State of Louisiana v. Trevor Marcel Williams

Judgment rendered September 21, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,613-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

TREVOR MARCEL WILLIAMS Appellant

*****

Appealed from the
Forty-Second Judicial District Court for the
Parish of DeSoto, Louisiana
Trial Court No. 19-CR-30181

Honorable Amy Burford McCartney, Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Paula Corley Marx

CHARLES B. ADAMS Counsel for Appellee
District Attorney

ETHAN P. ARBUCKLE
EDWIN L. BLEWER, III
Assistant District Attorneys

*****

Before MOORE, ROBINSON, and HUNTER, JJ.

HUNTER, J., dissents with written reasons.

MOORE, C.J.

The defendant, Trevor Marcel Williams, was convicted by a jury for

the second degree murder of his twin brother and for the attempted second

degree murder of his girlfriend. Williams was sentenced to life

imprisonment without benefit of probation, parole, and suspension of

sentence consecutive to a sentence of 50 years’ imprisonment without

benefit of probation, parole, and suspension of sentence. He now appeals his

convictions and sentences, assigning error in the trial court’s handling of

jury selection, specifically, its handling of a “reverse-Batson” challenge

from the state.

FACTS

The defendant and his twin brother, Trenton, were involved in a

sexual relationship with Amanda Lowery. On April 29, 2019, Amanda

picked Trenton up in her white van at the family home on Howard Lane in

Frierson, Louisiana. Trenton was driving the vehicle when it stopped at the

“T” intersection of Howard Lane at La. Hwy 175. At that time, Trevor

drove up in a black GMC pickup that he had borrowed from his uncle,

blocking the van. He jumped out of the pickup and fired five shots into the

driver-side window, striking Trenton. Trevor then pulled Trenton out of the

truck and fired six more rounds into him. He then he dragged Trenton’s

body to a ditch, got in the truck and ran over him several times. Amanda

was apparently standing nearby and attempted to run away. Trevor grabbed

her and shot her four times, including in the face (mouth) as she struggled to

escape. She pretended to be dead or unconscious, and Trevor left the scene.

She told police when they arrived that Trevor had shot them. She later gave

a statement to police and testified at trial identifying Trevor as the shooter.

Following an investigation, Trevor was charged with second degree

murder and attempted second degree murder.

During voir dire, defense counsel exercised peremptory challenges

against eight white prospective jurors. The state raised a reverse-Batson

challenge to the eight strikes, arguing that the pattern of striking white

prospective jurors implied purposeful discrimination against white jurors.

The court found that the state made a prima facie case of discrimination and

requested defense counsel to articulate race-neutral grounds for each of the

eight strikes. After defense counsel gave its race-neutral reasons for each of

the strikes, the court recessed the proceedings. When the court reconvened,

the trial judge indicated that, during the recess, she had the opportunity to

evaluate each of the individuals who were subject to the reverse-Batson

challenge by the state.1 The court said it found that defense counsel had

given “appropriate, reasonably specific, neutral explanations” for venire

members Galloway, Furlow, Blue,2 Cooper, and Franklin, and it denied

those reverse-Batson challenges. However, the court found that the neutral

reasons given by the defense for Kamilla Brown, Austin Lee, and Robert

Hall were not satisfactory. For those three jurors, it granted the state’s

reverse-Batson challenge. Those three venire members were returned to the

jury, and all three served as jurors in the trial. As noted, the jury

unanimously found Williams guilty as charged.

After sentencing, this appeal followed. Williams’s sole assignment of

error is that the trial court committed legal error by granting the reverse-

1
The transcript later indicates that the court had reviewed the voir dire record of
each prospective juror in its evaluation.

2
Blue was ultimately excused for cause by agreement between defense counsel
and the state.
2

Batson challenge to the defendant’s peremptory strikes of jurors Hall, Lee,

and Brown. He seeks a judgment vacating his conviction and remanding for

a new trial.

DISCUSSION

The Constitution forbids striking even a single prospective juror for a

discriminatory purpose. Foster v. Chatman, 578 U.S. 488, 136 S. Ct. 1737,

1747, 195 L. Ed. 2d 1 (2016); Snyder v. Louisiana, 552 U.S. 472, 478, 128

S. Ct. 1203, 1208, 170 L. Ed. 2d 175 (2008). An exercise by the state of its

peremptory strikes to remove potential jurors from the venire panel solely on

the basis of race violates the Equal Protection Clause of the United States

Constitution. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712,

1719, 90 L. Ed. 2d 69 (1986). The holding in Batson was adopted by the

Louisiana Supreme Court in State v. Collier, 553 So. 2d 815 (La. 1989), and

has been codified by the legislature in La. C. Cr. P. arts. 795(C) and (D).

While Batson specifically concerned a prosecutor’s use of peremptory

challenges, its holding is equally applicable to criminal defendants. See

Georgia v. McCollum, 505 U.S. 42, 59, 112 S. Ct. 2348, 2359, 120 L. Ed. 2d

33 (1992). McCollum specifically held “the Constitution prohibits a

criminal defendant from engaging in purposeful discrimination on the

ground of race in the exercise of peremptory challenges.” 505 U.S. at 59,

112 S. Ct. 2348. In State v. Knox, 609 So. 2d 803 (La. 1992), the supreme

court applied McCollum, holding that the state may invoke Batson where a

black criminal defendant exercises peremptory challenges against white

prospective jurors. As a result of these cases, an accusation by the state that

defense counsel has engaged in such discriminatory conduct has come to be

known as a “reverse-Batson ” challenge.
3

Batson and its progeny provide a three-step process to guide courts in

evaluating a claim of racial discrimination in the voir dire process:

(1) a defendant [or the State] must make a prima facie showing
that a peremptory challenge has been exercised on the basis of
race;

(2) if the requisite showing has been made, the prosecution [or
defendant] “must demonstrate that ‘permissible racially neutral
selection criteria and procedures have produced the
monochromatic result;’” and,

(3) in light of the parties’ submissions, the trial court must
determine if the “defendant [or State] has established
purposeful discrimination.”

State v. Crawford, 14-2153 (La. 11/16/16), 218 So. 3d 1320.

The Batson Inquiry

A violation of a prospective juror’s equal protection rights under

Batson is proven by evidence of a racially discriminatory purpose, not a

racially discriminatory result. State v. Dorsey, 10-0216 (La. 9/7/11), 74 So.

3d 603, cert. denied, 566 U.S. 930, 132 S. Ct. 1859, 182 L. Ed. 2d 658

(2012); State v. Green, 94-0887 (La. 5/22/95), 655 So. 2d 272. Thus, the

sole focus of the Batson inquiry is upon the intent of the prosecutor at the

time he exercised his peremptory strikes. State v. Dorsey, supra; State v.

Green, supra; State v. Hampton, 52,403 (La. App. 2 Cir. 11/14/18), 261 So.

3d 993, writ denied, 19-0287 (La. 4/29/19), 268 So. 3d 1029.

To establish a prima facie case, the objecting party must show: (1) the

striking party’s challenge was directed at a member of a cognizable group;

(2) the challenge was peremptory rather than for cause; and (3) relevant

circumstances sufficient to raise an inference that the peremptory challenge

was used to strike the venire person on account of his or her being a member

of that cognizable group. If the trial court determines the opponent failed to

4

establish the threshold requirement of a prima facie case (step one), then the

analysis is at an end and the burden to articulate neutral reasons never shifts

to the proponent of the strike (step two). State v. Berry, 51,213 (La. App. 2

Cir. 5/17/17), 221 So. 3d 967, writ denied, 17-1146 (La. 12/17/18), 257 So.

3d 1260. The burden to show a prima facie case is not 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. Johnson v. California, 545 U.S. 162, 125 S. Ct. 2410, 162

L. Ed. 2d 129 (2005); State v. Broussard, 16-1836 (La. 1/30/18), 318 So. 3d

683; State v. Sparks, 88-0017 (La. 5/11/11), 68 So. 3d 435, cert. denied, 566

U.S. 908, 132 S. Ct. 1794, 182 L. Ed. 2d 621 (2012).

When a Batson challenge is made, it is incumbent upon the trial judge

to address the challenge, either by ruling on whether a prima facie case of

discriminatory intent has been made or by requiring race-neutral reasons for

the strikes. State v. Myers, 99-1803 (La. 4/11/00), 761 So. 2d 498; State v.

Hampton, supra.

The burden of persuasion never shifts from the opponent of the strike.

State v. Nelson, 10-1724 (La. 3/13/12), 85 So. 3d 21; State v. Crawford,

supra. However, after the opponent of the strike establishes a prima facie

case of racial discrimination, the burden of production shifts to the

proponent of the strike to articulate race-neutral reasons for its use of

peremptory challenges. To satisfy this second step, the explanation for the

strike does not have to be persuasive, or even plausible, but must be more

than a mere affirmation of good faith or assumption that the challenged juror

would be partial due to race. Id. A neutral explanation must be clear,
5

reasonably specific, legitimate, and related to the case at bar. State v.

Mamon, 26,337 (La. App. 2 Cir. 12/16/94), 648 So. 2d 1347, writ denied,

95-0220 (La. 6/2/95), 654 So. 2d 1104. The test at the second step is simply

whether the reasons are facially race-neutral, not whether they are

persuasive. Not until steps one and two of Batson have been satisfied is the

trial court’s duty under step three triggered. State v. Crawford, supra. In

step three of the Batson analysis, the court must determine whether the party

objecting to the peremptory challenge has carried his burden of purposeful

discrimination. Id. The trial court’s findings as to purposeful discrimination

depend largely on credibility evaluations and are therefore entitled to great

deference by the reviewing court. State v. Mamon, supra.

Batson was codified and implemented in Louisiana in 1986. The

statute has been amended several times to its current version by 2019 La.

Acts., No. 235, § 1:

C. No peremptory challenge made by the state or the
defendant shall be motivated in substantial part on the race or
gender of the juror. If an objection is made that a challenge was
motivated in substantial part on the basis of race or gender, and
a prima facie case supporting that objection is made by the
objecting party, the court shall demand a satisfactory race or
gender neutral reason for the exercise of the challenge. Such
demand and disclosure shall be made outside of the hearing of
any juror or prospective juror. The court shall then determine
whether the challenge was motivated in substantial part on the
basis of race or gender.

D. The court shall allow to stand each peremptory
challenge exercised for a race or gender neutral reason either
apparent from the examination or disclosed by counsel when
required by the court. The provisions of Paragraph C and this
Paragraph shall not apply when both the state and the defense
have exercised a challenge against the same juror.

E. The court shall allow to stand each peremptory
challenge for which a satisfactory racially neutral or gender
neutral reason is given. Those jurors who have been
peremptorily challenged and for whom no satisfactory racially
6

neutral or gender neutral reason is apparent or given may be
ordered returned to the panel, or the court may take such other
corrective action as it deems appropriate under the
circumstances. The court shall make specific findings
regarding each such challenge. (Emphasis supplied.)

In this appeal, Williams contends that the state failed to prove a

“discriminatory purpose” in his peremptory challenges to Kamilla Brown,

Austin Lee, and Robert Hall. He argues that he gave valid, race-neutral

reasons for the strikes, and the trial court erred in finding the reasons given

were not sufficient or race-neutral. We will consider each of the three

peremptorily challenged jurors separately.

Kamilla Brown

The record shows that defense counsel’s race-neutral reason for

striking Kamilla Brown was “she was just young, had no life experiences,

didn’t really say a whole lot. I couldn’t figure out exactly, you know, what

she would do.” After its evaluation, the court found this unsatisfactory. The

court said:

However, as to Brown, the explanation given was not
clear, reasonably specific, and it wasn’t a neutral explanation. I
would note that, while she does look young, she appears to be
twenty-eight years old, based on the information of the
questionnaire. So, the Court is going to find there was not a
neutral explanation given for that.

In addition to finding that the neutral explanation given by the defense

was not clear and reasonably specific, it found that it was not a neutral

reason due to age discrimination.

The voir dire transcript shows that Ms. Brown is a single mother with

a five-year-old son. When defense counsel posed several scenarios of

different types of evidence, e.g. physical, testimonial, and scientific evidence

of guilt to the venire panel, he asked Ms. Brown if she could convict solely

7

on the testimony of one witness. She answered, “no.” She agreed with

counsel that there are good cops, but some bad cops. Counsel asked Ms.

Brown if she would pick herself as a juror, and why. She answered “yes,”

she would pick herself because she would be fair and listen to both sides of

the story and just get the evidence to base her decision.

Paragraph C of La. C. Cr. P. art. 795 expressly prohibits a peremptory

challenge to a prospective juror on the basis of race or gender. However, the

statute does not mention “age,” although age discrimination, in some cases,

violates the Equal Protection Clause. In State v. Cannon, 19-590 (La.

4/18/19), 267 So. 3d 585, the supreme court held that a system for picking a

jury venire that excluded persons born after June 2, 1993, but otherwise

qualified to serve on a jury, resulted in violation of Equal Protection under

La. Const. art. 1, § 3.

On the other hand, in State v. Mamon, supra, the defendant raised a

Batson challenge to the state’s use of 11 peremptory challenges against

prospective jury members of the same race as the defendant. One of these

challenges was the state’s peremptory challenge of a 21-year-old woman,

Ms. Goldsmith. The state gave the court several reasons for the strike,

including: her youth; possible absence from portions of voir dire; she heard

about the case on the streets; she knew or knew about the defendant; she was

hesitant in answering; her body language suggested inattentiveness; and she

described herself as a follower. The trial court found that the state’s

explanations were race-neutral and denied the Batson challenge. On appeal,

this court observed that while the neutral explanation of “inattentivenesss”

that was based on “body language” was not discernible from an impassive

record, each of the other reasons given by the state was supported by the voir
8

dire record. It concluded, however, that among the various reasons given for

the strike, only “youthfulness and lack of attention” were legitimate race-

neutral explanations. It did not disturb the trial court’s denial of the

defendant’s Batson challenge.

The facts here are distinguishable from State v. Mamon. Ms. Brown

is 28 years old, significantly older than Ms. Goldsmith, who was age 21; the

difference of seven years constitutes one-third of Ms. Goldsmith’s life. In

addition to “youth,” Williams gave two additional neutral reasons for this

peremptory challenge to Ms. Brown: she has “had no life experiences” and

she did not really say a whole lot.

Neither of these assertions is supported by Ms. Brown’s responses to

the questions posed during the voir dire proceedings. Ms. Brown is a single

mother of a five-year-old and has gone through a divorce and custody

determination. One can hardly draw the conclusion that she has led a

sheltered life. She also appeared very willing to answer counsel’s questions.

We conclude counsel may have simply made an assumption based on Ms.

Brown’s youthful appearance that she had no life experiences and that she

could not be a fair and impartial juror.

We conclude that the trial court was correct in finding that defense

counsel’s neutral reasons for exercising a peremptory challenge were not

satisfactory or legitimate neutral reasons. La. C. Cr. P. art. 795(C). In other

words, the reasons were pretextual.

Austin Lee

We reach a similar conclusion with respect to the peremptory

challenge of Austin Lee. Defense counsel’s stated neutral explanation for

exercising this peremptory challenge was, “I just couldn’t get a good vibe
9

from him. I didn’t feel like I could bond with him.” He further noted that he

was bothered that Lee said he had a boss who was the victim of a crime.

Counsel concluded, “I wasn’t too clear on Austin Lee. I mean, he did say

everybody lied, but, you know, once again, it was just the way he answered

about the victim of a crime kind of causes concern.”

The transcript shows that few questions were directed to Austin Lee

during voir dire. At one point, counsel told Lee that he was in his dead zone

because he keeps “missing him” on questions. Lee said he works as a

welder helper and he hopes to be a rig welder one day; his girlfriend works

at a liquor store; he spends his spare time working on his car. When asked

whether he knew anyone who had been a victim of a crime, he said, “yes,

my boss.” Implying that it was not a big deal to him, he stated that he was

not close to his boss – they just worked together. When asked if it turned

out good or bad, he said he felt like he got what he deserved; it was unclear

whether Lee was speaking about his boss or the criminal.

Lee agreed that people could disagree on what constituted beyond a

reasonable doubt. However, he said it did not make anyone more right or

wrong. He said that if 11 jurors disagreed with him, he would try to explain

himself to them. He said that he also would hope they could convince him

he was wrong, but he would stand his ground if he was not convinced.

When asked if being a juror was something that would interest him or

that he would like to learn about, he answered, “No.” He said he did not like

sitting in a courtroom, but could probably do it for a week if required.

Finally, the prosecutor posed to the venire panel examples of “telling small

lies,” and he suggested that it was commonplace. Then he asked Lee alone

10

if he thought that every person, at one time or another, had told a lie. Lee

responded that everybody has told a lie every now and then.

The trial court sustained the state’s Batson challenge, stating:

With respect to Mr. Lee, the information that was
provided by [defense counsel] is that he could not get a good
vibe and the boss was the victim of a crime. As stated by the
state, nearly everybody in here knows someone who has been a
victim of a crime and there was no specific discussion with him
about how that would impact his ability to be a fair juror. So,
the challenge is appropriate with that one.

On appeal, Williams argues that Lee’s answers about crime victims

caused concern and that counsel explained that he did not feel that he could

get a good vibe from Lee. He further argues that Lee believes that people lie

and that his boss, a crime victim, had a bad situation. Although Lee said he

thought he would be a good juror, he also said he did not like being in the

courtroom and was not interested in learning about being a juror. Williams

contends that the reasons he gave for the strike were race-neutral, and

Batson does not require specific reasons so long as they are “race-neutral.”

While the stated reasons for defendant’s peremptory challenge of Lee

appear facially race-neutral, counsel’s explanation that he “did not feel that

he could get a good vibe from Lee” is tantamount to asking the court to

accept his good faith feeling that Lee would not be a fair and impartial juror.

Cf. State v. Nelson, supra (to satisfy the second step of Batson, “this

explanation does not have to be persuasive, or even plausible, but must be

more than a mere affirmation of good faith or assumption that the

challenged juror would be “partial to the defendant because of their shared

race”). The defendant’s burden of production in step two of this reverse-

Batson challenge is to articulate race-neutral reasons for the peremptory

11

challenge, and those reasons must be clear, reasonably specific, legitimate

and related to the case at bar. State v. Mamon, supra.

The question, then, is whether defense counsel’s remaining reasons

meet those criteria. On review, the voir dire record does not support

counsel’s argument that Lee believed that everyone is a liar. Lee’s response

was simply that everyone has told a lie at one time or another, which was

prompted by counsel’s suggestion that everyone has told small lies. We also

find no error in the trial court’s conclusion that everybody knows someone

who has been a victim of a crime, but counsel never discussed how or why

that fact impacted his ability to be a fair juror.

The neutral reasons given by the defense regarding the peremptory

challenge to Lee were neither clear nor legitimate. We therefore agree with

the trial court that they were not sufficient to overcome the state’s prima

facie showing that this peremptory challenge was based on race.

Robert Hall

During voir dire, defense counsel asked the venire panel if anyone had

any bias that could prevent him or her from being a good juror. When one

venire member, Middleton, did not respond to the question, defense counsel

asked him directly if he could be a fair and impartial juror. Middleton said,

“I don’t think I could be.” Counsel asked him why, and Middleton

responded, “Unfortunately, I am very biased against African Americans and

Latinos.” He further said that he already believed the defendant committed

the crime. Both the state and defense counsel agreed, as did the court, that

Middleton would be disqualified for cause.

Prior to that exchange, during early questioning of panel members, it

transpired that Middleton was a member of the family who owned property
12

and lived at some point across the street from another prospective juror,

Robert Hall. Hall said he knew Middleton; when asked, Middleton

acknowledged that he now recognized Hall, but did not initially recognize

him. Hall, who is much older than Middleton, said he used to hunt deer on

property owned by Middleton’s family across the street from his house.

When asked if they were friends, Hall answered affirmatively.

Defense counsel used a peremptory challenge on Hall based on that

fact. He stated, “I mainly cut [Robert Hall] because he was friends with

[juror] Middleton, and I thought Middleton would have followed him.”3

The court concluded that the reason was not valid, and the state’s

Batson challenge should be sustained:

With respect to Mr. Hall, [defense counsel] stated that he
was friends with—long term friend of Mr. Middleton. The
court would note that Mr. Hall is substantially older than Mr.
Middleton. Mr. Middleton, at the time of the peremptory strike,
had already been stricken for cause and that was agreed upon
by the state and the defense. There was no other explanation
given. There was nothing that was in the record to establish
that he was a racist or that he would’ve voted the way that Mr.
Middleton might would have voted. We won’t even know how
Mr. Middleton would vote, because he’s no longer on the jury
panel. And so I believe that that also is a good [Batson]
challenge and so he will come back on the jury.

As stated above, during voir dire, Hall said he knew Middleton

because he used to hunt on property owned by Middleton’s family, which

had lived across the street from him. Hall said that they were friends, but

that he would have no problem disagreeing with Middleton on whether or

not he thought any element of the crime was proven beyond a reasonable

doubt. He said he would stand his ground if he disagreed with Middleton.

3
It is apparent that defense counsel meant to say that he thought Hall would
follow Middleton. This assumes they would both be on the jury.
13

Hall said he did not think the state’s burden of proving the elements of a

crime beyond a reasonable doubt was too high or unfair.

In this appeal, Williams argues that notwithstanding Hall’s assertion

that he would have his own opinion and if he disagreed with Middleton he

would stand his ground, “the fact that Hall was a close personal friend of a

racist was of great concern for defense counsel who was representing a black

man.”

The record confirms that Hall is substantially older than Middleton

and knew the much younger Middleton because his family lived across the

street, and he had permission to hunt on the Middleton family’s property.

Although he said they were friends, the characterization is somewhat

ambiguous since it is not clear whether Hall was talking about his

relationship with the family in general, or specifically Middleton. We do

note, however, that Middleton said he did not recognize Hall until after a

while in the courtroom. This is hardly characteristic of two “close personal”

friends, as defense counsel depicts the relationship. Given the substantial

age difference between Hall and Middleton, Hall probably knew Middleton

as one of the now-grown children in the Middleton household. The court

specifically noted the substantial age difference for the record when it gave

its reason for upholding the Batson challenge.

Finally, and perhaps most importantly, the court pointed out that by

the time defense counsel exercised the peremptory strike on Hall, Middleton

had already been struck for cause and would not be on the jury. There was

nothing in the record to establish that Hall was a racist or would have voted

the same way Middleton would have voted, which was now moot since

14

Middleton was removed for cause from the jury venire before the

peremptory challenge was made.

As noted above, supplying race-neutral reasons constitutes step two of

the Batson inquiry. In a reverse-Batson case like this, the defendant’s

burden to satisfy step two merely requires that the proponent of the

peremptory strike give facially race-neutral reasons, even if not plausible,

for the strike. “The burden in step two is merely one of production, not one

of persuasion.” State v. Nelson, supra at p. 15, 85 So. 3d at 32.

It is in step three where the court must determine whether the

objecting party (here, the state) has carried its burden of proving purposeful

discrimination. “This final step involves evaluating ‘the persuasiveness of

the justification’ proffered by the striking party.” Id. “It is not until the third

step that the persuasiveness of the justification becomes relevant – the step

in which the trial court determines whether the opponent of the strike has

carried his burden of proving purposeful discrimination.” Id., citing Purkett

v. Elem, 514 U.S. 765, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995).

In this case, defense counsel exercised all eight peremptory challenges

on white jurors. The trial court determined that the state had made a prima

facie case of racial discrimination evidenced by a strong pattern of striking

white jurors. After defense counsel provided facially race-neutral reasons

for each of the strikes, the court evaluated those reasons in light of each

juror’s voir dire responses. Although it was persuaded that the race-neutral

reasons were given for five of the challenged jurors were valid, it found that

the race-neutral reasons given with respect to jurors Brown, Lee, and Hall

were not satisfactory or legitimate, i.e. they were pretextual and did not

negate the state’s prima facie showing of purposeful discrimination.
15

We find no error by the trial court in sustaining the Batson challenge

by the state with regard to prospective jurors Amanda Brown, Austin Lee,

and Robert Hall. We also find no error by the trial court when it returned

those three jurors to the jury venire and allowed them to serve on the jury in

this case.

We therefore conclude that this assignment is without merit, and the

defendant’s conviction and sentence are affirmed.

CONCLUSION

For the foregoing reasons, the conviction and sentence of the

defendant are affirmed.

AFFIRMED.

16

HUNTER, J., dissenting.

To establish a prima facie case under Batson v. Kentucky, 476 U.S.

79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), step one of the analysis requires

the objecting party to show: (1) the striking party’s peremptory challenge

was directed at a member of a cognizable group; (2) the challenge was

peremptory, rather than for cause; and (3) relevant circumstances sufficient

to raise an inference that the peremptory challenge was used to strike the

venireperson(s) on account of his or her being a member of the cognizable

group.

In the instant case, the State raised the objection, arguing the

defendant’s use of peremptory challenges was directed at members of a

cognizable group, i.e., Caucasians. However, the State did not set forth

circumstances “sufficient to raise an inference” of discriminatory intent.

When a Batson challenge is made, it is incumbent upon the trial judge

to address the challenge, either by ruling on whether a prima facie case of

discriminatory intent has been made or by requiring race-neutral reasons for

the strikes. State v. Myers, 99-1803 (La. 4/11/00), 761 So. 2d 498. Pursuant

to step two of the Batson analysis, the burden shifts to the striking party (in

this case, the defendant) to rebut the showing of intentional discrimination,

by articulating race-neutral reasons for their use of the challenges. This

explanation does not have to be persuasive, or even plausible. Unless a

discriminatory intent is inherent in the striking party’s explanation, the

reason offered will be deemed race-neutral. Purkett v. Elem, 514 U.S. 765,

115 S. Ct. 769, 131 L. Ed. 2d (1995); Hernandez v. New York, 500 U.S. 352,

111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991); Batson, supra; State v. Nelson,

10-1724 (La. 3/13/12), 85 So. 3d 21. In step three of the Batson analysis,
1

the court must then determine whether the objecting party has carried his

burden of proving purposeful discrimination. Miller-El v. Dretke, 545 U.S.

231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005); Batson, supra; Nelson,

supra.

When asked to provide race-neutral reasons for exercising the

peremptory challenges to strike three particular prospective jurors, defense

counsel proffered race-neutral reasons which are summarized as follows:

Austin Lee
Defense counsel stated he “just couldn’t get a good vibe from
him. I didn’t feel like I could bond with him.” Counsel also
noted Lee had stated he had a former boss who had been the
victim of a crime, and he had expressed “everybody lies.” The
trial court granted the Batson challenge with regard to Lee,
stating, “[N]early everybody in here knows someone who has
been a victim of a crime and there was no specific discussion
with him about how that would impact his ability to be a fair
juror.”

Robert Hall
Defense counsel stated he was challenging Hall because Hall
stated he was friends with another prospective juror who had
admitted to being a racist. The trial court sustained the Batson
challenge with regard to Hall, noting the friend who had
professed to being a racist “had already been stricken for cause
and that was agreed upon by the State and the defense.” The
court noted there was nothing in the record to establish Hall
was a racist or that he “would’ve voted the way [his friend]
might would have voted.”

Kamilla Brown
Defense counsel stated Brown was “just young, had no life
experiences, didn’t really say a whole lot.” The trial court
noted although Brown did “look young,” her questionnaire
indicated she was 28 years old. The trial court found defense
counsel failed to provide a sufficient race-neutral explanation
for challenging Brown.

A review of the jurisprudence reveals courts have accepted a myriad

of race-neutral justifications for striking jurors. See, e.g., Purkett, supra

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(State’s proffered explanation for striking the juror because he had long,

unkempt hair, a mustache, and a beard was race-neutral and satisfied

Batson’s step two burden of articulating a nondiscriminatory reason for the

strike); Hernandez, supra (Prosecutor’s justification for striking two

bilingual Latino jurors because he “fe[lt] very uncertain that they would be

able to listen and follow the interpreter” was plausible and sufficiently

race/ethnic-neutral); State v. Scott, 04-1312 (La. 1/19/06), 921 So. 2d 904

(State’s justification for striking a prospective African-American juror, that

she had a son the same age as defendant and would feel sympathy for

defendant’s mother, was sufficiently neutral to survive a Batson challenge),

cert. denied, 549 U.S. 858, 127 S. Ct. 137, 166 L. Ed. 2d 100 (2006); State

v. Wilson, 40,767 (La. App. 2 Cir. 8/23/06), 938 So. 2d 1111 (Prosecutor

offered legitimate, race-neutral reason for striking an African-American

juror when it argued that the juror was a minister’s wife and might hesitate

to impose the death penalty), writ denied, 06-2323 (La. 4/20/07), 954 So. 3d

159, cert. denied, 552 U.S. 917, 128 S. Ct. 275, 169 L. Ed. 2d 201 (2007);

State v. Parker, 04-1017 (La. App. 5 Cir. 3/29/05), 901 So. 2d 513 (When

accepted by the trial judge, the lodging of a peremptory challenge based on a

juror’s body language does not violate Batson), writ denied, 05-1451 (La.

1/13/06), 920 So. 2d 235; State v. Woods, 97-0800 (La. App. 1 Cir. 6/29/98,

713 So. 2d 1231) (Prospective juror’s mistaken belief that the prosecutor had

represented the prospective juror in a lawsuit was a legitimate, race-neutral

justification for the state’s peremptory strike), writ denied, 98-3041 (La.

4/1/99), 741 So. 2d 1281.

In State v. Nelson, supra, the defendant articulated reasons for striking

Caucasian jurors including the following: being “pro-prosecution”;
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expressing reservations about defense alibis; “strongly-favoring” the

prosecution “in the sense of being okay with people who flip”; expressing a

belief it was the defendant’s burden to disprove his guilt; not appearing to be

“serious about jury service” due to arriving late, offering “flippant”

responses to questions, and flirting with a female juror; seeming “to be very

pro-police”; and offering “negative views” about alibi witnesses. The

Supreme Court stated:

While the trial court found the number of challenges against
white jurors to be “eyebrow raising,” we find defendants
presented plausible and reasonable race-neutral reasons that
negate an inference of purposeful racial discrimination
sufficient to satisfy step two of Batson. Whether the reasons
are substantial, or whether they are supported by the record, is a
question to be determined in the third stage of the Batson
analysis.
***
After reviewing the record, it is clear the trial court merged the
steps of the Batson analysis which improperly shifted the
burden of proof to defense counsel – the proponent of the
strike. The record unquestionably demonstrates the trial court
never made a finding that the race neutral reasons offered by
defendants were pretextual. Although none of the proffered
reasons appears to inherently violate equal protection, the court
nonetheless rejected nine of them for no specific reason. In
rejecting defendants’ proffered race-neutral reasons, the trial
court reasoned that defendants failed to rebut the State’s prima
facie case of discrimination, essentially finding the defendants’
reasons not persuasive enough. The court erred in putting the
burden of persuasion on the defendants.

Id. at 32-33.

In the instant case, I believe the defendant presented plausible and

reasonable race-neutral reasons negating the inference of purposeful racial

discrimination. As stated above, the articulated race-neutral reasons do not

have to be persuasive, or even plausible. Further, the trial court erred in

failing to make a finding that the race-neutral reasons offered by defendants

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were pretextual, and erred in placing the burden on defendant to show he did

not purposefully discriminate.

Due to the Batson-related legal errors, which permeated the voir dire

proceedings, I believe we are compelled to reverse, vacate the defendant’s

convictions and sentences, and remand this matter to the trial court for a new

trial.

Accordingly, I dissent.

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