MacKintrush v. State

• Decision Date: 01 October 1998
• Docket Number: No. CR,CR
• Citation: 978 S.W.2d 293,334 Ark. 390
• Parties: Walter Ray MacKINTRUSH, Appellant, v. STATE of Arkansas, Appellee, 98-019.
• Court: Arkansas Supreme Court

Page 293

978 S.W.2d 293

334 Ark. 390

Walter Ray MacKINTRUSH, Appellant, v. STATE of Arkansas, Appellee,

No. CR 98-019.

Supreme Court of Arkansas.

Oct. 1, 1998.

R.S. McCullough, Little Rock, for Appellant.

Winston Bryant, Attorney General, Kelly Terry, Assistant Attorney General, Little Rock, for Appellee.

BROWN, Justice.

On December 22, 1997, the Arkansas Court of Appeals affirmed the judgment of conviction of appellant Walter MacKintrush. MacKintrush v. State, 60 Ark.App. 42, 959 S.W.2d 404 (1997). On February 12, 1998, this court granted MacKintrush's petition to review the court of appeals decision to address any confusion surrounding this court's decisions in the aftermath of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). When we grant a petition of review, we review the judgment and proceedings before the trial court as if the appeal had been originally filed in this court. Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998).

On December 21, 1994, MacKintrush was charged with the murder of his wife, Ogretta MacKintrush. He was convicted of second-degree murder on July 30, 1996, and sentenced to twenty years. He raises five assignments of error on appeal. We find no merit in any of the points raised, and we affirm the judgment of conviction.

I. Batson Procedures

In MacKintrush v. State, supra, members of the court of appeals voiced multiple opinions about the soundness of this court's decisions in Batson cases. Three judges held that once a trial court decides that the explanations offered by the striking party are race neutral, there is no requirement for a sensitive inquiry. Two judges concurred with this result based on this court's precedent but asserted that this court's cases on the subject are in conflict or confused. One judge dissented because in his judgment a sensitive inquiry is required in every instance where a Batson challenge is made.

In Batson, a majority of the United States Supreme Court held as follows in the concluding paragraph of the decision:

If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner's conviction be reversed.

Batson, 476 U.S. at 100, 106 S.Ct. 1712 (citations omitted). The term "sensitive inquiry" is not used in the Batson holding though reference is made to a "sensitive inquiry" in the body of the opinion when the Court discusses purposeful discrimination and the burden of persuasion in the case of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). The Court left it up to the states to develop specific procedures for implementing Batson.

Initially, this court interpreted the Batson decision to require that the trial court undertake a "sensitive inquiry" in every instance into the direct and circumstantial evidence available to decide if the State had made an adequate explanation for the strike. See Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987). See also Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988). This court later modified its interpretation of Batson with respect to the sensitive-inquiry requirement in Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990). In Colbert, we said:

We now believe that our previous interpretations of the Batson holding were misdirected only to the extent that we have said that Batson requires a 'sensitive inquiry' by the trial court in every instance, notwithstanding the validity of the state's explanation for its peremptory challenges.

We now hold that upon a showing by a defendant of circumstances which raise an inference that the prosecutor exercised one or more of his peremptory challenges to exclude venire persons from the jury on account of race, the burden then shifts to the state to establish that the peremptory strike(s) were for racially neutral reasons. The trial court shall then determine from all relevant circumstances the sufficiency of the racially neutral explanation. If the state's explanation appears insufficient, the trial court must then conduct a sensitive inquiry into the basis for each of the challenges by the state.

Id. at 254-255, 801 S.W.2d at 646.

This court somewhat modified its holding in Colbert in Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993):

First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. 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.

Id. at 338, 863 S.W.2d at 273.

The Franklin holding also eliminated a trial court's obligation to conduct a sensitive inquiry every time a Batson objection is made and has been followed consistently by this court as well as by the Court of Appeals since 1993. See, e.g., Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996); Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996); Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995); Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995); Gilland v. State, 318 Ark. 72, 883 S.W.2d 474 (1994); Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994). However, both appellate courts, at times, have also continued to use the language from Colbert in their decisions as well. See, e.g., Lammers v. State, 330 Ark. 324, 955 S.W.2d 489 (1997); Roseby v. State, 329 Ark. 554, 953 S.W.2d 32 (1997); Hugh Chalmers Chevrolet v. Lang, 55 Ark.App. 26, 928 S.W.2d 808 (1996); Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997).

In 1995, the United States Supreme Court clarified its holding in Batson with its decision in Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). In Purkett, the Court outlined the proper steps for a trial court to follow when a Batson claim is made: (1) the opponent of a peremptory challenge must make a prima facie case of racial discrimination; (2) the proponent of the strike must come forward with a race-neutral explanation; and (3) the trial court must decide whether the opponent has proven purposeful racial discrimination. Purkett, 514 U.S. at 767, 115 S.Ct. 1769. The Court, in Purkett, expressed its concern that trial courts were combining steps two and three in the Batson inquiry by "requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive.... 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." Id. at 768, 115 S.Ct. 1769. This opinion leaves no doubt that a trial court must proceed to the third step of the Batson analysis, when a prima facie case is made and a racially neutral response is given, and then determine whether the opponent of the strike has proven intentional racial discrimination. At no point in the Purkett decision is the term "sensitive inquiry" used.

In light of the Purkettdecision, we have reassessed the proper procedures for the trial courts to follow in Batson cases and take this opportunity to set forth those procedures. Manifestly, there is a three-step process that must be used when the opponent of the strike makes a prima facie case. Furthermore, it is clear that the burden of persuasion establishing purposeful discrimination never leaves the opponent of the strike. And, finally, the Batson process must occur outside of the hearing of the venire.

Step One. Prima facie case.

The strike's opponent must present facts, at this initial step, to raise an inference of purposeful discrimination. According to the Batson decision, that is done by showing (1) that the strike's opponent is a member of an identifiable racial group, (2) that the strike is part of a jury-selection process or pattern designed to discriminate, and (3) that the strike was used to exclude jurors because of their race. ¹ In deciding whether a prima facie case has been made, the trial court should consider all relevant circumstances. Should the trial court determine that a prima facie case has been made, the inquiry proceeds to Step Two. However, if the determination by the trial court is to the contrary, that ends the inquiry.

Step Two. Racially neutral explanation.

Assuming the strike's opponent has made a prima facie case, the burden of producing a racially neutral explanation shifts to the proponent of the strike. (But, again, the burden of persuading the trial court that a Batson violation of purposeful discrimination has occurred never leaves the strike's opponent.) This explanation, according to Batson, must be more than a mere denial of discrimination or an assertion that a shared race would render the challenged juror partial to the one opposing the challenge. Under Purkett, this explanation need not be persuasive or even plausible. Indeed, it may be silly or superstitious. The reason will be deemed race neutral "[u]nless a discriminatory intent is inherent in the prosecutor's explanation." Purkett, 514 U.S. at 768, 115 S.Ct. 1769. But, according to Purkett, a trial court must not end the Batson inquiry at this stage, and, indeed, it is error to do so.

Step Three. Trial court decision on purposeful discrimination.

If a race-neutral explanation is given, the trial court must then decide whether the strike's opponent has proven purposeful discrimination. Purkett v. Elem, supra. Though the United States Supreme Court has not elucidated precisely what is required at this step, clearly the strike's opponent must persuade the trial court that the expressed motive of the striking party is not genuine but, rather, is the product of discriminatory intent. This...