U.S. v. Garrison

• Citation: 849 F.2d 103
• Decision Date: 07 September 1988
• Docket Number: No. 87-7649,87-7649
• Parties: 25 Fed. R. Evid. Serv. 1140 UNITED STATES of America, Plaintiff-Appellee, v. Rondell Herbert GARRISON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 103

849 F.2d 103

25 Fed. R. Evid. Serv. 1140

UNITED STATES of America, Plaintiff-Appellee, v. Rondell Herbert GARRISON, Defendant-Appellant.

No. 87-7649.

United States Court of Appeals Fourth Circuit.

Argued April 6, 1988.

Decided June 7, 1988.

Rehearing and Rehearing In Banc Denied Sept. 7, 1988.

Stephen Jon Cribari, Deputy Federal Public Defender (Fred Warren Bennett, Federal Public Defender, on brief), for defendant-appellant.

Katharine J. Armentrout, Asst. U.S. Atty. (Breckinridge L. Willcox, U.S. Atty., on brief), for plaintiff-appellee.

Before PHILLIPS, Circuit Judge, BUTZNER, Senior Circuit Judge, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.

BUTZNER, Senior Circuit Judge:

Rondell Herbert Garrison alleges that the prosecutor at his trial for bank robbery used peremptory strikes to remove black persons from his jury in a discriminatory manner, in violation of his fourteenth amendment rights as detailed in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). The trial court held that the peremptory challenges were exercised for race-neutral reasons. Because the trial court's findings of fact are not clearly erroneous, we affirm.

I

This appeal involves the retroactive application of Batson. Garrison was convicted of bank robbery. While his appeal was pending, the Supreme Court decided Batson, which held that "the Equal Protection Clause forbids the prosecutor to 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." 476 U.S. at 89, 106 S.Ct. at 1719. This court held the appeal without argument until the Supreme Court's decision in Griffith established that Batson was to be applied retroactively to cases pending on direct review or not yet final. 107 S.Ct. at 716. We then remanded the case to the district court for resolution of the dispute over the government's exclusion of black jurors. The district court conducted an adversary hearing, received affidavits, and heard argument of counsel. In these respects, the district court followed procedures we approved in United States v. Woods, 812 F.2d 1483 (4th Cir.1987). The district court also requested the prosecutor to submit notes made during the voir dire for ex parte inspection to determine whether they shed additional light on the prosecutor's recollection of a voir dire that took place almost two years before the hearing. Garrison's primary assignment of error pertains to the ex parte inspection of the notes. He also complains of the lack of a full adversary hearing and asserts that the district court's findings are erroneous.

II

After six jurors were struck for cause, a venire of thirty-five persons remained, of whom three were black. Garrison does not challenge the racial composition of the venire. Three of the government's six peremptory challenges were used to strike the three remaining black veniremen. As a result, Garrison was tried by an all white jury. The government concedes that Garrison, who is black, has made out a prima facie case of discrimination under Batson but offers what it believes are race-neutral explanations of its exercise of its peremptory challenges.

Voir dire was conducted by questions posed to the veniremen as a group, with only those individuals who found a question applicable to themselves responding. Relatively few jurors responded to any of the questions, and several of these were stricken for cause. As a result, the prosecutors' decisions concerning the use of their peremptory challenges were necessarily based in significant part on information from the questionnaires that the jurors returned to the clerk's office, on impressions received through observing the conduct and demeanor of the jurors during the voir dire process, and on professional judgment concerning other factors likely to make jurors more or less receptive to the government's case.

The government asserts that it struck juror number 110, who was black, because he, like the defendant, was a young male. A white male juror of the same age was also stricken. The prosecutors expressed a concern that young male jurors would tend to be more sympathetic to the defendant's plight. The government asserts that it struck jurors 369 and 372, two black women, because they chatted with each other during the voir dire process and gave other indications of boredom and disdain for the process. Additionally, both these jurors were under age 30, and the government again felt that similarity in age might incline them to be sympathetic to the defendant. Finally, juror 372 was unemployed, and the government states that it "almost always" prefers to have employed persons on a jury.

The government struck two other white jurors, one male and one female. They were aged 20 and 22 respectively; the man had previously pled guilty to a crime, and the woman was perceived by the prosecutors to be "anti-government" for several reasons.

As to those jurors struck on account of age, Garrison argues first that the category "young" is too vague to provide a legitimate reason for removing black persons from the jury, and second that systematic exclusion of young people from juries is in itself impermissible discrimination against an identifiable group.

While the category "young" may indeed be vague in some contexts, there is no such problem in this case. The only black juror excluded solely because of age and sex was aged 25--close in age by any measure to the 23-year old defendant. Contrary to Garrison's contention, age, in itself, was not the basis of the government's strikes. It was the similarity in age between the defendants and the jurors that caused the government to be apprehensive of possible sympathy for the defendant. Neither the Supreme Court nor this circuit has ever held that striking jurors because their age is similar to that of the defendant is impermissible discrimination.

Garrison's counsel submitted an affidavit stating that he did not remember seeing jurors 369 and 372 chatting during voir dire and that he observed nothing in their demeanors which called their fairness into question. Because he contradicted these assertions by the prosecuting attorneys, he argues that the trial court was obliged to hold a full evidentiary hearing to determine the actual facts before ruling.

Garrison's insistence on an evidentiary hearing in which prosecutors and defense attorneys and possibly other witnesses would be examined and cross-examined misconceives the Batson inquiry. Although a district court could conduct such a hearing if it believed circumstances warranted it, Batson does not require this intrusion on the trial proceedings. When, as here, the defendant has made out a prima facie case of a discrimination, Batson requires the prosecutor to "articulate a...