Acklin v. State

• Decision Date: 30 January 1995
• Docket Number: No. CR,CR
• Citation: 319 Ark. 363,896 S.W.2d 423
• Parties: Marvin ACKLIN v. STATE of Arkansas. 94-1054.
• Court: Arkansas Supreme Court

Page 423

896 S.W.2d 423

319 Ark. 363

Marvin ACKLIN v. STATE of Arkansas.

No. CR 94-1054.

Supreme Court of Arkansas.

Jan. 30, 1995.

William R. Simpson, Jr., Public Defender by C. Joseph Cordi, Jr., Little Rock, for appellant.

Winston Bryant, Atty. Gen. by Gil Dudley, Asst. Atty. Gen., for appellee.

ROAF, Justice.

Appellant was tried and convicted of two counts of battery for the stabbing of his grandmother and ten-year-old cousin, and was sentenced as an habitual offender with four or more previous felony convictions. He received a sentence of forty years on each count. On appeal, appellant contends there was impermissible, purposeful discrimination by the state in the striking of a black male during jury selection. We do not reach the merits of appellant's argument because of his failure to sufficiently abstract the record. We affirm.

Appellant's argument rests on a claim of purposeful discrimination in the state's selection of a jury. Specifically, he argues that the state's challenge to a black male juror violated the rules pronounced in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which prohibits racial discrimination in the exercise of peremptory challenges, and J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), which extended Batson to include discrimination based on gender. Appellant contends that African American males should be considered a constitutionally cognizable group distinct from black people in general. Batson, supra.

When the challenge was made below, the state had struck the first black male to be questioned as a prospective juror. It was stated for the record that Acklin was also a black male. Acklin asserted that he objected to the strike on the basis of both race and gender. The state responded that while there were not yet any black males on the jury, black females had been seated and both sides had struck white men. The state asserted that Acklin had not made a prima facie case for purposeful discrimination as required by Batson, supra, and the state was, therefore, not required to give a racially or gender neutral explanation for the strike. See Gilland v. State, 318 Ark. 72, 883 S.W.2d 474 (1994). The trial court found that because there were already blacks on the jury, and the defense itself had stricken white men, no prima facie case had been made.

Without intending any comment on the soundness of appellant's argument, we do not reach the merits because of the deficiency in appellant's abstract.

The abstract in this case has failed to disclose any of the other details of voir dire necessary for us to determine whether a prima facie case had been made. A prima facie case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions or statements by a prosecuting attorney during voir dire. Gilland, supra; Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990).

Here, the only passage abstracted from voir dire is the discussion of the one challenge argued on appeal. This passage tells us that the appellant is a black male, that the challenged juror was a black man, that there were black women on the jury at the time he was challenged, and that three white men had previously been peremptorily challenged by the defense. This information is insufficient to enable us to determine whether a prima facie case of purposeful discrimination has...