Lead Opinion
Duvalle Rene Minor and Robert Anthony Clayton were jointly indicted, tried, and convicted of armed robbery and criminal attempt to commit armed robbery Following the denial of their motions for a new trial, they appealed their convictions to this Court, and in a consolidated opinion in Minor v. State (“Minor I”),
Relevant Facts
As noted in the earlier appeal, the voir dire was not transcribed, but the record reflects that the State exercised nine strikes, six against African-American people and three against white people, and the resulting jury was composed of two African-American jurors and nine white jurors. After defense counsel
The State gave as its reasons for striking Juror No. 31 as follows:
[The juror] has a conviction for theft by receiving. This is a theft-related case. [The juror] also has gold teeth. Now, that’s not a definitive factor, but the fact of the matter is, in general, when I see jurors who have gold teeth that’s — I just don’t like that so I don’t think that’s race. If they were white and had gold teeth I would have the same reaction. But it’s primarily the theft, the fact that he has a theft of a motorcycle, that charge.
Defense counsel then countered that the alleged theft charge was actually a misdemeanor criminal damage charge, and he began to challenge the State’s proffered gold-teeth rationale when the trial court cut him off:
DEFENSE COUNSEL: Your Honor, I believe it was clear that it wasn’t a theft.... He was charged with misdemeanor criminal damage. It wasn’t a felony that was knocked down to a misdemeanor. It started as a misdemeanor, and I don’t see the issue there. Regarding gold teeth —
TRIAL COURT: I’m not impressed by the gold[-]teeth argument. I’m not impressed by his gold[-]teeth argument.
DEFENSE COUNSEL: Neither am I, and neither was — I believe his name was David, on record. It was a case I tried with Mr. Knighton —
TRIAL COURT: Okay. Let’s not go there. I said I’m not going to accept the [State’s] gold[-]teeth argument.[6 ] Do you want to talk me out of it?
DEFENSE COUNSEL: You say you’re not impressed with it. I’m good with that.
TRIAL COURT: No, he was charged with a theft. This was an interesting jury, quite frankly. An interesting jury panel — and we do have some folks on there who have had some charges, because there just wasn’t any way for everybody — to get everybody off. But I do find it to be race neutral. And the last strike was of a white female. So I deny the Batson [cjhallenge.
In Minor I, this Court held that the above colloquy showed that the trial court failed to allow defense counsel to fully articulate “that the prosecution’s strike based on Juror No. 3 l’s gold teeth arose from a racial stereotype,” so the record was incomplete with respect to the requisite findings under Batson.
remand[ed] the case in order to permit the defense to [fully explain its argument that the strike was racially discriminatory] and to allow the trial court to make findings under Batson . Should the trial court determine that the State did not fulfill its burden to provide racially-neutral reasons, a new trial is in order. Should the trial court determine that no Batson violation occurred, appellant’s convictions will remain in effect.8
On remand, the trial court held a hearing in which she limited the argument to address only the gold-teeth rationale as to Juror No. 31, and defense counsel outlined their objections. Defense counsel explained that the State’s gold-teeth rationale was a race-based stereotype of African-American culture, and the State’s reliance on Juror No. 31’s alleged involvement in the theft of a motorcycle was merely a pretext for the State’s explicitly race-based strike. The State responded by restating that its rationale was based on both the juror’s criminal history and the fact that he had gold teeth. The prosecutor explained:
My recollection is actually... it was actually gold teeth. I think it was his entire mouth. I don’t believe that is race related. I think it’s something that you choose. You go to the dentist. You decide what you want. You get that cosmetic.
I think around the time period of this trial... there [was] Ryan Lochte at the Olympics put on the gold teeth[,] and there was this attitude or there were these other people who were wearing this. I don’t think it’s race related. I don’t consider it race related.
And for me, the gold[-]teeth issue is similar — there are a lot of people who have a, I guess, an interest^] and they’ll [dye] their hair blue or they’ll [dye] their hair red. There are people who wear nose rings or have eyebrow rings. I don’t think that. . . makes them a bad person, but I think what it says to them is they are purposely setting themselves apart. They’re being iconoclastic. They want to look different from the normal per son_[T]hat is telling me ... a little bit about the thinking of that person. . . . And that, in combination with the fact that he was arrested for felony theft of a motorcycle and was pled down to theft by receiving of a motorcycle, forms a picture for me of that juror and what is going on in his mind. ... It has nothing to do with race.
On rebuttal, defense counsel reiterated the argument that gold teeth are a stereotype associated with the African-American community.
Based on the State’s explanation, the trial court held that the State’s reasons for striking Juror No. 31 were race neutral. With respect to the gold-teeth argument, the trial court made no express findings as to whether having gold teeth was a race-based stereotype,
Legal Analysis
The analysis of a Batson challenge involves a three-step process: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven [the proponent’s] discriminatory intent.9
The focus of this case is on step two of the Batson process. Rulings made at this step
are entitled to no deference [on appeal]. There are numerous appellate decisions ruling as a matter of law that proffered explanations were or were not race-neutral. Therefore, in practice, appellate review after a step two ruling is de novo.. .. [0]ur review of rulings at stage two is analogous to our rulings on motions for summary judgment or to our former rulings on demurrers in common law.10
With respect to the State’s burden at step two as the proponent of the strike, the State
need only articulate a facially race-neutral reason for the strike. Step two does not demand an explanation that is persuasive, or even plausible. At this second step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.11
It is well settled that, at least in the context of a criminal trial, “[a] prospective juror’s criminal history is an adequate race-neutral reason to” exercise a peremptory strike.
Nevertheless, also at step two of the Batson process, the State explicitly relied on the fact that Juror No. 31 had gold teeth in his “entire mouth.” “Our precedent states that an explanation is not racially neutral if it is based upon either a characteristic that is specific to a racial group or a stereotypical belief that is imputed to a particular race.”
Because articulating a racial stereotype is not facially race-neutral, the State failed to meet its burden at Batson step two to articulate a facially race-neutral reason for the strike, even if the State attempted to rationalize its reason in purportedly race-neutral terms.
Having determined that the State’s reliance on the juror’s gold teeth did not satisfy its burden at step two of Batson , we next look at whether having an alternative reason for the strike (the juror’s criminal history) saves the strike. In this circumstance, Georgia law holds that a Batson violation results from a race-based reason even if it is accompanied by a race-neutral reason. In Rector v. State,
Accordingly, the trial court erred by finding there was no Batson violation, and we therefore reverse the trial court’s judgment denying the motions for new trial filed by Minor and Clayton.
Judgments reversed.
Notes
This Court held that two other Batson challenges made by Clayton were without merit. See Minor,
The Batson motion was first announced by Clayton’s trial counsel, but Minor’s counsel participated in the argument, and both joined the motion. For purposes of this appeal, we treat their Batson arguments jointly.
Arrington v. State,
(Emphasis supplied.)
Minor,
(Punctuation omitted.) Minor,
(Punctuation omitted.) Toomer v. State,
(Punctuation omitted.) Goldberg v. State,
(Punctuation omitted; emphasis supplied.) Toomer,
Jackson v. State,
(Punctuation omitted.) Floyd v. State,
Dukes,
As noted above, the State argued in part that Olympic swimmer Ryan Lochte’s notorious display of a “grill” during the 2016 Summer Olympics shows that white people also have gold teeth because Lochte is white. But the fact that afashion idiom has developed in popular culture does not negate its stereotypical nature, even when applied with an ostensibly positive or celebratory intent. The State also argues that the gold teeth were comparable to unusual adornment, such as an eyebrow ring, citing Chandler v. State,
See Rector,
The fact that a racial stereotype is intended to describe only a subgroup of a particular race does not make it permissible under Batson. See, e.g., Payton v. Kearse,
The existence of this stereotype was explicitly identified by defense counsel at the original hearing and on remand, and it was implicitly noted by the trial court during the Batson challenge when she immediately interrupted defense counsel as he began to address the State’s gold-teeth rationale and said, “I’m not impressed by the [State’s] gold[-]teeth argument. I’m not impressed by his gold[-]teeth argument .... I’m not going to accept the gold[-]teeth" rationale from the State. (Emphasis supplied.)
See Toomer,
(Emphasis omitted.) Purkett,
Id. at 452 (2).
See id.
(Punctuation omitted.) Id. at 454 (2).
Id. This Court reversed in Rector despite the State’s argument that “having a gold tooth in the front of your mouth is almost a kind of a — I don’t know. It’s kind of cool or something like that. It’s almost a thumb your nose at society kind of thing to me.” Id. at 453 (2).
(Punctuation omitted.) Id. at 454-455 (2). As noted in n. 6, at the initial Batson hearing, the trial court appears to have engaged in an approach adopted in other jurisdictions known as the “dual motivation” or “mixed motivation” analysis. See, e.g., Tokars,
Id. at 667 (1) (c), 667-668 (1) (c), n. 4 (discussing cases collected in Strozier v. Clark,
See Rector,
Dissenting Opinion
dissenting.
Like the majority, when I read the briefs in this case and began to study the case file, I was uneasy with the decision of the State to strike the prospective juror based, in part, on the fact that he had gold teeth. In our racially diverse society, I understand the value in having juries which are selected to settle our civil and criminal matters reflect the diversity of their communities. Thus, I understand why these cases landed in the Court of Appeals to examine whether the State violated Batson v. Kentucky,
Yet, unlike the majority which finds that the State impermissibly relied on a racial stereotype in striking Juror No. 31,1 do not believe that the State’s motivation in striking this juror is so clear-cut. Juror No. 31 had previously been charged with a felony theft, such charge which had been negotiated down to a misdemeanor criminal damage charge to which he pled guilty.
In its opinion, the majority concludes that the State’s decision to strike Juror No. 31 was, essentially, illegal per se.
Had I been the presiding judge in this case, I may very well have not accepted the State’s rationale for exercising this strike. Yet, the trial court judge who both presided at the original jury selection and conducted the hearing on this issue upon remand believed that the State did not discriminate and had a legitimate purpose in striking this juror. Indeed, even the majority concludes in its opinion that the transcript does not reveal any actual racial animosity on the part of the prosecutor.
Let me state clearly that I agree that the use of a racial stereotype to eliminate a potential juror is wrong and, indeed, prohibited by our law. However, I am not prepared to say that such was the situation here under the totality of the circumstances and in light of the trial court’s decision after carefully considering the facts of this case, listening to the prosecutor and his rationale, evaluating his demeanor and his credibility, and considering the genuineness of his character.
Accordingly, I believe that as a court for the correction of errors of law and not for deciding disputed issues of fact, we are bound to accept the conclusion of the trial court that the defendants have not proven a discriminatory intent in the striking of Juror No. 31 and believe that the trial court did not clearly err. I recognize that other trial judges may have reached a different conclusion if faced with these facts at trial; yet, I do not believe that these facts demand a conclusion as a matter of law that the State violated Batson with its use of a peremptory strike to remove this juror.
Accordingly, I hereby dissent.
I am authorized to state that Presiding Judge McFadden, Judge Rickman, and Judge Self join in this dissent.
Apparently, the prosecutor and defense counsel cannot agree as to which charge this juror faced before his plea negotiations, and there is no transcript of voir dire to aid us in our review. Thus, I have relied on the trial court’s conclusion as to this point as found in its order dated March 10, 2015.
The majority cites to this Court’s ruling in Rector v. State,
I note that at no time did the defendants introduce any evidence with regard to the history of gold teeth in the African-American community, discrimination against individuals who have gold teeth, or anything else. The defendants relied solely on their attorneys’ arguments.
Dissenting Opinion
dissenting.
I respectfully dissent. I join fully in Judge Ray’s dissent and expressly associate myself with his reaffirmation of the importance of diverse juries. I write separately to identify what I see as the flaw in the majority’s analysis.
The majority errs in equating a characteristic “specific to” a group with a stereotype about that group. The Oxford University Press dictionary defines “stereotype” in this sense to mean “a preconceived and over-simplified idea of the characteristics which typify a person or thing.” So if an individual prospective juror has a trait about which a party has a genuine non-discriminatory concern, a concern not founded on a stereotype, then a strike is not discriminatory — even if the characteristic is “specific to,” or even part of a stereotype about, a class of which the prospective juror is a member.
For example, assume a hypothetical protected class whose members are stereotyped as belligerent drunkards. Striking a prospective juror for being a member of that class would be discriminatory; but striking a prospective juror for being a belligerent drunkard
In the case before us today, the trial court was authorized to find, as the prosecution argued, that gold teeth — like nose rings, eyebrow rings, and bright blue hair — are a statement of iconoclasm. Conversely, I agree that she would have been authorized to find, as the defense argued, that gold teeth are “commonly associated” with “the black community” See Rector v. State,
So the trial court was authorized to find — and did find — that, in striking a prospective juror because of his gold teeth, the prosecutor was trying to avoid seating iconoclasts, a race-neutral reason unexceptionable under Batson . She would also have been authorized to find that the prosecutor had a discriminatory motive prohibited by Batson . And she would have been authorized to find both motivations mixed together, which, as the majority explains, would also have been a violation of Batson, as it has been construed in Georgia.
Each of those findings would have been sustainable. We remanded so that the trial court could make that determination. She has done so. She accepted the prosecution’s race-neutral explanation, rejected the defense’s claim of a discriminatory intent, and so upheld the strike. And contrary to the majority, she made clear her understanding that in Georgia a mixed motive is a discriminatory motive.
I would affirm.
Dissenting Opinion
dissenting.
I join fully with Judge Ray’s dissent and his view that our previous decision in Rector v. State,
At the time Rector was decided in 1994, the Supreme Court of Georgia required the proponent of a strike to state a “racially neutral, case-related, explanation of the exercise of the challenged strikes” in step two of the Batson analysis. (Emphasis supplied.) Congdon v. State,
At step two, the proponent of the strike need only articulate a facially race-neutral reason for the strike. Step two does not demand an explanation that is persuasive, or even plausible. At this second step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.
(Citations and punctuation omitted; emphasis supplied.) Id.
Keeping in mind the state of the law at the time Rector was decided, an examination of our holding in that case reveals that it turned upon the prosecutor’s failure “to explain how the prospective juror’s gold tooth related in any way to the outcome of the case sub judice and the trial court ruled that she
We nonetheless reversed the trial court in Rector, because it “erred in ruling that other purportedly race neutral explanations cured the element of the stereotypical reasoning employed by the State’s attorney in exercising a peremptory strike.” Rector, supra,
After the Supreme Court’s decision in Purkett, supra, “facial neutrality became paramount.” (Emphasis supplied.) Page, “Batson’s Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge,” 85 Boston Univ. L. Rev. 155,167 (I) (C) (2) (2005). But nowhere in Rector did we consider, much less definitively decide, whether striking an African-American juror based upon gold teeth is facially race-neutral. Instead, we straightforwardly applied the law in effect at the time of our decision. With regard to step two, we summarized the State’s obligation as follows: “ ‘In order for the State to carry its Batson burden, the prosecutor (must) explain his striking of the jurors at issue by articulating a racially-neutral reason related to the particular case.’ [Cit.]” (Citation omitted; emphasis supplied.)
Notwithstanding Rector’s limited precedential value, the majority relies upon this disapproved case to stake out its position and hold for the first time that any party who strikes an African-American juror because he or she has gold teeth can never provide a
The standard for step two of the Batson analysis is not whether an explanation “is a cultural proxy stereotypically associated with [a race].” Instead, “the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory in ten t is inheren t in the prosecutor’s explanation, the reason offered will be deemed race neutral.”
[Ujnusual way[s] to wear jewelry, as well as other unconventional methods of self-adornment in attire, hair style, hair color, shaving the head, jewelry, tattoos, or scarification, may indicate youthful rebellion against authority and convention, or anti-social attitudes, or identification that would extend across gender and racial lines. Such may constitute a race/gender-neutral reason to strike. However, if such matters were shown to be unique to a racial or gender identification, then it could constitute an impermissible explanation. However, such exclusive identification with race or gender would be part of the movant’s ultimate burden of persuasion.
(Emphasis in original.)
In Wooten v. Castro, the Ninth Circuit Court of Appeals addressed a similar issue and resolved it as follows:
The prosecutor’s second explanation was [the juror]’s appearance. The California Court of Appeal[s] adopted the trial court’s finding that this reason was race-neutral. Nonetheless, as noted by the district court, certain parts of the description of [the juror]’s appearance could arguably be seen as “proxies” for describing young African-American males. The description of [the juror]’s appearance, however, is not “peculiar” to his race. Purkett v. Elem,514 U. S. 765 , 769 (115 SCt 1769 , 131 LE2d 834) (1995) (per curiam) (finding race-neutral an explanation that African-American juror was struck because he had long, curly, unkempt hair, a mustache, and beard) .... Thus, while the appearance-related criteria used by the prosecutor to strike [the juror] may disproportionately apply to young, African-American males, it is race-neutral because it is not unique to this group. See Purkett,514 U. S. at 769 .
(Citation omitted.)
With regard to the “stereotypical belief” portion of the step two analysis, courts should examine whether the proffered explanation is based upon a stated stereotypical belief about a certain race or gender. “Belief” is defined as “something that is accepted, considered to be true, or held as an opinion.” Merriam-Webster’s Online Dictionary, https://www.merriam-webster.com/dictionary/belief (website last viewed March 28, 2017). In this case, the State’s explanation for the strike cited a race-neutral observable fact and did not express a belief or assumption about members of the juror’s race or even a subgroup of that race. See generally State v. Weaver,
This disparate impact, however, is relevant to step three of the Batson analysis. As we have already explained in Knuckles, supra, if a facially race or gender-neutral explanation has a disparate impact upon a race or gender “it could constitute an impermissible explanation.”
decide whether the opponent of the strike has proven the proponent’s discriminatory intent in light of all of the circumstances that bear upon the issue of racial animosity. This involves an evaluation of the credibility of the strike’s proponent, which in turn may depend on the specificity and case-relatedness of the explanation for the strike given at step two. The trial court may conclude that a vague explanation, or one that is in no way case-related, signals an unwillingness by the proponent to provide the real reason for the strike. And the proffer of a pretextual explanation naturally gives rise to an inference of discriminatory intent. At the third stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.
(Citations and punctuation omitted.) Toomer, supra,
In this case, the trial court found “that the Defendants did not prove discriminatory intent in the State’s striking of [the juror]. The State provided clear race neutral explanations for the strike.” And in the hearing following this Court’s remand, the trial court acknowledged that it understood that the defense was arguing that the State’s explanation for the strike was pretextual. “Atrial court’s findings on whether the opponent of the strike has met his burden of persuasion is entitled to great deference and will be affirmed unless clearly erroneous.” Barnes, supra,
A trial court’s determination of a Batson challenge rests largely on assessing the attorney’s credibility and state of mind and therefore lies peculiarly within the province of the trial judge. Accordingly, where, as here, [race]-neutral reasons are given, the ultimate inquiry for the trial court is not whether counsel’s reasons are suspect, or weak, or irrational, but whether counsel is telling the truth in his or her assertion that the challenge is not [race]-based.
(Punctuation and emphasis omitted.) Henderson v. State,
While I reach this conclusion based upon existing United States Supreme Court and Supreme Court of Georgia precedent,
4
While the abuse of discretion standard of review was correct based upon the State’s failure to offer the case-related reason for the strike, I note that this standard of review is no longer viable for step two of the Batson analysis. As we explained in a case decided after Purkett, “if a trial court ceases its inquiry after step two, the proffering of allegedly race-neutral reasons, its conclusions are entitled to no deference .... [O]ur revie w of rulings at stage two is analogous to our rulings on motions for summary judgment or to our former rulings on demurrers in common law.” (Citation and punctuation omitted.) Goldberg v. State,
Our conclusion in Rector that other race-neutral explanations for a peremptory strike do not cure an improper explanation at step two of the Batson analysis remains valid.
In considering this question under Batson, the Supreme Court of Georgia has rejected an argument that Georgia should apply “the Georgia Constitution’s equal protection guarantee differently than the equal protection clause in the Fourteenth Amendment to the United States Constitution. . . .” Toomer, supra,
The reasoning of the South Carolina Supreme Court’s decision in Payton v. Kearse,
As the majority acknowledges, the employment discrimination cases cited by it in footnote 16 are inapposite to the issue before us because they do not address the facially race-neutral second step of Batson. While facts excerpted from these opinions by the majority may demonstrate that gold teeth can be associated with African-Americans, that fact is relevant to step three of the Batson analysis, not step two.
Even the majority acknowledges “that nothing in the record demonstrates any actual racial animosity on the part of the prosecutor in justifying his strike.” Maj. op., p. 199, n. 19.
I acknowledge that valid and reasonable criticisms of the efficacy of the Batson analysis abound. See, e.g., Page, supra (“the Batson peremptory challenge framework is woefully ill-suited to address the problem of race and gender discrimination in jury selection”). But despite these shortcomings, the Batson framework remains the law of the land, and this Court must faithfully follow the guidance of the United States Supreme Court and the Supreme Court of Georgia with regard to its application and resist the urge to reformulate the standard despite the best of intentions. Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI (“The decisions of the Supreme Court shall bind all other courts as precedents.”).