U.S. v. Moore, 89-1538
| Citation | 895 F.2d 484 |
| Decision Date | 05 February 1990 |
| Docket Number | No. 89-1538,89-1538 |
| Parties | UNITED STATES of America, Appellee, v. Edward Theodore MOORE, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Lee T. Lawless, St. Louis, Mo., for appellant.
Richard L. Poehling, St. Louis, Mo., for appellee.
Before BOWMAN and BEAM, Circuit Judges, and HENLEY, Senior Circuit Judge.
Edward Theodore Moore was convicted by a jury of a federal firearms violation. He remained free on bond but failed to appear for sentencing. He subsequently was convicted by a jury for failure to appear. 18 U.S.C. Sec. 3146(a)(1), (b) (1988). The District Court 1 sentenced Moore to thirty months in prison, to be served consecutively to his sentence on the weapons conviction. Moore, who is black, requests a remand to the District Court, arguing that the court erred in failing to find he had made a prima facie case that the government used its peremptory challenges in an unconstitutional manner to exclude members of Moore's race from the jury that heard the failure-to-appear case. We affirm.
In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court articulated the steps necessary to establish that the prosecution's use of its peremptory challenges violated the equal protection rights of the defendant. The defendant first must make a prima facie case of purposeful racial discrimination. If he is able to do so, the burden shifts to the government "to come forward with a neutral explanation" for excluding blacks from the jury. Id. at 97, 106 S.Ct. at 1723. "The trial court then will have the duty to determine if the defendant has established purposeful discrimination." Id. at 98, 106 S.Ct. at 1724. It is the District Court's finding of no prima facie case that Moore challenges in this appeal. He requests a remand for a hearing on the prosecutor's reasons for striking black veniremen from Moore's jury panel.
In a recent case, we acknowledged that this Court had yet to articulate the standard of review for a trial court's ruling on the Batson prima facie case issue. United States v. Fuller, 887 F.2d 144, 146 (8th Cir.1989). A careful reading of Batson now convinces us, however, that the issue should be reviewed as a finding of fact, entitling the trial judge's ruling to great deference on review and subjecting it to reversal only in the face of clear error. See Fed.R.Civ.P. 52(a). As we noted in another recent case, "The Batson decision placed great confidence in a trial judge's ability to identify a prima facie case of race discrimination." United States v. Hughes, 880 F.2d 101, 103 (8th Cir.1989).
As Batson itself makes clear, the proof of a prima facie case is necessarily fact-intensive.
To establish such a case, 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.
Batson, 476 U.S. at 96, 106 S.Ct. at 1723 (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 892-93, 97 L.Ed. 1244 (1953)) (citations omitted) (emphasis added). Thus it is important that the defendant come forward with facts, not just numbers alone, when asking the district court to find a prima facie case. The Court expressed its "confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates [sic] a prima facie case of discrimination against black jurors." Id. 476 U.S. at 97, 106 S.Ct. at 1723. The Court thereby acknowledged that the determination of whether or not a criminal defendant has made a prima facie showing under Batson is vested in the expertise of trial courts and thus accorded those courts broad discretion in making that determination.
The Supreme Court, because of differing jury selection procedures throughout the courts of this country, "decline[d] ... to formulate particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges." Id. at 99, 106 S.Ct. at 1724-25, accord id. at 99 n. 24, 106 S.Ct. at 1725 n. 24. That responsibility was left to the individual judge's discretion. The Court did, however, instruct the trial judge that he "should consider all relevant circumstances." Id. at 96-97, 106 S.Ct. at 1723. Besides looking for a "pattern" of strikes against black veniremen, the Supreme Court advised courts to look at the prosecutor's remarks both during voir dire and when exercising his peremptory challenges. Id. at 97, 106 S.Ct. at 1723. But as any trial attorney or judge well knows, there are other "relevant circumstances" that will not be evident from a reading of the record. Defense counsel, the prosecutor, and the trial judge ordinarily will have access, at the least, to basic information about the venire. 2 Information such as a juror's age, residence, and employment--and its similarity or dissimilarity to the defendant's vital statistics--will not appear on the record but will be important to those responsible for the composition of the jury. In addition, those present are able to evaluate general demeanor; to observe attention span, alertness, and interest; 3 and to assess reactions indicating hostility or sympathy towards or fear of the parties. Information of this sort cannot be discerned from a transcript. Yet such things may be vitally important when counsel employ their best judgment in exercising their peremptory challenges. The trial judge, with his experience in voir dire, is in by far the best position to make the Batson prima facie case determination. And, because of his unique awareness of the totality of the circumstances surrounding the voir dire, that determination must be treated as a finding of fact entitled to great deference on review. De novo review of the record by this Court would be inappropriate because the cold record is simply not enough. Nevertheless, we would suggest that trial judges, when finding no prima facie case, make a record of their reasons with appropriate reference to the underlying facts, especially those that are not self-evident from the voir dire transcript, or to the absence of facts in support of a prima facie case. Such on-the-record reasoning will aid us considerably in our review of the prima facie case issue. 4
We turn now to the facts of this case....
To continue reading
Request your trial
-
Jenkins v. Allen
...693, 696 (Ala.Crim.App. 2000) (quoting Mitchell v. State, 579 So.2d 45, 48 (Ala.Crim.App. 1991), in turn quoting United States v. Moore, 895 F.2d 484, 485 (8th Cir. 1990)).798 So.2d at 655. FN.9.FN.9. In his brief to this Court Jenkins makes other arguments in support of this contention. Ho......
-
Harris v. State
...case.'" Mitchell v. State, 579 So.2d 45, 48 (Ala.Crim.App.1991), cert. denied, 596 So.2d 954 (Ala.1992), quoting United States v. Moore, 895 F.2d 484, 485 (8th Cir.1990).' "McElemore v. State, 798 So.2d 693, 695-96 (Ala.Crim.App.2000). `"A trial court's ruling on a Batson objection is entit......
-
Jenkins v. State
...693, 696 (Ala.Crim.App.2000) (quoting Mitchell v. State, 579 So.2d 45, 48 (Ala. Crim.App.1991), in turn quoting United States v. Moore, 895 F.2d 484, 485 (8th Cir.1990))." 798 So.2d at For the reasons stated above, we overrule our decision in Watkins, 632 So.2d 555. As Justice Ingram wrote ......
-
Allen v. U.S.
......2010) (citing Batson, 476 U.S. at 98 n.21; United States v. Moore, 895 F.2d 484, 485 (8th Cir. 1990)); see also United States v. Pherigo, 327 F.3d 690, 696 (8th ...And in this phase of the trial the defendant has repeatedly referred to this. Sort of give us some explanation. COUNSEL: Sure, the first of the-the first part of the case my concern was ......