WRIT OF CERTIORARI TO THE FOURTH CIRCUIT COURT OF APPEAL,
PARISH OF ORLEANS
November 22, 2011, four men, including Merlin Smothers and
Jeremiah Harris, were engaged in illegal activities in
Harris's vehicle when a blue Monte Carlo pulled up behind
them. A person stood up through the Monte Carlo's sunroof
and began shooting at them with an assault rifle. Harris was
shot but survived. Smothers escaped injury. Police chased the
Monte Carlo and ultimately apprehended the driver of the
vehicle, Eugene Brashears, who was the only person in the
vehicle by the time police were able to catch it. Smothers
and Harris described the shooter as a black male wearing a
red hat but they were otherwise unable to identify him. Two
red hats were found in the vehicle but no firearm remained.
DNA recovered from one red hat matched Brashears and he
tested positive for gunshot residue. No one was charged with
this shooting at the time and Brashears was deceased by the
time of defendant's trial.
December 2, 2011, police conducted aerial surveillance of a
white pickup truck. During that surveillance police saw two
people, one of whom matched defendant's description,
exit the truck and appear to discard an object. Police
recovered an assault rifle in the vicinity.
years later when Smothers and Harris were arrested on federal
charges related to heroin distribution they identified
defendant as the shooter in the incident on November 22,
2011. Defendant was indicted by grand jury with two counts of
attempted second degree murder and one count of possession of
a firearm by a convicted felon. The trial commenced in 2015.
jury selection, defendant objected to the State's use of
four peremptory challenges to remove African-American jurors
in light of Batson v. Kentucky, 476 U.S. 79, 106
S.Ct. 1712, 90 L.Ed.2d 69 (1986), and State v.
Collier, 553 So.2d 815 (La. 1989). The following
colloquy then occurred:
The Court: What is your response?
The State: My first response would be that there [are] two
African-Americans that we are going to keep on the Jury. The
second response would be that of all the cuts used by Defense
counsel, they are all on white Jurors. The third response, as
to Ms. Hills, Judge, is that, first she is an educator and
is-I had some concern when I asked her about her prior Jury
service. First she didn't say anything, and then she
couldn't give us any details about the type of crime,
when it took place or anything like that.
The Court: I will note for the record that of the five
challenges the State has exercised, one of them is a white
male. So, per se, it is not satisfied and I accept the
State's response as to the challenge, in addition to
the State objected to the defendant's use of ten
peremptory challenges to remove white jurors in light of
Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348,
120 L.Ed.2d 33 (1992) and State v. Knox, 609 So.2d
803 (La. 1992). The court stated that "I'm noting
that the State has satisfied that first level, they are all
white" but also noted that most of the stricken jurors
had already left the courthouse. Therefore, the court asked
the defense for reasons for exercising just three of the
strikes of jurors Fiegel, Luke, and Laughlin. Regarding juror
Fiegel, the defense stated the following:
I'm striking Mr. Fiegel, Your Honor, because Mr. Fiegel
didn't talk much and I think Mr. Washington didn't
really question him that much. The only thing I know about
him is that he is a disc jockey at a radio station. I
don't know what kind of radio station that is. Through
our error, we didn't ask him any-we didn't get a feel
for-one way or another, I struck him because he wasn't
defense then explained that it struck juror Luke because he
appeared over-eager to serve on the jury and looked at the
defendant "in a negative way," and that it struck
juror Laughlin for expressing pro-prosecution views regarding
witnesses who testify pursuant to plea agreements with the
State. The court then ruled: "You have satisfied your
race neutral basis for Jurors Luke and Laughlin. I am not
satisfied with your response as to Mr. Fiegel.
Batson challenge is granted as to Juror No. 28, Mr.
Fiegel. He is part of this Jury."
jury was selected and defendant proceeded to trial. Harris
testified at trial, pursuant to a federal plea agreement, and
he identified defendant with absolute certainty as the
shooter. Smothers denied he had ever identified defendant.
His testimony was contradicted by that of two FBI agents who
testified he identified defendant but his statements to them
were never recorded or transcribed. Multiple DNA profiles
were obtained from the outside of the assault rifle recovered
on December 2, 2011, including DNA matching the defendant.
Defendant's DNA was not consistent with the mixed DNA
profiles obtained from the assault rifle's magazine.
Ballistics testing showed that the assault rifle recovered on
December 2, 2011, was used in the shooting on November 22,
jury found defendant guilty as charged of two counts of
attempted second degree murder and one count of being a felon
in possession of a firearm. Defendant admitted his status as
a second-felony offender (with a prior conviction in Texas
for possession of cocaine), and the district court sentenced
him to two concurrent terms of 100 years imprisonment at hard
labor without benefit of parole, probation, or suspension of
sentence, and one concurrent term of 20 years imprisonment at
court of appeal affirmed after examining and rejecting
several assignments of error. State v. Jones,
15-0956 (La.App. 4 Cir. 3/22/17), 214 So.3d 124. We granted
defendant's application primarily to examine the district
court's handling of the Batson and
reverse-Batson objections. Pertinent to those
issues, the court of appeal interpreted the district
court's statement that "per se, it is not
satisfied" as a determination that the defense had
failed to make a prima facie showing of racial discrimination
in the State's use of its peremptory challenges.
Jones, 15-0956, pp. 12-13, 214 So.3d at 136-137.
While recognizing ambiguity in the district court's
initial request for a response from the State, the court of
appeal found it did not constitute a demand for race-neutral
reasons such that the burden ever shifted to the State to
articulate those reasons. Jones, 15-0956, p. 13, 214
So.3d at 136 ("And, we are not convinced that the trial
judge's request for a response from the prosecutor, while
perhaps not keeping within the confines of a Batson
analysis, constituted a demand for race-neutral reasons such
that the burden would shift to the state.").
contrast, the court of appeal found the district court's
statement that "the State has satisfied that first
level" as indicating the State made a prima facie
showing in conjunction with its reverse-Batson
objection to defendant's use of peremptory challenges.
Jones, 15-0956, p. 13, 214 So.3d at 137. With regard
to Batson's step two, the court of appeal also
found the reasons provided by the defense for striking juror
Fiegel were facially race-neutral because discriminatory
intent was not inherent in them. Id. The court of
appeal then inferred from the district court's statement
that it was not satisfied, despite the district court's
failure to adhere to the "precise mechanics" of
Batson, that the district court correctly held the
State to its burden of showing purposeful discrimination:
The trial judge's succinct statement that she was
"not satisfied" with defense counsel's reasons
may appear to have impermissibly shifted the burden onto the
defense to rebut the prosecutor's prima facie case. We
are convinced, however, that the trial judge "assess[ed]
the plausibility of [the defense's] reason in light of
all [the] evidence," and, in essence, determined that
the prosecution had carried its burden. Miller-El,
545 U.S. at 251-52, 125 S.Ct. 2317. Although the trial judge
may not have adhered to the precise mechanics of a
Batson analysis, we find that her ultimate ruling,
which seated Juror Fiegel, did not render the jury
unqualified or biased. We thus cannot say, based on the
record before us, that the circumstances presented here
warrant automatic reversal of Mr. Jones's convictions.
See Rivera, 556 U.S. at 160, 129 S.Ct. 1446 (An
error is "structural," therefore requiring
automatic reversal "only when the error necessarily
renders a criminal trial fundamentally unfair or an
unreliable vehicle for determining guilt or innocence.")
(internal quotation marks and brackets omitted).
Jones, 15-0956, p. 14, 214 So.3d at 137 (footnote
omitted). That inference from scant evidence is where we find
the court of appeal erred.
United States Supreme Court in Batson and the cases
that followed has provided a three-step process to guide
courts in evaluating a claim of racial discrimination in jury
(1) An opponent of the strike must make a prima facie showing
that a peremptory challenge has been exercised on the basis
(2) if the requisite showing has been made, the proponent of
the strike "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 "[the opponent of the strike] has
established purposeful discrimination."
State v. Green, 94-0887, p. 23 (La. 5/22/95), 655
So.2d 272, 287 (quoting Hernandez v. New York, 500
U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)).
The burden of persuasion never shifts from the opponent of
the strike. State v. Nelson, 10-1724, 10-1726, p. 15
(La. 3/13/12), 85 So.3d 21, 32 (citing Purkett v.
Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834
(1995)). 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. See, e.g., State v.
Bender, 13-1794, pp. 3-4 (La. 9/3/14), 152 So.3d 126,
129; Nelson, 10-1724, 10-1726, p. 10, 85 So.3d at
29; State v. Draughn, 05-1825, p. 29 (La. 1/17/07),
950 So.2d 583, 605; Green, 94-0887, p. 25, 655 So.2d
until steps one and two of the Batson test have been
satisfied is the trial court's duty under step three
triggered. See Johnson v. California, 545 U.S. 162,
125 S.Ct. 2410, 162 L.Ed.2d 129 (2005), which provides:
The first two Batson steps govern the production of
evidence that allows the trial court to determine the
persuasiveness of the defendant's constitutional claim.
"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
Id., 545 U.S. at 171, 125 S.Ct. at 2417-18 (quoting
Purkett, 514 U.S. at 768, 115 S.Ct. at 1771). Thus,
the responsibility in the three-step Batson test
falls first on the opponent of the strike in step one, then
on the proponent of the strike in step two, and lastly, on
the trial court in step three. The Johnson court