
    STATE of Louisiana v. Bryant K. BRASTFIELD.
    No. 2008-KA-0560.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 2008.
    
      Keva Landi’um-Johnson, District Attorney, Graham L. Bosworth, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Bryant K. Brastfield.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

| ^his appeal arises from the district court’s denial of the defendant’s objections to the state’s use of peremptory challenges. We find that the district court did not err and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Bryant Brastfield (“Mr. Brastfield”) was charged with possession of cocaine. His first trial ended in a mistrial because the jury was unable to reach a verdict. While empaneling a second jury, the state used peremptory challenges to strike five African-American jurors. Mr. Brastfield objected, stating that the state was attempting to create an all white jury. The state presented allegedly race-neutral reasons for the use of the peremptory challenges. The second jury found him guilty as charged. Mr. Brastfield was sentenced to serve five years at hard labor. The district court granted his motion for appeal and the motion to reconsider his sentence was denied.

ERRORS PATENT

A review of the record reveals no errors patent.

BATSON CHALLENGE

Mr. Brastfield asserts that the district court erred in denying objections to the |.¿state’s use of peremptory challenges that resulted in the exclusion of all African-American venire members in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

Prior to trial, Mr. Brastfield contended that the state had intentionally utilized its peremptory challenges to preclude African Americans from serving as jurors and had impermissibly obtained an all white jury. After listening to the state’s reasons for using its peremptory challenges, the trial court disagreed.

Under Batson, a defendant objecting to a peremptory challenge must first establish a prima facie case of discrimination by showing facts and relevant circumstances which raise an inference that the prosecutor used the challenges to exclude potential jurors because of race. 476 U.S. at 96, 106 S.Ct. 1712. The burden then shifts to the prosecutor to provide a race-neutral explanation for the challenges. Batson, 476 U.S. at 97, 106 S.Ct. 1712. The explanation need not be persuasive, or even plausible, and “[u]nless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered may be deemed race-neutral.” Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), quoting Hernandez v. Neto York, 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). The trial court then must decide whether the defendant has proved purposeful racial discrimination. State v. Collier, 553 So.2d 815, 818 (La.1989). The ultimate burden of persuasion remains on the defendant to prove purposeful discrimination. Id.; Hernandez, 500 U.S. at 359, 111 S.Ct. 1859.

“The proper inquiry in the final stage of the Batson analysis is whether the defendant’s proof, when weighed against the prosecutor’s proffered race-neutral reasons, is sufficient to persuade the trial court that such discriminatory intent is present.” State v. Hobley, 98-2460, pp. 19-20 (La.12/15/99), 752 So.2d 771, 783. The trial judge’s determination of purposeful discrimination rests largely on credibility evaluations, and these findings are entitled to great deference by the previewing court. Batson, 476 U.S. at 99 n. 21, 106 S.Ct. 1712.

Mr. Brastfield made the Batson objection and the state proffered race-neutral reasons for its peremptory challenges. Once this was done, the issue of a prima facie case of discrimination became moot. See State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272, 288 citing Hernandez, 500 U.S. at 359, 111 S.Ct. 1859. As such, the issue becomes whether the appellant’s proof, when weighed against the prosecutor’s proffered race-neutral reasons, is sufficient to persuade the trial court that such discriminatory intent was present. Green, 94-0887, 655 So.2d at 290.

The prosecutor in this case dismissed five African-American jurors. Jurors 2 and 11 were dismissed because they rendered a not guilty verdict in another case. The prosecutor excused these jurors out of a belief that they would be somehow biased against the prosecution, and this justification is plausible. The same is true regarding the state’s dismissal of Juror 9. Juror 9 was picked for a jury by the same prosecutor in a separate case the week before Mr. Brastfield’s trial, where a mistrial was declared. The prosecutor specifically stated that Juror 9 was dismissed out of concern for any confusion and bias. Lastly, Jurors 7 and 12 were dismissed because they had never served on a jury. The state also noted that Juror 12 appeared disinterested. “Because the trial record cannot indicate the interest level of the venire members during voir dire, this Court should defer to the trial court’s determination of whether this reason was legitimate and related to the particulars of the case.” State v. Knighten, 609 So.2d 950, 955 (La.App. 4 Cir.1992).

The only facts or circumstances supporting an inference that the state |4exercised its strikes in a racially discriminatory manner offered by Mr. Brastfield is that Juror 17, who is white, also indicated that he had never served on a jury, yet was selected as a juror for this case. Mr. Brastfield also noted that two jurors, who were not challenged by the state, numbers 14 and 18, had only civil jury experience. In response, the prosecutor noted that Juror 17 was an attorney and that he never dismissed an attorney. Regarding Jurors 14 and 18, the state maintained that it sought people who had previously served on a jury.

Mr. Brastfield relies upon Snyder v. Louisiana, — U.S.-, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), in which the state dismissed a juror, Mr. Brooks, because it felt that he would be overly concerned with being absent from his student teaching assignment and that he might have been motivated to find the defendant guilty of a lesser included offense to obviate the need for a penalty phase. The court found the state’s reasons implausible, noting that Mr. Brooks was one of more than fifty venire members expressing concern that jury service would unduly interfere with their lives, some even more than Mr. Brooks, and those jurors were not dismissed by the state. More importantly, the state dismissed him despite the fact that court personnel contacted the university and had obtained reassurances that it would work with Mr. Brooks so that he could complete his student teaching assignment satisfactorily.

Snyder is clearly distinguishable from the case sub judice because the state uniformly dismissed jurors because they either never served on a jury or rendered a not guilty verdict. The one exception is Juror 17, who was not dismissed because | she was an attorney.

As the party alleging that he has been the victim of intentional discrimination, Mr. Brastfield carried the ultimate burden of persuasion. In this case, Mr. Brast-field’s proof, when weighed against the prosecutor’s proffered race-neutral reasons for exercising the challenges, was not sufficient to prove the existence of discriminatory intent. Therefore, the district court did not abuse its discretion in finding that the prosecutor did not strike these jurors because of their race.

DECREE

For the above mentioned reasons, we affirm the conviction and sentence. find that the district court did not err and

AFFIRMED.

BELSOME, J., concurs with reasons.

BELSOME, J.,

concurs with reasons.

| iWhile we must recognize and follow the mandates of Batson and its progeny, this writer finds the trend of catchphrases and code words with respect to juror challenges troubling. In a vacuum, the race-neutral explanations posed by the State in the instant case appear genuine. Considering the totality of the facts and circumstances, however, the sincerity of the State’s challenges is arguably questionable.

Notably, a recent law review article observed that while “demeanor-based challenges enjoy exceptional deference on appellate review, [ ] perhaps the inference of discrimination from pretext should outweigh demeanor-based deference.” Jury Selection—Batson Challenges, 122 Harv. L.Rev. 346, 351 (2008). The article submits that rather than providing clarity in the Batson jurisprudence, the Court’s holding in Snyder v. Louisiana, — U.S. -, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), will simply encourage trial judges “who wish to insure against reversal [to] state for the record when they are persuaded by a juror’s demeanor,” because if the trial judge in Snyder had done so, “the [U.S. Supreme] Court could not have presumed that he impermissibly relied on the prosecutor’s pretextual explanation.” Id. at 354. Accordingly, the article maintains, the Snyder Court effectively circumvented more complex issues, such as “the appropriate way to balance a pretextual against a demeanor-based one, the broader problem of mixed and unconscious motivations, and the utility of peremptory strikes in general.” Id. at 350. ¡justification

By not clearly addressing such complex issues, the Court likewise omits a discussion of the possibility of an attorney’s unconscious bias, although the article notes that such bias might prove impracticable to identify or remedy. Id. at 352. The Court’s failure to recognize the prospect that jurors of different races might arrive at different conclusions actually protects a juror’s equal protection interest in the equal participation in the administration of law. Id. The article observes that the failure to acknowledge an attorney’s unconscious bias, however, “serves no similar constitutional interest.” Id.

Courts must not become complacent in reflexively accepting the rehearsed Batson language offered as justification for exercising peremptory challenges. Because the challenges raised by the State in this particular case did not rise to the level of specifically evidencing purposeful racial discrimination pursuant to the guidelines articulated in Batson and subsequent jurisprudence, I respectfully concur. 
      
      . Juror 11 also rendered a guilty verdict in another case.
     
      
      . Juror 14 was challenged by the defense; juror 18 served.
     
      
      . Court personnel learned the information on Tuesday, and the state dismissed Mr. Brooks on Wednesday. Notably, after learning that his jury service would not interfere with his student teaching assignment, Mr. Brooks no longer expressed concern.
     