Garrett v. Morris, 86-1481

• Decision Date: 29 May 1987
• Docket Number: No. 86-1481,86-1481
• Parties: Gerald Duane GARRETT, Appellant, v. Terry MORRIS and Attorney General of the State of Missouri, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

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815 F.2d 509

Gerald Duane GARRETT, Appellant, v. Terry MORRIS and Attorney General of the State of Missouri, Appellees.

No. 86-1481.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 15, 1987.

Decided April 3, 1987.

Rehearing and Rehearing En Banc May 29, 1987.

Toby H. Hollander, St. Louis, Mo., for appellant.

Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, Mo., for appellees.

Before LAY, Chief Judge, HEANEY and ARNOLD, Circuit Judges.

ARNOLD, Circuit Judge.

This is an appeal from an order of the District Court denying Gerald Duane Garrett's 28 U.S.C. Sec. 2254 petition for a writ of habeas corpus. Garrett argues, among other things, that the State's exercise of its peremptory challenges to exclude all black jurors from the petit jury panel at his murder trial violated his Sixth and Fourteenth Amendment rights. Because the record in this case demonstrates that the prosecutor used his peremptory challenges in an impermissibly discriminatory manner, we hold that Garrett's constitutional rights were violated. Accordingly, we reverse the judgment of the District Court and grant Garrett's petition for habeas corpus relief.

I.

Garrett, who is black, was charged with capital murder in connection with the 1977 death of an elderly woman, Agnes Grote. He was tried in May 1980 in St. Louis County Circuit Court. Following a lengthy voir dire examination of prospective jurors, the prosecutor utilized three of his peremptory challenges to exclude the only three black venirepersons from the petit jury panel. When the defense moved for a mistrial on the ground that the prosecutor's decision to strike those three jurors was based on improper racial considerations, the prosecutor volunteered the following explanation for his actions:

I think the record should reflect that the fact that the three jurors were black was not my reason for striking them, but, instead, it was the background, education and knowledge to understand fairly sophisticated scientific evidence which I intend to bring to the jury in this case.

Tr. II at 295. Thereupon, the trial judge denied the motion for a mistrial, stating, "I have no evidence before me to indicate the prosecutor chose to make his challenges except as he thought to be appropriate under all the facts developed by the voir dire." Id.

Garrett was subsequently convicted of first-degree murder, and sentenced to life imprisonment. The Missouri Supreme Court affirmed his conviction and sentence on direct appeal. State v. Garrett, 627 S.W.2d 635 (Mo.) (en banc), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982). Garrett then filed the present habeas corpus petition asserting multiple grounds for relief, ¹ including the claim that the State's use of its peremptory challenges to exclude all black jurors from his petit jury panel deprived him of his Fourteenth Amendment right to equal protection of the laws, and his Sixth Amendment right to a jury chosen from a fair cross-section of the community. The District Court, adopting the report and recommendation of the United States Magistrate to whom the matter had been referred, rejected Garrett's claims and denied the petition. This appeal followed.

II.

Garrett's claim that the prosecutor's use of peremptory challenges violated his right to equal protection of the laws is governed by Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In Swain, the Supreme Court recognized that "a State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause." Id. at 203-04, 85 S.Ct. at 826. Under Swain, a defendant can make out a prima facie case of purposeful discrimination on proof that the prosecutor perverted the peremptory-challenge system by using his challenges "to exclude blacks from the jury 'for reasons wholly unrelated to the outcome of the particular case on trial,' or to deny to blacks 'the same right and opportunity to participate in the administration of justice enjoyed by the white population.' " Batson v. Kentucky, --- U.S. ----, 106 S.Ct. 1712, 1720, 90 L.Ed.2d 69 (1986), quoting Swain, 380 U.S. at 224, 85 S.Ct. at 838. Swain nevertheless does not require an inquiry into a prosecutor's reasons for exercising his challenges in any particular case, holding instead that a presumption exists that the prosecutor is using the State's challenges to obtain a fair and impartial jury. 380 U.S. at 222, 85 S.Ct. at 837. That presumption may be overcome by showing that the prosecution has systematically excluded blacks from petit juries over a period of time, id. at 223-24, 85 S.Ct. at 837-38, but a defendant cannot, under Swain, establish an equal-protection violation "solely on proof of the prosecutor's use of peremptory challenges to strike black jurors at the defendant's own trial." Griffith v. Kentucky, --- U.S. ----, 107 S.Ct. 708, 710, 93 L.Ed.2d 649 (1987).

Swain was overruled in part in Batson v. Kentucky, in which the Supreme Court held that a defendant "may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." 106 S.Ct. at 1722-23. Garrett concedes, however, that the ruling in Batson does not apply retroactively to a case on federal habeas review. See Allen v. Hardy, --- U.S. ----, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (per curiam). Moreover, he has made no attempt to show the prosecution's systematic exclusion of black jurors from petit jury panels over time. Garrett nevertheless maintains that the record establishes a violation of the equal-protection principles of Swain, ² and is sufficient to overcome the presumption protecting the prosecutor in this case. We agree.

The decision in Swain does not completely insulate a prosecutor's use of peremptory challenges in a given case. Although the Supreme Court declined to require an inquiry into a prosecutor's decision to remove blacks from a particular jury, we believe that where, as here, the prosecutor volunteers the reasons for his actions and makes them part of the record, he opens the issue up for review. The record is then no longer limited solely to proof that the prosecutor has used his peremptory challenges to strike all black jurors from the defendant's jury panel, and the presumption that the prosecutor has acted properly falls away. At that point, the court has a duty to satisfy itself that the prosecutor's challenges were based on constitutionally permissible trial-related considerations, and that the proffered reasons are genuine ones, and not merely a pretext for discrimination.

The Ninth Circuit employed precisely this analysis in Weathersby v. Morris, 708 F.2d 1493 (9th Cir.1983), cert. denied, 464 U.S. 1046, 104 S.Ct. 719, 79 L.Ed.2d 181 (1984), another Sec. 2254 habeas corpus case involving a prosecutor's use of peremptory challenges to exclude all black persons from the petit jury panel. In response to defendant Weathersby's objections, the prosecutor volunteered his reasons for exercising his challenges against the various black venirepersons. The Ninth Circuit noted that where, as in Swain, the prosecutor does not volunteer his reasons for exercising peremptory challenges, the defendant wishing to establish an equal protection violation bears the heavy burden of showing that the prosecution has systematically used such challenges to exclude blacks over a period of time. Id. at 1495-96. However,

[c]ases where the prosecutor at trial volunteers his or her reasons for using peremptory challenges to exclude from the petit jury an identifiable group, present a situation distinguishable from Swain. In such cases, the court does not conduct the type of inquiry barred by Swain. The prosecutor's motives have been voluntarily put on the record and the prosecutor can no longer be cloaked by the presumption of correctness. Our reading of Swain, convinces us that in such circumstances a court need not blind itself to the obvious and the court may review the prosecutor's motives to determine whether "the purposes of the peremptory challenge are being perverted," Swain, 380 U.S. at 224, 85 S.Ct. at 838, by excluding an identifiable group "from juries for reasons wholly unrelated to the outcome of the particular case on trial." Id.

Id. at 1496. ³ The Court then reviewed the record to determine whether the prosecutor's volunteered reasons for exercising his peremptory challenges were, in fact, based on permissible trial related concerns, and concluded that the challenges were proper in the context of that particular case.

The Ninth Circuit stated in Weathersby that its approach to the issue had been suggested by our decision in United States v. Greene, 626 F.2d 75 (8th Cir.), cert. denied, 449 U.S. 876, 101 S.Ct. 220, 66 L.Ed.2d 98 (1980). In Greene, the prosecutor used five of his six peremptory challenges to remove all prospective black jurors from the jury panel. This Court recognized that, under Swain, a prosecutor's decision to use his peremptory challenges to strike all black persons from a particular jury will be presumed proper unless the record reveals that he made the challenges for impermissible reasons. Id. at 76 (emphasis added). Because the record in Greene did not reveal whether the prosecutor excluded the five black jurors for permissible or impermissible reasons, the Court concluded that the record was insufficient to justify relief. Id. See also United States v. Boykin, 679 F.2d 1240, 1245 (8th Cir.1982) (no reversible error where record contained no facts from which to deduce that the prosecutor's exercise of peremptory challenges to exclude the only two blacks on the venire panel was for an impermissible reason).

The Ninth Circuit has stressed the importance of the prosecutor's voluntarily making the reasons for his peremptory challenges part of the record....