Devose v. Norris

• Decision Date: 30 May 1995
• Docket Number: No. 94-3181,94-3181
• Parties: Emanuel George DEVOSE, Appellee, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 201

53 F.3d 201

Emanuel George DEVOSE, Appellee, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellant.

No. 94-3181.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 13, 1995.

Decided April 21, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied May

30, 1995. ^*

Darnisa Evans Johnson, Little Rock, AR, argued, for appellant (Winston Bryant, on the brief).

Michael R. Davis, Conway, AR, argued, for appellee.

Before McMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

HEANEY, Senior Circuit Judge.

Emanuel George Devose was convicted after a jury trial in Arkansas state court of delivery of a controlled substance and was sentenced as a habitual offender to twenty-seven years in prison. Devose sought reversal of his conviction on direct appeal to the Arkansas Court of Appeals, which affirmed his conviction. Devose v. State, No. CACR-89-3, 1989 WL 64206 (Ark.App. June 14, 1989). After unsuccessfully seeking post-conviction relief from the Arkansas Supreme Court, Devose v. State, No. CR89-185, 1990 WL 4850 (Ark. Jan. 22, 1990) (unpublished), Devose filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Arkansas.

In his petition Devose raised a number of issues. Only three issues were considered on the merits by the district court: (1) his conviction is unconstitutional because the jury was chosen in a racially discriminatory manner contrary to the dictates of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (2) the trial court erred in failing to require the prosecution to disclose the identity of a confidential informant; and (3) the prosecution failed to exercise due diligence in investigating the credibility of its key witness and disclosing impeaching evidence to defense counsel. ¹ After two evidentiary hearings, the district court found that all three issues were meritorious and that each issue individually required the court to set aside Devose's conviction. The court granted Devose's petition for habeas corpus and directed the State to release Devose on August 30, 1994, or to retry him within sixty calendar days from that date if it intended to reprosecute him on the instant offense. The State appeals. We affirm the district court on the Batson and confidential informant issues, but reverse on the due diligence issue. Accordingly, we find that the district court properly granted Devose's petition for writ of habeas corpus.

I. DISCUSSION

A. The Batson Issue

At Devose's trial a total of twenty-two prospective jurors were questioned to serve either as jurors or the alternate juror. Ten of those prospective jurors specifically stated that they had served on previous juries, including four of the five prospective black jurors. The first black prospective juror called stated that she had prior jury experience and was accepted as a juror. The next three black venirepersons called (including one prospective alternate juror)--all of whom stated they had previously served on juries--were stricken by the State. The one black venireperson who did not state that she had previously served on a jury was chosen as an alternate juror after each side exercised its one peremptory challenge for the alternate juror. The State thus exercised a total of three peremptory strikes, all of which were used against blacks. ²

The defense counsel objected to the process by which the jurors were selected. The prosecutor responded, noting that "it's not that the State has excused [the black prospective jurors] because they've done a good job ... the State has excused them because they have worked so many trials. We feel like that they have been burned out at this point...." Trial Tr. at 66-68. After considering the matter, the trial court accepted the prosecutor's reason for striking the black prospective jurors and empaneled a jury that included one black juror and one black alternate juror.

The district court held its first hearing on Devose's habeas petition on December 16, 1993. At the hearing the prosecutor stated that she used two peremptory challenges against the two black prospective jurors because both had served on juries in several cases in which she had recently been involved. Appellant's Br. at 4. Based on her previous experience with these jurors, she stated she had reason to believe that they "did not appear to be functioning up to capacity," that "[t]hey were burned out...." Id. at 5. A second hearing was held before the district court on July 7, 1994, at which the prosecutor could not precisely recall her reason for striking the two black prospective jurors. ³ After considering the prosecutor's testimony, the court held that Devose established a prima facie case of purposeful discrimination in the State's selection of jurors. It further held that the prosecutor failed to articulate a believable neutral explanation for striking the two black prospective jurors and the one black prospective alternate juror. Specifically, the court found that

white jurors with prior experience were seen by the State as having a clearer understanding of certain issues, making them desirable jurors. Black jurors with prior experience were perceived by the State as suffering from juror burnout, even when they specifically stated that they were not so suffering, or that they would do what was "right and correct."

Devose v. Norris, 867 F.Supp. 836, 844 (E.D.Ark.1994) [hereinafter Dist.Ct.Op.].

Appellant argues that because one black person was seated as a juror, as well one black alternate, Devose failed to establish a prima facie case of purposeful discrimination. Even assuming that Devose established a prima facie case of purposeful discrimination, appellant argues the reasons offered by the prosecutor for striking the two black prospective jurors and the one black prospective alternate juror were "clearly racially neutral." Appellant's Br. at 6.

The Equal Protection Clause forbids a prosecutor from using peremptory challenges to exclude otherwise qualified persons from the jury panel solely on account of their race. Batson, 476 U.S. at 86, 106 S.Ct. at 1717 (1986). Under Batson in order to establish an equal protection violation, the defendant must first establish a prima facie case of purposeful discrimination in the selection of the jury panel. Id. at 96, 106 S.Ct. at 1723. To establish a prima facie case, the defendant must show that he is a member of a cognizable racial group and that the prosecutor exercised peremptory challenges to remove members of his race from the venire. Id. He then " 'must show that these facts and any other relevant circumstances raise an inference that the prosecutor used [his peremptory] practice to exclude the veniremen from the petit jury on account of their race.' " United States v. Battle, 836 F.2d 1084, 1085 (8th Cir.1987) (quoting Batson, 476 U.S. at 96, 106 S.Ct. at 1723). Once the defendant has established a prima facie case of race discrimination, the government has "the burden of articulating a clear and reasonably specific neutral explanation for removing a venireperson of the same race as the defendant." United States v. Cloyd, 819 F.2d 836, 837 (8th Cir.1987).

Whether an explanation is neutral is a question of comparability. "It is well-established that peremptory challenges cannot be lawfully exercised against potential jurors of one race unless potential jurors of another race with comparable characteristics are also challenged." Doss v. Frontenac, 14 F.3d 1313, 1316-17 (8th Cir.1994); see Reynolds v. Benefield, 931 F.2d 506, 512 (8th Cir.), cert. denied, 501 U.S. 1204, 111 S.Ct. 2795, 115 L.Ed.2d 969 (1991); United States v. Lewis, 892 F.2d 735, 736-37 (8th Cir.1989); Garrett v. Morris, 815 F.2d 509, 514 (8th Cir.), cert. denied sub nom. Jones v. Garrett, 484 U.S. 898, 108 S.Ct. 233, 98 L.Ed.2d 191 (1987).

As noted above, the primary justification offered by the State for striking the two black prospective jurors and the one black prospective alternate juror was its concern that the jurors had previous jury experience and therefore suffered from jury burnout. Although juror burnout could plausibly pass as a nondiscriminatory explanation for striking venirepersons, it cannot be considered without viewing the totality of the circumstances. The salient fact appellant neglects to mention is that, of at least five prospective white jurors who stated they had previously served on juries, ⁴ none were asked by the prosecutor about the effect of juror burnout on their ability to serve as jurors. Quite to the contrary, the prosecutor, in questioning one of the white prospective jurors about his prior jury experience, suggested that the individual was well suited to serve as a juror now that he had "a clear understanding of what is meant by beyond a reasonable doubt." ⁵ Trial Tr. at 33. Apart from jury burnout, the prosecutor cited no other distinguishing factors that would explain her decision to exclude three of the four black venirepersons who stated they had previously served as jurors and to include white jurors who also stated they had prior jury experience. See Garrett, 815 F.2d at 513.

Because the government failed to establish "that any reason given for its exercise of strikes against black jurors had been equally applied to similarly situated white jurors," Reynolds, 931 F.2d at 512, we are left with the inescapable conclusion that the prosecutor's rationale for excluding black prospective jurors--"juror burnout"--was pretextual. Despite the State's claim that race was not a motivating factor in its selection of jurors, it appears that blacks were excluded from the jury because they were black, and "as blacks ... were not qualified to serve as jurors in the trial of this ... defendant." Garrett, 815 F.2d at 514. We therefore conclude that the district court did not err either in finding that Devose stated a prima...