# MacKintrush v. State > Court of Appeals of Arkansas · December 22, 1997 · 60 Ark. App. 42 URL: https://www.frixlaw.com/law-library/cases/6552723 ## Case - **Full name:** Walter Ray MacKINTRUSH v. STATE of Arkansas - **Court:** Court of Appeals of Arkansas - **Decided:** December 22, 1997 - **Citations:** 60 Ark. App. 42; 959 S.W.2d 404; 1997 Ark. App. LEXIS 844 - **Precedential status:** Published - **Opinion:** Concurrence by Roaf - **Judges:** Agree, Arey, Bird, Crabtree, Griffen, III, Roaf, Stroud - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6552723 ## Opinion text Andree Layton Roaf, Judge, concurring. I agree wholeheartedly with the views expressed by the dissenting judge. However, I concur with the majority in affirming this conviction because I believe that we are bound to follow the precedents of our supreme court, if for no other reason than they may review, and reverse, any opinion handed down by this court. However, what that precedent is, or should be in this instance, warrants further discussion. In Colbert v. State, 304 Ark. 250 , 801 S.W.2d 643 (1990), the supreme court held for the first time that trial courts would no longer be required to conduct a “sensitive inquiry” in every case where a Batson challenge is raised and a prima facie case made. The court said that a sensitive inquiry would be required only where the State’s racially neutral explanations “appear ed insufficient.” It may well be true that some race-neutral explanations will be so obviously nondiscriminatory as to require little inquiry by the trial court. It is equally true that other proffered explanations will be blatantly pretextual and will require little inquiry, sensitive or otherwise, to uncover the true discriminatory purposes behind the strikes. However, in 1993, the supreme court further, and, I think inadvertently, undermined Batson, first in Tucker v. State, 313 Ark. 624 , 855 S.W.2d 948 (1993), and later in Franklin v. State, 314 Ark. 329 , 863 S.W.2d 268 (1993). The latter opinion contains the all-too-familiar and often-cited sentence, “Only if the defendant makes a prima facie case and the State fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry.” Id. at 338 , 863 S.W.2d at 273 (emphasis added); see, e.g., Wooten v. State, 325 Ark. 510 , 931 S.W.2d 408 (1996); Prowell v. State, 324 Ark. 335 , 921 S.W.2d 585 (1996); Bell v. State, 324 Ark. 258 , 920 S.W.2d 821 (1996); Cooper v. State, 324 Ark. 135 , 919 S.W.2d 205 (1996); Mitchell v. State, 323 Ark. 116 , 913 S.W.2d 264 (1996); Heard v. State, 322 Ark. 553 , 910 S.W.2d 663 (1995); Reams v. State, 322 Ark. 336 , 909 S.W.2d 324 (1995); Sims v. State, 320 Ark. 528 , 900 S.W.2d 508 (1995); Rockett v. State, 318 Ark. 831 , 890 S.W.2d 235 (1994); Gilland v. State, 318 Ark. 72 , 883 S.W.2d 474 (1994); Bosquet v. State, 59 Ark. App. 54 , 953 S.W.2d 894 (1997); Hollowell v. State, 59 Ark. App. 39 , 953 S.W.2d 588 (1997); Jones v. State, 45 Ark. App. 28 , 871 S.W.2d 403 (1994). As the concurring justices in Colbert pointed out in 1990, “Surely any prosecutor can offer neutral reasons.” Colbert, supra, (Newbern, Dudley, Glaze, JJ., concurring). The trial court’s obligation to conduct a sensitive inquiry was, at least for a time, virtually eliminated in 1993. Certainly this was not a proper interpretation of Batson as shown by the United States Supreme Court’s subsequent decision in Purkett v. Elem, 514 U.S. 765 (1995), which provides that: Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination. Id. at 767 (citations omitted) (emphasis added). I am not unmindful that in recent cases, the supreme court has utilized only the pre-1993 language of Colbert in making the Batson analysis. See Lammers v. State, 330 Ark. 324 , 955 S.W.2d 489 (1997); Jackson v. State, 330 Ark. 126 , 954 S.W.2d 894 (1997); Roseby v. State, 329 Ark. 554 , 953 S.W.2d 32 (1997); Sonny v. Balch Motor Co., 328 Ark. 321 , 944 S.W.2d 87 (1997). If there is a message in these cases, it has not reached this court, for we are yet citing the offending language from Franklin, in both published and unpublished opinions. Our confusion on this issue is only too apparent in the majority opinion, which employs both Colbert and the offending language from Franklin in its analysis. Because of this conflict in our cases, and because we and our supreme court have in effect instructed trial courts to make the most crucial determination in the Batson analysis — whether racial discrimination occurred — without conducting any inquiry, as happened in the MacKintrush case, we have failed to follow either the spirit or the law of Batson. Wendell L. Griffen, Judge, dissenting. Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government, if it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 , 2 L.Ed. 60 (1803). I would reverse appellant’s conviction for second-degree murder and remand his case for retrial because the trial court failed to conduct the sensitive inquiry clearly mandated by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986). The Supreme Court has also pronounced, with equal clarity, that the sensitive inquiry mandated by Batson applies to the genuineness of racially neutral reasons offered by prosecutors whose peremptory challenges produce prima facie claims of race discrimination in violation of the Equal Protection Clause to the Fourteenth Amendment to the Constitution of the United States, and that the proper time for a trial court to undertake that inquiry is during the third step of the Batson analytical process when the trial court is deciding whether the Batson movant has proved purposeful discrimination. Purkett v. Elem, 115 S.Ct. 1769 , 131 L.Ed.2d 834 (1995). Therefore, I respectfully dissent. Appellant raised a proper objection to the prosecutor’s peremptory challenge to Stephen Orji, a black member of the venire. The prosecutor failed to obtain a ruling from the trial court on whether appellant made a prima facie case of race discrimination to satisfy the first step in the Batson decision process. Although the prosecution did not agree that appellant had made a prima facie case, it offered a race-neutral explanation on appellant’s objection concerning the challenge to Oqi as if a prima facie case had been established. Once a prosecutor has offered a race-neutral explanation for a peremptory challenge and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing of discrimination becomes moot. Hernandez v. New York, 500 U.S. 352 (1991). The trial court made no inquiry after ruling that the prosecution had produced a racially neutral explanation for excluding Oqi. The majority, relying upon decisions by our supreme court beginning with Colbert v. State, 304 Ark. 250 , 801 S.W.2d 643 (1990), has affirmed that ruling. Colbert and cases by our supreme court decided since it was issued, hold that no inquiry is necessary where a racially neutral explanation is advanced for excluding a protected person from jury service in the face of a prima facie claim of discrimination contrary to the Equal Protection Clause, as I acknowledged in my dissenting opinion in Bousquet v. State, 59 Ark. App. 54 , 953 S.W.2d 894 (1997), rev. denied, (Ark. Sup. Ct., December 4, 1997). Courts in Arkansas, including its appellate courts, have never been exempt from abiding by the United States Supreme Court decisions concerning rights and remedies under the United States Constitution. This holds true for questions about claims of race discrimination in the exercise of peremptory challenges under the Fourteenth Amendment. The United States Supreme Court has not declared Arkansas a Batson-fxee state where prima facie claims of discrimination injury selection can be dismissed out-of-hand with a finding that the party who exercises the questioned peremptory challenge has advanced a facially neutral explanation. It is equally obvious that the Supreme Court has never retreated from or otherwise repudiated its declaration in Batson that trial courts must undertake a sensitive inquiry into available direct and circumstantial evidence of discriminatory intent in deciding if a discrimination claimant has carried his burden of persuasion. There is an obvious contradiction between the principle and procedure pronounced by the United States Supreme Court in Batson and Purkett and the result reached in this case. The majority opinion cites no decision by the Supreme Court that has limited the sensitive inquiry requirement to those cases where a facially neutral explanation has been deemed “insufficient,” and one can readily understand why none exist. Under the Purkett holding, if discriminatory intent is not inherent in an explanation for peremptorily excluding a prospective juror, then the explanation will be deemed facially neutral. Id., 131 L.Ed.2d at 839 . It necessarily follows, therefore, that all facially neutral explanations for peremptorily excluding prospective jurors protected under the Equal Protection Clause must undergo the sensitive inquiry required by Batson. Any other requirement would be illogical because it would be absurd to require trial courts to undertake a sensitive inquiry concerning discriminatory intent when that intent is inherent. But when discriminatory intent is not inherent in a prosecutor’s explanation for peremptorily excluding a venireperson, the sensitive-inquiry requirement is essential if the trial court is to reach an intelligent decision about whether the discrimination claimant has proved that intent by a preponderance of the evidence as required by Batson. The State’s reliance upon Hernandez v. New York, supra, is misplaced. Hernandez shows that trial court assessments of the plausibility of racially neutral explanations are crucial, and are accorded deference on appellate review, as the Supreme Court explained when it said: Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding “largely will turn on evaluation of credibility.” 476 U.S., at 98, n.21 . In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. Id. at 365, emphasis added. The Purkett holding shows that explanations, despite their plausibility or implausibility, will be racially neutral under Hernandez if discriminatory intent is not inherent, and that the proper time for scrutinizing the credibility of those explanations is during the third stage of the Batson process. The State’s argument would subvert the holdings in Hernandez and Purkett to mean that racially neutral explanations for exercising peremptory challenges can never undergo the sensitive inquiry that Batson compels. The United States Supreme Court has never held that race-neutral explanations must always be believed or never questioned. Such a rule would destroy the sensitive-inquiry requirement in Batson altogether. We do not disrespect our supreme court by following the controlling rulings by the United States Supreme Court in Batson and Purkett, and reversing trial court rulings that fail to undertake the sensitive inquiry required by Batson. We are bound to follow Batson and Purkett because the United States Supreme Court is the foremost and final authority concerning what the Equal Protection Clause of the Fourteenth Amendment means and requires. This is a recognized and fundamental principle of American constitutional law that has even been affirmed by the Arkansas Supreme Court in the area of race discrimination and jury selection. There can be no question that this court, as well as the trial courts of this state, is bound by the decisions of the United States Supreme Court concerning rights and prohibitions under the provisions of the United States Constitution and, there is no question that the United States Supreme Court has spoken clearly, and more than once, on the question of racial discrimination in the selection of juries in criminal cases. Williams v. State, 254 Ark. 799 , 496 S.W.2d 395 (1973). If the Arkansas Supreme Court is bound by decisions of the United States Supreme Court regarding the United States Constitution, the Arkansas Court of Appeals certainly has no excuse for thinking otherwise. Given that Arkansas judges are sworn to support the Constitution of the United States, including the Equal Protection Clause of the Fourteenth Amendment, the question raised by Chief Justice John Marshall in Marbury v. Madison, that was quoted at the introduction to this opinion, cannot be evaded. As the great Chief Justice observed almost 200 years ago, forjudges sworn to support the Constitution of the United States to act as if that Constitution holds no power for their government “is worse than solemn mockery.” I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6552723. Public record. Not legal advice.