People v. Bolling

• Decision Date: 03 April 1992
• Citation: 79 N.Y.2d 317,582 N.Y.S.2d 950,591 N.E.2d 1136
• Parties: , 591 N.E.2d 1136 The PEOPLE of the State of New York, Respondent, v. Lawrence BOLLING, Appellant. The PEOPLE of the State of New York, Respondent, v. Marlene STEELE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 950

582 N.Y.S.2d 950

79 N.Y.2d 317, 591 N.E.2d 1136

The PEOPLE of the State of New York, Respondent, v. Lawrence BOLLING, Appellant.

The PEOPLE of the State of New York, Respondent, v. Marlene STEELE, Appellant.

Court of Appeals of New York.

April 3, 1992.

[79 N.Y.2d 319] [591 N.E.2d 1138] Steven R. Bernhard, Garden City, for appellant in the first above-entitled action.

Robert M. Morgenthau, Dist. Atty. (Christina Welykyj and Mark Dwyer, New York City, of counsel), for respondent in the first above-entitled action.

Nancy E. Little, New York City, for appellant in the second above-entitled action.

Robert M. Morgenthau, Dist. Atty. (Donna Krone, New York City, of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

SIMONS, Judge.

These appeals, involving application of the rules developed in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, raise two questions: (1) whether a prima facie showing of discrimination may be established before completion of the jury selection process and (2) whether defense counsel established a prima facie case that the prosecution had violated the Equal Protection Clauses of the Federal and State Constitutions by exercising peremptory challenges for discriminatory purposes (U.S. Const. 14th Amend.; N.Y. Const., art. I, § 11). In People v. Bolling, we hold that defense counsel established a prima facie case and, inasmuch as the prosecutor failed to provide racially neutral reasons for his challenges, the judgment must be modified. In People v. Steele, we hold that a prima facie case was not established and consequently affirm the order of the Appellate Division.

In Batson v. Kentucky (supra) the prosecutor used peremptory challenges to strike four African-Americans from the jury so that defendant, an African-American, was tried by an all-Caucasian jury. The Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment forbids the use of peremptory challenges solely for discriminatory purposes. Finding that a prima facie case of discrimination had been established, the Court remanded the case to enable the prosecutor to provide racially neutral reasons for the strikes or, in the absence thereof, for a new trial. The Court set forth three steps for establishing prima facie that the prosecutor used peremptory challenges to discriminate in selecting the petit jury. The defendant must show (1) that he or she is a member of a cognizable racial group, (2) that the prosecutor's use of peremptory challenges resulted in the exclusion of members of defendant's race from the jury, and (3) facts and other relevant circumstances sufficient to raise an inference that the prosecutor used the challenges for discriminatory purposes (Batson v. Kentucky, supra, at 96, 106 S.Ct. at 1722; People v. Jenkins, 75 N.Y.2d 550, 555-556, 555 N.Y.S.2d 10, 554 N.E.2d 47; People v. Scott, 70 N.Y.2d 420, 423, 522 N.Y.S.2d 94, 516 N.E.2d 1208). Once the defendant makes a prima facie showing of discrimination, the burden shifts to the prosecution to present racially neutral explanations for the challenges. It cannot rebut defendant's prima facie case, however, by merely alleging its good faith or by claiming that the stricken jurors would be biased because they shared defendant's race (Batson v. Kentucky, supra, 476 U.S. at 97-98, 106 S.Ct. at 1723; People v. Scott, supra, 70 N.Y.2d at 423, 522 N.Y.S.2d 94, 516 N.E.2d 1208). We have held that the discriminatory use of peremptory challenges also violates the Equal Protection Clause of the State Constitution (see, People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235).

In the matters before us, defendants satisfied the first two requirements by showing that they are African-Americans and that the prosecution struck several African-American jurors. To satisfy the third, and raise an inference of discrimination, defendants allege a "pattern" of strikes used by the prosecution against African-Americans during the jury selection process (see, Batson v. Kentucky, supra, 476 U.S. at 97, 106 S.Ct. at 1723).

In People v. Bolling, defense counsel's challenge came after counsel had questioned the first 12 prospective jurors. Five African-Americans were examined and all were dismissed, four by the prosecution. In People v. Steele, defendant bases her claim on strikes made during selection of the first 21 jurors. At that time, six African-Americans had been examined and the prosecution had removed three by peremptory challenges.

We conclude that a defendant may assert a claim that peremptory challenges are being used for discriminatory purposes when those challenges are exercised, regardless of whether jury selection has been completed. Although Batson addressed the harm caused when a defendant is tried by a tribunal from which members of his own race have been excluded, that was only one of the " 'multiple ends' " the decision was designed to serve (see, Allen v. Hardy, 478 U.S. 255, 259, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 [quoting from Brown v. Louisiana, 447 U.S. 323, 329, 100 S.Ct. 2214, 2220, 65 L.Ed.2d 159]. The Supreme Court recognized, as have we, that a prosecutor's discriminatory use of peremptory challenges violates the Equal Protection Clause not only because it violates the defendant's rights but also because it harms excluded jurors and the community-at-large (see, Powers v. Ohio, 499 U.S. ----, ----, 111 S.Ct. 1364, 1368, 113 L.Ed.2d 411, 422 [Caucasian defendants have standing to object to prosecutor's strikes against African-American jurors]; People v. Jenkins, 75 N.Y.2d 550, 557, 555 N.Y.S.2d 10, 554 N.E.2d 47, supra; People v. Kern, 75 N.Y.2d 638, 652, 555 N.Y.S.2d 647, 554 N.E.2d 1235, supra ). The purpose of the Batson rule is to eliminate discrimination, not minimize it and, therefore, it is inconsequential that, after defense counsel voiced their objections, these prosecutors permitted African-Americans to sit on the jury. "[T]he exclusion of any blacks solely because of their race" is constitutionally forbidden ( People v. Jenkins, 75 N.Y.2d 550, 559, 555 N.Y.S.2d 10, 554 N.E.2d 47, supra [emphasis in original]. The wrong may occur after only one strike and the prosecution cannot defer the objection and later overcome it with evidence that the jury, as finally selected, contained a proportionate number of African-Americans (see, United States v. Johnson, 8th Cir., 873 F.2d 1137, 1139-1140; United States v. Clemons, 3rd Cir., 843 F.2d 741, 747, cert. denied, 488 U.S. 835, 109 S.Ct. 97, 102 L.Ed.2d 73; People v. Jenkins, 75 N.Y.2d 550, 557, 555 N.Y.S.2d 10, 554 N.E.2d 47, supra). Accordingly, the motions were appropriate when made and we focus on whether defendants established a prima facie case of discrimination in the cases before us. The question is one of law reviewable by this Court ( People v. Scott, 70 N.Y.2d 420, 425, 522 N.Y.S.2d 94, 516 N.E.2d 1208, supra).

People v. Bolling

Jury selection began with the court excusing a number of disqualified persons on the venire. The court then filled the jury box with 16 potential jurors. Five of the first 12 were African-American and, after counsel had examined them, challenges were exercised. No jurors were excused for cause. The prosecution struck five jurors peremptorily, four African-Americans and one of Asian ancestry. Defense counsel struck the one remaining African-American and three non-African-Americans. Defense counsel then objected to the prosecution's use of peremptories to exclude the four African-Americans. The court failed to rule on the objection and jury selection continued until the end of the day. The remaining four potential jurors in the original panel of 16 were then chosen without objection. Two of the four were African-American.

The next day, defense counsel renewed his objection, amplifying his claim of discrimination by asserting that two of the African-Americans the prosecution excluded were "pro-prosecution" because they had ties to law enforcement: one was the girlfriend of a police officer and a crime victim and the other was a security supervisor in charge of preventing crime. The Assistant District Attorney did not deny counsel's statement but noted two African-Americans had been selected to sit from the four jurors questioned after the objection had been made. Based upon this, the court determined that there had been no attempt to systematically exclude African-Americans. Defense counsel did not renew his Batson objection thereafter and ultimately it appears that five of the selected jurors were African-American, with an additional African-American person sitting as an alternate.

The Appellate Division, First Department, affirmed, noting that the jury as chosen consisted of at least five African-Americans and finding that defendant had failed to establish a prima facie case that the prosecutor exercised peremptory challenges in a purposefully discriminatory manner (People v. Bolling, 166 A.D.2d 203, 564 N.Y.S.2d 99).

People v. Steele

The same process was used for jury selection in Steele. Of the first 12 prospective jurors seated, nine were Caucasian and three were African-American. After the prosecution peremptorily challenged two of the three African-Americans, defense counsel objected that the prosecution was discriminating in the exercise of its challenges because defendant was an African-American female and the two prospective jurors stricken by the prosecution were also African-American females. He offered no other evidence that the strikes were exercised for discriminatory purposes. The court found that, inasmuch as they were only talking about two jurors, no pattern had been established but instructed defense counsel that he could renew his application if a pattern developed. The next four prospective jurors included one African-American. The prosecution exercised no peremptory challenges, while defense counsel exercised three against Caucasians. The next three...