Goode v. Shoukfeh

• Decision Date: 18 April 1997
• Docket Number: No. 96-0346,96-0346
• Citation: 943 S.W.2d 441
• Parties: 40 Tex. Sup. Ct. J. 487 Orlin GOODE, as independent executor of the Estate of James Emerson Goode, Petitioner, v. Mohammad F. SHOUKFEH, M.D., Respondent.
• Court: Texas Supreme Court

Page 441

943 S.W.2d 441

40 Tex. Sup. Ct. J. 487

Orlin GOODE, as independent executor of the Estate of James

Emerson Goode, Petitioner, v. Mohammad F. SHOUKFEH, M.D., Respondent.

No. 96-0346.

Supreme Court of Texas.

Argued Oct. 22, 1996.

Decided April 18, 1997.

Bruce A. Pauley, Michael S. Box, William A. Newman, Dallas, for Petitioner.

Jim Hund, Lubbbock, R. Brent Cooper, Dallas, for Respondent.

OWEN, Justice.

In this case we review a determination that peremptory challenges were not based on race and consider whether two members of the venire should have been excused for cause. The trial court overruled Petitioner's objections to Respondent's peremptory challenges and also refused to excuse two veniremembers for cause. The court of appeals affirmed the trial court's take-nothing judgment. 915 S.W.2d 666. We affirm the judgment of the court of appeals.

I

James Emerson Goode died from complications following knee-replacement surgery performed at Methodist Hospital of Lubbock. Orlin Goode, as independent executor of the estate of James Goode, brought a medical malpractice suit against Mohammad F. Shoukfeh, a cardiologist who treated James Goode for a pulmonary embolism several days after his surgery. The case was tried to a jury, who failed to find Shoukfeh negligent. The trial court rendered judgment on the verdict, and Goode appealed. The court of appeals affirmed.

Goode's complaints on appeal focus on the selection of the jury. Following voir dire of the prospective jury panel, Shoukfeh peremptorily challenged six veniremembers. Goode, an African-American, objected to four of these challenges as impermissibly motivated by race under Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). The challenged jurors included three African-Americans (jurors 7, 26, and 28) and one Hispanic (juror 9). During voir dire, Goode also alleged that Shoukfeh struck juror 9, a woman, for "gender based reasons." However, Goode has not asserted a claim of gender discrimination in this Court.

The trial court conducted a hearing on Goode's Edmonson challenge, which Goode's counsel began by stating that: (1) the four challenged jurors were members of a racial minority; (2) no sufficient, racially neutral reason justified these challenges; and (3) Goode would put forth evidence of his claims if the court so desired. The court declined this offer of evidence and instead called upon Shoukfeh's counsel to reply.

Responding to the court's request, Shoukfeh's counsel offered explanations for striking the four jurors in question. Juror 7 knew and had worked with either James Goode's widow or one of his children. Juror 26 was once a nurse at Methodist Hospital, and Shoukfeh's counsel expressed concern with "the reasons that she left employ there." The objection to juror 28 was that she made an "unequivocal statement ... that she had a problem sitting in judgment" and also that she failed to disclose her prior jury service on her juror information card. Finally, juror 9 was a single mother of four who listed her occupation as "house mother," which counsel for Shoukfeh took to mean unemployed, and Shoukfeh's counsel stated that he was concerned that her service on the jury "would affect her ability to take care of four children." Shoukfeh's counsel also claimed that juror 9 would be "more of a plaintiff's juror" because she appeared to be a welfare recipient.

Following these explanations, Goode requested the opportunity to examine the voir dire notes of opposing counsel and argued that these notes should be admitted into evidence. Goode then requested the opportunity to call witnesses and eventually did call Jim Hund and Bill Moss, Shoukfeh's attorneys. The questioning of Hund and Moss focused on their respective voir dire notes. When asked whether these notes reflected any reliance on race in striking the four jurors in question, Hund invoked the work-product privilege. Moss answered "no" in response to the same question. However, both Hund and Moss asserted the work-product privilege in refusing to disclose their notes to Goode. The trial court sustained the privilege claims and refused to conduct an in camera inspection of the notes. The court then overruled Goode's Edmonson objections. Goode contends that following Shoukfeh's peremptory challenges, no African-Americans or Hispanics were left on the panel, although the record indicates that two individuals with names of Hispanic origin remained.

Goode contends that Shoukfeh failed to offer race-neutral explanations for his peremptory challenges and that the trial court erred in denying access to counsel's notes, which may have provided concrete evidence that the peremptory challenges were made with racially discriminatory intent.

II

A

Goode's challenges to the strikes exercised by Shoukfeh arise under the United States Constitution, as interpreted in decisions of both the United States Supreme Court and this Court. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that a criminal defendant is denied equal protection under the United States Constitution if a prosecutor uses peremptory challenges to exclude members of the jury panel solely on the basis that their race is the same as the defendant's.

The United States Supreme Court has extended the reach of Batson to other situations, most notably civil trials. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 618-28, 111 S.Ct. 2077, 2081-87, 114 L.Ed.2d 660 (1991). The Court held in Edmonson that race-based exclusion of civil jurors violates the equal protection rights of the excluded juror. Edmonson, 500 U.S. at 616, 111 S.Ct. at 2080-81. Other extensions of Batson include J.E.B. v. Alabama, 511 U.S. 127, 130-31, 114 S.Ct. 1419, 1422-23, 128 L.Ed.2d 89 (1994) (prohibiting peremptory challenges based on sex); Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 2359, 120 L.Ed.2d 33 (1992) (prohibiting criminal defendant's exercise of peremptory challenges in a racially discriminatory manner); and Powers v. Ohio, 499 U.S. 400, 406-09, 111 S.Ct. 1364, 1368-70, 113 L.Ed.2d 411 (1991) (prohibiting racially motivated peremptory challenges even when excluded jurors are of a different race than the defendant). As in Edmonson, these decisions reflect the Supreme Court's recognition of the equal protection rights of both the excluded jurors and the litigants. See, e.g., J.E.B., 511 U.S. at 140-41, 114 S.Ct. at 1427-28.

In the wake of Edmonson, this Court confirmed in Powers v. Palacios, 813 S.W.2d 489, 490-91 (Tex.1991), that the use of a peremptory challenge to exclude a juror on the basis of race violates the equal protection rights of the excluded juror. See also American Chrome & Chems., Inc. v. Benavides, 907 S.W.2d 516, 517 (Tex.1995) (confirming that this Court follows Edmonson but disapproving of language in the opinion of the court of appeals that said "we and the Texas Supreme Court have gone a step further than some jurisdictions").

Decisions of the United States Supreme Court have delineated the substantive parameters that govern a Batson/Edmonson objection. In two criminal cases, Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 1865-66, 114 L.Ed.2d 395 (1991), and Purkett v. Elem, 514 U.S. 764-65, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834 (1995), the Supreme Court explained the three-step process utilized in resolving a Batson objection to a peremptory challenge. At the first step of the process, the opponent of the peremptory challenge must establish a prima facie case of racial discrimination. There is no contention in this case that Goode failed to make out a prima facie case, and accordingly, we need not consider that question. In any event, once a party offers a race-neutral explanation for the peremptory challenge and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of a prima facie case is moot. See Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866.

During the second step of the process, the burden shifts to the party who has exercised the strike to come forward with a race-neutral explanation. Purkett, 514 U.S at 767, 115 S.Ct. at 1770; Hernandez, 500 U.S. at 358-59, 111 S.Ct. at 1865-66. The United States Supreme Court clarified in Purkett the role of an appellate court at this stage of the inquiry. The appellate court does not consider at the second step whether the explanation is persuasive or even plausible. The issue for the trial court and the appellate court at this juncture is the facial validity of the explanation. Purkett, 514 U.S. at 768, 115 S.Ct. at 1771. In evaluating whether the explanation offered is race-neutral, a court must determine whether the peremptory challenge violates the Equal Protection Clause as a matter of law, assuming the reasons for the peremptory challenge are true. Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866. A neutral explanation means that the challenge was based on something other than the juror's race. Id. at 360, 111 S.Ct. at 1866-67. Unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race-neutral for purposes of the analysis at step two. Id. Thus the inquiry does not terminate at step two even if the party opposing the peremptory challenge offers a "silly or superstitious" explanation, so long as that explanation is race-neutral. Purkett, 514 U.S at 768, 115 S.Ct. at 1771. It is not until the third step that the persuasiveness of the justification for the challenge becomes relevant. At the third step of the process, the trial court must determine if the party challenging the strike has proven purposeful racial discrimination, and the trial court may believe or not believe the explanation offered by the party who exercised the peremptory challenge. Id. It is at this stage that implausible justifications for striking potential jurors "may (and probably will) be found [by ...