People v. WilliamsPeople v. Williams
- Reporters:
- ,
- Before:
- MacKenzie
Following a 1984 jury trial, defendant was convicted of armed robbery,
If the trial court decides that the facts establish prima facie purposeful discrimination as defined in Batson, and the prosecutor does not come forward with a neutral explanation for his action, defendant’s conviction must be set aside and defendant granted a new trial. If not, defendant’s conviction is affirmed. Remanded. [Unpublished opinion per curiam, decided May 22, 1987. Docket No. 98787.]
The trial court, on remand, held an evidentiary hearing to determine whether the facts established a prima facie case of purposeful discrimination by the prosecutor. At that hearing, defense counsel established that four blacks were called during jury selection and that, during voir dire, one was excused for cause by the court, two were peremptorily excused by the prosecutor, and one, Mrs. Mabel Davis, was seated and sworn as a juror.
During voir dire, the government could exercise fifteen peremptory challenges,
Now, there has just been no showing whatsoever of any pattern by the prosecutor, any discrimination, purposeful, or any kind of discrimination to eliminate blacks from the jury.
The prosecutor had fifteen preemptory [sic] challenges, this being a capital offense, he only exercised four of the challenges, and allowed one black to remain on the jury, and this Court finds that the Defendant has not met his burden of showing the discrimination, any pattern by the prosecutor as required by the Batson case, so I’m denying the motion.
The parties have cited a number of cases from other jurisdictions dealing specifically with whether the defendant established a prima facie case of discrimination under the
Batson
test. The courts in three of these cases found that the defendant had established a prima facie case of discrimination. In
State v Blackmon,
744 SW2d 482 (Mo App, 1988), the prosecutor used two peremptory challenges to remove two blacks from the venire, leaving no blacks on the panel. In
State v Walton,
227 Neb 559; 418 NW2d 589 (1988), the prosecutor exercised a total of six peremptory challenges. Three of the challenges were exercised against blacks, leaving no blacks on the panel. In
State v Tolliver,
750 SW2d 624 (Mo App, 1988), the prosecutor exercised all six available peremptory challenges to strike four black and two white veniremen, leaving one black juror. Contrary to this Court’s remand instructions in the instant case, the
Tolliver
court required the prosecutor’s explanation for his peremptory challenges
In the remaining four cases, the courts found that the defendants failed to show a prima facie case of discrimination. In Allen v State, 726 SW2d 636 (Tex App, 1987), no blacks were left on the jury when the prosecutor exercised three peremptory challenges to remove three prospective black jurors. Two blacks were left on the jury in United States v Dennis, 804 F2d 1208 (CA 11, 1986), cert den — US —; 107 S Ct 1973; 95 L Ed 2d 814 (1987), when the prosecutor used three of the four peremptory challenges he exercised to remove three blacks on the venire. Two blacks were challenged and two remained on the panel in United States v Montgomery, 819 F2d 847 (CA 8, 1987), where the prosecutor exercised a total of six challenges. Finally, in United States v Porter, 831 F2d 760 (CA 8, 1987), the government challenged one black and left one on the jury.
Numerically, these cases provide very little guidance. The only meaningful observation that can be made is that courts faced with a prosecutor who uses his peremptory challenges to obtain an all-white jury tend to infer discriminatory intent (Allen, supra, is the only exception), while those faced with prosecutors who allow some blacks to remain do not. This observation is supported in Montgomery, supra, p 851:
The fact that the government accepted a jury which included two blacks, when it could have used its remaining peremptory challenges to strike these potential jurors, shows that the government did not attempt to exclude all blacks, or as many blacks as it could, from the jury.
See also Dennis, supra, p 1211. But see Tolliver, supra, p 629.
Further, under the guidelines set forth in Batson, supra, there does pot appear to be either a “pattern” of strikes against members of the venire who are of the same race as defendant nor questions or statements by the prosecutor during voir dire which support an inference of discrimination. The mere fact that the prosecutor used one or more peremptory challenges to excuse blacks from the jury venire is insufficient to make a prima facie showing of discrimination. Porter, supra, pp 767-768. The mere fact that no member of the defendant’s race ended up sitting on the jury is likewise insufficient to make a prima facie showing of discrimination. State v Robbins, 319 NC 465, 494-495; 356 SE2d 279 (1987). Since there was no prima facie purposeful discrimination as defined in Batson, the prosecutor was not required to come forward with a neutral explanation of his exercise of peremptory challenges. We find no error in the trial court’s ruling.
The people argue that because defendant did not make a timely objection to the prosecution’s use of its peremptory challenges he has failed to preserve for appellate review the question whether use of those challenges constituted purposeful discrimination. We agree that a timely objection is necessary to preserve a
Batson
question for appellate review.
Now it is too late for appellants to insist on an explanation they did not request at trial. Cf. Batson, 106 S Ct at 1724-25 (referring to defendant’s “timely objection” to prosecutor’s strike); [United States v] Erwin, 793 F2d [656, 667 (CA 5, 1986)] (“The Court in Batson envisioned that a motion to strike would be made promptly, probably before the venire was dismissed.”). The “timely objection” rule is designed to prevent defendants from “sandbagging” the prosecution by waiting until trial has concluded unsatisfactorily before insisting on an explanation for jury strikes that by then the prosecutor may largely have forgotten. Furthermore, prosecutorial misconduct is easily remedied prior to commencement of trial simply by seating the wrongfully struck venireperson. After trial, the only remedy is setting aside the conviction. Batson, 106 S Ct at 1725. This is an equally important justification for the “timely objection” rule.
See also Allen v State, supra, and United States v Ratcliff, 806 F2d 1253 (CA 5, 1986). Nevertheless, we cannot find the lack of a timely objection dispositive here, since the Supreme Court specifically remanded the case for reconsideration in light of Batson.
Affirmed.