Rice v. White, 10-1583

• Decision Date: 24 October 2011
• Docket Number: No. 10-1583,10-1583
• Parties: GREGORY RICE, Petitioner-Appellee, v. JEFF WHITE, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

GREGORY RICE, Petitioner-Appellee, v. JEFF WHITE, Respondent-Appellant.

No. 10-1583

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: July 26, 2011

Decided and Filed: October 24, 2011

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0283p.06

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 06-11610—Denise Page Hood, District Judge.

Before: CLAY and STRANCH, Circuit Judges; BARRETT, District Judge.^*

COUNSEL

ARGUED: John S. Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Gary P. Supanich, GARY P. SUPANICH PLLC, Ann Arbor, Michigan, for Appellee. ON BRIEF: Brad H. Beaver, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Gary P. Supanich, GARY P. SUPANICH PLLC, Ann Arbor, Michigan, for Appellee.

OPINION

CLAY, Circuit Judge. Respondent Jeff White, Warden, appeals the district court's grant of a conditional writ of habeas corpus to Petitioner Gregory Rice pursuantto 28 U.S.C. § 2254. For the reasons discussed below, we AFFIRM the decision of the district court.

BACKGROUND

Petitioner Gregory Rice and his co-defendant Jerome Knight were charged with first degree murder, in violation of Michigan Compiled Laws ("M.C.L.") § 750.316, for the murder of Knight's former girlfriend, Yahnica Hill. Petitioner was also charged with one count of possession of a firearm during the commission of a felony in violation of M.C.L. § 750.227b. Petitioner and Knight were tried jointly by a jury in the Wayne County Circuit Court. The instant habeas petition focuses on jury selection, which spanned three days, from July 26 to 28, 1999.

During the morning session on the third day of jury selection, July 28, 1999, defense counsel objected "that the prosecution is attempting to exclude black juro[r]s from this particular jury; particularly black men." (Tr. at 53.) Defense counsel's objection constituted an allegation that the prosecution was using its peremptory challenges during jury selection to exclude potential jurors from the jury on the basis of race in violation of Batson v. Kentucky, 476 U.S. 79 (1986). The trial judge inquired into the matter, and the prosecutor stated that she struck one African American male; two African American females; three white men; and a white female. (Id. at 55.) After a brief exchange in which the prosecutor stated her reasons for striking these jurors, the trial judge denied the Batson motion, stating, "I do not see a pattern of the prosecution improperly excluding African American males. . . . I think the reasons are acceptable. So I don't see a problem here." (Id. at 58.)

After a recess for lunch, the judge excused a juror for cause and selected Ms. Ruby Jones from the jury venire as a replacement prospective juror. (Id. at 59.) Ms. Jones answered certain basic questions pertaining to her qualifications to serve as a juror. (Id. at 59-69.) After two additional potential jurors were struck, the court selected Ms. Christina Johnson and Ms. Bonita Bonner as replacement prospective jurors. (Id.) After questioning by the court and the attorneys, the prosecutor exercised peremptorychallenges against both Ms. Johnson and Ms. Bonner, and the defense exercised a peremptory challenge against another potential juror. The trial court accordingly replaced these individuals with others from the pool of potential jurors. (Id. at 75.)

After questioning the replacement prospective jurors, defense counsel exercised a peremptory challenge, and the prosecutor exercised a peremptory challenge against Ms. Jones. At that point, defense counsel requested an opportunity to approach the bench, and the trial court responded, "Yes. Let me have the jurors step out in the hall for a few minutes." (Id. at 85.) After the potential jurors left the courtroom, defense counsel objected under Batson to the prosecutor's peremptory strike of Ms. Jones. Defense counsel argued that the prosecutor had used peremptory challenges to strike three African American women from the jury on the basis of race. (Id. at 86.)

In response to defense counsel's argument, the trial court stated: "Miss Jones still out there?" That question went unanswered, and without waiting for the trial court to rule on whether the defense had presented a prima facie case of discrimination, as is required under Batson, the prosecutor proffered race-neutral reasons for her three prior peremptory strikes, which the prosecutor conceded were against African American females—Ms. Bonner, Ms. Johnson, and Ms. Jones.

First, as to Ms. Bonner, the prosecutor stated:

Miss Bonner the reason that I struck her, she has been very closely related to two people that have been charged in and convicted with murder in the first degree. Although she indicates she can be fair, I think that having had such close associations with people that have had similar charges is something that would make me strike here. I believe that's an appropriate reason. It is not because she is black.

(Id. at 86-87.) Second, as to Ms. Johnson, the prosecutor stated:

Miss Johnson indicated that -- looking at her body language when she was seated and the tone of her voice and the look that she gave when she indicated that she could be fair; she was hesitant in her demeanor. And she also indicated that she had a close relative that was convicted of a drug charge. And although she indicated that she could be fair, she was very reticent in terms of her demeanor.

(Id. at 87.) Finally, as to Ms. Jones, the prosecutor stated:

Miss Jones, the person that was last dismissed, is a person that has a child that's close in age to the victim in this case. She's a person that is a working person that is in some type of professional position at Blue Cross. In this case we have a young woman who [was killed] . . . . Miss Jones . . . has a daughter that may be different from our victim. And she may view the life style of this victim and compare and contrast that with her own child. I don't think that that should enter into it. She indicated that she could be fair. But the reason that she was stricken is because young woman whose life-style in this case maybe significantly varying from her own daughter and from the background she is from. So therefore she was stricken.

(Id.) The trial court then interjected:

Just before we recessed for lunch, I thought that it was very clear that we didn't have a problem here. But now I think we are getting very close to a sensitive issue. I didn't see a problem with . . . Christine Johnson. She was, actually her demeanor was soft and she seemed very forthright and honest. And I understand with Miss Bonner, I didn't see any problems with that.

But I was very surprised about Miss Johnson. I didn't say anything because the defense didn't object. So I didn't object.

The same thing with Miss Jones. I do not see a reason other than - I mean, it seems to me for the prosecution to say, she has a daughter the same age as the victim, that would seem to work in the prosecution's favor, just in terms of thinking in the jury selection. So I don't accept that. . . .

I do see that we are getting close, and there are, I don't know two or three minority jurors left in this panel. So I think we are getting close to a serious issue here. I wish that somebody had said something about keeping Miss Jones and Miss Johnson. And then we address this matter because I probably would not have excused either one of them. . . .

The only reason I mention Johnson at the time is because the prosecution excused both Miss Johnson and Miss Bonner at the same time. I saw a reason for Miss Bonner. I didn't see a reason for Miss -- but I wasn't going to interfere. I do, but I say, if some, if an objection had been made as far as Miss Johnson and Miss Jones I probably would have addressed it. And I tend to think I probably would have kept them on the jury.

(Id. at 89-90 (internal paragraph breaks added).)

The following colloquy subsequently ensued between the prosecutor and the trial court:

PROSECUTOR: Your Honor, may I just make a record here?

THE COURT: Sure, sure.

PROSECUTOR: Under Batson v. Kentucky, . . . . [a]s long as I come up with a neutral reason for their dismissal, I believe that that's appropriate.

THE COURT: But the Court has to accept or reject whether the reason is neutral or not.

PROSECUTOR: I understand.

THE COURT: And I'm not, I'm saying that I think we're getting close to a sensitive issue here on Jones and Johnson. That's all I'm saying. I'm making my record too.

PROSECUTOR: . . . . Miss Johnson in terms of her reticent demeanor, this is going to be a very interesting case for these people to decide in terms of who can stand up and who has a strong enough personality. In terms of her reticent demeanor, I'm not sure that she would stand up in a jury. She's barely is audible when she speaks.

THE COURT: Why didn't you ask her that? You didn't ask any questions of any of these jurors. You just simply are excusing them.

PROSECUTOR: I think that they have given me the neutral reason. And I don't think that there is anything that says that I have to question them if I can give a neutral reason.

(Id.)

At this point, the prosecutor lodged her own Batson objection to the peremptory strikes made by defense counsel, claiming that defense counsel struck white potential jurors on the basis of their race. The prosecutor stated:

Except for one person [] who is a black female, that was excused yesterday. We have people who said that they could be fair in each instance[.] And we have . . . five white females[] that have been excused by defense counsel for Knight. I would indicate that that, [sic] Miss Oumedian, Miss Enmery, Miss Ignacio, Miss Acosta, and . . . Miss Farrisare all similarly white females saying that they could be fair and have been dismissed.

Now at this point, I'm going to hava [sic] a Batson challenge because that can be challenged with the defense. So I'm indicating the same thing. I've been

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