# Moore v. State

> Court of Appeals of Arkansas · October 12, 2005 · 92 Ark. App. 453

URL: https://www.frixlaw.com/law-library/cases/9659345

## Case

- **Full name:** William C. MOORE v. STATE of Arkansas
- **Court:** Court of Appeals of Arkansas
- **Decided:** October 12, 2005
- **Citations:** 92 Ark. App. 453; 215 S.W.3d 688; 2005 Ark. App. LEXIS 733
- **Precedential status:** Published
- **Opinion:** Dissent by Griffen
- **Judges:** John B. Robbins
- **Cited by:** 1 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/9659345

## Opinion text

Wendell Griffen, Judge, dissenting. The sole issue is whether the trial court properly overruled a white defendant’s objection to the exclusion of a black juror during voir dire without applying the procedure for analyzing race-based juror challenges that is mandated by Batson v. Kentucky, 476 U.S. 79 (1986), and MacKintrush v. State, 334 Ark. 390 , 978 S.W.2d 293 (1998). I agree with the majority that the trial court erred in determining that a white defendant is not entitled to exercise a Batson challenge where the State uses a peremptory challenge to strike a black juror. Powers v. Ohio, 499 U.S. 400 (1991).
However, I would reverse the trial court’s refusal to address the merits of the defendant’s Batson objection. The mere fact that a black juror had already been seated did not disqualify the defendant from making a subsequent Batson objection. The majority opinion now compounds the trial court’s error because the presence of a minority member on a jury, while significant, is not dispositive of the question of whether discrimination has occurred. Heard v. State, 322 Ark. 553 , 910 S.W.2d 663 (1995). Further, the majority’s reliance on Jackson v. State, 326 Ark. 126 , 954 S.W.2d 894 (1997), implies that a defendant must present a pattern of discriminatory strikes in order to establish a. prima face case under Batson. However, a defendant may also establish a prima facie case under Batson by showing a process designed to discriminate. MacKintrush, supra. To affirm here is to hold that no Batson analysis is required where a single black juror has been seated; essentially, the majority opinion advances the position that subsequent exclusion of any black member of the venire would be prima facie nondiscriminatory, that is would never be due to discriminatory intent. That position is absurd on its face. The majority’s position also directly violates case law stating that exclusion of a single juror based on race violates equal protection. Holder v. State, 354 Ark. 364 , 124 S.W.3d. 439 (2003).
Clearly, the trial court was mistaken in thinking that two black jurors had been seated. In fact, only one had been seated. In any event, the fact that one black person had already been seated did not prevent any remaining member of the venire from being excluded for racially discriminatory reasons. Moreover, it has long been understood, at least until now, that the Batson inquiry also serves to protect the excluded juror and the integrity of the judicial system. In recognizing this extended protection, the Batson court stated:
Racial discrimination in selection of jurors harms not only the accused. . . . The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.
476 U.S. at 87-88 .
The majority relies on Cooper v. State, 324 Ark. 135 , 919 S.W.2d 205 (1996), for the unremarkable proposition that a single peremptory strike of a minority prospective juror, with no additional facts or context in which it can be evaluated, is not sufficient to establish a prima facie case under Batson. Further, the Arkansas Supreme Court has affirmed a trial court’s finding that a defendant failed to make a prima facie case of discrimination under Batson where the State’s sole peremptory challenge was exercised to excuse a black juror, and where the very next juror seated, who was black, was accepted by the State at a time when the State had peremptory challenges remaining. Heard v. State, supra. Plainly, Cooper and Heard are distinguishable because in neither of those cases was there any indication that the trial court was misinformed as to the number of black jurors seated, nor did the supreme court make the initial Batson determination after the trial court failed to do so.
Although the majority recognizes that a Batson error is not subject to harmless-error analysis, Holder v. State, supra, it proceeds to conduct, what, in essence, is a harmless-error analysis by accepting the State’s argument that we may affirm because the trial court reached the right result for the wrong reason. I do not understand how we can conclude that the trial court reached the right result where it a) reasoned incorrectly and b) refused to rule on the Batson challenge because of its basic mistake. In effect, the majority has performed a de novo review and accepted an argument not made at trial by the Batson opponent, and now concludes, for the first time, that the Batson proponent failed to be persuasive.
Clearly, the majority here has done what the trial judge in Cooper, supra, and Heard, supra, did: it has examined the facts in the case and made an initial Batson ruling. The majority states that “because Mr. Moore offered no additional argument or facts outside of the strike itself, no prima facie case was made.” The majority further states that “the result reached by the trial court was correct given that it is not even arguable that Mr. Moore made or even attempted to make, a prima facie case” of discrimination under Batson. Yet, the majority cites to no authority that allows us to perform a de novo review and make the initial Batson determination for the first time on appeal where the trial court erroneously declared that the defendant had no right to assert a Batson objection in the first instance.
Perhaps the trial court’s comments could be affirmable as a determination regarding the defendant’s prima facie case if the record showed that the court recognized that a Batson challenge had been asserted and actually ruled on the merits of that challenge. However, the trial court believed that the Batson analysis was not applicable at all, insofar as the challenged venireperson was concerned. The record plainly shows that the trial judge struck a black venireperson, upon a peremptory challenge by the State, because the trial judge believed the defendant could not assert any Batson challenge. Thus, there is no justification for affirming as if the trial court made a ruling on the Batson challenge.
In the face of undeniable history of race discrimination in jury selection that Batson purports to address, it is disquieting that the judicial process is now being used, under the guise of appellate review, to sanction what the sanctioning judges acknowledge as judicial error. I refuse to validate the wrongful consequence of the trial court’s error. Accordingly, I would reverse this case and remand for a new trial. I am authorized to state that Judge Neal joins in this opinion.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9659345. Public record. Not legal advice.