Sonny v. Balch Motor Co.

Paul B. SONNY v. BALCH MOTOR COMPANY

96-384                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 28, 1997


1.   Evidence -- admission by lower court -- reversed only upon
     finding abuse of discretion. -- The supreme court will not
     reverse a lower court's determination regarding the
     evidentiary balancing of probative value against prejudice
     absent a manifest abuse of discretion.

2.   Evidence -- admission by lower court -- no abuse of discretion
     found. -- After reviewing the record, the supreme court found
     that none of the evidence relating to the circumstances
     surrounding the prior lawsuit was used to prove that appellant
     acted in conformity with the earlier incident in the
     circumstances at issue in this trial; rather, the trial court
     found the evidence to be relevant and admissible due to
     appellant's counterclaim alleging malicious prosecution; the
     trial court's decision to admit the evidence of the earlier
     incident did not reflect a manifest abuse of discretion. 

3.   Constitutional law -- use of peremptory strikes in jury 
     selection -- Batson v. Kentucky discussed. -- In Batson v.
     Kentucky, 476 U.S. 79 (1986), the United States Supreme Court
     held that the Equal Protection Clause of the United States
     Constitution forbids a prosecutor in a criminal case to use
     his peremptory strikes to exclude jurors solely on the basis
     of race; this decision was later extended to private litigants
     who use peremptory challenges to exclude prospective jurors;
     any exclusion from jury service on the basis of race violates
     the equal protection rights of the challenged jurors.  

4.   Jury -- burden of persuasion regarding racial motivation rests
     with opponent of strike -- trial court must use its discretion
     to eliminate racial discrimination in jury selection and to
     protect practice of peremptory challenges. -- Eliminating
     racial discrimination in the selection of jurors and
     simultaneously protecting the practice of peremptory
     challenges addresses itself to the sound discretion of the
     trial court; the ultimate burden of persuasion regarding
     racial motivation rests with, and never shifts from, the
     opponent of the strike. 

5.   Jury -- Batson objection -- reversible error to force counsel
     to make such objection in front of jury. -- It is reversible
     error to force the defense counsel to make his Batson
     objection in front of the jury, thereby assuring that the
     entire proceeding be treated with great sensitivity.


6.   Jury -- first requirement of Batson objection -- upon a prima
     facie showing of prohibited discrimination burden shifts to
     state to provide racially neutral explanation. -- The first
     requirement of a Batson objection is to make a prima facie
     case of prohibited discrimination in a peremptory challenge;
     if no prima facie case is presented, no neutral explanation is
     required; when there is no challenge to whether a prima facie
     case has been made, but a race-neutral explanation is offered,
     the issue of a prima facie case becomes moot; if the trial
     court finds that the defendant has made a prima facie showing,
     the burden shifts to the state to provide a racially neutral
     explanation.

7.   Jury -- explanation to rebut prima facie case of
     discrimination required -- when explanation offered trial
     court must determine whether explanation is sufficient. --
     Failure to require an explanation to rebut a prima facie case
     of discrimination before allowing the exercise of a peremptory
     challenge is error requiring reversal; when a racially neutral
     explanation is offered to rebut the prima facie case, the
     trial court then must determine from all relevant
     circumstances the sufficiency of the explanation; when the
     neutral explanation given by the State is sufficient, and no
     request is made for further inquiry, no further sensitive
     inquiry is warranted.

8.   Jury -- great deference given to trial court's exercise of
     discretion in determining discriminatory intent relating to
     use of peremptory strike -- decision reversed only if against
     preponderance of evidence. -- The supreme court's standard of
     review affords great deference to the trial court's exercise
     of discretion in determining discriminatory intent relating to
     the use of a peremptory strike, and it will only reverse that
     decision if it is clearly against a preponderance of the
     evidence. 

9.   Jury -- prima facie case made -- racially neutral explanation
     given -- trial court's acceptance of explanation not clearly
     against preponderance of evidence. --  Where appellee's use of
     two of its three peremptory strikes to remove the only two
     black jurors on the petit jury panel met the requirements of
     a prima facie case and the trial judge so determined in
     requiring appellee's counsel to explain the strikes;
     appellee's counsel responded to questions from the court that
     appellee was seeking a jury panel that was mature and business
     oriented and of the two persons removed one was young and the
     other not likely to be business oriented; age and occupation
     are racially neutral criteria, and in the light of the
     circumstances of the trial, the explanation was rationally
     related to the trial; the trial court's acceptance of
     appellee's explanation as sufficient was given great
     deference; the decision by the trial court was not clearly
     against a preponderance of the evidence.


     Appeal from Pulaski Circuit Court; John B. Plegge, Judge;
affirmed.
     Wallace, Hamner & Adams, by:  James R. Wallace and Dale E.
Adams, for appellant.
     Anderson & Kilpatrick, by:  Mariam T. Hopkins, for appellee.

     Ray Thornton, Justice.
     Balch Motor Company sued Paul B. Sonny for an unpaid bill for
repairs to Mr. Sonny's car.  Mr. Sonny counterclaimed for damages
from Balch in connection with Balch's efforts to prosecute him for
theft of services.  The jury found in favor of Balch for car
repairs in the amount of $871.13, and against Mr. Sonny on his
counterclaims of malicious prosecution and abuse of process.  On
appeal to the Arkansas Court of Appeals, Mr. Sonny argued that the
trial court erred in allowing the introduction of evidence about a
prior incident between the parties, and contended that Balch's use
of peremptory strikes to exclude two black people from the jury was
unconstitutional.  The Court of Appeals decided that the trial
court did not abuse its discretion in allowing the introduction of
evidence regarding the earlier incident and affirmed by a tie vote
the trial court's decision that Balch's use of peremptory strikes
did not violate Mr. Sonny's constitutional rights.  Sonny v. Balch
Motor Co., 52 Ark. App. 233, 917 S.W.2d 173 (1996).
     We granted Mr. Sonny's petition for review of the decision of
the Court of Appeals because of the tie vote on the question of a
violation of Mr. Sonny's constitutional rights.  We conduct our
review pursuant to Ark. Sup. Ct. R. 1-2(f) as though the case had
originally been appealed to this court, and we conclude that the
trial court's decision should be affirmed.
   Whether Introduction of Evidence of Prior Lawsuit was Error
     While Mr. Sonny did not specifically seek a review of the
Court of Appeals' decision relating to the introduction of evidence
regarding the earlier lawsuit, we first address that issue because
it was included in his original appeal.  Mr. Sonny claimed that the
evidence of the earlier lawsuit between the parties should have
been excluded pursuant to Ark. R. Evid. 403 and 404.  We will not
reverse a lower court's determination regarding this evidentiary
balancing of probative value against prejudice absent a manifest
abuse of discretion.  Wallace v. State, 326 Ark. 376, 379, 931 S.W.2d 113, 115 (1996); Jarrett v. State, 310 Ark. 358, 363, 833 S.W.2d 779, 781 (1992).  After reviewing the record, we find that
none of the evidence relating to the circumstances surrounding the
prior lawsuit was used to prove that Mr. Sonny acted in conformity
with the earlier incident in the circumstances at issue in this
trial.  Ark. R. Evid. 404.  Rather, the trial court found the
evidence to be relevant and admissible due to Mr. Sonny's
counterclaim alleging malicious prosecution.
     We hold that the trial court's decision to admit the evidence
of the earlier incident does not reflect a manifest abuse of
discretion and affirm on this point.
      Whether Balch Unconstitutionally Used its Peremptory
          Strikes to Exclude Blacks from the Petit Jury
     For his second point of appeal, Mr. Sonny claimed that Balch
used its peremptory challenges at trial to exclude blacks from the
petit jury in violation of the Equal Protection Clause of the
Fourteenth Amendment as construed in Batson v. Kentucky, 476 U.S. 79 (1986).
     In Batson, the United States Supreme Court held that the Equal
Protection Clause of the United States Constitution forbids a
prosecutor in a criminal case to use his peremptory strikes to
exclude jurors solely on the basis of race.  Id. at 84.  In
Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), the
Supreme Court extended its decision in Batson to private litigants
who use peremptory challenges to exclude prospective jurors, and
described its concern with racial bias in our legal system as
follows:
     Race discrimination within the courtroom raises
serious questions as to the fairness of the proceedings
conducted there.  Racial bias mars the integrity of the
judicial system, and prevents the idea of democratic
government from becoming a reality.
Id. at 628 (citations omitted).  This extension of the principle
that racial bias has no place in the courtroom is salutary, as any
exclusion from jury service on the basis of race violates the equal
protection rights of the challenged jurors.  Discrimination in jury
selection in a civil action on the basis of race harms the person
excluded from service no less than exclusion from a criminal jury. 
Id. at 618.
     The goal of fairness in jury trials is also enhanced by the
venerable practice of peremptory challenges, which dates back
beyond the founding of the Republic to origins in the common law. 
Holland v. Illinois, 493 U.S. 474, 481 (1990) (citing 4 W.
Blackstone, Commentaries 346-48 (1769)); see also Swain v. Alabama,
380 U.S. 202, 215-18 (1965).  The historical practice of allowing
the litigant to strike jurors for any reason came into being for
the purpose of fostering both the perception and the reality of an
impartial jury.  Lewis v. United States, 146 U.S. 370, 376 (1892);
Hayes v. Missouri, 120 U.S. 68, 70-71 (1887).  The rationale
supporting this practice remains valid except where the
constitutional principles articulated by Batson and its progeny are
violated.  Edmonson v. Leesville Concrete Co., 500 U.S.  at 619-22.
     Eliminating racial discrimination in the selection of jurors
and simultaneously protecting the practice of peremptory challenges
addresses itself to the sound discretion of the trial court.  The
basis for this deference is articulated in Hernandez v. New York,
500 U.S. 352 (1991), where the Court stated:
In the typical peremptory challenge inquiry, the decisive
question will be whether counsel's race-neutral
explanation for a peremptory challenge should be
believed.  There will seldom be much evidence bearing on
that issue, and the best evidence often will be the
demeanor of the attorney who exercises the challenge. .
. .  [T]he state of mind of a juror . . . based on
demeanor and credibility lies "peculiarly within a trial
judge's province."
Id. at 365 (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)). 
It is essential that trial courts charged with this responsibility
be provided with clear statements of applicable principles of law. 
Recently, the Court has restated the principle that "the ultimate
burden of persuasion regarding racial motivation rests with, and
never shifts from, the opponent of the strike."  Purkett v. Elem,
115 S.Ct 1769, 1771 (1995) (per curiam).
     While the Supreme Court decisions from Batson to Purkett have
provided an analysis of the constitutional principles to be
followed, we have recognized a need for an orderly process for
resolving the issues.  We pointed out in Watson v. State, 308 Ark.
444, 825 S.W.2d 569 (1992), that Batson was silent on the specific
procedures that the states should use in implementing the Court's
decisions.  We stated that "[t]he upshot of this lack of direction
has been that the states have been forced to chart their own
courses in formulating procedures for the time, place, and manner
of the Batson process."  Id. at 449, 825 S.W.2d  at 571.  We then
proceeded in Watson to establish that it is reversible error to
force the defense counsel to make his Batson objection in front of
the jury, thereby assuring that the entire proceeding be treated
with great sensitivity.  Id. at 451, 825 S.W.2d  at 573.
     We adhere to the basic structure prescribed by the Supreme
Court, and we have further developed specific procedures for our
courts to follow when considering a Batson challenge.  The first
requirement of a Batson objection is to make a prima facie case of
prohibited discrimination in a peremptory challenge.  Bradley v.
State, 320 Ark. 100, 107, 896 S.W.2d 425, 429 (1995).  If no prima
facie case is presented, no neutral explanation is required. 
Tucker v. State, 313 Ark. 624, 629, 855 S.W.2d 948, 950 (1993)
(affirming on other grounds the trial court's finding no Batson
violation).  When there is no challenge to whether a prima facie
case has been made, but a race-neutral explanation is offered, the
issue of a prima facie case becomes moot.  Cleveland v. State, 326
Ark. 46, 49, 930 S.W.2d 316, 318 (1996) (quoting Prowell v. State,
324 Ark. 335, 345, 921 S.W.2d 585, 591 (1996)).  As we further
pointed out in Bradley, "[i]f the trial court finds that the
defendant has made a prima facie showing, the burden shifts to the
State to provide a racially neutral explanation."  Bradley v.
State, 320 Ark. at 108, 896 S.W.2d  at 429 (citing Batson v.
Kentucky, 476 U.S. at 97).
     Failure to require an explanation to rebut a prima facie case
of discrimination before allowing the exercise of a peremptory
challenge is error requiring reversal.  Ward v. State, 293 Ark. 88,
93-94, 722 S.W.2d 728, 730-31 (1987).  When a racially neutral
explanation is offered to rebut the prima facie case, the trial
court shall then determine from all relevant circumstances the
sufficiency of the explanation.  Colbert v. State, 304 Ark. 250,
255, 801 S.W.2d 643, 646 (1990); see also Tucker v. State, 313 Ark.
at 629, 855 S.W.2d  at 950.
     We have affirmed a trial court's decision that a racially
neutral explanation was a sufficient basis for the peremptory
strike without further inquiry, stating:
     Hence, we cannot say, under these circumstances, that the
     circuit court's acceptance of the prosecutor's justification
     was clearly contrary to the preponderance of the evidence. 
     Accordingly, a further inquiry on the matter was not
     warranted.  On this point, we note that the appellant did not
     specifically ask the court to conduct a further inquiry. 
     Moreover, we are not certain that what transpired in the bench
     proceeding was not a sensitive inquiry.  Both counsel were
     questioned by the court, statements were made, and the court
     made its finding.
Hollamon v. State, 312 Ark. 48, 54, 846 S.W.2d 663, 666 (1993)
(emphasis added).  This is in accord with our holding in Colbert v.
State, 304 Ark. at 254-55, 801 S.W.2d  at 646, where we stated that
when the neutral explanation given by the State is sufficient, no
sensitive inquiry is required.
     These procedures have been well established in our case law
and are consistent with the principles set forth in Batson through
Purkett.  When the party having the burden of moving forward
declines to proceed further, the trial court decides whether a
prima facie case has been made.  If a prima facie case has been
made, the court must require an explanation and then determine,
considering the evidence and explanations presented along with its
observations of the proceedings and such further inquiry as it
deems necessary, whether the neutral explanations given are genuine
or pretextual.
     We have affirmed the use of peremptory strikes where two
potential jurors were seen "mouthing words" to the defendant,
Cleveland v. State, 326 Ark. at 50, 930 S.W.2d  at 319, and where a
venire member was "dozing" during voir dire, Owens v. State, 300
Ark. 73, 79, 777 S.W.2d 205, 208 (1989).  Other courts have
accepted the reasons given by Balch for the use of its strikes as
racially neutral reasons.  See United States v. Ross, 872 F.2d 249
(8th Cir. 1989) (accepting age and unemployment status as racially
neutral reasons); United States v. Garrison, 849 F.2d 103 (4th Cir.
1988) (accepting age and demeanor during voir dire as racially
neutral reasons); People v. Mack, 128 Ill. 2d 231, 538 N.E.2d 1107
(1989) (accepting employment background as a racially neutral
reason).
     We note that the Eighth Circuit Court of Appeals considered an
issue similar to the one before us in McKeel v. City of Pine Bluff,
73 F.3d 207 (8th Cir. 1996), where defendants had used two of their
peremptory challenges to strike the two black jurors from the
venire panel.  The explanation offered was that one black juror was
struck because she worked with mental-health patients, while the
other black juror was struck because "her facial expressions and
body language indicated a hostility to defendants."  Id. at 210. 
The court then pointed out that these explanations were accepted by
the district court, and stated:
The record shows that McKeel's counsel at no time offered
or attempted to offer any argument or make any record
that the proffered reasons were pretextual. . . .  In
fact, we have previously upheld findings by trial courts
that opponents of peremptory strikes who made no
objection or record with respect to pretext failed to
carry their burden of persuasion to prove purposeful
discrimination in the peremptory process.
Id.; see also Williams v. Groose, 77 F.3d 259 (8th Cir. 1996).
     Our standard of review affords great deference to the trial
court's exercise of discretion in determining discriminatory intent
relating to the use of a peremptory strike, and we only reverse
that decision if it is clearly against a preponderance of the
evidence.  Prowell v. State, 324 Ark. at 344, 921 S.W.2d  at 591.
     Applying these principles to the particular circumstances of
this case, we note that Balch's use of two of its three peremptory
strikes to remove the only two black jurors on the petit jury panel
meets the requirements of a prima facie case, and that the trial
judge so determined in requiring Balch's counsel to explain the
strikes.  At oral arguments, she responded to questions from the
court that Balch was seeking a jury panel that was mature and
business-oriented, and she had prepared a jury profile in which the
one potential juror who was under the age of twenty-one years old
would likely be peremptorily challenged as not meeting that
profile.  The attorneys also had information available from juror
questionnaires, which included such information as age and
occupation of the prospective jurors, but made no reference to
race.
     The Batson objection and the explanation offered by Balch for
its peremptory challenges at the trial was as follows:
     Defense Counsel:  Your honor, first of all there
were only two blacks in this entire panel to start with
out of some thirty people who were called.  They were
both seated.  Now the Plaintiff/Counter Defendant has
struck both blacks and I make a Batson challenge.
     Plaintiff's Counsel:  Your honor, we did not strike
the black jurors because they were black, I can't even
remember their names.
     Trial Court:  You are going to have to say why you
struck them because you struck them at all.
     Plaintiff's Counsel:  The young lady who was sitting
on the very front row was a young lady.  We struck her
because she was young.  When we asked her various
questions about what she thought, she tended to look down
and not be responsive.  It was just a feeling.  The other
gentlemen [sic] was Mr. Stewart.  My impression of him
was the same as the others we struck.  He did not make
eye contact with me during the process of voir dire.  We
were also looking for very conservative jurors.  We found
that he was a backhoe operator.  We thought that with his
background he might feel sorry for Mr. Sonny.  We wanted
to pick people who were in business or business oriented
and very conservative.
     Defense Counsel:  I do not believe the reasons she
articulated are sufficient.
     Trial Court:  I understand what you are saying but
I think she has articulated sufficient reasons. 
Objection overruled.
(Emphasis added.)
     Age and occupation are racially neutral criteria, and in the
light of the circumstances of the trial, where Balch was seeking
mature and business-oriented jurors, the explanation was rationally
related to the trial.  Also, in considering the explanations based
upon juror demeanor, such as unresponsiveness, the trial court was
in a good position to determine whether this reason was genuine or
pretextual.  Hernandez v. New York, 500 U.S.  at 365.  We note that
after the explanations were given, Mr. Sonny did not seek to
provide additional evidence, but simply asserted that the
explanation was insufficient.
     The trial court accepted Balch's explanation as sufficient and
allowed the peremptory challenges.  We give great deference to the
trial court in making this determination.  In light of the facts
before us, we conclude that the decision by the trial court was not
clearly against a preponderance of the evidence.
     Affirmed.
     Glaze, J., not participating.