Roseby v. State

• Decision Date: 18 September 1997
• Docket Number: No. CR,CR
• Citation: 953 S.W.2d 32,329 Ark. 554
• Parties: Dexter ROSEBY, Appellant, v. STATE of Arkansas, Appellee. 97-122.
• Court: Arkansas Supreme Court

Page 32

953 S.W.2d 32

329 Ark. 554

Dexter ROSEBY, Appellant, v. STATE of Arkansas, Appellee.

No. CR 97-122.

Supreme Court of Arkansas.

Sept. 18, 1997.

Willard Proctor, Jr., Little Rock, for Appellant.

Winston Bryant, Attorney General, Kelly K. Hill, Deputy Attorney General, Little Rock, for Appellee.

IMBER, Justice.

The appellant, Dexter Roseby, was sentenced to life imprisonment without parole for the capital murder of Lee Andrew Byrd, Jr. Roseby raises four arguments on appeal. Finding no reversible error, we affirm.

On January 8, 1996, Officer Timothy Hobbs discovered the body of Lee Andrew Byrd, Jr., in the snow-covered woods behind the Pilgrim Rest Baptist Church in Woodson. Byrd had been shot once in the back of his left thigh, and bled to death. A jury found Dexter Roseby guilty of the capital murder of Byrd under Ark.Code Ann. § 5-10-101(a)(4) (Supp.1995), which states that a person commits capital murder if he or she kills another person with a "premeditated and deliberate purpose." Because the State did not seek the death penalty, the court imposed the sentence of life imprisonment without parole. From his judgment and commitment order, Roseby filed a timely notice of appeal.

I. Sufficiency of the Evidence

Roseby challenges the sufficiency of the evidence to support his conviction of capital murder. When an appellant challenges the sufficiency of the evidence, we address the issue prior to all others. Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996); cert. denied, --- U.S. ----, 117 S.Ct. 436, 136 L.Ed.2d 334 (1996); Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), cert. denied, --- U.S. ----, 117 S.Ct. 246, 136 L.Ed.2d 174 (1996). On appeal, Roseby claims that his conviction must be reversed because the State failed to present sufficient evidence that he killed Lee Andrew Byrd with a "premeditated and deliberate purpose" as required by Ark.Code Ann. § 5-10-101(a)(4) (Supp.1995).

We have held on numerous occasions that Ark. R.Crim. P. 33.1 requires a criminal defendant to make a specific motion for a directed verdict that apprises the trial court of which element of the crime the State has failed to prove. Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997); Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997); Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997); Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997). Specifically, in Webb we refused to consider the appellant's argument that the State failed to prove that he killed the victims in a premeditated and deliberate manner because the appellant failed to raise this issue in his motion for directed verdict. Webb, supra.

At the conclusion of the State's case, Roseby made a motion for a directed verdict stating that the State had failed to present direct evidence linking Roseby to the crime. Roseby did not mention in his motion that the State failed to prove the "premeditated and deliberate" element of capital murder. Hence, we conclude that Roseby has not preserved this issue for appeal.

II. Motion for a Continuance

For his second argument, Roseby contends that the trial court erred when it denied his request for a continuance so that he could obtain another attorney. It is well settled that the right to counsel of one's choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient, and effective administration of justice. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995); Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980). Hence, it is within the trial court's discretion to grant a continuance so that a criminal defendant may obtain a new attorney, and this decision will not be reversed absent an abuse of discretion. Edwards, supra; Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994). In Edwards, we further explained that in making this determination, the trial court may consider the following factors: 1) the reasons for the change, 2) whether other counsel has already been identified, 3) whether the defendant has acted diligently in seeking the change, and 4) whether the denial is likely to result in any prejudice to defendant. Edwards, supra.

In this case, Roseby's attorney announced on the morning the trial was to begin that his client wanted him to withdraw from the case so that he could obtain another attorney. Roseby then explained to the judge that he wanted a continuance because he and his attorney were not prepared for trial. Roseby further alleged that his attorney rushed him into a decision regarding his trial, and that he did not adequately discuss the case with him. Roseby, however, did not disclose whether he had already obtained substitute counsel.

The trial court found that Roseby's attorney was competent and had diligently filed several pretrial motions on Roseby's behalf. Moreover, the judge was greatly influenced by the fact that Roseby's attorney had been working for him for approximately eight or nine months, yet Roseby waited until the day of the trial to ask for a new attorney. Based on these facts, we cannot say that the trial court abused its discretion when it denied Roseby's motion. Accordingly, we also affirm on this point.

III. Use of Peremptory Challenges

Next, Roseby argues that the State used its peremptory challenges at trial to exclude African-Americans from the jury in violation of the Equal Protection Clause of the Fourteenth Amendment as construed in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In making this determination, we apply the following three-step analysis. First, the defendant must make a prima facie case that racial discrimination is the basis for excluding the juror. Second, if the court concludes that the defendant has made this showing, the State must provide a racially neutral explanation for striking the juror. The trial court must then determine from all the relevant circumstances the sufficiency of the offered explanation. Finally, if the court is not satisfied with the State's explanation, it must conduct a sensitive inquiry, and the defendant must explain how the State's racially neutral explanation is merely a pretext. See, Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997); Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996), cert. denied, --- U.S. ----, 117 S.Ct. 979, 136 L.Ed.2d 862 (1997).

As the United States Supreme Court recently noted in Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), "the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Moreover, we accord great deference to the trial court's determination of whether the peremptory strike was exercised in a discriminatory manner, and we reverse that decision only if it is clearly against the preponderance of the evidence. Sonny, supra.

According to the above analysis, we must first determine whether Roseby established a prima facie case of discrimination. After asking a juror a couple of questions, the State asked the judge to excuse the juror, and the following colloquy occurred:

ROSEBY: I understand the State has struck an African-American Juror who from--after asking basically one question. There's a question in my mind as to what they could've [sic] gleaned from--his demeanor was similar to that of the other witnesses. There was nothing about what he said, so we would ask that he be reseated under Batson v. Kentucky because there doesn't seem to be any sort of legitimate reason for striking him, other than his race.

STATE: Your honor, he failed to make eye contact. He was unresponsive to my questions. I've sat other African-Americans on the panel and did not strike those individuals. There's still African-American potential jurors out in the gallery.

COURT: Well, I think out of the eleven different remaining, there's three black folks on the jury. So I just don't think there's any systematic exclusion. I don't think that the State should have to respond to that at this point. If I see that there is something systematic, I'll require it then.

On appeal, the State argues that the preliminary inquiry of whether Roseby made a prima facie case is not moot because the State proceeded to offer a racially neutral explanation instead of addressing whether a prima facie case had been established. We have previously held that the prima facie determination is moot on appeal when the trial court skipped this step and ruled upon the second issue of whether the State had provided a racially neutral explanation. Wooten, supra; Cleveland v. State, 326 Ark. 46, 930 S.W.2d 316 (1996); Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996). However, it is the court's failure to render a ruling on the prima facie determination, and not the State's decision to offer a racially neutral explanation instead of attacking the establishment of a prima facie case, that renders the issue moot. See Wooten, supra; Cleveland, supra; Prowell, supra.

In this case, the State offered a racially neutral explanation instead of attacking the defendant's prima facie case. However, unlike Wooten, Cleveland, and Prowell, we find that the trial court ruled on the prima facie issue when it declared that there was no evidence of systematic discrimination. Hence, the issue is not moot, and we must determine if the trial court's ruling in this regard is clearly against the preponderance of the evidence.

A prima facie case of the discriminatory use of peremptory challenges may be established by: 1) showing that the totality of the relevant facts gave rise to an inference of discriminatory purpose, 2) demonstrating total or seriously disproportional exclusion of African-Americans from the jury, or 3) showing a pattern of strikes, questions, or statements by a prosecutor during voir dire. Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997); Wooten, supra; Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996).

In this case, three of the...