Wilson v. Hoke, 231

• Decision Date: 01 October 1991
• Docket Number: No. 231,D,231
• Citation: 945 F.2d 1250
• Parties: Jon WILSON, Petitioner-Appellant, v. Robert HOKE, Superintendent, Eastern New York Correctional Facility, Respondent-Appellee, District Attorney of Monroe County, Intervenor. ocket 90-2497.
• Court: U.S. Court of Appeals — Second Circuit

Page 1250

945 F.2d 1250

Jon WILSON, Petitioner-Appellant, v. Robert HOKE, Superintendent, Eastern New York Correctional

Facility, Respondent-Appellee,

District Attorney of Monroe County, Intervenor.

No. 231, Docket 90-2497.

United States Court of Appeals, Second Circuit.

Argued Sept. 26, 1991.

Decided Oct. 1, 1991.

Jane Simkin Smith, Millbrook, New York City, for petitioner-appellant.

Wendy Evans Lehmann, Asst. Dist. Atty., Rochester, N.Y. (Howard R. Relin, Dist. Atty., Monroe County, of counsel), for respondent-appellee and intervenor.

Before LUMBARD, WINTER and ALTIMARI, Circuit Judges.

WINTER, Circuit Judge:

In 1984, petitioner Jon Wilson was convicted of first degree manslaughter (N.Y.Penal Law § 125.20) for the stabbing death of a high school teacher on school premises. Appealing from Judge Telesca's dismissal of his petition for a writ of habeas corpus, Wilson argues that the Monroe County prosecutor discriminatorily exercised peremptory challenges against two black venirepersons in violation of the Equal Protection Clause of the Fourteenth Amendment. Petitioner bases his claim on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). That decision came after Wilson's conviction but before his state appellate brief was filed. Because Batson applies retroactively to cases pending on direct appeal when Batson was decided, see Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), it is the basis for Wilson's petition.

The voir dire for Wilson's trial was held from April 30 through May 3, 1984. It was not the practice in Monroe County at the time to have a stenographic recording of voir dire proceedings. Although defense counsel could have requested a transcription, he apparently chose not to do so. The only existing record pertinent to petitioner's claim is a colloquy between the trial judge and defense counsel just before the trial began. That colloquy began with defense counsel seeking to inform the court of a recent pronouncement by the local district attorney indicating that prosecutors from his office were instructed to give reasons in open court whenever more than one member of a racial group became the subject of a peremptory challenge. The trial judge interrupted counsel, stating, "I am not bound by his statement." The judge then stated, "You noted your objection to the exercise of the peremptory of two black males." ¹ Counsel responded, "With no reasons being given as announced." The colloquy then drifted into a discussion concerning the exercise of peremptory challenges to whites by the defense.

On the present record, we do not know how many venirepersons were examined, how many were peremptorily challenged on both sides, what type of questions were asked, or what answers were given by the challenged venirepersons. We know only that two black female venirepersons were the subject of peremptory challenges by the prosecution and that one unchallenged black venireperson sat on Wilson's petit jury. The trial judge died before Wilson's state appeal was heard.

The Appellate Division heard Wilson's appeal after the decision in Griffith. It affirmed his conviction, denying his Batson claim on the grounds that the existing record afforded no basis for an inference of a racial motive in the exercise of the peremptory challenges and that the record of the voir dire could not be reconstructed. We agree.

Batson noted the need for a "timely objection" to the exercise of peremptory challenges on a racial basis. Batson, 476 U.S. at 99, 106 S.Ct. at 1724; see also Jones v. Butler, 864 F.2d 348, 369 (5th Cir.1988) (on petition for rehearing) (contemporaneous objection a necessary predicate for raising Batson claim), cert. denied, 490 U.S. 1075, 109 S.Ct. 2090, 104 L.Ed.2d 653 (1989). As Jones noted, the finding of intentional discrimination " 'largely will turn on evaluation of credibility.' " Jones, 864 F.2d at 370 (footnote omitted) (quoting Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21). A record of the nature of an objection is, therefore, necessary because "[y]ears after trial, the prosecutor cannot adequately reconstruct his reasons for striking a venireman." Id. at 370.

The record indicates that defense counsel never made a claim that was identifiable as being of the Batson genre. Defense counsel merely made an application to the court regarding the district attorney's policy of stating reasons for peremptory challenges to black venirepersons. Defense counsel was thus invoking the policy of the district attorney's office, not the Constitution. The claim was so understood by the trial judge, who indicated that the court was not bound by that policy.

Defense counsel thus made no attempt to establish a prima facie Batson case. He did not structure the claim as one raised...