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State v. Broussard

Supreme Court of Louisiana

January 30, 2018



          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 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 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 ...

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