dissenting. The majority court reverses this case on a Batson issue the trial court favorably decided in the State’s favor. See Georgia v. McCollum, 505 U.S. 42 (1992); Batson v. Kentucky, 476 U.S. 79 (1986). In sum, when defendant Lammers peremptorily challenged venireman Mr. Burdett, the prosecutor objected that Lammers’s strike was based solely on race, gender, and age. The prosecutor pointed out that of Lammers’s nine peremptory strikes, seven were against white males. He also emphasized that, in making his strikes, Lammers’s counsel announced, “It is widely known in the community that black individuals tend to be less severe than white people in criminal juries in Arkansas County.” Considering Lammers’s pattern of strikes and his discriminatory statement regarding race and gender when striking veniremen, I believe the trial court was correct in finding the State had shown a prima facie case of discrimination.
While the majority opinion seems to find fault with the trial court’s reference to middle-aged white males, the record is clear that the judge’s ruling dealt with gender and race.1
The Court in J.E.B. v. T.B. ex rel Alabama, 511 U.S. 127 (1994), extended the Batson principle to gender-based strikes, and the trial court here determined Lammers improperly utilized gender in striking white males. The trial judge then required Lammers to provide a gender-neutral explanation in striking Mr. Burdett. Lammers failed to do so, but instead he gave the following general, rather rambling, statement:
Mr. J. W. Green, Jr.: Your honor, the defendant’s objection goes not only to the fact that he is a white man. It wouldn’t make any difference if it was a white female. The defendant’s objection goes to the fact — further to the fact that he did not feel comfortable with the answers that were asserted by Mr. Burdett up there. The defendant is sitting here in a capital murder case. His life is on the line. And he is exercising a peremptory challenge that he thought, and believes that he has a right to exercise. If it had been a black man, or if it had been a black woman, if it had been a white man, or if it had been a white woman, would the, what he perceived and what he heard from where he sits, he would have excluded that person from the juror — jury.
Lammers’s foregoing statement merely conflicts with his earlier remarks and preconceived notions that white males are more severe than black males in criminal cases. And while Lammers mentions his case is a capital murder case, he made no suggestion that Mr. Burdett could not decide the case fairly. In fact, Lammers’s statement made no specific reference to Mr. Burdett that could be categorized as a gender-neutral explanation for his striking Burdett.
In conclusion, I would not reverse the trial court’s ruling on the Batson issue. The trial judge was correct in finding that the State made a prima facie case of discrimination, and that Lammers offered no articulate explanation for his peremptory strike of Burdett.
Newbern and Imber, JJ., join this dissent. 959 S.W.2d 35 Green & Henry, by: J. W. Green, for appellant. Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.SUPPLEMENTAL OPINION GRANTING PETITION FOR REHEARING
JANUARY 8, 1998
Tom Glaze, Justice.In its original opinion, this court considered appellant Clint Lammers’s four points on appeal, and found no reversible error. Lammers v. State, 330 Ark. 324, 954 S.W.2d 489 (1997). However, because Lammers was convicted of capital murder and sentenced to life imprisonment without parole, the court examined the complete record under Ark. Sup. Ct. R. 4-3 (h), and concluded that the trial court had erred in ruling Lammers’s peremptory challenge of a middle-aged white male juror violated the requirements of Batson v. Kentucky, 376 U.S. 79 (1986). The court reversed and remanded this case for retrial on the Batson issue.
The State now files a timely petition for rehearing wherein it suggests that, in rendering this court’s decision, the court faded to give proper consideration to the trial judge’s findings when the trial court rejected Lammers’s motion to strike juror Burdett. Upon careful study and review of the record, we believe the State’s petition has merit.
During voir dire and in support of its position that juror Burdett should be seated, the State showed that (1) Lammers had used seven of his nine peremptory challenges on white males,1 and (2) Lammers made the remark, “black individuals are less harsh on criminal defendants in Arkansas County than white persons.” Considering Lammers’s pattern of strikes and his discriminatory statement regarding race and gender when striking veniremen, the trial court found and ruled that the State had demonstrated a prima facie case of discrimination.
In this respect, this court has repeatedly held that the trial court is in a good position to determine whether the reason for exclusion was genuine or pretextual, and the review for reversal of a trial court’s Batson ruling is whether the trial court’s findings are clearly against the preponderance of the evidence. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997); Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997), quoting Hernandez v. New York, 500 U.S. 352 (1991) (where Supreme Court stated that deference to the trial court findings on the issue of discriminatory intent makes particular sense in this context because, as noted in Batson, the finding “largely will turn on an evaluation of credibility”); Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996), cert. denied, 117 S. Ct. 979 (1997). The Supreme Court has stated that the decisive question in a Batson ruling will be whether counsel’s explanation for a peremptory challenge should be believed and the evaluation of counsel’s state of mind based on demeanor and credibility lies “peculiarly within a trial judge’s province.” Hernandez, 500 U.S. at 365; see also Purkett v. Elem, 514 U.S. 749 (1995) (per curiam) (noting that a trial judge may choose to disbelieve implausible or fantastic reasons tendered by counsel).
Here, the record clearly supports the trial court’s findings and refusal to strike juror Burdett. Upon granting the State’s petition for rehearing, the court holds no reversible error has been shown. Therefore, we affirm.
Arnold, C.J., Brown and Thornton, JJ., dissent.THE COURT: All right. Well, for the record I will note that out of nine strikes exercised by the defendant, seven of them were against white males. Two were accepted, one white and one black. Only two of the nine strikes were against women. And under the ruling ofJ.E.B., and in the absence of a better explanation or basis for the exclusion of Mr. Burdett, I will have to overrule the peremptory challenge under the law. Mr. Burdett will be our first alternate.
The trial judge found that seven out of the nine peremptory challenges used by Lammers were against white males, the other two against women. In a footnote in the original opinion, the court suggested the trial court was wrong in finding seven white males since Lammers employed only six challenges against white men before the venireman in question, Clifford Burdett, was chosen as the first alternate juror. However, the trial court was correct because Lammers’s seventh challenge went against Burdett, and the trial court considered it when overruling Lammers’s peremptory challenge. Whether a pattern of strikes was made as a result of six or seven peremptory strikes is insignificant, especially in view of Lammers’s obvious discriminatory statement that black individuals are less harsh on criminal defendants than white persons.