Colbert v. State, CR

• Decision Date: 21 December 1990
• Docket Number: No. CR,CR
• Parties: Isaac COLBERT, a/k/a Ike Colbert, a/k/a Ike Coleman, Appellant, v. STATE of Arkansas, Appellee. 90-179.
• Court: Arkansas Supreme Court

Page 643

801 S.W.2d 643

304 Ark. 250

Isaac COLBERT, a/k/a Ike Colbert, a/k/a Ike Coleman, Appellant, v. STATE of Arkansas, Appellee.

No. CR 90-179.

Supreme Court of Arkansas.

Dec. 21, 1990.

Marc Honey, Prescott, for appellant.

John D. Harris, Asst. Atty. Gen., Little Rock, for appellee.

TURNER, Justice.

This is an appeal from a conviction for delivery of a controlled substance--rock cocaine--and a sentence of life imprisonment together with a fine of $25,000.

The appellant, an elderly black man, was charged by information with selling a small quantity of rock cocaine to undercover police officer Nick Sturghill through a third party go-between. A jury trial before an all-white jury resulted in the appellant's conviction and sentence.

The appellant raises five issues in seeking a reversal of his conviction. First, the trial court erred in failing to grant a mistrial due to the state's intimidation of a key defense witness. Second, the trial court erred in denying the appellant's request for a presentence report, and the sentence which was imposed was excessive. Third, the appellant was prejudiced by the trial court's erroneous admission of hearsay evidence. Fourth, the trial court erred in denying motions for discovery and for a directed verdict based upon lack of officer certification. Fifth, the appellant was denied the equal protection afforded by the Constitution of the United States by the state's use of its peremptory challenges to strike all of the black persons from the jury panel before which he was tried.

We have carefully reviewed the record, and as to the appellant's first four assertions of error there is no merit. Moreover, it is unlikely that the events giving rise to the appellant's first four issues will again surface at retrial. However, we are persuaded that the appellant's fifth point has merit, and we therefore reverse and remand for a new trial.

There is no challenge to the venire as a whole, but from the entire panel the names of at least four black members were drawn for prospective jury service in this case. Juror Livingston, a black male, candidly admitted that he knew the defendant and did not feel that he could be fair and impartial. Livingston was properly excused by the court for cause.

Juror Byrd, a black female, complained that her job requirements had caused her to work all night the previous night. She expressed serious doubts that she could stay awake or be attentive and expressed a strong desire to be excused. She was subsequently excused by the court.

Upon the court's general voir dire of the panel, juror Evans, a black female, acknowledged that she knew the witness, Alma Henry, and that they had been schoolmates. It is significant to note at this point that juror Booker, a white female, also responded that she knew Alma Henry. When Evans's name was drawn she was asked no questions by either the state or the defense but was excused peremptorily by the state. Juror Booker was also drawn, and the state neither questioned her nor challenged her as a juror.

The name of juror Blake, another black female, was drawn and this juror was asked no questions by either the state or the defense but was peremptorily excused by the state.

The accused made a timely objection to the composition of the jury panel, as selected, contending that the prosecution exercised peremptory challenges to exclude all black persons from the jury. He further asserted that this action by the state violated his equal protection rights guaranteed by the Constitution and thus denied to him a fair and impartial trial by a jury of his peers. The prosecutor denied the defense allegation that racial bias was a factor in the exclusion of the black jurors and gave the following "racially neutral" reasons for the exercise of his peremptory challenges: first, the prosecutor stated that he struck juror Evans because she was related to "the Alvin Evans, who ... has been prosecuted in this court and is on probation, and has been a witness [in another case] that we have had problems with ..."; second, juror Blake was struck by the state because the prosecutor said that her children had been involved in previous municipal court actions and, "because of past experiences that I have had with her children, I chose to strike her."

The record is silent with regard to any action by the trial court on the objection made by the appellant. We could infer from the fact that the trial proceeded without any action being taken that the court accepted as sufficient the prosecutor's "racially neutral" explanation, and we could then discuss whether we agree or disagree with the trial court that the reasons given by the state were sufficient to satisfy the issue raised by the appellant. Under our previous holdings, however, even if the state's explanations satisfied the trial court, the court was still required to make a sensitive inquiry to eliminate any possibility of racial bias. See Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988).

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court clearly established that upon a showing of factual circumstances creating an inference that venire persons were excluded on account of their race, the burden then shifts to the state to come forward with a racially neutral explanation for each of the peremptory challenges. The trial court must then determine if the defendant "has established purposeful discrimination." In making that determination, the Batson Court said: "In deciding if the defendant has carried his burden of persuasion, a court must undertake a 'sensitive inquiry into such circumstantial and direct evidence of intent as may be available.' "

Later in the same opinion, the Court said that when factors have been shown which raise the "necessary inference of purposeful discrimination [and] ... when circumstances suggest the need, the trial court must undertake a 'factual inquiry' that 'takes into account all possible explanatory factors' in the particular case." (Emphasis added.)

In establishing the necessity for making the determination that the challenges were not racially motivated, the Batson case is silent with regard to any recommended procedure. Indeed, the Court stated, "We decline, however, to formulate particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges." But in so holding, the Court emphasized that the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause.

Clearly, Batson placed the onus upon the trial court to first make a determination that the defendant has established purposeful discrimination. If the defendant makes such a showing, the court is then to determine the basis for the state's challenges. If any doubt remains concerning the legitimacy of those challenges, the court must then conduct a sensitive inquiry into all of the circumstantial and direct evidence of intent as may be available.

In our first application of the requirements laid down by the United States Supreme Court, we interpreted Batson as requiring the trial court to undertake, in every instance, a "sensitive inquiry" into the direct and circumstantial evidence available to decide if the state has made an adequate explanation. Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987).

In Mitchell v. State, we not only followed our decision in Ward v. State but also expanded its application. In Mitchell, the prosecutor extensively questioned Roger Petty, the sole black venireman, and later exercised a peremptory challenge to exclude him from the jury. Immediately upon striking Petty, the prosecutor stated, for the record, that Petty had been excused because Petty's answers did not seem to the prosecutor to be truthful and candid. The trial court accepted the state's explanation without any inquiry. This court reversed Mitchell's conviction for error in the jury selection process, stating:

[W]here the use of a peremptory challenge results in the exclusion from the jury of all members of the defendant's minority race, it is not necessary to show exclusion of more than one minority juror of the same race as the defendant to make...