Kidd v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: CRACRAFT; CORBIN, C.J., and MAYFIELD
• Citation: Kidd v. State, 748 S.W.2d 38, 24 Ark.App. 55 (Ark. App. 1988)
• Decision Date: 13 April 1988
• Docket Number: CR-87-140,No. CA,CA
• Parties: Mike Anthony KIDD, Appellant, v. STATE of Arkansas, Appellee.

Page 38

748 S.W.2d 38

24 Ark.App. 55

Mike Anthony KIDD, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR-87-140.

Court of Appeals of Arkansas Division II.

April 13, 1988.

Robert E. Adcock, Little Rock, for appellant.

Joseph V. Svoboda, Asst. Atty. Gen., Little Rock, for appellee.

CRACRAFT, Judge.

Mike Anthony Kidd was convicted of aggravated robbery and theft of property for which, being a habitual criminal, he was sentenced to a term of twenty years in the Arkansas Department of Correction. He contends that the trial court erred in refusing to grant a mistrial when the prosecuting attorney used peremptory challenges to exclude blacks from the jury and in allowing testimony to be introduced that appellant used an alias when asked by the police to identify himself. We find no error and affirm.

During jury selection, the prosecuting attorney excused all three black members of the panel by peremptory challenge. After the jury was selected, the appellant moved for a mistrial contending that the exclusion of all black jurors was the result of purposeful discrimination, in violation of the equal protection guarantees of the Fourteenth Amendment to the United States Constitution as declared in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987). The trial court at first interpreted the motion as one contending that there had been a systematic exclusion of black jurors which would require testimony as to how jury pools had been selected over an extended period. When this was clarified to challenge the selection of this particular jury, the trial court conducted a hearing to determine the basis for the challenges and determined that they had been exercised for reasons unconnected with race. Appellant was then tried and convicted by a jury composed entirely of white persons. The correctness of the court's ruling on appellant's motion is the first issue presented by this appeal.

In Batson, the United States Supreme Court held that, although no one has a constitutional right to have a petit jury composed in whole or in part of persons of his own race, he does have a right to be tried by a jury whose members have been selected on non-discriminatory criteria. It held that the equal protection guarantees of the United States Constitution protect a criminal defendant from trial by a jury from which members of his race have been excluded on account of their race. The Arkansas Supreme Court followed Batson in its decision in Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987).

The Court determined in Batson that it had placed a "crippling burden" on the appellant in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), and declared that a criminal defendant need only show facts giving rise to an inference of discriminatory purpose in the exercise of peremptory challenges removing black potential jurors in order to make a prima facie showing of unconstitutional discrimination. Once such a prima facie showing has been made to the satisfaction of the trial court, the burden shifts to the State to establish an adequate, neutral explanation for those exclusions. This explanation need not rise to the level which would justify a strike for cause and the challenge may be made "for any reason at all" so long as the reason relates to the case then being tried and the prosecutor's view concerning its outcome. 476 U.S. at 89, 106 S.Ct. at 1719 (citation omitted). It is only discriminatory and constitutionally prohibited when the prosecutor's challenge is based "solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." At 89, 106 S.Ct. at 1719. The Court also made it clear that the prosecutor may not rebut the prima facie case by merely asserting that because of race this particular juror would not be impartial, or by merely denying that he had a discriminatory motive. He must "demonstrate that 'permissible racially neutral selection criteria and procedures have produced the monochromatic result.' " At 94, 106 S.Ct. at 1721 (emphasis added) (citation omitted). The trial court then has the duty to determine whether the State has rebutted the defendant's prima facie case of purposeful discrimination. The Supreme Court stated that " 'a finding of intentional discrimination is a finding of fact' " and that, "[s]ince the trial court's findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference." At 98, 106 S.Ct. at 1724 n. 21 (citation omitted). See also United States v. Cloyd, 819 F.2d 836 (8th Cir.1987); United States v. Love, 815 F.2d 53 (8th Cir.1987); United States v. Woods, 812 F.2d 1483 (4th Cir.1987); United States v. Davis, 809 F.2d 1194 (6th Cir.1987); United States v. Mathews, 803 F.2d 325 (7th Cir.1986).

Here, of the first twelve jurors called for qualification, two were excused for cause and seven were excused through peremptory challenges. The record is not clear as to how many of these challenges were exercised by the State, but it does reflect that the State peremptorily struck at least three jurors--one white woman and two black women. Nine more jurors were called and five were thereafter peremptorily excused. Of the two peremptory challenges utilized by the State, one was a black person and the other was white. The appellant struck a total of eight jurors peremptorily.

As all three of the prospective black jurors on the panel had been stricken by the State, the court conducted a hearing, calling upon the prosecutor to explain the bases for those strikes and show that they were not motivated by discrimination against blacks as a group. The prosecuting attorney testified as follows:

Beginning with, I believe, Tina Dickerson who was juror number 15 seated in the fourth chair. I noted on it at the time that I got through with my questioning of the entire panel, is that Ms. Dickerson sat with her arms folded, and when I asked specific questions in reference to fairness and prejudice, race, be it consideration or age, or any other thing, a number of jurors were nodding. She did not. She stood there like this (indicating), just straight ahead. Okay. And I believe some other questions that finally came down to, and this will be the same as, I believe, Ms. Henson. Is that both of them--.

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It was juror number 39 whoever it was. Both of them at that point in time, they showed no reaction at all. No nodding, nothing. Just a straight ahead look on that question about fairness to both the State and the Defense. And without making a big, long, drawn-out speech and expression of the voir dire selection process, a lot of this is subjective. It had nothing to do with race. It's just that my gut feeling was that those people, for whatever reason, that they didn't want to be a part and didn't speak up to it, or that they maybe did have an attitude. The State's entitled to a fair trial. And I struck them on that basis.

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Now, we're on to Earline Irving. She flat out scowled at me and wouldn't respond to two questions with a yes or no. She had a--Her mouth, in fact, turned down. And she sat there the entire time just looking at me with that scowl. And that was my basis for juror number 5 Earline Irving, seated in the ninth chair.

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And I did not, in this case nor I do on a systematic basis, strike because of race. As an example would be the fact that this is the second trial on this matter within a week, and last week there was a black that I could've struck but did not. To again show corroboration that this was based on my feelings towards the juror as an individual, not just because she's white or black. Further, I would note on this that I also struck juror number one, white female, by the name of Mary Price. My opinion of her was simply because her background is that she was too liberal, and if she did convict, she may not consider the full range of punishment.

(Emphasis added.)

Here, the prosecutor averred that he had not peremptorily excused the potential jurors on the assumption that, because of their race, they could not fairly decide the issues. He stated that he had done so because of inattentiveness during voir dire, failure to respond to questions as to their ability to fairly determine the issue without regard to race or age of the defendant, and perceived hostility toward the prosecution--reasons strikingly similar to those upheld in United States v. Mathews, 803 F.2d...