Dеbera COCHENOUR, Appellant, v. CAMERON SAVINGS AND LOAN, F.A., Appellee, and David Just, Defendant.
No. 98-1489.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 25, 1998. Decided Nov. 16, 1998.
160 F.3d 1187
Nevertheless, Devoil-El claims that because peremptory challenges based upon these reasons result in disparate impact on African-Americans, they violate Batson. As we have noted, however, disparate impact alone, without the showing of intent to discriminate, will not “trigger the strictest level of scrutiny.” United States v. Greene, 995 F.2d 793, 796 (8th Cir.1993). “An argument relating to the impact of a classification does not alone show its purpose.” Hernandez, 500 U.S. at 362, 111 S.Ct. 1859. Therefore, even if the reаsons given by the prosecutor result in the use of strikes against African-Americans more often than against Caucasian venirepersons, the strikes will not violate Batson without some showing that the prosecutor removed the potential jurors “because of” their race. See Hernandez, 500 U.S. at 359-60, 111 S.Ct. 1859.
Devoil-El argues that discriminatory intent to remove African-American jurors may be shown by looking to the totality of the circumstances. He contends that the trial court erred by evaluating each strike individually, instead of looking to the pattern of strikes exercised by the prosecutor. A trial court may indeed look to the disproportionate removal of minority jurors to show discriminatory intent. See Hernandez, 500 U.S. at 363-64, 111 S.Ct. 1859; United States v. Brooks, 2 F.3d 838, 841 (8th Cir.1993). A trial court‘s findings of discriminatory intent will turn largеly on its assessment of the credibility of the proffered reasons for removing a venireperson. See Hernandez, 500 U.S. at 365, 111 S.Ct. 1859; United States v. Scott, 26 F.3d 1458, 1467 (8th Cir.1994). With the exception of the venireperson removed because of his body language, all of the other African-American vеnirepersons were removed for a combination of reasons, such as being unemployed and having a relative in jail, which distinguished them from the non-challenged Caucasian venirepersons. Accordingly, we conclude that the trial court‘s finding that the state‘s peremptory strikes were not racially motivated cannot be said to be clearly erroneous.
The judgment is affirmed.
Aaron C. Johnson, Kansas City, Missouri, argued (David G. Summers, on the brief), for Appellant.
Martin M. Myers, Kansas City, Missouri, arguеd (Stephen C. Thornberry, on the brief), for Appellee.
Before BOWMAN, Chief Judge, and JOHN R. GIBSON and MORRIS SHEPPARD ARNOLD, Circuit Judges.
MORRIS SHEPPARD ARNOLD, Circuit Judge.
A jury returned a verdict in favor of Cameron, and the trial court denied Ms. Cochenour‘s motion for a new trial. Ms. Cochenour appealed from certain evidentiary rulings, and we аffirm the judgment of the trial court.1
I.
Shortly after Ms. Cochenour and the other employee, Beth McDonald, were fired from Cameron, Ms. McDonald received a job offer from Cameron‘s attorney, who had given legal advice to thе bank regarding its decision to terminate the two employees. Ms. Cochenour maintains that the trial court erred in excluding evidence of the job offer. She argues that the jury could have inferred from this job offer that Cameron nevеr had any real intention of depriving Ms. McDonald of employment, and that its stated reason for firing Ms. Cochenour was therefore pretextual.
“If a trial court wrongly excludes evidence, we will not set aside the judgment unless we are lеft with ‘no reasonable assurance that the jury would have reached the same conclusion had the evidence been admitted.‘” Stolzenburg v. Ford Motor Co., 143 F.3d 402, 406 (8th Cir.1998), quoting Adams v. Fuqua Industries, Inc., 820 F.2d 271, 273 (8th Cir.1987). In this case, the probative value of the proffered testimony regarding the job offer seems to us extreme-
II.
Ms. Cochenour also maintains that the trial court erred in excluding tеstimony regarding a conversation in which Cameron‘s president allegedly told an employee that she could not continue to work for Cameron because she had become pregnant. The alleged conversation occurred more than 10 years before Ms. Cochenour‘s termination, however, and we believe in any case that it was sufficiently dissimilar from Ms. Cochenour‘s claim that any inference that could be drawn from it regarding Cameron‘s motive for firing Ms. Cochenour would be extraordinarily weak at best. We therefore conclude that any error in excluding this testimony was also harmless.
III.
Ms. Cochenour contends that the trial court erred in admitting into evidence a letter that Ms. Cochenour wrote to Cameron after her termination, in which she stated that she had been planning to retire at age 50. (Ms. Cochenour was 47 years old at the time that she was fired.) Because the letter included a settlement demand, Ms. Cochenour maintains that it was inadmissible because of
IV.
Ms. Cochenour also urges us to reverse the judgment because of alleged errors that the trial court made during the parties’ closing arguments. During the trial, Cameron‘s рresident testified that Cameron had a policy of mandatory retirement at age 72 for officers of the bank. He also testified that he told a 72-year-old employee who was not an officer that she should retire. Based оn this testimony, Ms. Cochenour‘s attorney attempted to comment during closing argument that Cameron had an “express policy” of mandatory retirement at age 72 for all employees. The trial court refused to allow Ms. Cochеnour‘s attorney to make this statement. In addition, the trial court allowed Cameron‘s attorney to state to the jury that the bank‘s mandatory retirement policy for officers was permissible under a statutory exception for “bonа fide executive or high policymaking” employees. See
We believe that the trial court erred in refusing to allow Ms. Cochenour‘s attorney to argue that Cameron had a mandatory retirement policy for all emplоyees. It was the province of the jury, not the trial court, to decide whether or not the evidence presented at trial supported such a conclusion. We do not believe, however, that the trial court‘s restrictions on Ms. Cochenour‘s closing argument could possibly have altered the jury‘s verdict. We note that the trial court did allow Ms. Cochenour‘s attorney to comment at length during closing argument on the statement of Cameron‘s president to the 72-yеar-old employee that she should retire. Although the trial court erred in sustaining Cameron‘s objection to Ms. Cochenour‘s ar-
We think it probable that it was also error for the trial court to permit Cameron‘s attorney to say during closing argument that Cameron‘s mandatory retirement policy for officers was permissible under the law, since that cоmment was a statement about a legal matter on which the jury was not instructed. Even if the trial court believed that allowing Cameron‘s attorney to make such a statement was the equivalent of a jury instruction, we do not believe that the record would support what is analogous to directing a verdict on the matter of whether Cameron‘s policy was legal. In any case, however, we have held that “to constitute reversible error, statements made in clоsing argument must be plainly unwarranted and clearly injurious.” Griffin v. Hilke, 804 F.2d 1052, 1057 (8th Cir.1986), cert. denied, 482 U.S. 914, 107 S.Ct. 3184, 3185, 96 L.Ed.2d 673 (1987). Reversal is inappropriate “when the error is harmless and did not affect the substantial rights of the parties.” Williams v. Fermenta Animal Health Co., 984 F.2d 261, 266 (8th Cir.1993). Because we do not believe that this isolated remark affectеd the jury‘s verdict, we conclude that it, too, was harmless error. See City of Malden v. Union Elec. Co., 887 F.2d 157, 164 (8th Cir.1989) (“[d]efense counsel‘s comments were brief and were made in the context of a lengthy closing argument“).
V.
Because we affirm the judgment in favor of Cameron, we need not address Ms. Cochenour‘s argument regarding the proper standard of proof for punitive damages under the Missouri Human Rights Act.
For the foregoing reasons, we affirm the judgment of the trial court.
JOHN R. GIBSON, Circuit Judge, concurring specially.
I concur in the result the court reaches today, and in all of this opinion except Part IV, which holds the district court erred in refusing to allow Cochenour‘s attorney to comment on the policy of mandatory retirement at age 72 for all employees. Cochenour was 47 when terminated, and planned to retire at age 50. The policy for 72 year-olds was sufficiently irrelevant to the issues being tried that I cannot conclude the district court abused its discretion in this ruling.
Certainly, the ruling was harmless, but I do not believe it was error.