State v. Davis, No. C7-92-1037

• Citation: 504 N.W.2d 767
• Decision Date: 27 August 1993
• Docket Number: No. C7-92-1037
• Parties: STATE of Minnesota, Respondent, v. Edward Lee DAVIS, a/k/a Eddie Davis, petitioner, Appellant.
• Court: Supreme Court of Minnesota (US)

Page 767

504 N.W.2d 767

62 USLW 2156

STATE of Minnesota, Respondent, v. Edward Lee DAVIS, a/k/a Eddie Davis, petitioner, Appellant.

No. C7-92-1037.

Supreme Court of Minnesota.

Aug. 27, 1993.

Syllabus by the Court

The holding of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), should not be extended to peremptory strikes based on religious affiliation.

John M. Stuart, State Public Defender, Mark F. Anderson, Asst. State Public Defender, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., Tom Foley, Ramsey County Atty., Darrell C. Hill, Asst. Ramsey County Atty., St. Paul, for respondent.

Heard, considered, and decided by the court en banc.

OPINION

SIMONETT, Justice.

The issue in this case is whether the holding of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), should be extended to peremptory strikes on the basis of religion. In an unpublished opinion, the court of appeals concluded that because the peremptory strike was based on race-neutral grounds there was no equal protection violation, and, after reviewing the other claims of error, affirmed the defendant's conviction. We granted further review on the peremptory challenge issue and now affirm.

Defendant Edward Lee Davis, an African-American, was charged with aggravated robbery. No jurors were struck for cause during the jury selection. The defense, however, exercised four of its five peremptory strikes, while the State used one of its three. When the State used the one peremptory to strike a black man from the jury panel, defense counsel objected and asked for a race-neutral explanation. See footnote 4, infra.

The prosecutor, in response, stated for the record that the prospective juror would have been a very good juror for the State and that race had nothing to do with her decision to strike. She explained:

However it was highly significant to the State * * * that the man was a Jahovah [sic] Witness. I have a great deal of familiarity with the sect of Jahovah's Witness. I would never, if I had a preemptory [sic] challenge left, strike [--] or fail to strike a Jahovah Witness from my jury.

She went on:

In my experience * * * that faith is very integral to their daily life in many ways, many Christians are not. That was re-enforced at least three times a week he goes to church for separate meetings. The Jahovah Witness faith is of a mind the higher powers will take care of all things necessary. In my experience Jahovah Witness are reluctant to exercise authority over their fellow human beings in this Court House.

The prosecutor concluded her statement by saying she did not feel it appropriate "to further pry" into this matter with the juror because there was no need to when exercising a peremptory on race-neutral grounds. Defense counsel had nothing further to add, and the trial judge ruled the peremptory strike would stand.

There is no transcript of the voir dire, nor do we know the composition of the jury that was selected. In any event, the defendant concedes the State's peremptory was exercised for race-neutral reasons, but now contends that the race-neutral explanation offered by the State is constitutionally impermissible as religious discrimination.

The United States Supreme Court has not ruled on whether Batson should extend beyond race-based peremptory challenges. Batson, itself, speaks solely of the need to eradicate racial discrimination. "The core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions * * *." Id. at 97-98, 106 S.Ct. at 1723. The Supreme Court has yet to examine directly the viability of peremptory challenges employed for discriminatory reasons other than race, although just recently it has granted certiorari to examine peremptory challenges based on gender bias. See J.E.B. v. State ex rel. T.B., 606 So.2d 156 (Ala.Civ.App.1992), certiorari denied (Ala.1992), certiorari granted by --- U.S. ----, 113 S.Ct. 2330, 124 L.Ed.2d 242 (1993). In the cases the United States Supreme Court has reviewed to date involving Batson, it has extended that case's protection against purposeful racial discrimination to defendants whose race differs from that of the excluded jurors, Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), to parties in civil lawsuits, Edmonson v. Leesville Concrete Co., --- U.S. ----, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), and to prosecutors in criminal cases, Georgia v. McCollum, --- U.S. ----, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), but never to other forms of discrimination.

Because Batson was crafted as a limited exception to Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Batson equal protection rationale must be read in the context of that earlier case. In Swain, the Court recounted the "very old credentials" of the peremptory strike. Id. at 212-15, 85 S.Ct. at 831-33. Absent a showing of systematic exclusion of blacks on a petit jury, the Court held that the exercise of the peremptory against black jurors was not a denial of equal protection of the laws. "In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause." Id. at 221, 85 S.Ct. at 836. "In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial," the Court went on to say, "we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case." Id. at 222, 85 S.Ct. at 836.

Swain was decided in 1965. In Batson, decided in 1986, the Court concluded it could no longer ignore the racist manipulation of the jury selection process and, therefore, modified use of the peremptory with respect to race. Batson, 476 U.S. at 98, 106 S.Ct. at 1723. Therefore, if the peremptory raises a prima facie case of racial bias, the strike may be challenged, and the proponent must then advance a race-neutral explanation for the strike which, however, need not rise to the level of cause. Id. It is against this background that the defendant-appellant asks us to extend the Batson exception to Swain to include religion.

Defendant-appellant's claim of religious discrimination is one of cross-bias, much like Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), where a white defendant raised a Batson challenge to the prosecutor's exercise of a peremptory on a black juror. Here the defendant, presumably not a Jehovah's Witness, is objecting to a peremptory challenge of a juror who is a Jehovah's Witness. Significantly, in Powers, while the Court sustained the Batson challenge, it did not do so on the theory that the defendant's equal protection rights were violated; rather, the decision was based on an equal protection violation of the excused juror's rights. Powers, 499 U.S. at ----, 111 S.Ct. at 1370. ¹ The Court further held that the defendant had standing to assert the juror's rights.

The reasoning in Powers is pertinent here. Powers did not hold that striking the black juror was constitutionally impermissible because that juror might be sympathetic to the white defendant. Rather, the vice of the cross-bias exclusion was twofold: First, racial discrimination "invites cynicism respecting the jury's neutrality and its obligation to adhere to the law." Id. at ----, 111 S.Ct. at 1371. Secondly, and equally important, the juror rejected solely because of skin color "suffers a profound personal humiliation * * *." Id. at ----, 111 S.Ct. at 1372. And as the Court noted a year later in McCollum, --- U.S. at ----, 112 S.Ct. at 2354, "The need for public confidence is especially high in cases involving race-related crime * * * [and] is essential for preserving community peace in trials involving race-related crimes."

If the life of the law were logic rather than experience, Batson might well be extended to include religious bias and, for that matter, an endless number of other biases. ² The question, however, is whether the peremptory strike has been purposefully employed to perpetrate religious bigotry to the extent that the institutional integrity of the jury has been impaired, and thus requiring further modification of the traditional peremptory challenge.

We begin our analysis with a closer look at the role of the peremptory. While jurors have their individual preconceived notions and prejudices, it is assumed that they can set them aside so as to be fair and impartial. The purpose of voir dire is to test that assumption. If it is made to appear that a prospective juror cannot be fair, the juror may be challenged for cause. The peremptory is needed, however, if the challenge for cause is denied by the court. It is needed also when there is legitimate concern for a juror's fairness but this concern is insufficient to be a challenge for cause. It happens often enough that a juror expresses doubt about being able to be fair, but then opposing counsel or the judge ostensibly "rehabilitates" the juror; in this problematic situation, the peremptory is useful. Also, without the peremptory, trial counsel may be deterred from asking probing questions on voir dire for concern that any hostility inadvertently raised could not be remedied by a peremptory strike.

In other words, the peremptory gives added assurance of an accurate verdict by "resolv[ing] doubts (up to a specified number) in favor of exclusion." B. Underwood, Ending Race Discrimination in Jury Selection: Whose Right Is It, Anyway?, 92 Colum.L.Rev. 725, 771 (1992). The fact that some unbiased jurors may be excused in the process is an affordable price to pay for removing doubts about a particular juror's impartiality and competence, especially when the vote of one biased juror can make a critical...