Jackson v. State

• Decision Date: 09 October 1997
• Docket Number: No. CR,CR
• Citation: 330 Ark. 126,954 S.W.2d 894
• Parties: Alvin B. JACKSON, Appellant, v. STATE of Arkansas, Appellee. 96-836.
• Court: Arkansas Supreme Court

Page 894

954 S.W.2d 894

330 Ark. 126

Alvin B. JACKSON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 96-836.

Supreme Court of Arkansas.

Oct. 9, 1997.

Maxie G. Kizer, Pine Bluff, for appellant.

Winston Bryant, Atty. Gen., C. Joseph Cordi, Jr., Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

Appellant Alvin Jackson was serving a life sentence without parole in prison for one count of capital murder and two counts of attempted murder when he stabbed a prison guard to death. In this appeal, Jackson does not challenge the sufficiency of the State's evidence leading to his capital murder conviction for killing the guard, but he raises five other points for reversal. We consider each point in the order presented in his brief.

Jackson first contends that the State unconstitutionally exercised two of its challenges when striking two black persons, Arlene Camp and Carl McCraney. He relies on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), where the Court held that the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on the basis of race. In determining whether such a violation has occurred, we apply a three-step analysis. First, the defendant must make a prima facie case that racial discrimination is the basis for excluding the juror. Second, if the court concludes that the defendant has made this showing, the State must provide a racially neutral explanation for striking the juror. The trial court must then determine from all the relevant circumstances the sufficiency of the offered explanation. Third, if the court is not satisfied with the State's explanation, it must conduct a sensitivity inquiry, and the defendant must explain how the State's racially neutral explanation is merely a pretext. Roseby v. State, 329 Ark. 554, 953 S.W.2d 32 (1997).

The first of the three-step analysis above requires us to determine whether Jackson proved a prima facie case of discrimination that may be established by (1) showing that the totality of the relevant facts give rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportional exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions or statements by a prosecuting attorney during voir dire. Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996).

In the present case, Jackson made no effort to show a disproportionate exclusion of blacks from the jury, nor did he show a pattern of strikes evidencing a discriminatory purpose. In fact, two black males were seated on the jury, and as this court has previously stated, the best answer the State can have to a charge of discrimination is to point to a jury which has black members. Id.; see also Roseby, 329 Ark. at 562, 953 S.W.2d 32. In this respect, we also note that, while the State was entitled to ten peremptory challenges, it used only six. Additionally, Jackson presented no evidence that the prosecutor made any racial statements or asked any racial questions. In sum, Jackson failed to show a prima facie case.

Even if Jackson had shown a prima facie case, the State's explanations for challenging Camp and McCraney were racially neutral, and the circuit court was well within its discretion to deny the Batson challenge. Ms. Camp, for example, had an ex-husband who had been charged with past crimes by the same prosecutor who was prosecuting this case. More pertinent, Ms. Camp, too, had been in the prosecutor's office in connection with past serious crimes. While Jackson complains that the prosecutor's "information was not gathered from questioning Ms. Camp," he cites no authority such information must be furnished by the challenged juror. To the contrary, it is accepted practice for the prosecution as well as the defense to undertake a pretrial investigation of prospective jurors. See WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE § 21.3, at 724 (1984).

Jackson's argument concerning the State's peremptory challenge of Mr. McCraney also must fail. When defense counsel raised a Batson objection to the State's use of a peremptory challenge to venireman McCraney, the prosecutor explained that he had previously prosecuted McCraney's nephew and the prosecutor's information was that the nephew lived with McCraney. The State added that McCraney was also evasive when asked his opinion about the death penalty. Defense counsel's only rejoinder questioned whether the prosecutor gathered information concerning Mr. McCraney "outside the courtroom" and argued venireman McCraney was no different than white venireperson Ms. Krank who had a nephew who had been previously prosecuted. Again, it is difficult to understand the relevance of Jackson's argument regarding where the State "gathered its information," but the trial judge very clearly pointed out the difference in Ms. Krank's situation from that of McCraney's, stating Krank's nephew had been prosecuted by another prosecutor in a different circuit. In sum, Jackson failed in showing a prima facie case, but even if he had, the State gave racially neutral explanations for its striking both Camp and McCraney. Once again, we point out that the record reflects the jury contained two black members and the State had exhausted only six of its ten peremptory challenges. Given the proof and record before us, the trial court's ruling on the Batson issue was unquestionably correct. See Cleveland v. State, 326 Ark. 46, 930 S.W.2d 316 (1996).

Jackson next asks the court to reconsider its decision in Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996), cert. denied, --- U.S. ----, 117 S.Ct. 436, 136 L.Ed.2d 334 (1996), where this court held the introduction of victim-impact evidence is not a deprivation of a defendant's right of due process. Specifically, he argues on appeal that Ark.Code Ann. § 5-4-602(4) (Repl.1994), a procedural statute, created a new aggravating circumstance, which he contends violates the Due Process Clause. Also, he claims it denies his due process rights because the statute represents a wholesale departure without guidelines from the normal sentencing scheme which permits aggravating factors to be weighed against mitigating factors. For whatever reason, the trial court was never asked to rule on these arguments. Thus, because these arguments are not preserved on appeal, we do not consider or discuss them. Nichols v. State, 328 Ark. 339, 944 S.W.2d 83 (1997).

In his third point, Jackson argues that the sentencing provisions in Ark.Code Ann. § 5-4-603 (Repl.1994) are unconstitutional because they prohibit the jury from exercising mercy, and therefore amount to a mandatory death penalty. This identical argument was made in Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), cert. denied, --- U.S. ----, 116 S.Ct. 1436, 134 L.Ed.2d 558 (1996), and the court rejected it. We need not address it again.

Jackson's fourth point asserts the trial court erred when it refused to prohibit the State from seeking the death penalty. Jackson claims that the State has historically imposed the death penalty in a racially discriminatory manner against blacks who kill whites. While ...