State v. Larry Joe Powers
| Decision Date | 07 December 1993 |
| Docket Number | 93AP-416,93-LW-5736 |
| Parties | State of Ohio, Plaintiff-Appellee v. Larry Joe Powers, Defendant-Appellant |
| Court | Ohio Court of Appeals |
Appeal from the Franklin County Common Pleas Court.
Michael Miller, Prosecuting Attorney, and Joyce Anderson, for appellee.
James Kura, Ohio Public Defender, and Robert L. Lane, for appellant.
Defendant-appellant, Larry Joe Powers, appeals from a judgment of the Franklin County Court of Common Pleas finding that he failed to prove that the prosecutor at his murder trial purposely used the state's peremptory challenges to exclude African-Americans from his petit jury solely on the basis of their race.
On August 8, 1985, defendant, a white male, was indicted on two counts of aggravated murder in violation of R.C. 2903.01 and one count of attempted aggravated murder in violation of R.C 2903.01 and 2923.02; each count carried a firearm specification. Defendant subsequently entered a plea of not guilty and requested a jury trial.
Prior to beginning jury selection, the prosecutor and defense counsel agreed that each would have twelve peremptory challenges. In the course of selecting the jury, the prosecutor removed ten individuals by means of peremptory challenges; seven of the ten were African-Americans. Each time the prosecution challenged an African-American venire-person, defendant objected, arguing that the prosecutor was using his peremptory challenges to purposely exclude African-Americans from the jury in contravention of Batson v. Kentucky (1986), 476 U.S. 79. The trial court overruled each objection.
Defendant was convicted on one count of murder, one count of aggravated murder, and one count of attempted aggravated murder. On appeal, this court rejected defendant's Batson challenge, finding that defendant had "* * * completely failed to meet the first test of Batson" which requires that a defendant show "* * * that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race." State v. Powers (Dec. 13, 1988), Franklin App. No. 87AP-526, unreported (1988 Opinions 4371) (quoting Batson, supra, at 96). The Ohio Supreme Court denied defendant's motion for leave to appeal, finding that the case presented "no substantial constitutional question."
The United States Supreme Court granted defendant's petition for certiorari and issued a decision holding that defendant had standing to object to such an exclusion of jurors in violation of the Equal Protection Clause even though he is not of the same race as the excluded jurors. Powers v. Ohio (1991), 449 U.S. 400. Accordingly, the court reversed defendant's conviction and remanded the case to this court. Id.
On remand, this court sustained defendant's Batson argument and remanded the case to the common pleas court to determine whether defendant had made a prima facie showing of purposeful discrimination in the selection of the petit jury for his trial, and if so, to afford the prosecutor an opportunity to come forward with race-neutral explanations for the use of the state's peremptory challenges.
Finding that defendant had established a prima facie case of purposeful discrimination, the trial court set a hearing date to allow the prosecutor to explain his peremptory challenges and the defendant to rebut the prosecutor's explanations. Prior to the hearing, defendant filed two motions, one seeking leave of court to present the expert testimony of Dr. Solomon Fulero on the issue of the prosecutor's motives in challenging the African-American venire-persons, the other requesting that the hearing be conducted with the prosecutor under oath and subject to cross-examination. The trial court denied defendant's request to place the prosecutor under oath and cross-examine the prosecutor, and it deferred ruling on the admissibility of Dr. Fulero's testimony pending its presentation.
During the hearing, the prosecutor who had represented the state at defendant's trial presented his explanations for each of the ten peremptory challenges he had exercised during the course of voir dire. Following the prosecutor's statement, defense counsel presented the testimony of its expert witness, Dr. Fulero, subject to the court's final admissibility determination. Pursuant to the parties' agreement, defendant presented further rebuttal to the prosecutor's explanations by way of a post-hearing memorandum.
On February 25, 1993, the trial court issued a decision concluding that the prosecutor's "* * * statement of his race-neutral reasons for peremptorily challenging the seven black jurors * * * [were] credible and not pretextual [and that] defendant has failed to meet his burden of proving intentional racial discrimination by a preponderance of the evidence." Defendant appeals therefrom, assigning the following errors:
Ordinarily, a prosecutor may exercise a peremptory challenge "for any reason,or no reason at all." Hernandez v. New York (1991), 111 S.Ct. 1859, 1874 (O'Connor, J., concurring). Under well-established principles of equal protection jurisprudence, however, a peremptory challenge may not be used purposefully to exclude members of a cognizable racial group from jury service solely on the basis of their race. See Powers, supra; Batson, supra, at 84. Where a defendant can establish a prima facie case that the prosecutor has used his peremptory challenges in such a manner, the burden shifts to the state to articulate racially neutral explanations related to the particular case for the use of its challenges. Batson, supra, at 98. Although a prosecutor's explanations need not rise to the level of justifying the exercise of a challenge for cause, the prosecutor may not rebut a defendant's prima facie case "* * * merely by denying that he had a discriminatory motive or `affirm[ing] good faith in making individual selections.'" Id.
The decision of a trial court regarding a prosecutor's motives for exercising a peremptory challenge is a factual determination which will not be overturned unless clearly erroneous. State v. Cook (1992), 65 Ohio St.3d 516, 519. Further, because such a determination will necessarily turn in large part upon a credibility evaluation, an evaluation which a trial court is best situated to make, the trial court should be accorded great deference by a reviewing court. Batson, supra, at 98, fn. 21.
Defendant's prima facie case of purposeful race-based discrimination by the prosecutor is undisputed. Defendant further argues, however, that the race-neutral explanations advanced by the prosecutor for five of the seven challenges used to remove African-Americans from defendant's petit jury are not supported by the record and amount to nothing more than a mere pretext for purposeful racial discrimination.[1]
Defendant first objects to the prosecutor's removing Norma Wooden from the jury. At the hearing, the prosecutor stated that he challenged Ms. Wooden because she was not in favor of the death penalty; he was "* * * nervous regarding her prior employment as a barmaid, since the defense was expected [to] argue the defense of intoxication"; and "* * * she was very much in favor of the defense of self defense * * *." (Tr. 14.) The prosecutor's explanations are supported in the record at least with regard to Ms. Wooden's view on the death penalty and the prosecutor's concern about how Ms. Wooden might view the defense of intoxication. During voir dire, Ms. Wooden responded to the prosecutor s inquiry regarding her view on the death penalty, stating that she "never cared for it too much because everybody has a right to life." (Tr. Vol. IV, 126-127.) Ms. Wooden also stated that she had previously worked in a bar and had seen friendly individuals become combative after excessive drinking. (Tr. Vol. IV, 162.)
Defendant however argues that the prosecutor's explanations regarding his challenge of Ms. Wooden are pretextual, as the response of Ann F. Maggart, a white woman whom the prosecutor did not challenge, was similar to Ms. Wooden's concerning the death penalty; further, like Ms. Wooden, Ms. Maggart had previously worked in a bar. Although similarities exist between Ms. Wooden and Ms. Maggart, sufficient differences allow the prosecutor to have reasonably found one acceptable and the other not. Specifically, Ms. Wooden's statement regarding her view on the death penalty reveals possible opposition to the death penalty itself. Ms. Maggart's response, however, reveals only a concern that such a penalty be imposed in only the most serious cases and only when guilt has been properly established. (Tr. Vol. IV, 483-500.) Further, while both Ms. Wooden and Ms. Maggart had previously worked in bars, the bar in which Ms. Wooden had been employed bore a much closer resemblance to the bar involved in defendant's case than did any of the establishments in which Ms. Maggart had worked. (Tr. Vol. IV, 162, 503-504.)
Defendant next objects to the prosecutor's challenge to Renee Smith Page. The prosecutor explained that he challenged Ms. Page because he felt that she was "* * * obviously against the death penalty even in the most serious cases." (Tr. 20.) When asked about her view on the death penalty, Ms. Page responded that she didn't "understand how you can kill someone just...
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