State v. Lowe

• Decision Date: 09 April 2004
• Docket Number: No. S-03-445.,S-03-445.
• Parties: STATE of Nebraska, appellee, v. James LOWE, appellant.
• Court: Nebraska Supreme Court

677 N.W.2d 178

267 Neb. 782

STATE of Nebraska, appellee, v. James LOWE, appellant.

No. S-03-445.

Supreme Court of Nebraska.

April 9, 2004.

David B. Eubanks, of Pahlke, Smith, Snyder, Petitt & Eubanks, G.P., Scottsbluff, for appellant.

Jon Bruning, Attorney General, Susan J. Gustafson, and Erin E. Leuenberger, Senior Certified Law Student, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

NATURE OF CASE

In his appeal from a criminal conviction, James Lowe contends that the trial court erred when it rejected his claim of discrimination in the use of a peremptory challenge employed by the prosecution. Lowe claims that several male jurors were struck from the venire because of gender in violation of the Equal Protection Clause of the U.S. Constitution.

BACKGROUND

An information was filed in this case on December 18, 2002, charging Lowe with sexual assault of a child, a Class IIIA felony, pursuant to Neb.Rev.Stat. § 28-320.01(2) (Cum.Supp.2002). The case proceeded to trial, and jury selection began on March 12, 2003. After voir dire was completed but before the jury was sworn, Lowe made a motion pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), outside the presence of the jury. Lowe asserted that the State had exercised all six of its peremptory challenges—all of them striking males. The trial court asked the prosecution to provide a gender-neutral reason for striking the six jurors in question. The prosecution responded as follows:

Well, Your Honor, I think it's important to have a mix, I don't want all men or all women and basically there's a majority of men on the jury the way it is and I think you need to have some women on a jury on a case like this who bring a different sort of experience into the jury room than just having men. Oftentimes women in our society do provide a lot of the child caretaking and I think that's a legitimate reason for the State to try to have some women on a panel. If I'd have struck women I'd almost have a 12 person panel here, it just happens to be that there seems to be more men on this mix of people than there are women and so that's the mix that are left, I think is a legitimate mix for a 12 person jury.

Lowe's attorney responded, stating:

Well, Judge, I don't know under Batson if that qualifies as an explanation for neutral striking of exclusively men to the exclusion of females. And essentially what I hear [the prosecutor] saying is, yeah, I wanted to get off as many men as I could so I can get as many women on the jury and that's not neutral, that isn't neutral gender obviously.

The trial court thereafter overruled Lowe's motion, stating:

We'll, here's what it seems to me and I rule with probably not a lot of background on this because it has not come up but the idea of Batson and cases that extended Batson to other areas were allegations of denial of equal protection and so we end up with a jury of five of one gender and 7 of another. I can't see that that would be a violation of the equal protection.

And in reviewing the strikes, the State struck [males] but, on the other hand, all of the defense strikes, the ones that were taken were all [females] and, again, we end up with a fairly equal blend of males and women which from my perspective anyway would not deny equal protection. In fact, if anything, it would comport to equal protection of having that type of a mix.

A review of the record reveals that the jury list for February and March 2003 consisted of 30 males and 30 females. Of those venirepersons appearing on the general jury list, 29 were assigned to the jury list in this case, 15 of which were males and 14 females. The record confirms that 6 females and 6 males were impaneled and sworn in this matter. The record does not contain a transcript or otherwise reveal the nature of the questions posed to members of the jury panel during voir dire.

Following a jury trial, Lowe was found guilty and sentenced to probation. Lowe appeals.

ASSIGNMENT OF ERROR

For his sole assignment of error, Lowe assigns, restated, that the trial court erred in overruling Lowe's Batson challenge which alleged that the State intentionally discriminated on the basis of gender in the jury selection process.

STANDARD OF REVIEW

A trial court's determination of whether a party has established purposeful discrimination in jury selection is a finding of fact and is entitled to appropriate deference from an appellate court because such a finding will largely turn on evaluation of credibility. The trial court's determination that there was no purposeful discrimination in the party's use of his or her peremptory challenges is a factual determination which an appellate court will reverse only if clearly erroneous. Jacox v. Pegler, 266 Neb. 410, 665 N.W.2d 607 (2003); State v. Bronson, 242 Neb. 931, 496 N.W.2d 882 (1993).

A trial court's determination of the adequacy of a party's "neutral explanation" of its peremptory challenges will not be reversed on appeal unless clearly erroneous. Jacox v. Pegler, supra; State v. Myers,

258 Neb. 300, 603 N.W.2d 378 (1999).

An appellate court decides a question of law independently of the conclusion reached by the trial court. Malena v. Marriott International, 264 Neb. 759, 651 N.W.2d 850 (2002).

ANALYSIS

APPLICATION OF BATSON TEST

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the U.S. Supreme Court held that the Equal Protection Clause of the 14th Amendment forbids prosecutors from using peremptory challenges to strike potential jurors solely on account of their race. See, also, Jacox v. Pegler, supra.

The Court extended this holding to gender-related discrimination in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). See, also, State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000). J.E.B. involved a suit for determination of paternity and child support. When the matter was called for trial, the trial court assembled a panel of 36 potential jurors, 12 males and 24 females. After the trial court excused three jurors for cause, the state then used 9 of its 10 peremptory challenges to remove male jurors. The petitioner used all but one of his strikes to remove female jurors. All of the remaining jurors were female. Before the jury was impaneled, the petitioner challenged the state's peremptory strikes on the ground that they were exercised against male jurors solely on the basis of gender in violation of the Equal Protection Clause of the 14th Amendment. The trial court rejected the petitioner's claim and impaneled the jury.

The U.S. Supreme Court held that it is axiomatic that intentional discrimination on the basis of gender in jury selection by state actors violates the Equal Protection Clause. This is particularly so where the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women. J.E.B. v. Alabama ex rel. T.B., supra.

The Court further stated that gender, like race, is an unconstitutional proxy for juror competence and impartiality. The Court noted that its decision and supporting rationale in Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961), in which the Court upheld a state statute exempting women from serving on juries on the ground that women, unlike men, occupied a unique position "`as the center of home and family life,'" was later repudiated by the Court in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). J.E.B. v. Alabama ex rel. T.B., 511 U.S. at 134, 114 S.Ct. 1419.

In J.E.B., the State of Alabama maintained that its decision to exercise its peremptory challenges to strike effectually all the males from the jury was "based upon the perception, supported by history, that men otherwise totally qualified to serve upon a jury in any case might be more sympathetic and receptive to the arguments of a man alleged in a paternity action to be the father of an out-of-wedlock child, while women equally qualified to serve upon a jury might be more sympathetic and receptive to the arguments of the complaining witness who bore the child."

511 U.S. at 137-38, 114 S.Ct. 1419. The Court rejected this justification as embodying "`the very stereotype the law condemns.'" 511 U.S. at 138, 114 S.Ct. 1419.

The Court continued, holding that "the Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case for no reason other than the fact that the person happens to be a woman or happens to be a man." J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).

In Jacox v. Pegler, 266 Neb. 410, 665 N.W.2d 607 (2003), we applied the three-step process established in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), for evaluating whether a party has used peremptory challenges in a racially discriminatory manner. We stated that the defendant must first make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. If the requisite showing has been made, the prosecutor must then articulate a raceneutral explanation for striking the juror in question. Finally, the trial court must determine whether the defendant has carried his or her burden of proving purposeful discrimination. We apply this same three-step process for evaluating whether the prosecution in this case discriminated on the basis of gender in exercising all six of its peremptory challenges to strike males from the venire. See J.E.B. v. Alabama ex rel. T.B., supra (applying Batson three-step process to gender discrimination claims).

With regard to the burden on the prosecution to come forward with a gender-neutral explanation, "`[t]he second step of [the Batson test] does not demand an explanation that is...