State of Louisiana v. Larry Broussard, Jr. AKA Larry James Broussard, Jr. AKA Larry J. Broussard, Jr.

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #005

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 30th day of January, 2018, are as follows:

PER CURIAM:

2016-K -1836 STATE OF LOUISIANA v. LARRY BROUSSARD, JR. AKA LARRY JAMES
BROUSSARD, JR. AKA LARRY J. BROUSSARD, JR. (Parish of Vermilion)

The state’s claim that a reviewing court should truncate the
analysis of a Batson claim because a trial court erred in finding
the defense carried its burden of production under Batson’s first
step is contrary to the jurisprudence. Furthermore, it is
inconsistent with the purpose of the Batson framework, which “is
designed to produce actual answers to suspicions and inferences
that discrimination may have infected the selection process.”
Johnson, 545 U.S. at 172, 125 S.Ct. at 2418. The state’s
remaining argument regarding the ultimate outcome of the Batson
inquiry runs afoul of Snyder v. Louisiana, 522 U.S. 472, 128
S.Ct. 1203, 170 L.Ed.2d 175 (2008), which is dispositive here. A
reviewing court should not presume that the trial judge credited
a demeanor-based reason from a trial court’s silence and the
particular circumstances in Snyder and here are strikingly
similar. While we are mindful that a trial court’s determination
as to purposeful discrimination rests largely on credibility
evaluations and is therefore entitled to great deference, Batson,
476 U.S. at 98 n.21, 106 S.Ct. at 1724, we note that the trial
court rejected the state’s first proffered reason and we cannot
presume the trial court accepted the state’s demeanor-based
proffered reason. Therefore, we find that the court of appeal
correctly applied Snyder to vacate the conviction and sentence
and remand to the trial court for further proceedings. The court
of appeal’s decision is affirmed.
AFFIRMED.

CLARK, J., dissents for the reasons assigned by Justice Genovese.
HUGHES, J., dissents for the reasons assigned by Genovese, J.
GENOVESE, J., dissents and assigns reasons.

01/30/18

SUPREME COURT OF LOUISIANA

No. 2016-K-1836

STATE OF LOUISIANA

VERSUS

LARRY BROUSSARD, JR.
AKA LARRY JAMES BROUSSARD, JR.
AKA LARRY J. BROUSSARD, JR.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
THIRD CIRCUIT, PARISH OF VERMILION

PER CURIAM

Defendant Larry Broussard, Jr. was convicted of aggravated flight from an

officer. During voir dire, defense counsel challenged, pursuant to Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, the state’s use of a

backstrike against an African-American female prospective juror from the first

panel. Specifically, defense counsel noted that the state had not previously

challenged this prospective juror for cause and stated without further elaboration

that “it seems like she’s one of two potential black jurors.”

In response to the trial court’s request for a race-neutral reason for the

backstrike, the state ultimately gave two. The state first claimed—based on the

prospective juror’s occupation as a housekeeper and her (otherwise unspecified)

reactions to the questions asked—that she was not intelligent enough to be a juror.

After the trial court resoundingly rejected the state’s characterization of the

prospective juror’s intelligence (“there’s been absolutely nothing presented to the

Court to suggest that she’s unintelligent in any way or has any inability to follow

the law”), the state then claimed she was inattentive during the questioning of the

second panel. After hearing this second reason, the trial court inquired as to how

many challenges the state had exercised against prospective jurors who were

African Americans. After hearing that the state had struck two of three African-

American prospective jurors (thereby accepting one), the trial court denied the

Batson challenge without explanation.

In a split-panel decision, the court of appeal reversed, with the majority

finding a Batson violation in the state’s exclusion of the backstruck prospective

juror, and thereby deeming a second assignment of error moot. State v. Broussard,

16-0230 (La. App. 3 Cir. 9/28/16), 201 So.3d 400. The majority rejected the state’s

argument that defendant failed to carry his burden of establishing a prima facie

case of purposeful discrimination in Batson’s first step. The majority noted that the

trial court demanded a race-neutral reason despite the state’s protest that the

defense had not made a prima facie showing, and therefore the majority found

“that the trial court concluded a prima facie case existed when it ordered the State

to respond to the Batson challenge and that the burden then shifted to the State to

establish a race-neutral reason for the back strike of [the prospective juror].”

Broussard, 16-0230, p. 9, 201 So.3d at 406.

The majority also found that “[i]t is not clear on what the trial court based its

denial of the Batson challenge.” Broussard, 16-0230, p. 10, 201 So.3d at 406. The

majority then noted that the trial court rejected the state’s first proffered reason, i.e.

that the prospective juror was unintelligent, and the majority further found there

was nothing in the record supporting the state’s assessment of the prospective

juror’s intelligence. Citing Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170

L.Ed.2d 175 (2010), the majority also declined to presume the trial court credited

the state’s demeanor-based proffered reason, i.e. that the prospective juror was

2

inattentive, and the majority found no indication of inattentiveness could be

discerned from the transcript of voir dire.1 Therefore, the court of appeal vacated

the conviction and sentence and remanded to the trial court for further proceedings.

The state contends that the court of appeal erred in failing to recognize that

defendant was never required to make a prima facie showing of purposeful

discrimination in Batson’s first step. The state also contends that, even if a prima

facie showing was made, both of its reasons for backstriking the prospective juror,

i.e. her lack of intelligence and attention, were racially neutral, and the trial court

never found that they were pretexts for purposeful discrimination. Therefore, the

state claims that the trial court did not abuse its discretion in denying the Batson

challenge. We disagree.

In Johnson v. California, 545 U.S. 162, 170, 125 S.Ct. 2410, 2417, 162

L.Ed.2d 129 (2005), the Supreme Court emphasized that:

We did not intend the first step to be so onerous that a defendant
would have to persuade the judge-on the basis of all the facts, some of
which are impossible for the defendant to know with certainty-that the
challenge was more likely than not the product of purposeful
discrimination. Instead, a defendant satisfies the requirements of
Batson’s first step by producing evidence sufficient to permit the trial
judge to draw an inference that discrimination has occurred.

In addition, the Supreme Court has found, “Once a prosecutor has offered a race-

neutral explanation for the peremptory challenges and the trial court has ruled on

the ultimate question of intentional discrimination, the preliminary issue of

whether the defendant had made a prima facie showing becomes moot.”

Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d

1
Furthermore, it should be noted that our independent review of the record shows that
not only is there no indication that the prospective juror was inattentive, there is some indication
the prospective juror was in fact attentive. The state accepted the prospective juror after
questioning her in the first panel. Evidently, the state saw no inattentiveness on her part during
voir dire of the first panel. Although she was not part of the second panel, the state nonetheless
directed a question at the prospective juror at issue here during voir dire of the second panel. She
answered fully. She did not ask to have the question repeated or otherwise give any indication
she had not been paying attention.
3

395 (1991).

The rule of Hernandez has not been limited in the Fifth Circuit to those

situations in which the government volunteers a race-neutral reason, as contrasted

with those in which the trial court demands that the government provide one. In

each scenario, the preliminary issue of whether defendant had made a prima facie

showing is moot. See, e.g., United States v. Williams, 264 F.3d 561, 571 (5th Cir.

2001) (“The district court then asked the Government to provide a race-neutral

justification for striking the prospective jurors. Where, as here, the prosecutor

tenders a race-neutral explanation for his peremptory strikes, the question of

Defendant’s prima facie case is rendered moot and our review is limited to the

second and third steps of the Batson analysis.”) (citing United States v. Broussard,

987 F.2d 215, 220 n.4 (5th Cir. 1993) (declining to decide whether defendant had

established prima facie case of racial discrimination, where district court required

explanation for peremptory strikes)); see also United States v. Forbes, 816 F.2d

1006, 1010 (5th Cir. 1987) (“[A]ppellate review should not become bogged down

on the question of whether the defendant made a prima facie showing in cases

where the district court has required an explanation.”).

Likewise, this court has found that “[a] trial judge may . . . effectively

collapse the first two stages of the Batson procedure, whether or not the defendant

established a prima facie case of purposeful discrimination, and may then perform

the critical third step of weighing the defendant’s proof and the prosecutor’s race-

neutral reasons to determine discriminatory intent.” State v. Jacobs, 99-0991, p. 8

(La. 5/15/01), 803 So.2d 933, 941. This court has also stated:

If the trial judge had not found there was a prima facie case of
purposeful discrimination, there was no necessity to call for
explanation of the challenges. Of course, the trial judge may have
believed there was not a prima facie showing, but still required an
explanation as a precaution in the event the appellate court determined

4

there was a prima facie showing.

State v. Collier, 553 So.2d 815, 819 n.5 (La. 1989).

The state’s claim that a reviewing court should truncate the analysis of a

Batson claim because a trial court erred in finding the defense carried its burden of

production under Batson’s first step is contrary to the jurisprudence above.

Furthermore, it is inconsistent with the purpose of the Batson framework, which

“is designed to produce actual answers to suspicions and inferences that

discrimination may have infected the selection process.” Johnson, 545 U.S. at 172,

125 S.Ct. at 2418.

The state’s remaining argument regarding the ultimate outcome of the

Batson inquiry runs afoul of Snyder v. Louisiana, 522 U.S. 472, 128 S.Ct. 1203,

170 L.Ed.2d 175 (2008), which is dispositive here. In Snyder, the Supreme Court

stated:

On appeal, a trial court’s ruling on the issue of discriminatory intent
must be sustained unless it is clearly erroneous. See Hernandez v. New
York, 500 U.S. 352, 369, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)
(plurality opinion); id., at 372, 111 S.Ct. 1859 (O’Connor, J., joined
by Scalia, J., concurring in judgment). The trial court has a pivotal
role in evaluating Batson claims. Step three of the Batson inquiry
involves an evaluation of the prosecutor’s credibility, see 476 U.S., at
98, n. 21, 106 S.Ct. 1712, and “the best evidence [of discriminatory
intent] often will be the demeanor of the attorney who exercises the
challenge,” Hernandez, 500 U.S., at 365, 111 S.Ct. 1859 (plurality
opinion). In addition, race-neutral reasons for peremptory challenges
often invoke a juror’s demeanor (e.g., nervousness, inattention),
making the trial court’s firsthand observations of even greater
importance. In this situation, the trial court must evaluate not only
whether the prosecutor’s demeanor belies a discriminatory intent, but
also whether the juror’s demeanor can credibly be said to have
exhibited the basis for the strike attributed to the juror by the
prosecutor. We have recognized that these determinations of
credibility and demeanor lie “‘peculiarly within a trial judge’s
province,’” ibid. (quoting Wainwright v. Witt, 469 U.S. 412, 428, 105
S.Ct. 844, 83 L.Ed.2d 841 (1985)), and we have stated that “in the
absence of exceptional circumstances, we would defer to [the trial
court],” 500 U.S., at 366, 111 S.Ct. 1859 (plurality opinion).

Snyder, 552 U.S. at 477, 128 S.Ct. at 1207–08. In Snyder, as here, the prosecutor

5

offered two race-neutral reasons, one of which was based on the prospective

juror’s demeanor. Regarding the demeanor-based reason, the trial court in Snyder,

just as the trial court here,2 did not make an explicit determination. The Snyder

court found:

With respect to the first reason, the Louisiana Supreme Court was
correct that “nervousness cannot be shown from a cold transcript,
which is why ... the [trial] judge’s evaluation must be given much
deference.” 942 So.2d, at 496. As noted above, deference is especially
appropriate where a trial judge has made a finding that an attorney
credibly relied on demeanor in exercising a strike. Here, however, the
record does not show that the trial judge actually made a
determination concerning Mr. Brooks’ demeanor. The trial judge was
given two explanations for the strike. Rather than making a specific
finding on the record concerning Mr. Brooks’ demeanor, the trial
judge simply allowed the challenge without explanation. It is possible
that the judge did not have any impression one way or the other
concerning Mr. Brooks’ demeanor. Mr. Brooks was not challenged
until the day after he was questioned, and by that time dozens of other
jurors had been questioned. Thus, the trial judge may not have
recalled Mr. Brooks’ demeanor. Or, the trial judge may have found it
unnecessary to consider Mr. Brooks’ demeanor, instead basing his
ruling completely on the second proffered justification for the strike.
For these reasons, we cannot presume that the trial judge credited the
prosecutor’s assertion that Mr. Brooks was nervous.

Snyder, 552 U.S. at 479, 128 S.Ct. at 1209 (emphasis added).

The U.S. Supreme Court in Thaler v. Haynes, 559 U.S. 43, 48–49, 130 S.Ct.

1171, 1174–75, 175 L.Ed.2d 1003 (2010), retreated somewhat from Snyder:

. . . [W]here the explanation for a peremptory challenge is based on a
prospective juror’s demeanor, the judge should take into account,
among other things, any observations of the juror that the judge was
able to make during the voir dire. But Batson plainly did not go
further and hold that a demeanor-based explanation must be rejected if
the judge did not observe or cannot recall the juror’s demeanor.

Nor did we establish such a rule in Snyder. In that case, the judge who
presided over the voir dire also ruled on the Batson objections, and
thus we had no occasion to consider how Batson applies when
different judges preside over these two stages of the jury selection
process. Snyder, 552 U.S., at 475–478, 128 S.Ct. 1203. The part of
Snyder on which the Court of Appeals relied concerned a very

2
The trial court in the present case, after being informed of the number of challenges the
state had exercised against African Americans, simply stated, “All right. I’m going to deny the
Batson challenge on that.”
6

different problem. The prosecutor in that case asserted that he had
exercised a peremptory challenge for two reasons, one of which was
based on demeanor (i.e., that the juror had appeared to be nervous),
and the trial judge overruled the Batson objection without explanation.
552 U.S., at 478–479, 128 S.Ct. 1203. We concluded that the record
refuted the explanation that was not based on demeanor and, in light
of the particular circumstances of the case, we held that the
peremptory challenge could not be sustained on the demeanor-based
ground, which might not have figured in the trial judge’s unexplained
ruling. Id., at 479–486, 128 S.Ct. 1203. Nothing in this analysis
supports the blanket rule on which the decision below appears to rest.

The opinion in Snyder did note that when the explanation for a
peremptory challenge “invoke[s] a juror’s demeanor,” the trial judge’s
“firsthand observations” are of great importance. Id., at 477, 128 S.Ct.
1203. And in explaining why we could not assume that the trial judge
had credited the claim that the juror was nervous, we noted that,
because the peremptory challenge was not exercised until some time
after the juror was questioned, the trial judge might not have recalled
the juror’s demeanor. Id., at 479, 128 S.Ct. 1203. These observations
do not suggest that, in the absence of a personal recollection of the
juror’s demeanor, the judge could not have accepted the prosecutor’s
explanation. Indeed, Snyder quoted the observation in Hernandez v.
New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395
(1991) (plurality opinion), that the best evidence of the intent of the
attorney exercising a strike is often that attorney’s demeanor. See 552
U.S., at 477, 128 S.Ct. 1203.

Haynes, 559 U.S. at 48–49, 130 S.Ct. at 1174–75 (footnote omitted).

However, Snyder’s guiding principle remains intact that a reviewing court

should not presume that the trial judge credited a demeanor-based reason from a

trial court’s silence, and the particular circumstances in Snyder and here are

strikingly similar. While we are mindful that a trial court’s determination as to

purposeful discrimination rests largely on credibility evaluations and is therefore

entitled to great deference, Batson, 476 U.S. at 98 n.21, 106 S.Ct. at 1724, we note

that the trial court rejected the state’s first proffered reason and we cannot presume

the trial court accepted the state’s demeanor-based proffered reason.3 Therefore,

3
The state, in contrast, concedes in its brief that the trial court rejected the state’s
characterization of the prospective juror as inattentive. See State’s brief, p. 10 (“In this instances,
while the trial court did not agree with the prosecutor’s reasoning that the prosective juror ‘. . .
does not appear to be as intelligent as I would like to see on a juror” or even that she was
inattentive, . . . .”) (citations to the record omitted) (emphasis added). While that concession is
7

we find that the court of appeal correctly applied Snyder to vacate the conviction

and sentence and remand to the trial court for further proceedings. The court of

appeal’s decision is affirmed.

AFFIRMED

not born out by the record, which shows the trial judge made no explicit determination regarding
inattentiveness, the concession was nonetheless made by the state, which is bound by it, and it
provides an additional reason to reject the state’s arguments.
8

01/30/18

SUPREME COURT OF LOUISIANA
NO. 2016-K-1836

STATE OF LOUISIANA

VERSUS

LARRY BROUSSARD, JR.
AKA LARRY JAMES BROUSSARD, JR.
AKA LARRY J. BROUSSARD. JR.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
THIRD CIRCUIT, PARISH OF VERMILION

CLARK, J., dissents for the reasons assigned by Justice Genovese.

01/30/18

SUPREME COURT OF LOUISIANA

No. 2016-K-1836

STATE OF LOUISIANA

VERSUS

LARRY BROUSSARD, JR.
AKA LARRY JAMES BROUSSARD, JR.
AKA LARRY J. BROUSSARD, JR.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
THIRD CIRCUIT, PARISH OF VERMILION

Hughes, J., dissents for the reasons assigned by Genovese, J.

1

01/30/18

SUPREME COURT OF LOUISIANA

NO. 2016-K-1836

STATE OF LOUISIANA

VERSUS

LARRY BROUSSARD, JR.
AKA LARRY JAMES BROUSSARD, JR.
AKA LARRY J. BOURSSARD, JR.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
THIRD CIRCUIT, PARISH OF VERMILION

GENOVESE, J., dissents and assigns reasons.

I would reverse the ruling of the court of appeal and reinstate defendant’s

conviction and sentence.

In my view, the court of appeal erred in its application of Batson v. Kentucky,

106 S.Ct. 1712, 476 U.S. 79 (1986). Merging steps two and three of the Batson

analysis impermissively shifted the burden of proof to the proponent of the strike.

See State v. Harris, 15-0995 (La. 10/19/16), 217 So.3d 255, 259-260 (citing Purkett

v. Elem, 115 S.Ct. 1769, 1771, 514 U.S. 765, 768 (1995); State v. Nelson, 10-1724,

10-1726 (La. 3/13/12), 85 So.3d 21, 32). The State articulated race-neutral reasons

for the exercise of its peremptory challenge. It is not until the third step of Batson

that the persuasiveness of the race-neutral reason becomes relevant. Harris, 217

So.3d at 259 (citing Purkett, 115 S.Ct. at 1771, 514 U.S. at 768; Nelson, 85 So.3d at

32). The question is whether the defendant’s proof, when weighed against the

State’s proffered “race-neutral” reasons, is strong enough to persuade the trier-of-

fact that discriminatory intent is present. State v. Green, 94-0887 (La. 5/22/95), 655

So.2d 272, 290. Defendant offered no facts or circumstances supporting an

inference that the State exercised its strikes in a discriminatory manner. Of the three

prospective black jurors, one was seated, the second was peremptorily challenged

after the State’s challenge for cause was denied, and the third became the subject of

defendant’s Batson challenge. Defendant’s proof, when weighed against the State’s

race-neutral reasons, was not sufficient to prove the existence of purposeful

discriminatory intent. Id.