Splunge v. Clark, 91-1499

• Decision Date: 05 May 1992
• Docket Number: No. 91-1499,91-1499
• Citation: 960 F.2d 705
• Parties: Charles B. SPLUNGE, Petitioner-Appellee, v. Dick CLARK and Indiana Attorney General, Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 705

960 F.2d 705

Charles B. SPLUNGE, Petitioner-Appellee, v. Dick CLARK and Indiana Attorney General, Respondents-Appellants.

No. 91-1499.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 3, 1991.

Decided April 6, 1992.

Rehearing and Rehearing En Banc Denied May 5, 1992.

Michael B. Nash, Chicago, Ill. (argued), for petitioner-appellee.

David A. Nowak, Dist. Atty. Gen. (argued), Thomas D. Quigley, Office of Atty. Gen., Indianapolis, Ind., for respondents-appellants Dick Clark and Atty. Gen. of Indiana.

Before CUMMINGS and EASTERBROOK, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

CUMMINGS, Circuit Judge.

During jury selection in Vanderburgh County, Indiana, Superior Court, in petitioner Charles Splunge's trial for murder and robbery, the prosecutor used two of his peremptory challenges to exclude the only two black venire members from the petit jury. Splunge, who is also black, moved to discharge the jury before it was sworn on the basis that the prosecutor had purposefully excluded black potential jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial judge gave the prosecutor an opportunity to respond. Then he denied the defendant's motion and proceeded with the trial.

A divided Indiana Supreme Court affirmed Splunge's conviction. Chief Judge Sharp of the Northern District of Indiana concluded, however, that the prosecutor had exercised one peremptory challenge on the basis of race in violation of the Fourteenth Amendment (Memorandum Opinion and Order of Chief Judge Sharp, February 14, 1991). He therefore granted the writ of habeas corpus under 28 U.S.C. § 2254 unless the defendant is retried within specified time limits. For the reasons set forth below, the judgment of the district court will be affirmed.

I.

A. Facts

Kenneth Wallace picked up two hitchhikers, Charles Splunge and Tara Fox, outside an Evansville, Indiana, liquor store. Wallace continued driving, Fox sat in the front passenger seat, and Splunge sat in the back seat of the car. When Wallace halted at a stop sign, Fox fired two shots at him. Fox and Splunge pushed Wallace out of the car and left him bleeding in the street. They then drove off in Wallace's car. Wallace survived long enough to tell the police what had happened, but died in surgery a short time later of massive internal hemorrhaging. ¹

B. Procedure

On August 14, 1986, a Superior Court jury convicted Charles Splunge of murder and robbery. He was later sentenced to sixty years' imprisonment. His conviction and sentence followed the trial judge's denial of defense counsel's motion to dismiss the jury on the basis that the prosecutor had exercised his peremptory challenges in an unconstitutional manner. On direct appeal to the Indiana Supreme Court, Splunge raised five alleged errors in support of his contention that his conviction be overturned. By a sharply divided vote, that court held that Splunge had not shown reversible error. Splunge v. State, 526 N.E.2d 977 (Ind.1988) (Justice Pivarnik wrote the opinion of that court concurred in by Justice Given; Chief Justice Shepard concurred in the result but authored a separate opinion; and Justices DeBruler and Dickson dissented). The Supreme Court of the United States denied Splunge's petition for writ of certiorari, 490 U.S. 1110, 109 S.Ct. 3165, 104 L.Ed.2d 1028 (1989).

Splunge then petitioned for collateral relief in federal district court under 28 U.S.C. § 2254. As noted, Chief Judge Sharp granted defendant the writ of habeas corpus absent retrial within 120 days from the issuance of a final mandate. That judgment was appealed to this Court, which assumed jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253.

II.

A. Batson Challenge

Analysis of this case appropriately begins with Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. Batson held that when a state puts a black defendant on trial before a jury from which members of his race have been purposefully excluded, it denies him equal protection of the laws. See also Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879). "Exclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure." Batson, 476 U.S. at 85, 106 S.Ct. at 1716. Accordingly, a prosecutor cannot constitutionally challenge potential jurors "solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." Id. at 89, 106 S.Ct. at 1719.

In Batson the Supreme Court set forth three requirements that the defendant must meet in order to establish a prima facie case of purposeful race-based discrimination. The defendant must show that 1) he or she is a member of a cognizable racial group, 2) the prosecutor exercised peremptory challenges to remove persons of the defendant's race from the venire, and 3) facts and relevant circumstances raise an inference that the prosecution used those challenges to exclude members of the venire from the petit jury on the basis of race. Id. at 96-97, 106 S.Ct. at 1722-1723. In addition, the defendant can rely on the fact that peremptory challenges permit "those to discriminate who are of the mind to discriminate." Id. at 96, 106 S.Ct. at 1722 (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 892, 97 L.Ed. 1244 (1953)).

In this case, respondents "concede that Splunge could have made a prima facie showing" (Br. 7), and rightly so, for he has established a prima facie case. First, Splunge is a black individual, and blacks are clearly a cognizable racial group under the Fourteenth Amendment. Second, the prosecution used its peremptory challenges to exclude all of the black members of the venire. And finally, the prosecutor's questions and statements during voir dire examination raise an inference that he used at least one challenge to exclude a black woman from the venire solely because she, like the defendant, was black and the victim was white.

During voir dire, the prosecutor asked only the black members of the venire, Mr. Clark and Ms. Brodie, whether their race would influence their decision in the case. Specifically, he asked them if they would be partial to the defendant because he is black. The examination of Connie Brodie by prosecutor Richard D'Amour was as follows:

Mr. D'Amour: The fact that Mr. Splunge is a black man, as you are a black woman, is that going to enter into your mind in determining whether he is guilty or innocent.

Connie Brodie: No.

Mr. D'Amour: You're not going to give his testimony any more credence just because you're of the same race, is that correct?

Connie Brodie: Right. (R.96.)

Similarly, the examination of Charles Clark was as follows:

Mr. D'Amour: Okay. Now, Mr. Clark, as is very obvious, you are a Negro man, and Mr. Splunge is a Negro man. The fact that you are both of the same race, what effect, if any, will that have on your ability to be fair and impartial as a juror?

Charles Clark: None.

Mr. D'Amour: You can put that aside? You're not going to give Charles Splunge's testimony, if he testifies, more credit just because he's a black man?

Charles Clark: I think no citizen deserves that regardless of his race as far as I'm concerned.

Mr. D'Amour: So you're not going to look on him more favorably just because of race?

Charles Clark: No. (R.76.)

The prosecutor's preconception that a black citizen would be more sympathetic to a black defendant was also seemingly evidenced by another question he asked Mr. Clark. The prosecutor asked Clark whether anyone he knew had been charged with robbery or murder, R.76, although he asked the next three white potential jurors whether they or their friends had ever been victims of a robbery, R.80, R.82, R.84.

Once the defendant has established a prima facie case of race-based discrimination, as the defendant has done in this case, "the burden shifts to the state to come forward with a neutral explanation for challenging black jurors." Batson, 476 U.S. at 97, 106 S.Ct. at 1723. At trial, the prosecutor justified his peremptory strike against Mr. Clark on the basis that he had previous contact with the defendant and had given the defendant a ride in his vehicle. As for his challenge against Connie Brodie, the prosecutor said "there were just feelings on the part of the State that she would not be a good juror in this case, and I can assure you that they were not racial motivations at all." R.187. Splunge's counsel asserted that the prosecutor's reasons were insufficiently articulated with respect to his challenge to Connie Brodie. Thus the prosecutor further stated: "in Miss Brodie's case, I feel that she just did not exhibit to me a good understanding of what beyond a reasonable doubt was such to the point where I felt that she would not make a suitable juror, and I think that's all it needs." R. 187-188.

After the prosecutor advances a race-neutral reason for his challenge, the trial court must evaluate whether the defendant has sustained his burden of proving purposeful discrimination. Here the trial court denied Splunge's motion without comment. Ordinarily the trial court is given wide latitude in determining whether the prosecutor has exercised peremptory challenges in a racially discriminatory fashion. Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21. Section 2254(d) of Title 28 of the United States Code requires that any state court determination after a hearing on the merits of a factual issue evidenced by reliable and adequate written indicia, "shall be presumed to be correct" unless, among other things, the habeas court concludes that such factual determination is not fairly supported by the record. However, in this case discussion concerning the adequacy of the state trial court's determination under Section 2254(d) or the presence of support in the record for that determination is unnecessary because at...