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McMiller v. State

Supreme Court of Arkansas

October 9, 2014

KEVIN McMILLER, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT. NO. CR-12-291. HONORABLE JODI RAINES DENNIS, JUDGE.

AFFIRMED.

Potts Law Office, by: Gary W. Potts, for appellant.

Dustin McDaniel, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

OPINION

JOSEPHINE LINKER HART, Associate Justice.

Page 364

A Jefferson County jury convicted Kevin McMiller of capital murder, aggravated residential burglary, kidnapping, and rape. He was sentenced by the jury to life without parole for capital murder and life sentences for the other offenses, all to be served consecutively in the Arkansas Department of Correction. His sole argument on appeal is that the circuit court erred in denying his objection to the State's use of peremptory challenges in violation of the law promulgated in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2013). We affirm. It was established at trial through the testimony of D.O., the seventeen-year-old victim of the kidnapping and rape, and through McMiller's confession that on March 22, 2012, McMiller perpetrated the above-referenced crimes. Because McMiller does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary. After D.O., McMiller's girlfriend, acceded to her mother's entreaty to break up with him, McMiller tried repeatedly, but unsuccessfully, to contact D.O. by phone. He then took one

Page 365

of his mother's kitchen knives and went to the residence that D.O. shared with her mother, Shirley Owney. When McMiller overheard Shirley Owney disparage him, McMiller leaped through a bedroom window into the residence. He caught Owney in the kitchen and repeatedly stabbed her, causing her death. McMiller then put the knife to D.O.'s throat and forced her to accompany him to a deserted house where he raped her.

In his only argument on appeal, McMiller asserts that the circuit court erred in denying his Batson challenge. He contends that there was purposeful discrimination in that " of the eight strikes used by the State, six [sic] were strikes of black potential jurors," which resulted in him, an African American, being tried by an all-white jury.

During voir dire, of the eight peremptory challenges made by the State, five of the jurors struck were African Americans. McMiller asserted, at trial and on appeal, that this demonstrated a pattern of systematic discrimination. While the circuit court made no finding of systematic discrimination, upon McMiller's assertion of a Batson violation, the State volunteered race-neutral explanations for its challenges. The State noted that during questioning, Venoit Morgan and Lois Reed expressed doubt about their ability to sit in judgment over someone, and following a denial of its motion to strike them for cause, it used peremptory challenges to remove them from the jury. Further the State claimed that it struck Theresa Helms because she would " not interact" and was young and unemployed. The State explained that it struck Catha Hicks because she had deadlines on her job and her mind was " not in the courtroom." The State further asserted that Hicks said she could not judge and that her husband and her son had previously been charged with felony offenses. The State stated that Sterling Linton II was struck because he did not respond or have any interaction during questioning. One other African American juror was drawn from the venire, but she was struck by the defense. The circuit court noted that it was not asked to rule whether the use of peremptory strikes established a systematic effort to exclude African Americans from the panel. Nonetheless, the circuit court did find that the State gave a reasonable race-neutral explanation for its strikes and denied McMiller's Batson challenge.[1]

Batson v. Kentucky held that the State in a criminal case may not use its peremptory strikes to exclude jurors solely on the basis of race. Jackson v. State, 375 Ark. 321, 290 S.W.3d 574 (2009). At trial, a three-step process is required to effectuate the dictates of Batson and its progeny. Id. First, the opponent of the peremptory strikes must present facts to make a prima facie case of purposeful discrimination. Id. Second, upon a showing of a prima facie case of systematic discrimination, the State is required to give a race-neutral explanation for the strikes. Id. Third, the circuit court must decide whether the opponent of the strike has proved purposeful discrimination. Id. On appeal, we will not reverse a circuit court's findings on a Batson objection unless the ...


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