Wallace v. Morrison

United States Court of Appeals,

Eleventh Circuit.

No. 94-6663.

David WALLACE, Petitioner-Appellant,

v.

Jim MORRISON, Respondent-Appellee.

July 17, 1996.

Appeal from the United States District Court for the Southern
District of Alabama. (No. 90-0904-CB-S), Charles R. Butler, Jr.,
Chief Judge.

Before ANDERSON and COX, Circuit Judges, and RONEY, Senior Circuit
Judge.

PER CURIAM:

In this case we hold that dual motivation analysis1 determines

whether a prosecutor violates a defendant's equal protection rights

under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d

69 (1986), when the prosecutor considers both race and race-neutral

factors in exercising a peremptory strike.

I. FACTS AND PROCEDURAL BACKGROUND

In this 28 U.S.C. § 2254 petition, David L. Wallace challenges

his conviction in the Circuit Court of Mobile County, Alabama, for

attempted murder and robbery. He is currently serving a life

sentence without the possibility of parole. Wallace asserts that

the prosecutor violated his rights under the Equal Protection

Clause by exercising the State's peremptory strikes in a racially

discriminatory manner. See Batson v. Kentucky, 476 U.S. 79, 106

1
See Village of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 270-71 n. 21, 97 S.Ct. 555, 566 n. 21, 50
L.Ed.2d 450 (1977); Mt. Healthy Sch. Bd. of Educ. v. Doyle, 429
U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977).
S.Ct. 1712, 90 L.Ed.2d 69.

The trial transcript reveals the following facts. Wallace's

attorney moved for a mistrial at the conclusion of jury selection,

arguing that the prosecution had used its peremptory strikes in a

racially discriminatory manner by striking seven of the nine black

jurors on the venire.2 The trial judge did not explicitly find

that Wallace had met his burden of establishing a prima facie case

of purposeful discrimination under Batson. See id. at 96-98, 106

S.Ct. at 1723-24 (describing each party's burden in determining

whether there was constitutional violation). Still, the court

asked the prosecutor to explain how he decided to strike the black

jurors. The prosecutor offered various reasons for striking the

black jurors that he peremptorily challenged. Wallace's attorney

argued that the prosecutor's explanation of his strikes was not

credible.

The trial judge then asked the prosecutor, "[D]id you consider

race in striking these ones that you struck, the black ones you

struck?" (Resp't's Ex. 1 at R-35.) The prosecutor responded:

Judge, my rating system basically consists of—I go through.
I put a numerical figure of one to ten on the juror based on
a gut reaction. Then I adjust that figure based on the
answers that they give to certain questions. And I also make
notes in red as to what some of those answers are. I then go
down the list and indicate here, based on some of the
responses to questions in their answer to the voir dire,
whether I feel like they would be a State's juror or a defense
juror. Just basically on their demeanor, the way they answer
questions, and the answers to those questions. In this case,
I basically went with the numbers that I had down and I struck
those people that I felt would be most inclined to lean toward
the defense. It was not based on race. Race was a factor
that I considered just as I considered age, just as I

2
The defense struck one black juror, and one black juror was
seated on the jury that convicted Wallace.
 considered their place of employment and so on and so forth.

(Id.) (emphasis added.)

After asking the prosecutor what procedure other judges were

using to address Batson objections,3 the judge asked the

prosecutor, "So, all other things being neutral where there is in

this case black defendants, did the black jurors tend to get a

lower score by virtue of their being black?" (Id. at R-36.) The

prosecutor responded, "No, sir, Judge. The [black] juror struck by

the defense, I intended to leave him on." (Id.) The judge then

heard more argument about Batson 's requirements and denied the

motion for a mistrial.

On direct appeal of his conviction, Wallace argued, among

other things, that the trial court erred in denying the motion for

a mistrial under Batson. The Alabama Court of Criminal Appeals

affirmed Wallace's conviction, finding that the prosecution had met

its burden to produce race-neutral explanations for its strikes.

Wallace v. State, 530 So.2d 849, 852 (Ala.Crim.App.1987). The

Alabama Supreme Court denied Wallace's petition for a writ of

certiorari. Three justices dissented, concerned about whether the

procedure used to address the Batson challenge complied with a

state supreme court decision. Ex parte Wallace, 530 So.2d 861

(Ala.1988). Wallace's collateral attacks on his conviction also

were rejected by the state courts.

The district court denied Wallace's § 2254 petition. Noting

that the prosecutor admitted to the trial judge that race was a

3
Batson was decided less than two months before Wallace's
trial.
factor in using the peremptory strikes, the district court examined

the extent to which Batson restricts the use of race as a rationale

for the exercise of peremptory strikes. The court agreed with the

Second Circuit's analysis and holding in Howard v. Senkowski, 986

F.2d 24 (2nd Cir.1993), that dual motivation analysis should apply

to Batson challenges just as it applies in other areas of the law

when actions are based on both permissible and unconstitutional

motivations. Applying dual motivation analysis, the district court

found that the prosecutor would have struck the black jurors at

Wallace's trial solely for legitimate, race-neutral reasons. Thus,

the court held that the State did not violate Wallace's rights

under Batson.

II. ISSUES ON APPEAL

Three issues have been raised on this appeal: (1) whether a

prosecutor's admission that race was "a factor" in the exercise of

peremptory strikes establishes a Batson violation regardless of

what other factors motivated the strikes; (2) whether dual

motivation analysis applies to Batson claims when peremptory

strikes are based in part on race and in part on legitimate,

non-racial factors; and (3) whether the district court erred in

concluding that the prosecutor satisfied his burden under dual

motivation analysis.

III. CONTENTIONS OF THE PARTIES

Wallace contends that the district court erred in applying

dual motivation analysis to his Batson claim. He argues that

Batson precludes any consideration of race when exercising

peremptory strikes. The State concedes that race was a factor in
the prosecutor's use of peremptory strikes but nevertheless argues

that Batson was not violated. The State contends that dual

motivation analysis is the proper standard for determining whether

there has been a Batson violation and that the district court

correctly found that the prosecutor would have struck the same

jurors even in the absence of his admitted racial considerations.

IV. DISCUSSION

We begin our analysis with the undisputed fact that the

prosecutor admitted to the trial judge that race was a factor that

he considered in exercising the State's peremptory challenges.4

Wallace urges that this admission, by itself, establishes a Batson

violation. The Second Circuit has rejected substantially the same

contention. Howard, 986 F.2d at 26-28. Like the district court,

we are persuaded by the Second Circuit's thorough and well-reasoned

analysis of the issue. As the Second Circuit explained, "the

acknowledgment that race was part of the prosecutor's motivation,

or even a finding to that effect unaided by acknowledgment, is not

inconsistent with the existence of some other race-neutral

explanation for the prosecutor's action. A person may act for more

than one reason." Id. at 26.

In this case, while race was "a factor," the prosecutor

4
The state trial judge made no findings as to the role of
racial considerations in the prosecution's exercise of its
peremptory strikes. The trial transcript reveals that the trial
judge found the prosecutor's explanations to be credible and,
without explaining the significance of those explanations to his
reasoning, held that there was no Batson violation. The Alabama
Court of Criminal Appeals did not discuss the prosecutor's
admission that race was a factor. It simply held that the
prosecutor's proffered reason for each strike was race-neutral
and, on that basis, found no Batson violation.
exercised his peremptory challenges for more than one reason. In

denying the motion for a mistrial, the trial judge implicitly found

that the prosecutor had advanced race-neutral reasons for his

peremptory strikes. The state appellate court explicitly found

that the prosecutor's proffered reasons were race-neutral. And, on

this § 2254 petition, the district court reached the same

conclusion after carefully examining the transcript of each of the

prosecutor's explanations.5 We accord deference to this factual

determination of the state courts and the district court. See

Hernandez v. New York, 500 U.S. 352, 362-66, 111 S.Ct. 1859, 1868-

69, 114 L.Ed.2d 395 (1991) (plurality opinion) (holding that

clearly erroneous standard of review governs review of trial

judge's findings on Batson claims because they turn largely on

credibility); Spaziano v. Singletary, 36 F.3d 1028, 1032 (11th

Cir.1994) (holding that clearly erroneous standard of review

governs district court's factual findings based on state record,

documentary evidence, and inferences from other facts). We have

reviewed the record and cannot say that the determination that the

prosecutor had race-neutral reasons for his strikes is clearly

erroneous.6

Our inquiry does not end, however, with the finding that the

prosecutor had race-neutral reasons for his strikes. We must

decide whether the prosecutor violated Batson when he considered

5
No evidentiary hearing was held on Wallace's § 2254
petition. Wallace does not contend on appeal that the district
court erred in declining to hold an evidentiary hearing.
6
For this reason, we reject Wallace's contention that the
prosecutor's proffered explanations were not race-neutral.
race along with the race-neutral reasons for each strike. This is

an issue of first impression in this circuit. The Second Circuit

has held that dual motivation analysis determines whether a strike

exercised for both racial and race-neutral reasons violates Batson.

Howard, 986 F.2d at 30. Accord United States v. Darden, 70 F.3d

1507, 1531 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct.

1449, 134 L.Ed.2d 569 (1996); Jones v. Plaster, 57 F.3d 417, 421

(4th Cir.1995).

We agree with the Second Circuit that dual motivation

analysis applies to Batson claims. Under dual motivation analysis,

after the party raising the Batson claim has established a prima

facie case that discrimination was a substantial part of the

motivation for a strike, 7 the party who exercised the strike may

raise the affirmative defense that the strike would have been

exercised solely for race-neutral reasons. Howard, 986 F.2d at 30.

The party accused of discrimination bears the burden of showing by

a preponderance of the evidence that the strike would have been

exercised in the absence of any discriminatory motivation.

Plaster, 57 F.3d at 421.

The district court found that, although the trial court did

not explicitly apply dual motivation analysis to Wallace's Batson

claim, the trial court asked and decided the dispositive question

in dual-motivation analysis: would the prosecutor have exercised

each challenged peremptory strike solely for his proffered

race-neutral reasons? The trial judge asked whether "black jurors

7
In this case, the State seems to concede that a prima facie
case was established by the prosecutor's admission that race was
a factor that he considered.
tend to get a lower score by virtue of their being black."

(Resp't's Ex. 1 at R-36.) The prosecutor responded that they did

not. In overruling Wallace's Batson objection, the trial judge

necessarily found the prosecutor's explanation of his strikes to be

credible. For these reasons, the district court concluded that the

prosecutor in effect stated—and that the trial court in effect

found—that the prosecutor would have exercised the same peremptory

strikes even if he had not considered race. Albeit based on a

reading of the trial transcript, the district court's finding is

nonetheless a finding of fact that we review for clear error.

Spaziano, 36 F.3d at 1032 (holding that district court's finding as

to what state trial judge knew and did is a question of historical

fact reviewed for clear error).

Our review of the record reveals that the district court's

findings as to what the trial court asked and concluded are not

clearly erroneous. Because the prosecutor would have exercised the

peremptory strikes solely for race-neutral reasons, the district

court correctly held, under dual-motivation analysis, that the

State did not violate Wallace's equal protection rights under

Batson.

V. CONCLUSION

The judgment of the district court is affirmed.

AFFIRMED.