Watson v. State
Decision Date | 24 February 1992 |
Docket Number | No. CR,CR |
Parties | , 60 USLW 2619 Frances M. WATSON, Appellant, v. STATE of Arkansas, Appellee. 91-247. |
Court | Arkansas Supreme Court |
R.S. McCullough, Little Rock, for appellant.
Gil Dudley, Asst. Atty. Gen., Little Rock, for appellee.
The appellant, Frances M. Watson, appeals from a conviction for first-degree battery which resulted in a sentence of fourteen years. The conviction stemmed from charges brought against the appellant for acts committed against Daniel Toric, age six, who was living with her at the time We hold that there is merit to the appellant's second point, and we reverse and remand for a new trial.
that his leg was severely burned. The leg was subsequently amputated below the knee. The appellant now appeals on three grounds: a) the circuit court failed to instruct the jury on lesser included offenses; b) the circuit court erred in forcing the defense counsel to make his Batson objection in front of the jury; and c) the circuit court erred in permitting hearsay testimony of a social worker.
Daniel Toric is the son of Shirley Toric, but was living with the appellant during the period of time in question. There was no formal arrangement such as an adoption or guardianship between the appellant and Daniel. Five other children and two grandchildren also lived with the appellant, who made ends meet with public assistance and food stamps.
On September 10, 1990, Daniel suffered severe burns to his left leg. The appellant and one of her daughters drove Daniel to the hospital emergency room, where he was diagnosed as having third-degree burns and a life-threatening condition. The leg was subsequently amputated below the knee. Daniel later testified that the appellant put his leg in a bucket of hot water, and because of this, his leg turned red and hurt. A social worker, Carol Maxwell, also testified that Daniel told her that the appellant put his leg in the hot water because he had been running in the house. There were other indications that Daniel had been beaten on his head and body.
The appellant denied any participation in the hot-water incident and testified that the act was the result of conduct by one of her sons, Alglister Cunningham, who had immersed the boy's leg. She also denied any other beatings. On October 29, 1990, the appellant and Cunningham were charged with first-degree battery and the appellant alone was charged with permitting child abuse. The child-abuse charge was later dismissed, and this court affirmed the dismissal on appeal. State v. Watson, 307 Ark. 333, 820 S.W.2d 59 (1991).
Trial of the battery charge commenced against the appellant and Cunningham on March 18, 1991. During jury selection a black juror, Mrs. Williams, was peremptorily challenged by the state. The following colloquy ensued:
other trials before this Court and excused her as a result of those answers.
A jury was seated, and the jury convicted the appellant of the battery charge and sentenced her to thirteen years in prison and fined her $10,000. The circuit court converted the fine to an extra year in prison for a total term of fourteen years.
The appellant raises an issue of first impression for this court. She questions whether she was entitled to have her Batson motion establishing a prima facie case for relief held outside of the presence of the jury. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We believe that she was entitled to this and that it was prejudicial to the defense to require counsel to make the motion, argue it, and then have the state respond to it, all in the presence of the jury.
We have had an opportunity to discuss the Batson decision and procedure relating to it several times in the last six years. See, e.g., Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991); Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990); Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988); Smith v. State, 294 Ark. 357, 742 S.W.2d 936 (1988); Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987). We have specifically recognized that the Court declined to formulate procedures to implement Batson. See, e.g., Colbert v. State, supra; quoting Batson, 476 U.S. at 99, 106 S.Ct. at 1724. The upshot of this lack of direction has been that the states have been forced to chart their own courses in formulating procedures for the time, place, and manner of the Batson process.
Part of the problem has been that the Batson decision contemplates two determinations by the trial court. The defendant
must first object to the prosecutor's peremptory challenges and establish a prima facie case of purposeful discrimination. The Batson Court carefully outlined what is necessary for the defendant to cross this threshold:
1. The defendant must show that he is a member of a cognizable racial group, and the prosecutor has exercised his peremptory challenges to remove from the venire members of the defendant's race.
2. The defendant is entitled to rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate.
3. The defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude venire members from the petit jury on account of race.
Batson, 476 U.S. at 96, 106 S.Ct. at 1723. The Court then stated that the combination of these factors in empaneling the jury raises the necessary inference of purposeful discrimination for the defendant to make a prima facie case.
Two factors to be considered as relevant circumstances were specifically mentioned by the Court. First, a pattern of strikes against black jurors in the particular venire might give rise to an inference of discrimination. Secondly, the prosecutor's questions and statements during voir dire and in exercising his peremptory challenges may support or refute an inference of a discriminatory purpose.
The trial court then decides whether a prima facie case has been made by the defendant. Once that showing is made, the burden shifts to the state "to come forward with a neutral explanation for challenging black jurors." Batson, 476 U.S. at 97, 106 S.Ct. at 1723. Following the neutral explanation by the state, the trial court must make a second determination, that is, whether the defendant has actually established purposeful discrimination.
But, again, the Batson Court was silent on the procedures that the states should use in implementing the decision. More precisely, the Court did not address whether the defendant has a right to have any part of a Batson objection heard outside of the jury's presence. It is clear, however, that in several post-Batson c...
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