I would affirm.
While I agree with the majority that the trial judge had a duty to determine the validity of the prosecutor's race-neutral explanation for his peremptory challenge of prospective juror Bailey, I think that on the state of this record, we should find the trial court's failure to do so harmless error.
In its discussion with trial counsel, as quoted in the majority opinion above, the trial court appears to have invited defense counsel to respond to the prosecutor's reasons for his peremptory challenges of three African-American prospective jurors, and to the prosecutor's objection to defense counsel's peremptory challenges of four white prospective jurors. Defense counsel declined to respond. I think it is reasonably inferable from the record that defense counsel, having had the same opportunity as the prosecutor to observe prospective juror Bailey, agreed with the prosecutor's race-neutral assessment of Bailey's lack of suitability *Page 731 as a juror. As such, the failure of the trial court to determine the validity of the prosecutor's explanation for the peremptory challenge of Bailey was harmless error. The situation here is different from that in Tuck, supra, where the prosecutor did not provide a race-neutral explanation for excusing an African-American prospective juror.
I agree that the appellate record does not permit us to evaluate the validity of the prosecutor's explanation for excusing Bailey because the explanation as to Bailey, unlike that as to Stribling, was based on nonverbal factors, such as body language and facial expression. I think, however, that we can reasonably infer from the silence of defense counsel that he found the prosecutor's explanation valid. Thus, I would conclude that this record does not demonstrate that Robertson was deprived of a fair trial, such deprivation being the second prong of the two-prong Strickland test for ineffective assistance of counsel.
This does not mean that Robertson is without a remedy for ineffective assistance of counsel. For example, in a proceeding initiated by a petition for postconviction relief, Robertson might establish through the affidavit or testimony of his defense counsel that defense counsel did not agree that the prosecutor's race-neutral explanation for excusing Bailey was valid, and that there was no race-neutral basis for excusing him from jury duty. Thus, Robertson does have a means of demonstrating that he was deprived of his constitutional right to a fair trial. In my judgment, however, he has failed to demonstrate such a deprivation from the record on this direct appeal.
APPENDIX IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO CRIMINAL DIVISION STATE OF OHIO, PLAINTIFF, VS. THEOTIS TUCK, DEFENDANT. CASE NO. 91CR-07-4308A. EXCERPTS OF PROCEEDINGS BEFORE THE HONORABLE EVELYN J. STRATTON, JUDGE, ON WEDNESDAY, NOVEMBER 4, 1992. *Page 732
APPEARANCES:
MS. KATHLEEN PETERSON AND MS. JAMIE SCOTT, ASSISTANT PROSECUTING ATTORNEYS,
ON BEHALF OF THE PLAINTIFF, STATE OF OHIO.
MR. ERIC HOFFMAN,
ON BEHALF OF THE DEFENDANT.
WEDNESDAY AFTERNOON SESSION, NOVEMBER 4, 1992. THE COURT: THIS CASE HAS BEEN A MOST DIFFICULT DECISION FOR THIS COURT. UNLIKE MOST VOIR DIRES, THIS COURT DOES HAVE A RATHER VIVID [RECOLLECTION] OF THIS PARTICULAR VOIR DIRE BECAUSE OF THE IMMEDIATE CHALLENGE THAT WAS ISSUED AT THE TIME THAT THE PEREMPTORY WAS EXERCISED AGAINST MR. BROWN AND IN THE ENSUING IN-CHAMBER DISCUSSIONS RESULTING OVER WHETHER A REASON HAD TO BE GIVEN FOR THAT CHALLENGE.
THE COURT COMMITTED TO MEMORY THOSE EVENTS AND MR. BROWN'S ROLE, AS THE COURT SUSPECTED THAT THIS ISSUE WOULD SOMEHOW COME BACK TO HAUNT IT.
THERE ARE TWO COMPELLING INTERESTS HERE. ON ONE SIDE THE DEFENDANT HAS A RIGHT TO A SELECTION OF A JURY FREE FROM BIAS OR PREJUDICE.
ON THE OTHER HAND, COUNSEL HAS A RIGHT TO EXERCISE DISCRETION AND JUDGMENT, SOMETIMES KNOWN AS JUST PURE "GUT FEELING", IN PICKING THE BEST JURY FOR THEIR CASE.
FIRST OF ALL, LET THE COURT REITERATE THAT IT HAS PERCEIVED NO SYSTEM WIDE PATTERN OF RACE DISCRIMINATION. BLACKS CONSTITUTE A SUBSTANTIAL PERCENTAGE OF NEARLY EVERY JURY THIS COURT HAS CONDUCTED. NOR HAS THE COURT EVER KNOWN MR. SHEERAN TO ENGAGE IN ANY OVERT PATTERN OF SINGLE OR SYSTEMATIC DISCRIMINATION IN ANY OF THE CASES BEFORE IT.
OBJECTIVELY, THERE SEEMS LITTLE BASIS FOR THE CHALLENGE TO MR. BROWN. HE WAS A FAMILY MAN, MARRIED, BOTH WORKING, LONG-TIME COLUMBUS RESIDENT. HE ANSWERED THE *Page 733 VERY FEW QUESTIONS PUT TO HIM STRAIGHT AND TO THE POINT. HE GAVE NO ANSWERS OR INDICATIONS THAT HE COULD NOT BE FAIR OR IMPARTIAL. HOWEVER, HE WAS ALSO ASKED VERY FEW QUESTIONS BY EITHER COUNSEL.
SUBJECTIVELY, THE WITNESS FOR THE STATE, MS. JAMIE SCOTT, HAS TESTIFIED THAT HIS UNKEMPT APPEARANCE AND LACK OF ATTENTION CAUSED THEM CONCERN AND LED TO HIS CHALLENGE.
MR. SHEERAN REALLY HAS NO INDEPENDENT RECOLLECTION OF THIS CASE.
THE DANGER THIS COURT MUST GUARD AGAINST IS INVADING THE AREA OF DISCRETION UNDER THE BANNER OF DISCRIMINATION. IN OTHER WORDS, HAD MR. BROWN BEEN WHITE, WOULD HE HAVE BEEN CHALLENGED FOR THE SAME REASONS[?] BUT NOW COUNSEL FEELS CHILLED IN THEIR CHALLENGE TO A BLACK JUROR, LEST IT WOULD BE DEEMED IMPROPER UNDER THE SAME CRITERIA.
THERE MUST BE NO DISTINCTION, NO EXTRA FAVOR OR BENT TOWARDS BLACK[S] BECAUSE THEY ARE BLACK, JUST AS THERE MAY OPPOSITELY BE NO EXTRA FAVOR OR BENT AGAINST A BLACK BECAUSE HE IS BLACK.
IN OTHER WORDS, THEY MUST BE NEUTRAL ON BOTH SIDES. DISCRETION AND GUT FEELINGS ARE NECESSARY TOOLS EMPLOYED BY ALL SKILLED TRIAL LAWYERS.
ALL THAT HAVING BEEN SAID ABOUT DISCRETION, IT FINALLY COMES DOWN TO THIS COURT'S DISCRETION.
AS THE COURT OF APPEALS STATED, THE EXPLANATION — THE ACCEPTANCE OF A RACE-NEUTRAL EXPLANATION IS WITHIN THIS COURT'S DISCRETION TO ACCEPT. SIMPLY THE FACT THAT A RACE-NEUTRAL EXPLANATION WAS PRESENTED IS NOT ENOUGH TO SUPPORT A BATSON CHALLENGE. THE COURT, IN ITS DISCRETION, MUST ALSO ACCEPT THE SAME.
IN THIS CASE WE HAD A SOLE BLACK ON THE PANEL WITH A BLACK DEFENDANT. HE WAS CHALLENGED ON A "GUT FEELING" BASIS WHILE OBJECTIVELY MEETING ALL PROPER CRITERIA.
WHILE THE COURT BELIEVES THAT MR. SHEERAN DID NOT, PERHAPS, CONSCIOUSLY OR DELIBERATELY EXCLUDE MR. BROWN BECAUSE OF RACE, THE INQUIRY DOES NOT END THERE. THE *Page 734 COURT MUST BE A JEALOUS GUARDIAN OF EVEN SUBTLE AND INSIDIOUS FORMS OF DISCRIMINATION.
THE COURT RECALLS ITS CLEAR AND STRONG REACTION AT THE TIME OF THE CHALLENGE.
THE COURT RECALLS NO UNKEMPT NOR DISHEVELED APPEARANCE, NOR ANY UNDUE LACK OF ATTENTION. VERY LITTLE WAS ASKED OF MR. BROWN. HE WAS SIMPLY QUIET.
THE COURT[']S REACTION THEN AND NOW WAS THAT THE REAL REASON FOR HIS CHALLENGE WAS HIS RACE AND THE FEAR HE MIGHT STICK BY ANOTHER OF HIS RACE.
HAD HE BEEN WHITE, THE COURT BELIEVES HE WOULD HAVE REMAINED ON THE JURY AND THAT THOSE OBSERVATIONS WOULD NOT HAVE BEEN A CONCERN. CLEARLY, MR. BROWN AND MS. LEGGET HAD THE SAME REACTION.
AGAIN, THE COURT STRESSES THAT IT DOES NOT BELIEVE THAT IT WAS INTENTIONAL BUT, RATHER, SUBTLE, AND, PERHAPS, [SUB]CONSCIOUS, BUT STILL PERVASIVE AND REAL.
THE COURT STRONGLY BELIEVES THAT THIS WAS AT THE ROOT OF THE CHALLENGE AND FELT SO EVEN THEN. AS SUCH, THE COURT REJECTS THE STATE'S EXPLANATION OF A RACE-NEUTRAL BASIS.
THE PROSECUTOR AT THE TIME CHALLENGED ON THAT BASIS, ARGUED THAT ONLY A PATTERN WAS REQUIRED, NOT A SINGLE CHALLENGE. THIS COURT LEFT THE MATTER FOR THE COURT OF APPEALS TO RESOLVE. THE COURT OF APPEALS HAS HELD THAT ONE CHALLENGE MAY BE ENOUGH IF WRONGFULLY EXERCISED.
AS THAT MATTER IS NOW BEFORE THE COURT, THIS COURT, IN ITS DISCRETION, FINDS THE PROSECUTOR'S EXPLANATION NOT TO BE SUFFICIENTLY RACE-NEUTRAL. ONE CHALLENGE WAS ONE CHALLENGE TOO MUCH.
THEREFORE, THE COURT FINDS UNDER BATSON THAT THE DEFENDANT IS ENTITLED TO A NEW TRIAL.
IF THE PROSECUTION AND DEFENSE COUNSEL WILL PLEASE GET TOGETHER WITH MY BAILIFF TO SELECT A NEW TRIAL DATE. *Page 735
CERTIFICATE I DO HEREBY CERTIFY THE FOREGOING IS A TRUE AND CORRECT EXCE[R]P[T] OF PROCEEDINGS TAKEN BY ME ON NOVEMBER 4, 1992 AND TRANSCRIBED FROM MY STENOGRAPHIC NOTES.
DEBRA CAHILL, ASSISTANT OFFICIAL COURT REPORTER.