Opinion
No. CACR11-1054
01-30-2013
SHARVELT MARQUETTE MISTER APPELLANT v. STATE OF ARKANSAS APPELLEE
David L. Dunagin, for appellant. Dustin McDaniel, Att'y Gen., by:
APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [CR-2010-1320]
HONORABLE JAMES O. COX, JUDGE
AFFIRMED
DAVID M. GLOVER , Judge
Appellant Sharvelt Mister was convicted by a Sebastian County jury of delivery of cocaine, a Class Y felony, and was sentenced to twenty-five years in the Arkansas Department of Correction. His sole issue on appeal is based on the trial court's denial of his challenges pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), to the State removing potential jurors during voir dire. Specifically, Mister argues that the trial court erred in finding that the State had provided race-neutral explanations in overruling his Batson objections and in finding that the objections had been waived. We affirm.
In Hawkins v. State, 2011 Ark. App. 164, at 5-6, this court held:
A prosecutor may not use peremptory strikes to exclude jurors solely on the basis of their race. Jackson v. State, 375 Ark. 321, 290 S.W.3d 574 (2009). Once a Batson objection is made, the circuit court must conduct a three-step inquiry to determine whether a violation occurred. Id. First, the opponent must present facts demonstrating a prima facie case of purposeful discrimination. Id. Second, theSome measure of deference is accorded to the trial court in making decisions on Batson challenges because it is in a superior position to make these determinations due to the fact that it has the opportunity to observe the parties and determine their credibility. London v. State, 354 Ark. 313, 125 S.W.3d 813 (2003).
burden shifts to the State to produce a racially neutral explanation for the strike. Jackson, supra. The explanation must be more than a mere denial of discrimination or an assertion that a shared race with the opponent would render the challenged juror partial to the opponent. Id. The explanation need not, however, be persuasive or even plausible but can be silly or superstitious. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). The stated reason will be deemed racially neutral unless a discriminatory intent is inherent in the prosecutor's explanation. Purkett v. Elam, 514 U.S. 765 (1995). When the State provides a race-neutral explanation, the initial presentation of a purposeful discriminatory strike is rendered moot. Holder v. State, 354 Ark. 364, 124 S.W.3d 439 (2003). Third, the circuit court must decide whether the opponent of the strike has demonstrated purposeful discrimination. Lewis, supra. The ultimate burden of persuasion never shifts from the opponent of the strike. Purkett, supra. A circuit court's ruling on a Batson challenge is reversed only if the findings of fact are clearly against the preponderance of the evidence. Holder, supra.
Mister's appeal focuses on two jurors stricken by the State using peremptory challenges—Ramona Clarke and Alberta James, both African-Americans. When Mister's counsel objected to the striking of Clarke and James, the trial court stated that the objections were not contemporaneous and were therefore untimely and that both Clarke and James were already gone. However, the trial court ultimately required the State to set forth its reasons for striking both jurors. The State's given reasons for striking Clarke were that she had stated that she found Fox News, a "rather law and order conservative type of news program," to be untrustworthy; that she talked about believing strongly in second chances, which could apply against the State in sentencing; and that because she was in the health field and talked a lot about addiction and second chances, the State believed that she would be slanted more toward the defense. The State's given reasons for striking James were that she had been struck twice before by the State in previous trials; that in a previous trial she stated that marijuana should be legalized; that she talked about rehabilitation being more cost effective than incarceration, which tended to show that she was slanted more toward the defense; and that her body language made the prosecutor feel that she lacked a rapport with her. The trial court then stated that it "probably would have sustained that at any rate," but that if counsel wanted to make a Batson objection that he had to do so immediately. A jury was seated, Mister proceeded to trial, and he was convicted by the jury of delivery of cocaine.
During jury selection, Mister's counsel also objected to the State striking Larry Williams, a third African-American. However, although Mister states the reasons the State gave for striking Williams, he makes no argument on appeal as to why the reasons were not sufficient. Therefore, any argument concerning the State's striking of Williams has been abandoned on appeal. See State v. Grigsby, 370 Ark. 66, 257 S.W.3d 104 (2007).
Mister appealed his conviction to this court, and the State filed a motion to remand to the trial court to settle the record and to clarify the trial court's ruling, which was granted by this court. At the hearing to settle the record, the trial court stated that the purpose of the hearing was to define the word "that"—whether the trial court meant that it would sustain Mister's Batson challenges for striking Clarke and James or would have sustained the State's race-neutral reason for striking the jurors. The trial court stated that its recollection was that it did not sustain the Batson challenges made and instead allowed the State to exercise its peremptory challenges in both instances. The State then reiterated the reasons given at trial for exercising peremptory challenges against jurors Clarke and James, and the trial court found that the reasons given in both instances were race neutral.The trial court stated that its distinct recollection was that it allowed the State to exercise its peremptory challenges that were made, notwithstanding the objections that were raised.
The fact that prospective juror Williams was also dismissed by the State was discussed at this hearing, but because Mister makes no argument on appeal with regard to the reasons Williams was dismissed, this argument is considered to be abandoned on appeal.
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On appeal, Mister first argues that the trial court erred when it stated that it could not address his Batson objections with regard to Clarke and James because the objections were not timely. Mister is correct that the objections were indeed timely. In Weston v. State, 366 Ark. 265, 234 S.W.3d 848 (2006), our supreme court held that a Batson challenge is timely so long as the objection is made before the jury is sworn. The objections in the present case were made prior to the jury being sworn, and were therefore timely and could be addressed by the trial court. However, this answer does not end our inquiry. In this case, although the trial court believed the objections to be untimely, it nonetheless proceeded to have the State supply its reasons for striking both Clarke and James. At the hearing on the State's motion to remand to settle the record and clarify the trial court's ruling, the trial court held that it allowed the State to exercise both peremptory challenges, notwithstanding the Batson challenges raised by Mister. Therefore, the trial court did in fact make rulings on Mister's Batson challenges that can now be reviewed by this court.
Mister argues that none of the reasons cited by the State rose to the level of race-neutral explanations. We disagree. All of the reasons given for striking both Clarke and James were race neutral. The explanations given by the State, although required to be more than a mere denial of discrimination or an assertion that a shared race with the opponent would render the challenged juror partial to that opponent, do not have to be persuasive or even plausible and can even be silly or superstitious. Hawkins, supra. Mister further argues that some of the reasons offered were based on answers given to questions posed by his defense attorney and issues that were not discussed in voir dire. Mister does not cite, and we cannot find, any restriction on making peremptory challenges based on information elicited from defense counsel's questions. Additionally, with regard to the argument that some of the State's reasons were based on things not discussed in voir dire—here, James's dismissal by the State in two prior jury trials and the fact that she had stated during a previous trial that she believed marijuana should be legalized—personal interaction or prior personal knowledge may provide a race-neutral reason for striking a potential juror. Hawkins, supra.
Furthermore, under step three of the Batson procedure, the ultimate burden of persuasion of purposeful intent never shifts from the party opposing the strikes. Williams v. State, 2009 Ark. 433, 373 S.W.3d 237. In making its decision under this third step, the trial court must weigh and assess the reasons presented to it and decide whether, in view of all the circumstances, the proponent's explanations are pretextual or not. Owens v. State, 363 Ark. 413, 214 S.W.3d 849 (2005). The Owens court held that if an opponent chooses not to present any additional argument or proof that the proponent's stated reasons for striking potential jurors was prejudicial and not racially neutral, the trial court was "not obligated to proceed further but was only required to make a decision based on what had been presented to it at that time." 363 Ark. at 418, 214 S.W.3d at 852. Here, Mister made no further argument to the trial court why the State's reasons were in fact not racially neutral and were prejudicial. Therefore, the trial court was left to make its determinations based on the State's asserted race-neutral reasons, and we cannot say that the trial court's findings that the State had given racially neutral reasons for striking both Clarke and James were clearly erroneous.
Affirmed.
WHITEAKER and VAUGHT, JJ., agree.
David L. Dunagin, for appellant.
Dustin McDaniel, Att'y Gen., by: LeaAnn J. Adams, Ass't Att'y Gen., for appellee.