Court of Appeals of Arkansas, Divisions II, III, & IV
[Copyrighted Material Omitted]
FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-16-12],
HONORABLE BRENT HALTOM, JUDGE
Law Firm, by: Michael Kiel Kaiser and William O.
"Bill" James, Jr., Little Rock, for appellant.
Rutledge, Atty Gen., by: David L. Eanes, Jr., Asst Atty
Gen., for appellee.
J. HARRISON, Judge
Miller County Circuit Court jury convicted African American
defendant Shelby Jamal Davis of aggravated robbery and four
counts of first-degree battery. The jury also found that
Davis used a firearm when committing the batteries. Davis
appeals his convictions and the resulting one-hundred-year
sentence, raising three points. The first is that the circuit
court erred by denying his race-based Batson
challenge to the States five peremptory strikes against five
separate African American venire members. We reverse on the
Batson argument, making it unnecessary for us to
decide the other points.
The Juror-Selection Process
selection began on 29 January 2018. During the first phase,
the court asked the potential jurors many questions,
including whether they resided in Miller County or had
unpardoned felony convictions. The court excused several
people for cause. It then asked the potential jurors if they
had either been a victim of a crime or accused of committing
one. Fifteen people answered yes. None were excused for
circuit clerk then drew the names of thirty people. The court
called the names in the order the clerk had randomly selected
them. It asked each juror to stand when called. Defense
counsel and the prosecutor questioned the jurors individually
at that time and were given the opportunity to use
peremptory challenges (or strikes); each side had six. The
process continued until the jury box was filled.
Twenty-four people were individually questioned before the
jury was seated. Of the twenty-four, eight were African
American. And of the twenty-four, twelve survived peremptory
challenges. Three African Americans made it into the jury
box. Five African American prospective jurors were eliminated
by the prosecutors peremptory strikes. Stated as
percentages, the State used 83 percent of its strikes against
African Americans, resulting in 62.5 percent of the eligible
African Americans being excluded from serving as jurors.
are some details that put the jury-selection dispute in
context. The first two (non-African American) venire members
were seated without objection; the court excused a third
juror on its own motion. The defense exercised its first
peremptory strike against a non-African American woman named
Lauren Glover. The prosecution exercised its first strike
against Rachel Purifoy, a non-African American woman.
prosecution used its second strike against Thomas Harris, an
African American male, over Daviss Batson
objection. Having found that Davis made a prima facie case
for purposeful discrimination based on his race, the court
required the prosecutor to provide a race-neutral reason for
the peremptory challenge, as is required under Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
(1986). (More will be said about Batsons three-step
process in due course.) The reason the prosecutor gave was
that "Mr. Harris indicated that he knew or was aware of
and was familiar with the defendants grandfather, Mr. Davis.
He is, also, the father of a child approximately the
defendants age." The third strike the State used was
against an African American named Verlinda Cleveland. The
prosecutor said that because Cleveland is "a single
mother working with the school district," she would
"tend to be sympathetic towards a young person based on
[her] interactions with young people ... of the defendants
age." When he was tried, Davis was twenty-four years
old. The circuit court excused Cleveland, presumably because
she was a single mother who worked for the Texarkana School
was Martha Reynolds, a non-African American woman. The
defense exercised a preemptory strike against Reynolds after
she had said that her home had been burglarized and that the
perpetrator was successfully prosecuted.
the more concerning moments arrived when the prosecutor
exercised the States fourth peremptory challenge against
African American panelist Joyce Muldrow. Muldrow was the
third African American in a row against whom the State had
exercised a strike. When she was called as a potential juror
the prosecutor immediately asked the court to excuse her.
When summoned to the bench the prosecutor gave three
race-neutral reasons to justify the challenge: first, Muldrow
was the sole caregiver to her child and a disabled brother;
second, "[s]he has been accused of a crime and convicted
of a misdemeanor"; third, Muldrow "knew and was
familiar with" Daviss grandfather. Defense counsel
responded that Muldrow was a sole caregiver, but she also
"said that she would be able to have people cover for
that, certainly for these two days of this hearing."
Defense counsel also argued that Muldrow had stated that she
knew Daviss grandfather had a radio station but had never
listened to any of the programs.
circuit court responded:
[O]ut of the four strikes, they used [three] of them against
so they have to state a race neutral reason at this point in
time. Its not, like I say, the first one, there wasnt a
pattern, but obviously, there is a pattern here ... case law
is that the reason sometimes doesnt have to be rational,
they dont have to be anything other than something that they
say thats race neutral.
court then initially agreed with defense counsel,
not the prosecutor, regarding Muldrows ability to be seated.
"I agree with you that Ms. Muldrow said she would make
arrangements, and not let that be a problem[.]" And
"I agree with you that her [Muldrows] characterization
of knowing Mr. Davis was minimal. ... She didnt know him
personally, never listened to the program or anything."
The prosecutor then added that Muldrows sister had been
murdered in Miller County "and the individual
responsible for that had never been caught or
prosecuted." To which the court replied, "Thats
been the case with a bunch of people thats on the panel, one
of them being Ms. Reynolds, who had crime that you didnt
strike, which was white."
court rejected the prosecutors stated reasons to strike
Muldrow; yet it allowed the strike, stating, "So, youve
made your record, and those are race neutral reasons, so
this court cant stand in the way of it, but thats
where you are." (Emphasis added.)
State used its fifth peremptory strike against the next juror
that the clerk called, Gwendolyn Richards, an African
American woman. The prosecutor challenged Richards because
she has a child around twenty-three years of age, a husband
who worked in the Arkansas school system, and "contact
with children." The prosecutor also told the court that
Richards "made a scoffing noise and face which indicated
to me that she would give them less credibility than she
would anyone else." Defense counsel responded,
"[T]heres probably not a soul out there that has no
contact whatsoever with people who are the age of the
response to the parties arguments, the court said:
As stated previously, the court has found that there is a
pattern, and the state is required to give race neutral
reasons ... those reasons can be a variety of things, some of
them not even rational as the case law, but the more members
that are stricken from this case, obviously the more
prejudicial that it looks in this case, but making the
finding the court does have to find that the reasons
by the state are race neutral reasons, so I will allow the
(Emphasis added.) Six more potential jurors, all non-African
American, were individually questioned. The State did not
attempt to exercise its sixth strike against any one of them.
Among the six jurors was Gerald Bogan, whom defense counsel
had previously represented, and against whom the State had
dismissed all criminal charges. The prosecutor accepted
African American Louvenia Lee as the fourth juror to be
seated. Three more non-African Americans were then seated as
prosecutor exercised her sixth peremptory strike against
Schlandra Waller, an African American woman. The prosecutor
asked Waller about current criminal charges pending against
Wallers brother. Waller replied, "Well, he had a, I
was dropped in Miller County." She agreed that her
brother was in a nursing home. The stated reason the
prosecutor gave for the court to excuse Waller was, "I
am currently prosecuting her brother over a failure to
register. He is a registered sex offender out of
Arizona." The court responded, "[I]n this
particular case, the state has stated their reason and the
court does find that is a race neutral reason for the
striking of this juror."
next juror the clerk called was an African American woman
named Melba Taylor. She was ultimately accepted as a juror,
though the prosecutor moved to excuse her for cause. The
court denied the request, stating that other jurors had
expressed the same or similar problems, so Taylor would not
be excused for the stated reasons. When the prosecutor asked
the court to reconsider, it responded: "There was an
objection this time because this juror was a black female,
and you struck in this case five black members of the jury,
and thats why. ... Thats the second member of that race
[African American] on the jury." The prosecutor did not
object to Everlene Anderson being seated on the jury, making
her the third and final African American to sit in judgment
of the States case against Davis.
The Law of Race-Based Peremptory Challenges
Equal Protection Clause of the Fourteenth Amendment to the
Constitution of the United States "prohibits all forms
of purposeful racial discrimination in selection of
jurors." Batson, 476 U.S. at 88, 106 S.Ct.
1712. Purposeful discrimination not only violates the rights
of criminal defendants, it deprives prospective jurors of
"a significant opportunity to participate in civic
life." Powers v. Ohio, 499 U.S. 400, 409, 111
S.Ct. 1364, 113 L.Ed.2d 411 (1991). "[T]he selection of
a petit jury from a representative cross section of the
community is an essential component of the Sixth Amendment
right to a jury trial." Taylor v. Louisiana,
419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).
Therefore, the "Constitution forbids striking even a
single prospective juror for a discriminatory purpose."
Foster v. Chatman, __ U.S. __, 136 S.Ct. 1737, 1747,
195 L.Ed.2d 1 (2016) (internal citation omitted). And
"[w]hen an uncorrected Batson violation is
properly preserved for appeal by objection, the trial courts
error in permitting a discriminatory strike cannot be
harmless." Wayne R. LaFave et al. 6 Criminal Procedure §
22.3(d) Peremptory Challenges (4th ed.) (Nov. 2018 update)
(collecting cases) (footnotes omitted).
rub has been the practical difficulty of ferreting out
discrimination in selections discretionary by nature, and
choices subject to myriad legitimate influences, whatever the
race of the individuals on the panel from which jurors are
selected." Miller-El v. Dretke, 545 U.S. 231,
238, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). To help ferret
out discrimination, the Supreme Court of the United States
set forth a three-step inquiry that courts conduct when
intentional discrimination threatens to infect the
juror-selection process by way of peremptory strikes.
See Batson, 476 U.S. at 97, 106 S.Ct. 1712.
This appeal is primarily about the third step in the
Batson analysis. We now set forth the three steps
but will focus on the third one.
The First Step. When challenging a peremptory strike
that is allegedly racially motivated, the defendant must make
a prima facie showing sufficient to infer that the
prosecution exercised its strikes to exclude one or more
jurors based on the defendants race. Batson, 476
U.S. at 96, 106 S.Ct. 1712. The defendant is ...