now moot since
14 Middleton was removed for cause from the jury venire before the
peremptory challenge was made.
As noted above, supplying race-neutral reasons constitutes step two of
the Batson inquiry. In a reverse-Batson case like this, the defendant’s
burden to satisfy step two merely requires that the proponent of the
peremptory strike give facially race-neutral reasons, even if not plausible,
for the strike. “The burden in step two is merely one of production, not one
of persuasion.” State v. Nelson, supra at p. 15, 85 So. 3d at 32.
It is in step three where the court must determine whether the
objecting party (here, the state) has carried its burden of proving purposeful
discrimination. “This final step involves evaluating ‘the persuasiveness of
the justification’ proffered by the striking party.” Id. “It is not until the third
step that the persuasiveness of the justification becomes relevant – the step
in which the trial court determines whether the opponent of the strike has
carried his burden of proving purposeful discrimination.” Id., citing Purkett
v. Elem, 514 U.S. 765, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995).
In this case, defense counsel exercised all eight peremptory challenges
on white jurors. The trial court determined that the state had made a prima
facie case of racial discrimination evidenced by a strong pattern of striking
white jurors. After defense counsel provided facially race-neutral reasons
for each of the strikes, the court evaluated those reasons in light of each
juror’s voir dire responses. Although it was persuaded that the race-neutral
reasons were given for five of the challenged jurors were valid, it found that
the race-neutral reasons given with respect to jurors Brown, Lee, and Hall
were not satisfactory or legitimate, i.e. they were pretextual and did not
negate the state’s prima facie showing of purposeful discrimination. 15 We find no error by the trial court in sustaining the Batson challenge
by the state with regard to prospective jurors Amanda Brown, Austin Lee,
and Robert Hall. We also find no error by the trial court when it returned
those three jurors to the jury venire and allowed them to serve on the jury in
this case.
We therefore conclude that this assignment is without merit, and the
defendant’s conviction and sentence are affirmed.
CONCLUSION
For the foregoing reasons, the conviction and sentence of the
defendant are affirmed.
AFFIRMED.
16 HUNTER, J., dissenting.
To establish a prima facie case under Batson v. Kentucky, 476 U.S.
79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), step one of the analysis requires
the objecting party to show: (1) the striking party’s peremptory challenge
was directed at a member of a cognizable group; (2) the challenge was
peremptory, rather than for cause; and (3) relevant circumstances sufficient
to raise an inference that the peremptory challenge was used to strike the
venireperson(s) on account of his or her being a member of the cognizable
group.
In the instant case, the State raised the objection, arguing the
defendant’s use of peremptory challenges was directed at members of a
cognizable group, i.e., Caucasians. However, the State did not set forth
circumstances “sufficient to raise an inference” of discriminatory intent.
When a Batson challenge is made, it is incumbent upon the trial judge
to address the challenge, either by ruling on whether a prima facie case of
discriminatory intent has been made or by requiring race-neutral reasons for
the strikes. State v. Myers, 99-1803 (La. 4/11/00), 761 So. 2d 498. Pursuant
to step two of the Batson analysis, the burden shifts to the striking party (in
this case, the defendant) to rebut the showing of intentional discrimination,
by articulating race-neutral reasons for their use of the challenges. This
explanation does not have to be persuasive, or even plausible. Unless a
discriminatory intent is inherent in the striking party’s explanation, the
reason offered will be deemed race-neutral. Purkett v. Elem, 514 U.S. 765,
115 S. Ct. 769, 131 L. Ed. 2d (1995); Hernandez v. New York, 500 U.S. 352,
111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991); Batson, supra; State v. Nelson,
10-1724 (La. 3/13/12), 85 So. 3d 21. In step three of the Batson analysis, 1 the court must then determine whether the objecting party has carried his
burden of proving purposeful discrimination. Miller-El v. Dretke, 545 U.S.
231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005); Batson, supra; Nelson,
supra.
When asked to provide race-neutral reasons for exercising the
peremptory challenges to strike three particular prospective jurors, defense
counsel proffered race-neutral reasons which are summarized as follows:
Austin Lee Defense counsel stated he “just couldn’t get a good vibe from him. I didn’t feel like I could bond with him.” Counsel also noted Lee had stated he had a former boss who had been the victim of a crime, and he had expressed “everybody lies.” The trial court granted the Batson challenge with regard to Lee, stating, “[N]early everybody in here knows someone who has been a victim of a crime and there was no specific discussion with him about how that would impact his ability to be a fair juror.”
Robert Hall Defense counsel stated he was challenging Hall because Hall stated he was friends with another prospective juror who had admitted to being a racist. The trial court sustained the Batson challenge with regard to Hall, noting the friend who had professed to being a racist “had already been stricken for cause and that was agreed upon by the State and the defense.” The court noted there was nothing in the record to establish Hall was a racist or that he “would’ve voted the way [his friend] might would have voted.”
Kamilla Brown Defense counsel stated Brown was “just young, had no life experiences, didn’t really say a whole lot.” The trial court noted although Brown did “look young,” her questionnaire indicated she was 28 years old. The trial court found defense counsel failed to provide a sufficient race-neutral explanation for challenging Brown.
A review of the jurisprudence reveals courts have accepted a myriad
of race-neutral justifications for striking jurors. See, e.g., Purkett, supra
2 (State’s proffered explanation for striking the juror because he had long,
unkempt hair, a mustache, and a beard was race-neutral and satisfied
Batson’s step two burden of articulating a nondiscriminatory reason for the
strike); Hernandez, supra (Prosecutor’s justification for striking two
bilingual Latino jurors because he “fe[lt] very uncertain that they would be
able to listen and follow the interpreter” was plausible and sufficiently
race/ethnic-neutral); State v. Scott, 04-1312 (La. 1/19/06), 921 So. 2d 904
(State’s justification for striking a prospective African-American juror, that
she had a son the same age as defendant and would feel sympathy for
defendant’s mother, was sufficiently neutral to survive a Batson challenge),
cert. denied, 549 U.S. 858, 127 S. Ct. 137, 166 L. Ed. 2d 100 (2006); State
v. Wilson, 40,767 (La. App. 2 Cir. 8/23/06), 938 So. 2d 1111 (Prosecutor
offered legitimate, race-neutral reason for striking an African-American
juror when it argued that the juror was a minister’s wife and might hesitate
to impose the death penalty), writ denied, 06-2323 (La. 4/20/07), 954 So. 3d
159, cert. denied, 552 U.S. 917, 128 S. Ct. 275, 169 L. Ed. 2d 201 (2007);
State v. Parker, 04-1017 (La. App. 5 Cir. 3/29/05), 901 So. 2d 513 (When
accepted by the trial judge, the lodging of a peremptory challenge based on a
juror’s body language does not violate Batson), writ denied, 05-1451 (La.
1/13/06), 920 So. 2d 235; State v. Woods, 97-0800 (La. App. 1 Cir. 6/29/98,
713 So. 2d 1231) (Prospective juror’s mistaken belief that the prosecutor had
represented the prospective juror in a lawsuit was a legitimate, race-neutral
justification for the state’s peremptory strike), writ denied, 98-3041 (La.
4/1/99), 741 So. 2d 1281.
In State v. Nelson, supra, the defendant articulated reasons for striking
Caucasian jurors including the following: being “pro-prosecution”; 3 expressing reservations about defense alibis; “strongly-favoring” the
prosecution “in the sense of being okay with people who flip”; expressing a
belief it was the defendant’s burden to disprove his guilt; not appearing to be
“serious about jury service” due to arriving late, offering “flippant”
responses to questions, and flirting with a female juror; seeming “to be very
pro-police”; and offering “negative views” about alibi witnesses. The
Supreme Court stated:
While the trial court found the number of challenges against white jurors to be “eyebrow raising,” we find defendants presented plausible and reasonable race-neutral reasons that negate an inference of purposeful racial discrimination sufficient to satisfy step two of Batson. Whether the reasons are substantial, or whether they are supported by the record, is a question to be determined in the third stage of the Batson analysis. *** After reviewing the record, it is clear the trial court merged the steps of the Batson analysis which improperly shifted the burden of proof to defense counsel – the proponent of the strike. The record unquestionably demonstrates the trial court never made a finding that the race neutral reasons offered by defendants were pretextual. Although none of the proffered reasons appears to inherently violate equal protection, the court nonetheless rejected nine of them for no specific reason. In rejecting defendants’ proffered race-neutral reasons, the trial court reasoned that defendants failed to rebut the State’s prima facie case of discrimination, essentially finding the defendants’ reasons not persuasive enough. The court erred in putting the burden of persuasion on the defendants.
Id. at 32-33.
In the instant case, I believe the defendant presented plausible and
reasonable race-neutral reasons negating the inference of purposeful racial
discrimination. As stated above, the articulated race-neutral reasons do not
have to be persuasive, or even plausible. Further, the trial court erred in
failing to make a finding that the race-neutral reasons offered by defendants
4 were pretextual, and erred in placing the burden on defendant to show he did
not purposefully discriminate.
Due to the Batson-related legal errors, which permeated the voir dire
proceedings, I believe we are compelled to reverse, vacate the defendant’s
convictions and sentences, and remand this matter to the trial court for a new
trial.
Accordingly, I dissent.