Hugh Chalmers Chevrolet-Cadillac-Toyota, Inc. v. Lang, CHEVROLET-CADILLAC-TOYOT

• Decision Date: 25 September 1996
• Docket Number: CHEVROLET-CADILLAC-TOYOT,INC,No. CA,CA
• Citation: 928 S.W.2d 808,55 Ark.App. 26
• Parties: HUGH CHALMERS, Appellant, v. Margaret Turner LANG, Appellee/Cross-Appellant, v. GENERAL MOTORS CORP., Cross-Appellee. 95-424.
• Court: Arkansas Court of Appeals

Page 808

928 S.W.2d 808

55 Ark.App. 26

HUGH CHALMERS CHEVROLET-CADILLAC-TOYOTA, INC., Appellant, v. Margaret Turner LANG, Appellee/Cross-Appellant, v. GENERAL MOTORS CORP., Cross-Appellee.

No. CA 95-424.

Court of Appeals of Arkansas Division II.

Sept. 25, 1996.

William H. Edwards, Derek J. Edwards, Little Rock, for Appellant.

David Hodges, Little Rock, for Appellee.

STROUD, Judge.

This appeal and cross-appeal arise from a lawsuit filed by Margaret Turner Lang, appellee/cross-appellant, against Hugh Chalmers Chevrolet-Cadillac-Toyota, Inc., appellant, and General Motors Corporation, cross-appellee. The case was tried and submitted to the jury on interrogatories. The jury found Chalmers liable on theories of strict liability, breach of implied warranty of merchantability, and breach of implied warranty of fitness for a particular purpose. Lang was awarded $37,500.00 in damages. General Motors was exonerated of any liability. Following the verdict the trial court held a hearing on the issue of attorney's fees and awarded Lang $18,500.00. This appeal and cross-appeal followed.

In January 1992, Lang purchased a previously owned 1991 Chevrolet Lumina from Chalmers. At the time of purchase, the automobile had been driven approximately 13,000 miles. It was manufactured by General Motors. In February 1992, it was destroyed by fire and portions of Lang's carport and house were damaged. On the day of the fire, Lang returned home from work and parked her car in her carport at approximately 4:00 p.m. At approximately 11:00 p.m. she heard a loud bang, and her neighbors informed her that her car and carport were on fire.

For reversal, appellant Chalmers argues: (1) that the trial court erred in denying the motion for directed verdict on the implied warranty theories, (2) that the trial court erred in granting Lang's request for attorney's fees, (3) that the trial court erred in overruling Chalmers' peremptory strike pursuant to a Batson challenge, and (4) that the trial court erred in denying Chalmers' motion for a mistrial based on reports of other engine fires that were the subject of a motion in limine.

Cross-appellant Lang argues: (1) that the trial court erred in overruling her peremptory strike pursuant to a Batson challenge, (2) that the trial court erred in denying her motion in limine and permitting reference to subsequent, irrelevant acts, and (3) that the jury's verdicts in favor of General Motors, cross-appellee, were not supported by substantial evidence.

We find merit in the arguments raised by both appellant Chalmers and cross-appellant Lang with respect to their efforts to exercise peremptory strikes in the jury selection process. We therefore reverse and remand on both the appeal and the cross-appeal. Moreover, because we are reversing the judgment based on the trial court's failure to excuse two jurors, we discuss only the points likely to arise at a new trial.

APPELLANT CHALMERS' PEREMPTORY STRIKES

Lang is an African-American woman. Following voir dire, Chalmers exercised peremptory strikes against three African-American women. Lang challenged those strikes pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). With respect to two of the three peremptory challenges, either Lang conceded that there was an independent, non-discriminatory basis for the strike, or the trial court so determined. With respect to Margie Brown, the third juror, however, the trial court overruled Chalmers' peremptory strike. The trial court erred in doing so.

In Batson, the United States Supreme Court held that the Equal Protection Clause guarantees a criminal defendant that the State will not use peremptory challenges to exclude members of the defendant's race from the jury venire based solely on race. This principle has been extended to protect private litigants in civil cases. Edmonson, 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660; see Wingate Taylor-Maid Transp., Inc. v. Baker, 310 Ark. 731, 840 S.W.2d 179 (1992); Sonny v. Balch Motor Co., 52 Ark.App. 233, 917 S.W.2d 173 (1996).

When a Batson objection is raised, the party making the objection must demonstrate a prima facie case that racial discrimination is the basis of a juror challenge. If the party is able to demonstrate a prima facie case, then the burden shifts to the party exercising the peremptory challenges to establish that the peremptory strikes were for racially neutral reasons. The trial court must then determine from all relevant circumstances the sufficiency of the striking party's explanation. If the party's explanation appears insufficient, then the trial court must conduct a sensitive inquiry into the basis for each of the peremptory challenges. Sonny v. Balch Motor Co., 52 Ark.App. 233, 917 S.W.2d 173 (1996).

Chalmers does not challenge whether a prima facie case for discrimination was established; rather, it asserts error in the trial court's rejection of the reason proffered by Chalmers for the strike. The following exchange took place in pertinent part between the trial court and Chalmers' counsel:

THE COURT: In view of our hearing before commencing voir dire and in light of the development in voir dire and your strikes, the Court will require the defendant to make some offer or showing of some independent reason for exercising your peremptory challenges to exclude the two female black American prospective jurors other than based on race.

[COUNSEL FOR CHALMERS]: Your honor, I think voir dire and the process goes not just to the questions asked by the lawyers, but also questions asked by the Court in qualifying these jurors.

The voir dire process extends not just to verbal responses but also visual clues, body language, general appearance of the witnesses.

. . . . .

I exercised my strikes based on the non-responsiveness of her attitude, failure to make eye contact during voir dire and appearance.

. . . . .

[THE COURT]: The reason stated by the defense for the exercise of the peremptory challenge of Ms. Brown certainly does not meet that standard, if there be a standard. I perceive there is some standard at least established by the Supreme Court the U.S., as well as local, for reasons of race.

While I personally think there needs to be some preservation of the peremptory challenge, that feeling based on simply appearance and response or lack of response of a juror which could give one a strong feeling, justified or otherwise, whether or not they would or would not be a good juror, a fair and impartial juror, that alone does not come up to the standard, standards prescribed by the Court to justify and the Court so holds.

The United States Supreme Court has provided guidance with respect to the second step of a Batson inquiry:

The second step of this process does not demand an explanation that is persuasive, or even plausible. "At this [second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." ...

The [Eighth Circuit] Court of Appeals erred by combining Batson 's second and third steps into one, requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive, i.e., a "plausible" basis for believing that "the person's ability to perform his or her duties as a juror" will be affected. It is not until the third step that the persuasiveness of the justification becomes relevant--the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.... At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step 3 is quite different from saying that a trial judge must terminate the inquiry at step 2 when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.

. . . . .

The prosecutor's proffered explanation in this case--that he struck juror number 22 because he had long, unkempt hair, a mustache, and a beard--is race-neutral and satisfies the prosecution's step 2 burden of articulating a nondiscriminatory reason for the strike. "The wearing of beards is not a characteristic that is peculiar to any race." [Citation omitted.] And neither is the growing of long, unkempt hair. Thus, the inquiry properly proceeded to step 3, where the state court found that the prosecutor was not motivated by discriminatory intent.

Purkett v. Elem, --- U.S. ----, ----, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995).

The reasons proffered by Chalmers' counsel for striking the prospective juror were that she was not responsive, she lacked...