Deberry v. Portuondo, 98 Civ. 3323 (LBS)(CP).

• Decision Date: 12 June 2003
• Docket Number: No. 98 Civ. 3323 (LBS)(CP).,98 Civ. 3323 (LBS)(CP).
• Citation: 277 F.Supp.2d 150
• Parties: Darnell DEBERRY, Petitioner, v. Leonard A. PORTUONDO, Respondent.
• Court: U.S. District Court — Eastern District of New York

Page 150

277 F.Supp.2d 150

Darnell DEBERRY, Petitioner, v. Leonard A. PORTUONDO, Respondent.

No. 98 Civ. 3323 (LBS)(CP).

United States District Court, E.D. New York.

June 12, 2003.

MEMORANDUM AND ORDER

SAND, District Judge.^*

Petitioner Darnell DeBerry ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that the trial court erred in its interpretation and application of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). For the reasons stated below, this Court denies the petition.

BACKGROUND

I. State Court Proceedings

In 1992, DeBerry, who is African American, and a codefendant, Eric Jeffrey, were charged with one count of second degree murder and two counts of criminal possession of a weapon. Jury selection in their trial started on March 21, 1994.

The trial judge used a jury box system for selecting jurors. See McKinney v. Artuz, 326 F.3d 87 (2d Cir.2003) (explaining the jury box system). Under this system, a group of prospective jurors is seated in the jury box for voir dire. After questioning by the trial judge and the attorneys is complete, the trial judge asks both parties whether there are any challenges for cause to the entire panel. After the court rules on the parties' for-cause challenges, peremptory challenges are then exercised on the remaining venirepersons. Those persons remaining after both sides exercise their peremptory challenges become members of the jury, and another round begins with a fresh group of prospective jurors seated in the jury box. The process is repeated until twelve jurors and the required number of alternate jurors are selected.

A. First Round

At the beginning of voir dire in DeBerry's trial, twelve jurors from the venire took seats in the jury box.¹ (Transcript of Proceedings before Hon. Edward K. Pincus, Supreme Court of New York, Kings County, 3/22/94 ("Tr."), at 44.) Following voir dire and the excuse of one juror for cause, the prosecutor exercised three peremptory challenges to the remaining eleven jurors. From later discussions during voir dire, it appears that the prosecutor used all three peremptory challenges to strike black jurors. (Tr. 72.) The defense then exercised four challenges, thus resulting in the selection of four jurors after the first round.

B. Second Round

Sixteen jurors were seated in the box at the start of the second round. (Tr. 78.) The voir dire from this second group of jurors is not recorded,² and the next recorded stage in the proceedings is the beginning of the for-cause challenges to the entire panel, which at this point consisted of fourteen jurors in the sixteen seats.³ The trial judge granted the prosecutor's motion to dismiss two jurors for cause (Jurors Nine and Thirteen) and denied the defense counsel's challenge for cause to Juror Fourteen. (Tr. 68-71.) Therefore, twelve jurors remained available for selection immediately prior to both parties' exercise of peremptory challenges.

Discussions surrounding the Batson challenges by both parties during the second round give a picture of the racial composition of this group of twelve jurors. The prosecutor exercised four peremptory strikes, and the defense exercised six peremptory strikes on this group. Jurors One and Two were seated; the defense attorney later identified both as white females. (Tr. 79.) In his two Batson challenges, the defense attorney asserted that all four of the prosecutor's strikes affected black jurors. (Tr. 72.) In his own Batson motion following the defense attorneys' use of their peremptory challenges in the second round, the prosecutor alleged that the defendant exercised all of his strikes against white jurors (Jurors Four, Six, Ten, Twelve, Fourteen, and Sixteen). (Tr. 79-80.) The defense did not dispute this characterization, though he does identify at least one of these stricken jurors as Hispanic. (Tr. 79.) Thus, of the twelve jurors remaining, it appears that four jurors were black and eight jurors were either white or Hispanic.

The peremptory challenges in the second round proceeded in two stages. The court clerk first asked for the prosecution's peremptory challenges to the eight remaining jurors in the first ten seats. (Tr. 71.) The prosecutor struck three of the eight jurors: Jurors Three, Seven, and Eight. After the prosecutor exercised these strikes, the defense made a Batson motion: "Judge, I am going to make an application at this time, challenges the People challenge pursuant to Batson. Every challenge the People have taken first round and in this round have been individuals who are black and I see a pattern forming of challenging black jurors even though they have left some on." (Tr. 72.)

After briefly questioning the defense attorney, the trial judge requested that the prosecutor articulate a race-neutral reason for his first challenge:

THE COURT: I think out of twelve people on the first round they challenged only three and I believe we do have black jurors and you didn't raise it then.

MR. SHEINBERG [Co-Defendant's Counsel]: I wouldn't raise it the first challenge.

THE COURT: This round all three of them.

MR. SHEINBERG: All three are black.

THE COURT: Okay, juror three, why did you challenge three?

MR. KERN [The Prosecutor]: I challenged him because I believe what he said but I just wasn't comfortable having someone 20 years old judging somebody of similar age. We do have a lot of young people on the panel and I kept some young people and knocked some young people off. I kept Ms. Thomlin, and I kept Ms. McQuillan as juror number one. No challenge Ms. Madden. I don't like young people.

(Tr. 72-73.)

After some discussion, the trial judge accepted the prosecutor's explanation: "Mr. Archibald did say something that caught the Court's ear, he did say that being young he could relate to them and I find that inappropriate [sic] challenge."⁴ (Tr. 74.)

The trial judge then requested explanations for the peremptory challenges to Jurors Seven and Eight:

MR. SHEINBERG: All right, how about Ms. Smith?

MR. KERN: Are you requiring me to give neutral reasons even though—

THE COURT: Well if they are three black people this round, I didn't take note on the last round.

MR. SHEINBERG: I checked them.

THE COURT: Rather than waste time, I will ask to have the reason now.

MR. KERN: Number seven, Judge, there is some aspect of her background, particularly the fact she is in law enforcement but after consultation with Ms. Kelly, Ms. Kelly stated and I agree, that this person struck her as someone who is stubborn, somewhat intractable so that if I didn't convince her or she was skeptical of any part of my case, she is the type of person that this may actually hang up the jury and I don't want intractable people on the jury.

THE COURT: I will accept that. What is the last one, number eight.

MR. KERN: Judge, I am going to admit I will be hard pressed to find a reason. I didn't think her responses were as ringing as I expected them to be. First of all, I didn't have as much chance to speak to these people as I might have if it wasn't 5 o'clock and you had given the instruction, "be brief" and there wasn't [sic] fifteen people to question.

THE COURT: I can always bring her out here if you want to question her?

MR. KERN: Well, I don't know if that would help out at all.

THE COURT: What was there about her answers that made you uneasy or unhappy with her?

MR. KERN: Judge, I am not uneasy with her, I just am not happy with her. I don't want to lie to the Court and say I am uneasy with her because nothing she said made my [sic] uneasy. I was not happy with her and I do think she is probably about 45, 50 years old and I am trying to achieve some kind of balance and I do have middle age to elderly women on the jury and, Judge, yet the victim is a black victim.

There is no motive for me to knock black people off the jury, that is why I am a little surprised by the challenge and perhaps I am unprepared to deal with it because I don't have race in mind.

MR. SHEINBERG: All right.

THE COURT: Unhappiness ordinarily would not suffice.

The Court find's [sic] that there were certainly articulate reasons for challenging number three and number seven, I don't see the pattern has been established.

I don't find a pattern has been established with respect to number eight. Ordinarily I would not find that being unhappy with her and not as satisfied is enough if there were a pattern but in retrospect, I don't see a pattern established.

(Tr. 74-76.)

After the defense attorney struck four jurors from the first group of eight, two jurors were seated, and the second round then continued to the four jurors in the remaining six seats. (Tr. 77.) The prosecutor exercised one peremptory strike on Juror Eleven, a black woman. Juror Eleven was the only black juror remaining in the second round. Noting this fact, the defense attorney made a second Batson motion. (Id.) The trial judge denied the motion without requiring the prosecutor to articulate a race-neutral reason for the strike:

MR. SHEINBERG: I am making the same application, number eleven, Ms. Hanson is black. That is the only challenge made by the People.

THE COURT: I have not found a pattern established and I see no basis for questioning.

MR. SHEINBERG: There is a pattern established right now, the only black person is being challenged, Ms. Hanson, there are no other blacks on this jury. This Mr. Angrotta is not black.

THE COURT: No blacks on the second panel.

MR. SHEINBERG: On this selection.

THE COURT: I don't find that to be a pattern.

MR. SHEINBERG: All right, then you deny my application?

THE COURT: Sure.

(Tr. 77.)

C. State Appeals

On April 7, 1994, DeBerry and his codefendant were convicted of second-degree murder and criminal possession of a weapon. DeBerry was sentenced to concurrent terms of imprisonment of twenty-five years to life for the murder count and five to fifteen years for the weapon possession.

DeBerry appealed his...