Parham v. Horace Mann Ins. Co.

Decision Date11 July 1997
Docket NumberNo. 23699,23699
Citation200 W.Va. 609,490 S.E.2d 696
PartiesThomas PARHAM, Sr., as an Individual, Joyce Parham, as an Individual, and Thomas Parham, Sr., as the Next Friend of Thomas Parham, Jr., an Infant, Petitioners Below, Appellants, v. HORACE MANN INSURANCE COMPANY, a Corporation, and Jerry Richmond, Respondents Below, Appellees.
CourtWest Virginia Supreme Court

1. To prove a violation of equal protection, the analytical framework established in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), involves three steps. First, there must be a prima facie case of improper discrimination. Second, if a prima facie case is shown, the striking party must offer a neutral explanation for making the strike. Third, if a neutral explanation is given, the trial court must determine whether the opponent of the strike has proved purposeful discrimination. So long as the reasons given in step two are facially valid, the explanation for the strike need not be persuasive or plausible. The persuasiveness of the explanation does not become relevant until the third step when the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.

2. When a peremptory strike is challenged, the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.

3. "It is a violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and article III, section 10, of the Constitution of West Virginia for a party in a civil action to purposefully eliminate potential jurors from a jury through the use of peremptory strikes solely upon the basis of gender or race." Payne v. Gundy, 196 W.Va. 82, 468 S.E.2d 335 (1996) (as modified).

4. Upon review, this Court will afford great weight to a trial court's findings as to whether a peremptory strike was used to advance racial or sexual discrimination.

5. Equal protection not only protects the rights of the parties to have a jury which has not been invidiously affected during the selection process by discrimination, but it also protects the rights of the individual veniremembers not to be excluded from participating in the administration of justice on the basis of race or gender.

6. If a peremptory strike is challenged as being discriminatorily motivated in violation of equal protection, it is the duty of the trial court to apply the analytical framework set forth by the Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny, together with any elucidations thereof adopted by this Court, before the venireperson is removed from the panel. If the challenge proves meritorious, the trial court shall disallow the strike.

7. " ' " 'Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, through [sic] one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone.' Syl. Pt. 3, Lambert v. Great Atlantic & Pacific Tea Company, 155 W.Va. 397, 184 S.E.2d 118 (1971)." Syllabus Point 2, Roberts v. Stevens Clinic Hospital, Inc., 176 W.Va. 492, 345 S.E.2d 791 (1986).' Syllabus Point 3, Lenox v. McCauley, 188 W.Va. 203, 423 S.E.2d 606 (1992)." Syl. Pt. 6, Michael v. Sabado, 192 W.Va. 585, 453 S.E.2d 419 (1994).

J. Franklin Long, Katherine L. Dooley, Bluefield, for Appellants.

Jerry J. Cameron, Brewster, Morhous & Cameron, Bluefield, for Appellees.

WORKMAN, Chief Justice:

The petitioners below and Appellants herein, Thomas Parham, Sr., as an individual, Joyce Parham, as an individual, and Thomas Parham, Sr., as the next friend of Thomas Parham, Jr., an infant (hereinafter Appellants), appeal the final order of the Circuit Court of Raleigh County dated January 16, 1996. In this order, the trial court declined to set aside the jury verdict in favor of the respondents below and Appellees herein,

[200 W.Va. 612] Horace Mann Insurance Company, a corporation, and Jerry Richmond (hereinafter Appellees), and denied Appellants' motion for a new trial. On appeal, Appellants argue that Appellees unlawfully used a peremptory strike to remove a black person from the venire and that the trial court erroneously shifted the burden of proof from Appellees to Appellants by its instructions to the jury. For the following reasons, we affirm the trial court's final order.



A. Factual and Procedural Background

In the underlying case, Appellants filed a declaratory judgment action against Appellees, alleging that Appellees failed to make a commercially reasonable offer of underinsurance motorist coverage. During jury selection, Appellees peremptorily struck one of two potential black jurors from the venire. 1 Immediately thereafter, the following conversation transpired among J. Franklin Long, counsel for Appellants, Jerry J. Cameron, counsel for Appellees, and the trial court:

MR. LONG: ... As I understand, in the state of West Virginia, it's improper to remove a person from the jury based upon race. As I viewed the jury, the whole of the panel, there were two blacks on this jury, and the remainder were whites.

I'd like the record to reflect that ... [the Parhams] are African-Americans. As--I would ask that Mr. Cameron vouch the record in case this matter is appealed, as to the reason why he took a black off of the jury, and as I understand it, that would be Mrs. Anthony, Marva Anthony.

MR. CAMERON: Your Honor, I object, and I don't think that I have to give, right now, the reason that I struck her. I would represent to the Court that it wasn't because of race.

THE COURT: I accept that at this time. That may become an issue, Mr. Cameron. And my reading of the case law is exactly as Mr. Long has stated, and it will be your obligation, if challenged, to articulate a non-racial basis for removal of the black juror.

MR. CAMERON: I understand that. I think, at the proper time, if that is an issue, I will be glad to inform the Court as to the reason that I struck her, but I don't think at this time, prior to the trial, when the plaintiffs' counsel has questioning and all to do, of witnesses, that it would be the proper time for me to reveal that.

THE COURT: I understand. Go ahead, Mr. Long.

MR. LONG: For the record, Mr. Cameron, can we stipulate that--that there were two blacks on the jury, and the rest of the jury was white, and that one of those blacks is still on the jury, and the other black was struck by you, by Marva--who is Marva Anthony?

MR. CAMERON: Certainly.

MR. LONG: Thank you.

THE COURT: Anything else?

MR. LONG: Nothing further, Your Honor.

After the jury returned a verdict in favor of Appellees, Appellants filed their motion for a new trial, arguing that the trial court committed reversible error by failing to require Appellees to state a race-neutral reason for using a peremptory strike against one of the black jurors. In response to the motion, the trial court sent copies of a letter to counsel for both parties, requesting Mr. Cameron submit an affidavit stating his reasons for striking the prospective juror. Mr. Cameron complied with the trial court's request and averred that he struck the prospective juror for two reasons. First, the prospective juror was employed as a social worker and Mr. Cameron believed social workers "normally foster[ ] a more liberal view and [have] a greater tendency to find for the individual [and] against the corporation...." Second, the prospective juror indicated during voir dire that she knew the petitioners.

On December 18, 1995, the trial court held a hearing on Appellants' motion for a new

                [200 W.Va. 613] trial.  On the same day as the hearing, Appellants filed a written objection to the trial court's request for the affidavit, Mr. Cameron's submission of the affidavit, and the trial court's consideration of the affidavit.  Appellants argued it simply was "too late to neutralize the effects of the respondents['] discriminatory acts by the submission of an affidavit months after a jury verdict."   After hearing the arguments of counsel for both parties, the trial court concluded in its order dated January 16, 1996, that, "although it may have been better practice to have required counsel to state a reason on the record at the time of the trial, the court knows ... [Mr. Cameron] and has no reason to believe from the proceedings and its knowledge of him, that the reason for [the] peremptory strike was other than stated in the affidavit."   Thereafter, the trial court found the jury represented the population of Raleigh County and denied Appellants' motion for a new trial. 2
B. Analysis

Racial and gender discrimination in the jury selection process are prohibited by the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and Article III, § 10 of the West Virginia Constitution. State v. Rahman, 199 W.Va. 144, 157-58, 483 S.E.2d 273, 286-87 (1996) (Cleckley, J., concurring). As explained by the United States Supreme Court in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994):

Equal opportunity to participate in the fair administration of justice is fundamental to our democratic system. It not only furthers the goals of the jury system. It reaffirms the promise of equality under the law--that all citizens, regardless of race, ethnicity, or gender, have the chance to take part directly in our democracy.... When persons are excluded from participation in our democratic processes solely because of race or gender, this promise of equality dims, and the integrity of our judicial system is jeopardized.

Id. at 145-46, 114 S.Ct. at 1430, 128 L.Ed.2d at 107 (footnote and citation omitted). 3

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