dissenting. Clint Lammers was convicted as an accomplice to capital murder and sentenced to life without possibility of parole. Because I believe he was deprived of a fair trial by the erroneous denial of his right to a peremptory challenge during jury selection, I respectfully dissent from the majority decision on rehearing to deny Lammers a new trial. In my view, the trial court erred in its interpretation and application of the law.
Late in the process of jury selection, Lammers exercised a peremptory challenge to excuse Clifford Burdett from service. The State objected to the use of the peremptory challenge on the basis of Batson v. Kentucky, 476 U.S. 79 (1986). The State’s objection was premised on a novel approach that combined the elements of gender, age, and race; and the State persuaded the trial court that the principles of Batson required that Lammers’s peremptory challenge of Mr. Burdett, a middle-aged white male, be denied. The trial court denied the peremptory challenge and seated Mr. Burdett over Lammers’s objection. The State made its objection in the following words:
Your Honor, it is my understanding that Batson works both ways. It not only deals with race; it also deals with issues of gender. I believe I can show to the Court that. . . Mr. Burdett was stricken — stricken solely because he is a white male of middle age.
Following a discussion of J.E.B. v. T.B. ex rel. Alabama, 511 U.S. 127 (1994), relating to gender-based discrimination, Lammers inquired whether the objection to the peremptory challenge was based on gender. The State replied:
Your Honor, although the — the case cited . . . does not specifically deal with the area of age, it would be both a gender-based and age-based discrimination. ... I realize J.E.B. v. Alabama does not deal with the age issue, but we would make — make both a gender and age based discrimination argument. And, I guess, to a certain extent, based upon Mr. Green’s [counsel for Lammers] arguments made against some of my peremptory challenges. Also, I believe Mr. Burdett is being stricken also because he is a white, middle-age male.
Mr. Green’s arguments supporting his Batson objection to some of the State’s frequent peremptory challenges to black potential jurors occurred at a much earlier point in the jury-selection process. Following the State’s peremptory exclusion of Angela Silverman, a black female, and James Scaife, a black male, from service on the jury, the State peremptorily challenged Louis Berry, a black male, and the following exchange took place:
Mr. Green [making a Batson objection]: It appears to me that the only reason he is being excluded by the State is the fact that he is an Afro-American. — his statements have been very appropriate and right down the line.
The State: I am not. . . seeking his exclusion because of anything having to do with his color, simply because of my feelings or my beliefs about his ability to comprehend what we are dealing with today.
The Court: Mr. Green?
Mr. Green: Well, it’s, from where I stand, from the defense’s point of view, it’s the fact that he is an Afro-American, and the fact that he does —; in the community here it is well known that Afro-Americans do have some tendency to be lesser inclined to convict someone to such a point as to give them a death sentence.
A careful reading of this exchange leads to the conclusion that Mr. Green was arguing to the court that the State was seeking to exclude Mr. Berry from the panel because the State had adopted a community belief that black jurors were less inclined to enter a death sentence. On the basis of this Batson challenge, Mr. Berry was seated.
Following this exchange twenty potential jurors were given voir dire examinations, and five jurors were selected before the next black male, Floyd Ice, was presented for consideration. After failing to have him excused for cause, the State exercised a peremptory challenge, and Lammers’s Batson challenge was denied. Mr. Green did not specifically renew his earlier criticism of the State’s racial motives during consideration of this peremptory challenge, and Mr. Ice was excluded from jury duty. Two white males and one white female were then excused for cause by the court before Lammers peremptorily challenged Mr. Burdett. Over Lammers’s objection, Mr. Burdett was seated on the jury.
It is quite a stretch of Lammers’s argument that the State was racially motivated in its peremptory challenge of Louis Berry to reach the majority view that, having made this argument against the invidious exclusion of black jurors by the State, Lammers had made a prima facie case against his own later peremptory strike of a white juror.
It is such a stretch that the State never contends that the peremptory challenge of Mr. Burdett should be denied on the sole basis of Mr. Burdett’s race. To the contrary, when repeatedly asked for the basis of its Batson objection, the State consistently argues: “And it is our position he was stricken solely because of his gender, and his age to a certain extent, and to a certain extent his race.”
Clearly the Batson challenge to Lammers’s peremptory strike could not be sustained solely on the basis of Mr. Burdett being white. Under our well-defined standards for evaluating Batson challenges, a prima facie case of discrimination must first be shown. Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 321 (1997); see also Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996). If a prima facie case is shown, the party seeking to exercise a peremptory challenge must give a neutral explanation for the strike. Id.
Here, Lammers pointed out that his peremptory challenges had been used to strike females and persons of all ages, and stated: “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 white woman, would the, what he perceived and what he heard from where he sits, he would have excluded that person from the jury.” This is a race-neutral explanation, and under the holdings of Purkett v. Elem, 115 S.Ct. 1769 (1995) (per curiam), the burden regarding discriminatory motivation remained upon the State, as the opponent of the strike, to demonstrate invidious discrimination.
The State thereupon attempted to show a pattern of strikes, which it argued related entirely to the age and gender of the veniremen who were peremptorily challenged by Lammers. During this sensitive inquiry into the age and gender of the challenged jurors, the State made no showing of any racial pattern of discrimination by the defendant Lammers. This may have been based upon a reluctance to open that door too wide, in view of the fact that of the State’s five peremptory challenges, at least four were used against black veniremen.1
The sensitive inquiry disclosed that the defendant Lammers had used peremptory challenges to strike two young males, three females, and four middle-aged males. However, in finding that a prima facie pattern of gender discrimination existed, the trial court miscounted the males and females, and stated:
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. . . Only two of the nine strikes were against women. And under the ruling of J.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.
The three females peremptorily challenged by Lammers were Paula Smith, Mary Hayes, and Carol Sells. We cannot guess whether the trial court would have found a prima facie case of gender discrimination if it had correctly counted three females, and four middle-aged males, but the trial court clearly erred in this basic count, an error which the majority endorses as being insignificant.
The one remaining element of the cumulative gender, age, and race objection to be considered is whether the trial court erred in interpreting the law by finding that age may be the basis for a Batson challenge to a peremptory strike. That is the issue on which this case was first decided, and remains the issue that should be determinative upon rehearing. This is an issue of law, and our review should be whether the trial court erred in interpreting and applying the correct law.
In numerous cases, we have held that age is a neutral criterion, and may be properly asserted as a race-neutral reason for making a peremptory challenge. See Sonny v. Batch Motor Co., supra (citing United States v. Ross, 872 F.2d 249 (8th Cir. 1989); United States v. Garrison, 849 F.2d 103 (4th Cir. 1988); People v. Mack, 128 Ill.2d 231, 538 N.E.2d 1107 (1989)).
Here the trial court was not asked to find, and did not find, a prima facie case of racial discrimination. Further, the trial court miscounted the number of males and females for the purpose of ruling on the question of gender discrimination and applied an erroneous interpretation of the law with reference to the issue of discrimination on the basis of age. As a result of these errors, the trial court denied Lammers a peremptory challenge, which he had the right to exercise. This error should require a new trial, and I respectfully dissent.
Arnold, C.J., and Brown, J., join in this dissent.This pattern of challenges supports Lammers’s charge that the State had adopted the community belief that black jurors were reluctant to impose a death sentence. Lammers did not make any statement indicating any invidious discrimination against the selection of white jurors, but attacked the State’s pattern of using peremptory challenges to exclude black veniremen.
In that regard, the majority asserts that the statement “black individuals are less harsh on criminal defendants in Arkansas County than white persons” is a reflection of Lammers’s racial bias. However, a careful review of the record reveals that those words were not used by Lammers’s counsel. They appear in the State’s argument at T. 1232, where they are attributed to Lammers by the State.