DERRICK MINAFEE, Appellant v. THE STATE OF TEXAS, Appellee

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State: Texas

Court: Texas Northern District Court

Docket No: 05-85-00976-CR

Case Date: 12/19/1989

Plaintiff: DERRICK MINAFEE, Appellant

Defendant: THE STATE OF TEXAS, Appellee

Preview:DERRICK MINAFEE, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRMED Opinion Filed December 19, 1989. S In The Court of Appeals Fifth District of Texas at Dallas ............................ No. 05-85-00976-CR ............................ DERRICK MINAFEE, Appellant V. THE STATE OF TEXAS, Appellee ................................................................. On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F85-83432-LI ................................................................. OPINION ON REMAND Before Justices Rowe FN:1 , Kinkeade FN:2 and Ovard FN:3 Opinion by Justice Ed Kinkeade This case is on remand by order of the Texas Court of Criminal Appeals entered on April 8, 1988. The Court directed that the trial court determine whether the prosecutor used peremptory strikes to exclude members of appellant's race from the petit jury in violation of appellant's rights under the Equal Protection Clause of the United States Constitution. The trial court conducted a hearing and concluded that appellant's constitutional rights had not been violated. We agree and affirm the trial court's judgment. PROCEDURAL FACTS Derrick Minafee, an African American, appeals his conviction by an all-white jury for the offense of aggravated robbery. The trial judge assessed punishment at thirty years' confinement. After the trial, the United States Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in which it held that a prosecutor's use of peremptory strikes to purposefully discriminate against African American veniremen violated an African American defendant's rights to equal protection as guaranteed by the United States Constitution. On appeal, appellant contended, inter alia, that the trial court erred in refusing to allow him to question the prosecutor as to why he had used his peremptory strikes to exclude all of the African American veniremen from the petit jury. In an opinion issued on December 15, 1986, this Court affirmed the trial court's judgment, and held that appellant had waived any error under Batson because he failed to make his objection before the jury was sworn and empaneled. Appellant filed this appeal, and the Court of Criminal Appeals vacated this Court's judgment, and remanded the cause with instructions that the trial court make the determinations described in Batson, 476 U.S. at 79. On October 21, 1988, the trial judge conducted a hearing in accordance with the Order of the Court of Criminal Appeals, and determined that appellant failed to establish that the prosecutor had engaged in purposeful discrimination in his use of peremptory strikes. THE BATSON HEARING 1. The Prima Facie Case The Equal Protection Clause forbids a prosecutor from challenging potential jurors on the basis of their race, or on the assumption that jurors who are members of a particular racial group will be unable to impartially consider the State's
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case against a member of their own race. In order to establish a prima facie case of purposeful discrimination in selection of the petit jury, a defendant must show that 1) he is a member of a cognizable racial group, 2) the prosecutor exercised peremptory challenges to remove members of defendant's race, and 3) the facts and circumstances raise an inference that the prosecutor used the practice to exclude veniremen on account of their race. Batson, 476 U.S. at 96. The defendant can rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Once a defendant makes a prima facie showing of purposeful discrimination in selection of the petit jury, the burden shifts to the State to come forward with a neutral explanation for challenging particular jurors. Batson, 476 U.S. at 96-97. The parties do not dispute that appellant is a member of a cognizable racial group, and that the prosecutor exercised peremptory challenges to remove members of his race from the venire. However, in order to establish his prima facie case, appellant must also prove the third component of the test enunciated in Batson, that the facts and circumstances raise an inference that the prosecutor excluded the veniremen on account of their race. In deciding whether appellant has met this burden, the trial court should consider all relevant circumstances. For example, a "pattern" of strikes against African American jurors included in the venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. Batson, 476 U.S. at 97. The record shows that the Honorable Larry Baraka, an African American, presided at appellant's trial. The record further shows that both prosecutors who tried the case are African Americans. Appellant did not complain of the prosecutors' questions or statements. Rather, he claimed that the prosecutor who conducted voir dire examination, Julius Whittier, had exercised his peremptory challenges based "primarily" on race, and had excluded all African American members from the jury panel. After the jury had retired to deliberate on the issue of guilt/innocence, Judge Baraka conducted a hearing to determine whether appellant's claims had merit. Appellant's attorney testified that he had tried cases before with Whittier, and had never known him to exclude African Americans. Whittier testified that he had not excluded the African American jurors on the basis of race. Judge Baraka stated that he was satisfied that the prosecutor had not violated the law in the selection process, and that based on his own observations and experience, he "could see some reasons" other than race that had led Whittier to strike the veniremen. Judge Baraka then denied appellant the opportunity to further question Whittier unless he could produce more than a "mere accusation". Appellant failed to establish a prima facie case of purposeful discrimination, as he did not satisfy the third component of the Batson test. He did not introduce any evidence that Whittier's questions or statements in conducting voir dire examination or in exercising his peremptory challenges give rise to an inference of discriminatory purpose. He did not establish a pattern of peremptory strikes against African Americans, either by Whittier individually or by the Dallas County District Attorney's office. On the contrary, his attorney testified that he had tried many cases with Whittier, and had never known him to exclude African Americans from the jury. The sole basis for appellant's claim of purposeful discrimination is Whittier's use of six peremptory strikes to exclude six African American jurors at appellant's trial. Judge Baraka stated, after a hearing, that he was satisfied that the prosecutor had not struck the six veniremen on the basis of race. Trial judges experienced in supervising voir dire examinations should be able to determine if the circumstances concerning the prosecutor's use of peremptory challenges create a prima facie case of discrimination against African American jurors. Batson, 476 U.S. at 97. Judge Baraka, an African American trial judge experienced in supervising voir dire examinations, made a determination that appellant failed to introduce evidence that would give rise to an inference that the African American prosecutor improperly excluded African American veniremen from the jury. We would agree and hold that appellant failed to establish his prima facie case, and that the State was not required to put on further evidence. However, on remand Judge Baraka conducted a hearing at which the State presented evidence to rebut appellant's claims. Consequently, we will also consider that testimony in determining whether the State engaged in purposeful discrimination. 2. The State's Burden Judge Baraka heard evidence to determine whether the State had a neutral explanation for the exclusion of the black veniremen. At the hearing, Whittier testified that he has developed a profile of individuals that he feels are better suited to make the types of decisions that the State typically asks a juror to make. The factors that he would consider, depending on the circumstances surrounding each case, are the persons's employment, age, background, education, facial expressions, dress, body language, and responses to questions. Whittier further testified that race is not a factor, and to rely on one factor such as race would be "almost suicide". He stated that he had not challenged any of the African American jurors in appellant's trial on the basis of race, and that to do so would have been "a wash", given the fact that appellant was an African American, the two prosecutors in the case were African Americans, and the victim
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himself was an African American. Whittier also testified as to the criteria he had used to evaluate and strike each of the African American jurors. He stated that, at the time of voir dire, he felt that the evidence would conclusively prove appellant's guilt, and that the jurors would not be called upon to make a major decision until the punishment phase of the trial. He stated that four of the jurors were engaged in occupations that did not require major intellectual involvement, and he did not think that they had the experience and background to make the kinds of decisions that they would be required to make. One juror was twenty years of age, the approximate age of appellant at the time of trial, and Whittier thought that juror might empathize with appellant. Another juror was a widowed mother of five, and Whittier felt that, when asked to assess punishment, she might sympathize with the loss of a family member. Whittier also considered factors such as length of employment, religious preference, body language, dress, marital status, and whether or not the juror had completed the juror information card. At the conclusion of the hearing, Judge Baraka stated that the trial court could find no evidence to suggest that the State had struck the jurors due to any racial pattern. We agree with the trial judge, and hold that no evidence exists to suggest that the State engaged in purposeful discrimination in the exercise of its peremptory challenges. The trial court's judgment is affirmed.

ED KINKEADE JUSTICE DO NOT PUBLISH TEX. R. PUBLISH P. 90. 850976.U05

FN:1 The Honorable Gordon Rowe, Justice, succeeded The Honorable Cynthia C. Hollingsworth, Justice, at the expiration of Justice Hollingsworth's term effective December December 3, 1986. Justice Rowe has reviewed the briefs and the record before the court. FN:2 The Honorable Ed Kinkeade, Justice, succeeded the Honorable John L. McCraw, Justice, a member of the original panel, upon Justice McCraw's resignation effective December 18, 1986. Justice Kinkeade has reviewed the briefs and the record before the court. FN:3 The Honorable John Ovard, Justice, succeeded the Honorable Joseph A. Devany, Justice, a member of the original panel, at the expiration of his term effective December 31, 1988. Justice Ovard has reviewed the briefs and the record before the court. File Date[12-18-89] File Name[850976]

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