Gilland v. State

• Decision Date: 26 September 1994
• Docket Number: No. CR,CR
• Parties: Sam Houston GILLAND, Appellant, v. STATE of Arkansas, Appellee. 94-396.
• Court: Arkansas Supreme Court

Page 474

883 S.W.2d 474

318 Ark. 72

Sam Houston GILLAND, Appellant, v. STATE of Arkansas, Appellee.

No. CR 94-396.

Supreme Court of Arkansas.

Sept. 26, 1994.

Bill Luppen, Little Rock, for appellant.

Kent G. Holt, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

Appellant Sam Houston Gilland was sentenced to forty years in the Arkansas Department of Correction following his conviction for first degree murder. On appeal, he argues two points for reversal: (1) the prosecution unconstitutionally used its peremptory strikes to exclude black males from the petit jury and (2) the trial court unduly restricted the closing argument for the defense. Finding no error we affirm.

Since the sufficiency of the evidence is not disputed, no extensive recitation of the facts is necessary. Gilland and the victim got into an altercation at a Little Rock truck stop ending in a fatal shooting. Gilland contended the victim called him a "nigger" and threatened to kill him. He testified the two struggled over a pistol, which belonged to the victim, and the gun discharged. However, there was testimony that Gilland drew the weapon from his back pocket and fired one shot into the cab of the victim's truck and left the truck stop.

I

The Prosecution Unconstitutionally Used Its Peremptory

Strikes To Exclude Black Males From the Petit Jury

Gilland was tried before a jury comprised of two black women, four white women, and six white men. Gilland contends he was denied equal protection because he is a black male, the victim is white, and the state exercised peremptory strikes to exclude two black males from the jury panel. He argues specifically the failure to comply with Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).

The United States Supreme Court has held that the Equal Protection Clause forbids a prosecutor from using peremptory challenges to exclude potential jurors solely on account of their race. Batson, supra; Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). In J.E.B., the Supreme Court found that "gender, like race, is an unconstitutional proxy for juror competence and impartiality." The Court noted that as with race-based Batson claims, a party alleging gender discrimination must make a prima facie showing of intentional discrimination before the party exercising the challenge is required to explain the basis for the strike. J.E.B., supra.

The appropriate procedure to be followed pursuant to a Batson challenge has been defined. First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993); Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993). 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. Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990).

In the event the defendant makes a prima facie case, the State has the burden of showing that the challenge was not based upon race. Only if the defendant makes a prima facie case and the State fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry. Franklin, supra; Tucker, supra. The standard of review for reversal of the trial court's evaluation of the sufficiency of the explanation must test whether the court's findings are clearly against a preponderance of the evidence. Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990).

During the jury selection process, the appellant made a challenge under Batson to the State's peremptory challenge to excuse a black male juror, Dexter Calloway. The trial court concluded the appellant failed to make a prima facie case that racial discrimination was the basis of the juror challenge. The court noted that of the jurors on the panel two were black and six were white. Further, the State had exercised four peremptory challenges--only one of which was a black juror (Mr. Calloway). Nevertheless, the State undertook to explain that the juror had failed to make eye contact during voir dire and was unresponsive to questions.

When the state subsequently struck Clifford Morgan, a black male, appellant made another Batson challenge. At that point the jury consisted of two black females, four white females and five white males. The trial judge opined that a pattern had developed because the state had struck the only two black males called to the jury. The state responded that Morgan gave evasive responses to questions on the burden of proof, indicating he expected the state "to prove its case by 100%." Asked whether people are responsible for their actions, he stated, "It depends." Further, the state explained he brought up the death penalty inappropriately and even after being told it had no application to this case, he hesitated with each answer. The trial court ruled the state had presented racially neutral reasons which were borne out by what the trial court had observed during voir dire.

On appeal, the appellant contends the prosecution unconstitutionally used its peremptory strikes to exclude black males, specifically, Clifford Morgan. The appellant relies on Batson and J.E.B. read in conjunction. However, appellant did not properly raise the gender issue and did not seek a ruling on that basis. At trial, Gilland objected under Batson to the State's use of a peremptory challenge to excuse juror Clifford Morgan. The appellant, however, did not object based upon gender or refer to J.E.B., which was not yet decided at the time of appellant's trial. Because an appellant may not change his grounds for objection on appeal, this point is not preserved on appeal. Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993).

Arguably, the gender issue was introduced in the response of the trial judge to appellant's Batson objection:

TRIAL COURT: I am seeing a pattern develop, but it's not exactly the way you've outlined it. The state has exercised six of its eight strikes. Four of those strikes have been against females. The state has exercised only two strikes against males, and both of those are black males. Both were the only two black males that have been called to the panel and who have been eligible for strikes. Even though we had two jurors left, those were both black females. So for that reason at this point, I could see what could be termed a pattern involved, in that all black males who have been called have been stricken by the state. There have been no white males struck at all. The defendant in this case is a black male. Because I see this pattern I am now going to ask the state to respond to this motion.

When the prosecutor concluded his reasons for striking Mr. Morgan, the trial judge ruled as follows:

TRIAL COURT: The court finds that the reason given by the state was racially neutral. I note that the other jurors were asked similar questions and none had similar responses that Mr. Morgan did. The state does not have to show that they had reason for a challenge for cause, but only that the reason was racially neutral. I find that is borne out by what I have heard and seen during this voir dire. The Batson objection is overruled.

DEFENSE COUNSEL: In order to preserve my record, I would at this time to ask for a mistrial based on the Batson objection.

Thus the gender issue was neither presented, nor ruled on. The burden of obtaining a ruling is on the appellant and matters left unresolved may not be raised on appeal. Parmley v. Moose, 317 Ark. 52, 876 S.W.2d 243 (1994). Nor has the appellant made any attempt to establish that males have a recognizable status within a cognizable racial group. See Batson, supra; Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). Moreover, in Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993), we wrote:

And finally, no reason or authority has been advanced to extend Batson to gender challenges within a racially cognizable group. We can divine no reason for doing so in this case.

Accordingly, we hold the issue preserved for review is whether the State unconstitutionally used its peremptory challenges to exclude blacks from the jury. We further hold that given the circumstances as a whole, the appellant...