ROSEMARY LEDET, Judge.
The defendant, Jabari Williams, was convicted of second degree murder and sentenced to life imprisonment. In State v. Williams, 13-0283 (La.App. 4 Cir. 4/23/14), 137 So.3d 832 ("Williams I"), we affirmed Mr. Williams' conviction and sentence. In State v. Williams, 14-1231 (La. 1/16/15), 157 So.3d 1128 ("Williams II"), the Louisiana Supreme Court denied Mr. Williams' application for supervisory writ.
In Williams v. Louisiana, 579 U.S. ___, 136 S.Ct. 2156, ___ L.Ed.2d ___, 2016 WL 3369515 (2016) ("Williams III"), the United States Supreme Court (the "Supreme Court") granted Mr. Williams' petition for a writ of certiorari, vacated this court's judgment in Williams I, and remanded the case to this court for further consideration in light of Foster v. Chatman, 578 U.S. ___, 136 S.Ct. 1737, 195 L.Ed.2d 1 (2016). In Foster, the Supreme Court reversed a defendant's capital murder conviction based on a Batson violation.
On remand, we entertained additional oral and written argument from Mr. Williams and the State. For the reasons that follow, we reinstate Mr. Williams' conviction and sentence.
This court set forth in detail the facts of the underlying crime for which Mr. Williams was convicted in Williams I.
In August 2011, the State indicted Mr. Williams for second degree murder. He pled not guilty. In June 2012, a jury trial was held in this matter. During jury selection, the parties questioned potential jurors across two panels and, following the voir dire of each panel, exercised cause and peremptory challenges. Back strikes were not allowed. (A minute entry reflects that both Mr. Williams and the State excused a total of eleven jurors and that six jurors were excluded for cause.)
At the end of the voir dire of the first panel, the State exercised six of its twelve peremptory challenges. In response, the defense made its first Batson challenge. The basis for this challenge was that the six potential jurors the State used its peremptory challenges to strike were all African Americans — "black male or female."
At the end of the voir dire of the second panel, the State exercised five of its remaining six peremptory challenges to strike the following potential jurors: Mr. West, Ms. Carter, Mr. Washington, Mr. Jackson, and Ms. Ballard. In response, the defense raised its second Batson challenge, noting that all five excused jurors were African-Americans. The following colloquy ensued:
The State the provided reasons as to Ms. Carter and Mr. Jackson, stating:
After the State provided reasons as to Ms. Carter and Mr. Jackson, which the district court found acceptable, the defense attorney requested race-neutral reasons for the other three jurors — Mr. West, Mr. Washington, and Ms. Ballard (the "Challenged Three Jurors"). The following colloquy occurred:
The district court thus denied the second Batson challenge.
Following a two-day trial, the jury unanimously found Mr. Williams guilty as charged. The district court sentenced Mr. Williams to life imprisonment without benefit of parole, probation, or suspension of sentence. See La. R.S. 14:30.1(B) (providing that the mandatory sentence for second degree murder is "life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.").
As noted at the outset, this case is presently before us on remand from the Supreme Court for further consideration in light of the Foster case. Shortly after it handed down its decision in the Foster case, the Supreme Court issued a trio of "GVRs" in three pending writ applications-one from Louisiana, one from Alabama, and one from Mississippi — Williams III, supra; Flowers v. Mississippi, 579 U.S. ___, 136 S.Ct. 2157, ___ L.Ed.2d ___ (2016); and Floyd v. Alabama, ___ U.S. ___, 136 S.Ct. 2484, ___ L.Ed.2d ___ (2016).
"GVR" is the Supreme Court's acronym for its "practice of granting certiorari, vacating, and remanding for further consideration in light of some intervening development." Does 1-7 v. Round Rock Indep. Sch. Dist., 540 F.Supp.2d 735, 748 (W.D.Tex.2007) (citing Carter v. Johnson, 131 F.3d 452, 457 (5th Cir.1997)). The Supreme Court generally uses the GVR device when it believes that "the lower court should give further thought to its decision in light of an opinion of this Court that (1) came after the decision under review and (2) changed or clarified the governing legal principles in a way that could
A GVR is not a decision on the merits. Diaz v. Stephens, 731 F.3d 370, 378 (5th Cir.2013) (citing Kenemore v. Roy, 690 F.3d 639, 642 (5th Cir.2012); and Tyler v. Cain, 533 U.S. 656, 666, n. 6, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001)). A GVR thus "does not bind the lower court to which the case is remanded; that court is free to determine whether its original decision is still correct in light of the changed circumstances or whether a different result is more appropriate." Kenemore, 690 F.3d at 642.
Although a GVR is not a full blown opinion, the GVR in Williams III was accompanied by both concurring and dissenting opinions. The concurring opinion was authored by Justice Ginsburg, who was joined by three other justices (Justices Breyer, Sotomayor, and Kagan). The concurring opinion identified the issue presented in this case as whether a Louisiana procedural rule can be reconciled with the Supreme Court's Batson jurisprudence. The Louisiana procedural rule — codified in La.C.Cr.P. art. 795(C) — allows judge-supplied, as opposed to prosecutor — supplied, race-neutral reasons at step two of the Batson analysis if "the court is satisfied that such reason is apparent from the voir dire examination of the juror." La.C.Cr.P. art. 795(C).
The concurring opinion emphasized the Louisiana Supreme Court's acknowledgement in State v. Elie, 05-1569 (La. 7/10/06), 936 So.2d 791, that the Louisiana procedural rule violates the Supreme Court's Batson jurisprudence.
The dissenting opinion in Williams III was authored by Justice Alito, who was joined by Justice Thomas. The dissenting opinion noted that whether Mr. Williams is entitled to relief based on a step two Batson violation — as the concurring opinion suggests and Mr. Williams contends — has nothing to do with Foster, which was a step three Batson case. The dissenting opinion also incorporated by reference the reasons the author, Justice Alito, set out in his dissenting opinion in Flowers, supra. In his dissenting opinion in Flowers, Justice Alito pointed out that Foster did not change the standards set forth in Batson "one iota." Flowers, 579 U.S. at ___, 136 S.Ct. at 2158 (Alito, J., dissenting). As a result, he noted that the GVRs in the trio of cases were, in actuality, improper remands to reconsider the Batson issue anew.
Echoing the concurring opinion in Williams III and the dissent in Williams
In his dissent in Williams I, Judge Belsome reasoned that "[i]t is clear from the trial court's statements that it found a prima facie case of racial discrimination. The burden then shifted to the State to present race-neutral explanations for the strikes." Williams I, 13-0283 at p. 1, 137 So.3d at 859 (Belsome, J., dissenting). Continuing, Judge Belsome stated:
Williams I, 13-0283 at pp. 2-3, 137 So.3d at 859 (Belsome, J., dissenting).
The State, in its brief on remand, counters that the district court never went beyond step one. The district court, at step one, found that Mr. Williams failed to make a prima facie showing of purposeful discrimination. Thus, the burden of production never shifted to the State to articulate race-neutral reasons for its peremptory challenges in step two of the Batson analysis; and the district court did not err in refusing to require the State to articulate race-neutral reasons for the Challenged Three Jurors. Indeed, the State emphasizes that Mr. Williams, in his original brief in Williams I, conceded that the district court found that he had failed to make a prima facie showing of purposeful discrimination. We agree.
At the outset, we note that the Batson issue presented here pertains solely to the Challenged Three Jurors — the ones who race-neutral reasons were not provided for by the prosecutor. We further note that this case presents solely a step one Batson issue. Before addressing that step one issue, however, we find it appropriate to explain why we find the following three issues are not before us: (i) a step three Batson issue, as presented in Foster; (ii) a step two Batson issue, as presented in Elie; and (iii) a moot step one Batson issue, as presented in Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991).
Although the Supreme Court's GVR mandated we reconsider this case in light of Foster, the Supreme Court in Foster did not change the applicable principles for analyzing a Batson claim. Instead, the Supreme Court in Foster reaffirmed the teaching of Batson. The Supreme Court reiterated the well-settled principle that "[t]he `Constitution forbids striking even a single prospective juror for a discriminatory purpose.'" Foster, 578 U.S. at ___, 136 S.Ct. at 1747 (quoting Snyder, 552 U.S. at 478, 128 S.Ct. at 1208). The Supreme Court also reiterated the three-step process enumerated in Batson for determining whether a strike is discriminatory.
Pigeonholing Foster as a step three case, the Supreme Court noted the parties agreed that the defendant had demonstrated a prima facie case (step one) and that the prosecutors had offered race-neutral reasons (step two). The Supreme Court thus expressly confined its analysis to step three. Applying the well-settled Batson principles, the Supreme Court reversed the defendant's capital murder conviction, reasoning that the State's "[t]wo peremptory strikes on the basis of race are two more than the Constitution allows." Foster, 578 U.S. at ___, 136 S.Ct. at 1755.
Unlike in Foster, this case does not present a fact-intense step three issue, rather, this case presents a step one issue as to whether the district court erred in finding that Mr. Williams failed to establish a prima facie case of discrimination as to the Challenged Three Jurors.
This case also is distinguishable from Elie, which addressed a step two Batson issue. In Elie, the district court found that the defendant had demonstrated a
As former Chief Justice Kimball stated in her dissent in Elie, "[t]he trial court's statements after defendant raised the Batson challenges make it clear that it found defendant established a prima facie case of racial discrimination and, thereafter, the burden shifted to the prosecutor to present race-neutral explanations for the strikes." Elie, 05-1569, p. 3, 936 So.2d at 804 (Kimball, J., dissenting). Unlike in Elie, and contrary to Judge Belsome's suggestion in his dissent in Williams I, the district court's statements on the record during voir dire in this case do not support a finding that it found a prima facie case and proceeded to step two. To the contrary, the district court refused to do so. As the district court put it, "I'm not providing them. But I'm not allowing — I'm not making them provide them." Thus, the district court's analysis of the Batson challenge as to the Challenged Three Jurors never proceeded past step one.
The Supreme Court in the Hernandez case enunciated the procedural rule that when the prosecutor supplies race-neutral reasons, the step one issue of whether the defendant has made a prima facie case is moot. Mr. Williams raised the Hernandez procedural rule — mootness of a step one analysis when a step two analysis has occurred — in his reply brief in Williams I; he argued that "[t]he inquiry at this point
Although the district court required the prosecutor to provide race-neutral reasons for two of the five jurors that the State struck in the second voir dire panel, each Batson challenge must be addressed separately. See State v. McElveen, 10-0172, p. 61 (La.App. 4 Cir. 9/28/11), 73 So.3d 1033, 1073 (holding that "where the initial disparate pattern of strikes has been shown to be unrelated to any intent on the part of the prosecutor, the defendant is required to make a second prima facie analysis as to any subsequent strikes"); see also People v. Rodriguez, 351 P.3d 423, 429 (Colo.2015) (noting that "[t]o determine whether we can conclude that either strike violated Batson, we evaluate the adequacy of the trial court's findings with respect to Ms. D. and Ms. A. separately"). Neither the prosecutor nor the district court provided race-neutral reasons for the Challenged Three Jurors. Indeed, the district court, as noted above, expressly refused to order the prosecutor to do so or to do so itself. Thus, this is not a case in which step one of the Batson analysis was rendered moot by the prosecutor being asked to, or volunteering to, supply race neutral reasons.
Summarizing, we find this case presents neither a fact-intense step three issue, like Foster, nor a constitutional step two issue regarding the district court applying the Louisiana procedural rule allowing judge-provided race-neutral reasons, like Elie. Rather, this case presents a step one issue of whether the first Batson step — a prima facie case of discrimination — was met as to the Challenged Three Jurors.
In its Batson jurisprudence, the Supreme Court has repeatedly referred to the prima facie showing in step one as "a hurdle the party making a Batson challenge must clear before the striker is required to proffer any explanation for the challenged strikes." United States v. Stewart, 65 F.3d 918, 924 (11th Cir.1995). Step one has also been described as placing "a burden of production or of `going forward' on the defendant." State v. Green, 94-0887, p. 24 (La. 5/22/95), 655 So.2d 272, 287.
To make a prima facie case of discrimination, Batson sets forth a combination of three elements that the challenging party, here the defendant, must establish. Those three elements are as follows: (1) the defendant must demonstrate that the prosecutor's challenge was directed at a member of a cognizable group; (2) the defendant must then show the challenge was peremptory rather than for cause; and (3) finally, the defendant must show circumstances sufficient to raise an inference that the prosecutor struck the prospective juror on account of race. State v. Nelson, 10-1724, 10-1726, pp. 9-10 (La. 3/13/12), 85 So.3d 21, 29 (citing Batson, 476 U.S. at 96, 106 S.Ct. at 1723).
Explaining the significance of a defendant clearing the step one Batson hurdle, the Louisiana Supreme Court in State v. Sparks, 88-0017, pp. 37-38 (La. 5/11/11), 68 So.3d 435, 468-69, noted that "[t]he inference is `necessary' because if such an inference cannot be drawn from the evidence
In this case, the first two elements of a prima facie case are undisputed. The prosecutor's peremptory challenges were directed at members of a cognizable racial group. The challenges were peremptory rather than for cause. Hence, the sole issue is whether the third element required to make a prima facie case was satisfied — whether Mr. Williams established sufficient circumstances to warrant an inference of a discriminatory purpose for the State's strikes.
"No formula exists for determining whether the defense has established a prima facie case of purposeful racial discrimination." State v. Jacobs, 99-0991, pp. 1-2 (La. 7/16/01), 803 So.2d 933, 958 (on reh'g). Addressing this issue, the Supreme Court in Batson stated that "a prima facie case of discrimination can be made out by offering a wide variety of evidence, so long as the sum of the proffered facts gives `rise to an inference of discriminatory purpose.'" 476 U.S. at 94, 106 S.Ct. at 1712. Providing further guidance on this issue, the Supreme Court in Johnson instructed that it "did not intend the first step to be so onerous that a defendant would have to persuade the judge — on the basis of all the facts, some of which are impossible for the defendant to know with certainty — that the challenge was more likely than not the product of purposeful discrimination." 545 U.S. at 170, 125 S.Ct. at 2413. Rather, "a defendant satisfies the requirement of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Id.
In reviewing a Batson challenge, courts have examined relevant numeric
In Miller-El, the Supreme Court found the statistical evidence alone supported a finding of discrimination, explaining:
Miller-El v. Cockrell, 537 U.S. 322, 342, 123 S.Ct. 1029, 1042 (2003). In contrast to the statistical evidence in Miller-El, Mr. Williams' statistical evidence consists solely of the fact the State used eleven of its twelve peremptory challenges to strike African-American jurors, which he contended established a pattern. He simply argued, quoting Foster, supra, that the State's pattern of exclusively challenging African-American jurors "plainly demonstrates a concerted effort to keep black prospective jurors off the jury." Mr. Williams thus failed to provide a context for his statistical-pattern argument.
A similar statistical-pattern argument was made by the defendant in State v. Holand, 10-0325 (La.App. 4 Cir. 4/18/11), 64 So.3d 330, writ granted, 11-0974 (La. 11/18/11), 125 So.3d 416.
The jurisprudence thus holds that bare statistics alone, without any context, are insufficient to support a prima facie case of discrimination. See Duncan, 99-2615 at p. 14, 802 So.2d at 544; see also United States v. Chinchilla, 874 F.2d 695, 698 (9th Cir.1989) (noting that "[t]here is no magic number of challenged jurors which shifts the burden to the government to provide a neutral explanation for its actions."). This is because "the value of numbers alone, without any indication of the race or gender composition of the jury selected or the pool from which it was drawn, is limited at best." State v. Mason, 47,642, p. 20 (La. App. 2 Cir. 1/16/13), 109 So.3d 429, 441 (citing Holand, supra).
Here, Mr. Williams failed to come forward with facts or context, beyond the bare number of African-Americans the prosecutor struck, to develop a record to support the asserted Batson violation. Indeed, in his brief on remand, he acknowledges that "[t]he record does not contain evidence of the races of any of the jurors questioned, including those who ultimately sat on Mr. Williams's jury." It is thus impossible to make a valid statistical analysis of the stricken jurors. This factor does not support a prima facie case.
The Supreme Court in Miller-El noted that comparative juror analysis — "side-by-side comparisons of some black venire panelists who were struck and white panelists [who were] allowed to serve" — are "[m]ore powerful than the bare statistics." 545 U.S. at 232, 125 S.Ct. at 2319. Louisiana courts, likewise, have recognized that "[t]he comparison of the treatment of the potential jurors of different races is essential to the establishment of the initial prima facie case." State v. Trotter, 37,325, p. 13 (La.App. 2 Cir. 8/22/03), 852 So.2d 1247, 1254 (citing State v. Harris, 01-0408 (La.6/21/02), 820 So.2d 471, 476).
Here, however, Mr. Williams acknowledges that the meager record on the racial composition of the jury and the jury venire precludes a comparative juror analysis. Indeed, he concedes, in his brief on remand, that the record on this point "renders it impossible for the defense to compare the answers of the stricken African-American jurors against the answers of similarly-situated white jurors who were not challenged."
Nonetheless, in his brief on remand, Mr. Williams suggests that the record is sufficient to establish that the State struck at least one of the Challenged Three Jurors — Ms. Ballard — in a discriminatory matter.
Mr. Williams' argument regarding Ms. Ballard seeks to make a comparative analysis of a stricken venire person's response to the response by another stricken venire person. This is not an appropriate comparative juror analysis;
The Supreme Court in Miller-El also considered the "contrasting voir dire questions posed respectively to black and non-black panel members." 545 U.S. at 233, 125 S.Ct. at 2321. Mr. Williams cites the fact that the State "barely engage[d] in questioning" of the Challenged Three Jurors as suggesting a discriminatory purpose. Again, as with the comparative jury analysis, the meager record in this case makes it impossible to compare the extent of questioning by the prosecutor on voir dire of the Challenged Three Jurors with the questioning of similarly-situated Caucasian jurors. This factor thus does not support a prima facie case.
In reviewing a trial court's finding that a defendant failed to establish a prima facie case, the following principles apply:
State v. Johnson, 50,005, pp. 17-19 (La. App. 2 Cir. 8/12/15), 175 So.3d 442, 45556 (internal citations omitted).
Applying these principles, we find no error in the district court's finding that Mr. Williams failed to make a prima facie case that the State exercised its peremptory challenges to strike the Challenged Three Jurors on the basis of race. Mr. Williams failed to produce sufficient evidence to allow the district court to draw an inference of purposeful discrimination. During the voir dire of the second panel, defense counsel's sole ground for making a Batson challenge was the prosecution's pattern of strikes — eleven of its eleven strikes (100%) against African Americans. The district court rejected this argument, finding no pattern and thus no prima facie case of discrimination.
Despite its finding that there was no pattern, the district court extended its Batson step one analysis to consider whether any other circumstances might support a finding of a prima facie case. In so doing, the district court noted there were apparent reasons for the State to strike the Challenged Three Jurors. As we noted in Williams I, the record reflects that the apparent reasons the district court alluded to regarding the Challenged Three Jurors were as follows: "[Mr.] West said he did not approve of police lying to a suspect. [Mr.] Washington said police have been known to `trick' defendants into confessing. [Ms.] Ballard said [s]he served on a jury but could not recall any details." 13-0283 at 24, 137 So.3d at 851, n. 17. The apparent reasons were based on the district court's observations while conducting voir dire.
The district court's consideration of the apparent reasons for the State striking the Challenged Three Jurors falls within the ambit of considering "all relevant circumstances" when determining whether, for purpose of step one, an inference of discrimination is established. See United States v. Stephens, 421 F.3d 503, 515-16 (7th Cir.2005) (noting that "courts considering Batson claims at the prima facie stage may consider apparent reasons for the challenges discernible on the record, regardless of whether those reasons were the actual reasons for the challenge" and citing Mahaffey v. Page, 162 F.3d 481, 483 n. 1 (7th Cir.1998)). We find no error in the district court's consideration of the apparent reasons in confirming its determination that Mr. Williams failed to establish a prima facie case.
As discussed earlier, this case is distinguishable from the Elie case. In the Elie case, the district court found the defendant established a prima facie case as to all the challenged jurors; the district court then proceeded to step two and itself offered race-neutral reasons for some of the jurors, as opposed to requesting the prosecutor provide such reasons. See La.C.Cr.P. art. 795(C). Unlike in the Elie case, the district court in this case never went beyond step one. When the district court finds the defendant failed to establish a prima facie case of discrimination (step one), the Batson analysis terminates; the
For the forgoing reasons, the defendant's conviction and sentence is reinstated.
BELSOME, J., dissents with reasons.
BELSOME, J., dissents with reasons.
I respectfully dissent from the majority's finding that the defendant failed to make a prima facie showing of intentional race-based discrimination in its Batson challenge.
As the majority acknowledged, the defendant must establish three elements to make a prima facie showing of purposeful discrimination: the prosecution's strike was directed at a member of a "cognizable group," the strike was peremptory, and the circumstances surrounding the strike gave rise to an inference that the venireperson was struck because of his or her membership in the cognizable group. The majority concedes that the first two requirements have been established, but asserts that the defendant failed to establish the third element
While the majority finds that the "meager" record does not support that the defendant made a showing of purposeful discrimination, I find that the evidence is sufficient to give rise to such an inference. A pattern of race-based discrimination was established when all eleven peremptory strikes utilized by the State during jury selection were against African American persons. This pattern, coupled with the trial court's requirement that the State provide race-neutral reasons for eight of the eleven peremptory strikes, creates an inference of purposeful discrimination sufficient to advance the Batson challenge inquiry to the second step.
The Louisiana Supreme Court has held that a pattern of peremptory strikes by the State against "members of a suspect class" can give rise to an inference of intentional discrimination.
However, as the United States Supreme Court has stated, the bar is not set high for making a prima facie showing of intentional
While such a pattern alone may not be sufficient to establish an inference of purposeful discrimination, when the pattern is coupled with additional evidence of racially motivated discrimination such an inference can be made. The pattern here whereby only African Americans were struck from the venire, along with the trial court's request that the State provide race-neutral explanations for eight of the eleven strikes supports an inference of intentional discrimination sufficient to move the Batson challenge analysis to step two.
The voir dire transcript indicates that when the defendant challenged the State's final five peremptory strikes the trial court required the State to justify two of the strikes and then went on to improperly provide its own reasons for the strikes against the remaining three potential jurors. As the Louisiana Supreme Court has stated, "a trial judge's demand that a prosecutor justify his use of peremptory strikes is tantamount to a finding that the defense has produced enough evidence to support an inference of discriminatory purpose."
For these reasons, I dissent from the opinion. Therefore, I would vacate the defendant's conviction and remand for a new trial.
Foster, 578 U.S. at ___, 136 S.Ct. at 1747 (quoting Snyder, 552 U.S. at 476-77, 128 S.Ct. at 1207 (internal quotation marks and brackets omitted)). The Louisiana Legislature codified Batson by enacting La. C. Cr. P. art. 795(C), which provides as follows:
Id., 579 U.S. at ___, 136 S.Ct. at 2158-59.
Well, just let me say this: I am concerned the state has challenged eight African-Americans, black jurors. I'm not saying that that's a valid Batson challenge, but I do believe it at least gets us-as you say, Mr. Traylor, bottom numbers, it gets us to (sic) past the threshold. So I am going to the next stage. I would like for you to explain your race-neutral reasons for challenging the jurors. And I will assist you in that regard because there are several to me that were obvious. One of which is Ms. Kathleen Cage, Ms. Linda Tyler, and Mr. Germaine Jacobs. So I will accept the race-neutral reasons for the three of them. I will ask you to give me a race-neutral reason for Dimitria Johnson, Ylanda Jordan[,] Tremayne King, Marilyn Sterling, and Gloria Zeno.
State v. Elie, 04-1610, pp. 4-5 (La.App. 1 Cir. 3/24/05), 899 So.2d 689, 693, rev'd, 05-1569 (La. 7/10/06), 936 So.2d 791.
