Summary
following Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395
Summary of this case from State v. GoodeOpinion
No. 91-1131
Submitted February 12, 1992 —
Decided May 6, 1992.
APPEAL from the Court of Appeals for Columbiana County, No. 87-C-56.
At approximately 11:40 a.m. on January 26, 1987, Lieutenant James B. Smith of the Columbiana County Sheriff's Office arrived at a location on Riffle Road, six-tenths of a mile east of Ohio Route 7 in Columbiana County near the village of Rogers. At that time, Lieutenant Smith discovered the lifeless body of a white male in a ditch on the north side of the roadway. The body was partially obscured by square, carpeted panels which had been placed over it. The body was later identified as that of Gerald Treharn. Following an investigation by the Columbiana County Coroner, it was determined that the death of the victim was the result of four gunshot wounds to the back of the head. The death was therefore ruled to be a homicide.
On July 10, 1987, defendant-appellant, Eddie Hernandez, was indicted by the Columbiana County Grand Jury on one count of aggravated murder in violation of R.C. 2903.01(A). The indictment further included a specification that, during the commission of the offense, appellant had a firearm on or about his person or under his control in violation of R.C. 2929.71. On September 28, 1987, voir dire of prospective jurors was conducted in the Columbiana County Common Pleas Court. During voir dire of prospective juror Dorothy Lacy, the following discussion took place between counsel for the state and Lacy:
"MR. LUTHER: Mrs. Lacy, would you be related in any way to Frank Lacey?
"MRS. LACY: Oh, no. No. Different — I spell my name L-A-C-Y.
"MR. LUTHER: It's L-A-C-Y?
"MRS. LACY: Yes. Um huh (indicating yes).
"MR. LUTHER: It sounds like you know Mr. Lacey, is that correct?
"MRS. LACY: Well, he's — you know.
"MR. LUTHER: Is there anything about Mr. Lacey that may affect how you would decide this case, knowing that it is a totally different case?
"MRS. LACY: No."
At a later stage in the proceedings, the following inquiry was made regarding the ability of Lacy to serve as a juror:
"MR. LUTHER: * * * Do either one of you have any health difficulties that might prevent you from sitting through a trial? You've heard the Judge say that we're going to be here a week or more.
"* * *
"Is there anything about your physical condition that might cause you any problem in that area?
"MRS. LACY: I have rheumatoid arthritis.
"THE COURT: Let me ask you this Mrs. Lacy, I will kind of jump in here. What we probably will be doing from here out, is probably starting about 8:30 in the morning and finishing up about 4:30 in the afternoon. We normally take a morning and an afternoon recess, and approximately one hour for lunch. And I can appreciate the problem you have. Do you think that would cause you such pain that this would — you would be unable to serve because of that rheumatoid arthritis?
"MRS. LACY: It gets painful. It's painful.
"THE COURT: If it gets real painful is it hard for you to listen and be attentive to the trial, is that what you're saying?
"MRS. LACY: Well —
"THE COURT: — you have to tell us, see?
"MRS. LACY: It, uh, sitting, you know, long times, does, and then when you get ready to get up you have quite a struggle. That's all, it just is kind of hard on me.
"MR. LUTHER: Are you taking any medication for it at this time, ma'am?
"MRS. LACY: I was taking Motrin for it, but that doesn't seen [ sic] to do any good, you know.
"MR. LUTHER: Does the medication cause you any discomfort itself?
"MRS. LACY: Well, it just wasn't doing me any good, so I don't take it anymore.
"MR. LUTHER: So you are no longer taking it?
"MRS. LACY: That's right.
"MR. LUTHER: Okay. Would the pain that you have from your condition so distract you that you wouldn't be able to listen to the evidence as it was presented?
"MRS. LACY: I don't think so.
"MR. LUTHER: Taking a feel for the chair you're in right now, does that — does that feel like it might be comfortable enough for you to make it?
"MRS. LACY: Uh — it's kind of ... oh, I think I can make it."
Thereafter, the state sought to challenge Lacy as a juror for cause based on her medical condition. This motion was overruled by the trial court. Later during voir dire, the state used a peremptory challenge to excuse Lacy. This challenge was contested by defense counsel on the basis that the prosecution was excluding Mrs. Lacy solely on the basis of her race inasmuch as she was the only black person in the jury venire.
In response to this contention, counsel for the state remarked:
"I think obviously, there has been stated on the record, there is a legitimate concern about her ability to sit. She has indicated that she can't sit for any length of time, and we are going to be here at least a week. We are going to be going on a jury view, it is going to require a considerable amount of effort on the part of a juror physically, and it is not based on race."
Thereafter, the following inquiry of Lacy was made by the trial court:
"THE COURT: * * * Mrs. Lacy, it's still your opinion that despite your medical problems you would be willing to serve? This case would involve a jury view also, they take you by a bus obviously, you don't have to walk, except downstairs and over to a bus.
"MRS. LACY: Well, it's the sitting, you know, that's hard — it's hard on me. The sitting and cause you can't move your joints. You sit for a while and then you have to walk.
"THE COURT: Okay.
"MRS. LACY: And this is hard, it hurts me quite a bit. And I would appreciate if I could be excused.
"THE COURT: If the lawyers excused you, is that what you're telling me?
"MRS. LACY: Yes."
Following this exchange, the court conducted an in camera hearing to consider the arguments of respective counsel. In response to the argument of defense counsel that the exercise of the peremptory challenge was racially motivated, the prosecuting attorney stated the following reasons for his actions:
"Your Honor, I think the record is clear that in the Voir Dire Mrs. Lacy indicated that she knew a Frank Lacey, and I think the record should reflect that he's been prosecuted for a similar homicide offense, and knew his family members, knew his mother. In addition she indicated she has arthritis and sitting for long periods of time is hard on her, and to quote her, she said, `It hurts quite a bit.' She stated for the record that she would appreciate being excused as a juror by the attorneys, and I would just state for the record that based upon that fact, the fact that it would be difficult for her, she is suffering a physical problem, to devote the attention required in this case, and it is certainly not requesting that she be excused on the basis of race."
Thereafter, the trial court ruled as follows:
"* * * I've listened to Voir Dire, and I think basically as I see it, and my comments on the matter, here is a lady that I think basically would like to fulfill her civic duty. However, I think, as she has indicated at the end, if the lawyers would let her off she'd feel a hell of a lot better. If this Court felt in any way that she was being knocked off or peremptored [ sic] because of her race, I wouldn't allow her off the case. I don't think that's the case, I really think that the Prosecutor is saying, okay, this lady would really like not to serve, but she is not going to say that I won't try. She probably would be willing to give it a shot, but on the other hand I think she would feel a hell of a lot at ease, and I think she indicated that if she did not have to serve. So for those reasons the Court is going to allow it. I fully support everything that counsel for Defendant has said and as I stated, if I believed, and I can't look into anybody's mind, other than as a good faith basis, that I see for her excuse because we need jurors who are not going to be in pain, who are going to be able to sit here and listen to this case for some extended period of time. And counsel for the Defendant certainly can have their exceptions to the Court's ruling. I just have to call it as I see it in this particular case. We'll go back in and proceed with Voir Dire."
On September 29, 1987, trial commenced in the Columbiana County Common Pleas Court. Following trial, the jury returned a verdict of guilty on the underlying offense of aggravated murder and the firearm specification. Thereafter, the trial court sentenced appellant to a term of incarceration of three years on the firearm specification to be served consecutively with and prior to a term of life imprisonment with parole eligibility after twenty years. On March 29, 1991, the court of appeals affirmed the judgment of the common pleas court.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Robert L. Herron, Prosecuting Attorney, for appellee.
Christopher D. Stanley, for appellant.
The solitary issue presented for our review concerns whether the exercise of a peremptory challenge by the state which had the effect of excluding the only minority member of the jury venire from service on the trial jury was a violation of the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution. In support of his contention that the exclusion of Mrs. Lacy was constitutionally infirm, appellant relies upon the decision of the United States Supreme Court in Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. The decision in Batson recognized that the Equal Protection Clause of the United States Constitution precluded purposeful discrimination by the state in the exercise of its peremptory challenges so as to exclude members of minority groups from service on petit juries. Batson, supra, at 89, 106 S.Ct. at 1719, 90 L.Ed.2d at 82-83. In order to determine whether purposeful discrimination is present, the Supreme Court provided the following guidance:
"* * * To establish such a case, the defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, supra [(1977), 430 U.S. 482], at 494 [ 51 L.Ed.2d 498, 510, 97 S.Ct. 1272, 1279], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits `those to discriminate who are of a mind to discriminate.' Avery v. Georgia, 345 U.S. [559], at 562 [ 97 L.Ed. 1244, 1247-1248, 73 S.Ct. 891, 892]. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.
"In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. * * *
"Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause. See McCray v. Abrams [2nd Cir., 1984], 750 F.2d [1113], at 1132; Booker v. Jabe, 775 F.2d 762, 773 (CA6 1985), cert. pending, No. 85-1028 [certiorari granted and judgment vacated (1986), 478 U.S. 1001, 92 L.Ed.2d 705, 106 S.Ct. 3289]. But the prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged jurors of the defendant's race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race. * * * Nor may the prosecutor rebut the defendant's case merely by denying that he had a discriminatory motive or `affirm[ing] [his] good faith in making individual selections.' Alexander v. Louisiana, 405 U.S. [625], at 632 [ 31 L.Ed.2d 536, 543, 92 S.Ct. 1221, 1226]. If these general assertions were accepted as rebutting a defendant's prima facie case, the Equal Protection Clause `would be but a vain and illusory requirement.' Norris v. Alabama, supra [(1935), 294 U.S. 587], at 598 [ 79 L.Ed. 1074, 1081, 55 S.Ct. 579, 583]. The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination." (Footnotes omitted.) 476 U.S. at 96-98, 106 S.Ct. at 1723-1724, 90 L.Ed.2d at 87-89.
The conclusion of the trial court that the state did not possess discriminatory intent in the exercise of its peremptory challenges will not be reversed on appeal absent a determination that it was clearly erroneous. Hernandez v. New York (1991), 500 U.S. ___, ___, 111 S.Ct. 1859, 1871, 114 L.Ed.2d 395, 412 (plurality opinion).
In addressing the Batson claim advanced by appellant below, the court of appeals rejected it in part because appellant was not of the same race as the excluded prospective juror. However, since the opinion of the appellate court was released, the United States Supreme Court decided Powers v. Ohio (1991), 499 U.S. ___, 111 S.Ct. 1364, 113 L.Ed.2d 411. In Powers, the Supreme Court observed that the Fourteenth Amendment operates not only to protect the rights of the accused but also the rights of prospective jurors from the discriminatory use of peremptory challenges by the state. Id. at ___, 111 S.Ct. at 1370, 113 L.Ed.2d at 424. Moreover, the Powers court further concluded that a criminal defendant possesses standing to advance the equal protection rights of prospective jurors who are excluded by such practices from participating in his trial. Id. at ___, 111 S.Ct. at 1373, 113 L.Ed.2d at 428.
Thus, it is immaterial to our analysis that appellant is Hispanic while Lacy is black. For purposes of a Batson challenge, it is the race of the prospective juror alone that triggers the inquiry.
With these principles clearly in mind, we turn our attention to the conduct of the proceedings in the present case. At the outset we observe that the objection to the peremptory challenge below proceeded in a manner not unlike that presented in Hernandez v. New York, supra. Much like the prosecution in Hernandez, the state in the case sub judice did not await a determination by the trial court that appellant had established a prima facie case of discrimination. See Hernandez, supra, 500 U.S. at ___, 111 S.Ct. at 1864, 114 L.Ed.2d at 403. Accordingly, we will indulge the assumption (as did the court in Hernandez) that a prima facie demonstration of discrimination has been made by the appellant and proceed to consider the arguments of the state that a race-neutral basis for the exclusion exists.
As observed in Hernandez:
"* * * Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot." 500 U.S. at ___, 111 S.Ct. at 1866, 114 L.Ed.2d at 405.
In the case at bar, the state contends that its reason for excusing Mrs. Lacy was not her race. Rather, the state contends it harbored doubts concerning her physical ability to withstand the rigors of a lengthy trial and the effect that such a condition would have on her attentiveness to the trial proceedings. Additionally, the state was concerned about possible bias on her part arising from her supposed acquaintance with another criminal defendant by the name of Lacey whose trial had recently concluded in the same county. While self-serving comments by the prosecutor that he was not racially motivated are not sufficient to satisfy the burden of the state to demonstrate a race-neutral basis for its peremptory challenge, Batson, supra, the representations of the state in the present case that other criteria governed its decision are supported by the record. On several occasions, Mrs. Lacy expressed reservations regarding her ability to serve on the jury due to her arthritic condition and, at one point, asked to be excused on that basis. Moreover, Mrs. Lacy acknowledged that she knew of Frank Lacey. While such concerns may or may not be sufficient to exclude Mrs. Lacy for cause, Batson clearly holds that the basis for a peremptory challenge need not rise to this level to avoid the conclusion that such behavior is constitutionally infirm. Indeed, in the case at bar, the trial court denied a challenge to Mrs. Lacy for cause.
We have reviewed the analysis undertaken by the trial court prior to ruling on the motion by appellant to strike the state's peremptory challenge to Mrs. Lacy. Our review of the trial court's consideration of the motion as well as its disposition of the state's challenge to Mrs. Lacy for cause reveals that the court was scrupulously fair to the parties and conscientious in the performance of its duties. Consequently, we cannot conclude that its decision to permit the peremptory challenge was clearly erroneous. The judgment of the court of appeals is therefore affirmed.
Inasmuch as we have concluded that the trial court was correct in concluding that the state satisfied its burden to demonstrate a race-neutral basis for its peremptory challenge, it is unnecessary to consider whether appellant had established a prima facie case of discrimination. See Hernandez v. New York, supra.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.