# Cox v. State > Supreme Court of Arkansas · June 28, 2001 · 345 Ark. 391 URL: https://www.frixlaw.com/law-library/cases/9677199 ## Case - **Full name:** Richard COX v. STATE of Arkansas - **Court:** Supreme Court of Arkansas - **Decided:** June 28, 2001 - **Citations:** 345 Ark. 391; 47 S.W.3d 244; 2001 Ark. LEXIS 408 - **Precedential status:** Published - **Opinion:** Dissent by Thornton - **Judges:** Robert L. Brown - **Cited by:** 27 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/9677199 ## How later opinions describe it (automated extraction) - holding that a statement was not rendered involuntary when a law enforcement official told the criminal defendant that if he told the truth the officer would inform the prosecutor that he had cooperated ## Opinion text Ray Thornton, Justice, dissenting. Although I agree with the majority opinion’s disposition of issues one through four, I cannot agree with the conclusions reached by the majority in appellant’s final point on appeal. Specifically, I cannot join the majority opinion in holding that the trial court did not err in finding that a prima facie case was not made, and consequently, that no race-neutral response was required before the court rejected appellant’s Batson challenge. See Batson v. Kentucky, 476 U.S. 79 (1986). In Batson, the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits a prosecutor from using peremptory challenges to exclude African-American venire persons from service on a jury because of their race. Id. To test whether a peremptory strike should be disallowed, a three-step process was articulated in Purkett v. Elem, 514 U.S. 765 (1995): Once the opponent of a peremptory challenge has made out a prima fade case of discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination. Id. In Williams v. Groose, 77 F.3d 259 (8th Cir. 1996), the Eighth Circuit was even more succinct: After a defendant makes a prima fade showing of racial discrimination in the Government’s use of a peremptory challenge, the Government must offer a race-neutral reason for the challenge. Id. (citing Purkett, supra) (emphasis added). We have adopted this principle in Arkansas, requiring that when a prima facie showing of discrimination has been made, the party seeking to use a peremptory challenge is required to state a race-neutral reason for the challenge. See MacKintrush v. State, 334 Ark. 390 , 978 S.W.2d 293 (1998). In MacKintrush, we established a procedure for following the Purkett modification to Batson. We held that after a prima facie case was presented, it was necessary to proceed to step two, where the maker of the peremptory motion was required to state a race-neutral reason for the strike, after which the trial judge proceeds to step three. MacKintrush, supra. The issue in the present case is whether the peremptory challenge was wrongfully used to strike the only African-American venire person who would otherwise have been seated on the jury-panel, resulting in a trial by an all-white jury of an African-American defendant charged with the murder of a white woman. The trial court ruled that a prima facie case of discrimination had not been presented, and the trial court found that a race-neutral explanation was not required. The prosecution did not offer such an explanation. In my opinion, this was clearly a reversible error by the trial court. We turn to our case law to determine what is required to make a prima facie showing of discrimination in the context of a Batson challenge. Among the cases defining what is required to make a prima facie showing of discrimination are: 1. Mitchell v. State, 295 Ark. 341 , 750 S.W.2d 936 (1988), where we stated: Where the use of a peremptory challenge excludes from the jury all members of the defendant’s minority race, it is not necessary to show exclusion of more than one minority juror of the same race as the defendant to make a prima facie case of discriminatory use of a peremptory challenge. Id. (Emphasis added.) 2. Hollamon v. State, 312 Ark. 48 , 846 S.W.2d 663 (1993) provides: Accordingly the defendant must first establish a prima facie case of purposeful discrimination which the appellant clearly did in this case when he pointed to a peremptory strike by the State dismissing the sole black person on the jury. Id. (Emphasis added.) 3. Prowell v. State, 324 Ark. 335 , 921 S.W.2d 585 (1996), where we stated: This court has stated that a prima facie case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or serious disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions, or statements by a prosecuting attorney during voir dire. Id. (emphasis added). The word or indicates that one of these factors must be present to establish a prima facie case. This court suggested in MacKintrush, supra, that a prima facie case could be made by showing: (1) that the strike’s opponent is a member of an identifiable racial group, (2) that the strike is part of a jury-selection process or pattern.designed to discriminate, and (3) that the strike was used to exclude jurors because of their race. MacKintrush, supra. This definition on which the majority relies does not incorporate the factors enunciated in Prowell, supra. Although our research indicates that Mitchell, supra and Hollamon, supra have been limited by MacKintrush, I submit that Mitchell, Hollamon, and Prowell, supra are not overturned on this point by MacKintrush, supra. If MacKintrush is given the meaning that a prima facie case cannot be made unless a pattern is established, such an interpretation of our MacKintrush decision would fly in the face of the Supreme Court, which stated in Batson: [A] defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case. Id. (Emphasis supplied.) The Supreme Court further states that “ ‘a consistent pattern of official racial discrimination’ is not ‘a necessary predicate to a violation of the Equal Protection Clause.’ ” Id. (citing Arlington Heights v. Metropolitan Housing Dep’t Corp., 429 U.S. 252 (1977)). The Supreme Court then concludes that “ ‘[a] single invidiously discriminatory governmental act’ is not ‘immunized by the absence of such discrimination in the making of other comparable decisions.’ ” Id. (citing Arlington Heights, supra). The Supreme Court then continued: These principles support our conclusion that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. Batson, supra. Further, the Supreme Court gave the requirements for establishing a prima facie case: To establish such a case, the defendant must first show that he is a member of a cognizable racial group . . . and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Id. (citation omitted). This requirement is met in the case before us, as appellant is an African-American. Next, the Batson Court states: Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Id. (citing Avery v. Georgia, 345 U.S. 559 (1953)). Here, .there is no doubt that by use of a peremptory challenge, the prosecutor had the opportunity to engage in invidious discrimination. Finally, the Supreme Court states: [T]he defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. Id. With regard to this third factor, the fact that the only African-American venire person who was not excluded for other reasons from jury duty was stricken from the panel by the prosecutor’s peremptory challenge is sufficient to show that a prima facie case was made, and it follows that the prosecutor should have been required to state a race-neutral reason for the strike. Under the Supreme Court’s analysis in Batson, supra, as refined in Purkett, supra, a prima facie case can be established when only one juror is peremptorily struck because of race. Our state judiciary does not have authority to override the principles established by the Supreme Court, and consequently, our decisions in Mitchell, supra, Hollamon, supra, and ProweU, supra remain good law on the definition of a prima facie case. The majority would now depart from this well-established standard for showing a prima facie case, and agree with the trial court’s ruling that no race-neutral explanation is required. Perhaps that is because the majority of this court is able to discern from the record that a race-neutral explanation might have been offered if the trial court had required it. How do we know that? Is it not equally possible that a prosecutor might explain that he thought he had a better chance of gaining a death sentence if all African-American venire persons were excluded from the jury? We will never know what explanation the prosecutor might have given, because he was not required to state his reasons for the strike. Surely, we are not charged with developing on appeal a race-neutral reason, and concluding that, because such a defensible reason might have been offered, there was no need to require the prosecutor to state a race-neutral explanation. Because I cannot agree with that conclusion, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9677199. Public record. Not legal advice.