State v. Marrs

Decision Date06 April 1989
Docket NumberNo. 18423,18423
Citation180 W.Va. 693,379 S.E.2d 497
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Anthony D. MARRS.

Syllabus by the Court

1. It is a violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution for a member of a cognizable racial group to be tried on criminal charges by a jury from which members of his race have been purposely excluded.

2. To establish a prima facie case for a violation of equal protection due to racial discrimination in the use of peremptory jury challenges by the State, "the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' Finally the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." [Citations omitted.] Batson v. Kentucky, 476 U.S. 79 at 96, 106 S.Ct. 1712 at 1722, 90 L.Ed.2d 69 (1986).

3. The State may defeat a defendant's prima facie case of a violation of equal protection due to racial discrimination in selection of a jury by providing non-racial, credible reasons for using its peremptory challenges to strike members of the defendant's race from the jury.

4. " 'The plain error doctrine of W.Va.R.Crim.P. 52(b), whereby the court may take notice of plain errors or defects affecting substantial rights although they were not brought to the attention of the court, is to be used sparingly and only in those circumstances in which a miscarriage of justice would otherwise result. Syllabus Point 2, State v. Hatala, 176 W.Va. 435, 345 S.E.2d 310 (1986).' Syllabus Point 4, State v. Grubbs, 178 W.Va. 811, 364 S.E.2d 824 (1987)." Syllabus Point 2, State v. Fisher, 179 W.Va. 516, 370 S.E.2d 480 (1988).

5. In a prosecution for the sale of illegal drugs, W.Va.R.Evid. 404 does not allow the defendant to introduce evidence of his reputation for not selling illegal drugs.

Debra Archer, Bayless, Wills and Archer, Princeton, for Anthony D. Marrs.

Brenda Craig Ellis, Asst. Atty. Gen., Charleston, for the State.

NEELY, Justice:

Appellant, a black man, was convicted by a jury on two counts of selling marijuana to undercover police officers. The prosecution's witnesses were four police officers and one informant, all of whom were white. The jury venire contained two blacks, one of whom was struck for cause because he was a neighbor and former teacher of defendant. The prosecution's evidence consisted of testimony from the officers and the informant who bought a total of eight marijuana cigarettes from a black male in the city of Bluefield. The prosecution exercised a peremptory strike against Paul Kelsor, the sole black person remaining on the jury venire.

The prosecuting attorney offered the following explanation for striking Mr. Kelsor:

I noticed on the bench warrants that we have a Kelsor. It's an unusual name, and I didn't know whether they were related, and I hesitated to question him about any allegations and if he was related to someone who had a criminal charge against them. I would prefer not to have him on this jury, so I struck him.

The defense argued mistaken identity, pointing out that both drug purchases were made in a matter of minutes, at night, by witnesses who remained in their vehicles during the purchases. On cross-examination, defense counsel elicited that several of the officers were passing around a photograph of the defendant just before trial. The defense also called as a witness the defendant's brother, whose build fit the description given by the police officers.

In addition to arguing mistaken identity, the defense called several neighbors and friends of the defendant as character witnesses. Defense counsel asked one of these witnesses about the defendant's reputation for selling drugs and the court sustained the prosecutor's objection to the question on the grounds that it did not concern a character trait. Defense counsel was allowed to ask the character witness about the defendant's reputation for truth, honesty, and being a lawabiding citizen. The defendant took the stand and denied selling drugs. The jury convicted the defendant on both counts of selling marijuana and he was sentenced to two concurrent terms of one to five years.

Defendant argues that the state's use of its peremptory strike to remove the only black person remaining on the jury panel denied him equal protection in violation of the Fourteenth Amendment to the U.S. Constitution. Defendant also argues that the trial court erred when he refused to allow defense counsel to question the character witness about defendant's reputation for selling drugs. Although defendant assigns and argues other errors, it is unnecessary to address them because we find merit in defendant's equal protection argument, reverse his conviction, and grant him a new trial. We address defendant's assignment of error to the trial court's character evidence ruling to guide courts in future cases.

I

In Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), the U.S. Supreme Court held that a State denies a black defendant equal protection when it puts him on trial before a jury from which members of his race have been purposefully excluded. In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Court held that to establish such a violation, the defendant could not rely solely on the State's use of peremptory strikes, but must demonstrate systematic exclusion of blacks in a number of cases. Recently, however, in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the U.S. Supreme Court rejected the "crippling burden of proof" that Swain imposes on defendants.

In Batson, the prosecutor used his peremptory strikes to remove all four blacks from the venire, resulting in an all white jury. Defendant moved to discharge the jury and the judge denied the motion stating that the parties are entitled to use their peremptory challenges to "strike anybody they want to." The Supreme Court reversed defendant's conviction, established a new standard for proving a violation of equal protection in the use of peremptory jury challenges, and remanded the case to determine whether defendant met the new standard.

Under Batson, supra, a defendant must first make a prima facie case of purposeful racial discrimination in the selection of jurors. This prima facie case consists of three elements:

To establish such a case, the defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, supra [430 U.S. 482] at 494 [97 S.Ct. 1272 at 1280, 51 L.Ed.2d 498 (1977) ], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Avery v. Georgia, 345 U.S., at 562 [73 S.Ct. 891 at 892, 97 L.Ed. 1244 (1953) ]. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

476 U.S. at 96, 106 S.Ct. at 1723. Once the defendant makes this prima facie case, the State must come forward with a neutral explanation for striking minority jurors.

In the case before us, we find that the defendant has made a showing sufficient to require a satisfactory, non-racial reason for striking Mr. Kelsor. The prosecuting attorney's stated reason for striking Mr. Kelsor was that she believed she saw the same last name, which is an unusual one, on a bench warrant. Presumably, she did not want someone on the jury who was related to someone charged with a crime. She also stated that she hesitated to ask Mr. Kelsor if he was related to someone who had a criminal charge against him. However, if this were the prosecuting attorney's true reason for striking Mr. Kelsor, she could have asked him whether he or a relative of his had a criminal warrant pending against him, or she could have asked the entire jury panel if any of them was related to someone with criminal charges pending against him.

If we are to give real effect to the U.S. Supreme Court's decision in Batson, we must require the State in cases such as this to give a non-racial, credible justification for striking the only member of defendant's race from the panel. In Batson, the U.S. Supreme Court stated Nor may the prosecutor rebut the defendant's case merely by denying that he had a discriminatory motive or "affirm[ing] [his] good faith in making individual selections." Alexander v. Louisiana, 405 U.S., at 632 [92 S.Ct. 1221 at 1226, 31 L.Ed.2d 536 (1972) ]. If these general assertions were accepted as rebutting a defendant's prima facie case, the Equal Protection Clause "would be but a vain and illusory requirement." [Citation Omitted]

Id 476 U.S. at 98, 106 S.Ct. at 1723.

The State points out that defendant did not object to the prosecuting attorney's use of her peremptory strike until after the jury was sworn and instructed by the Court. The State...

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