State v. Jones

285 So.3d 1074

STATE of Louisiana

v.Kenneth JONES

No. 2017-K-00658

Supreme Court of Louisiana.

October 22, 2019

Jane Catherine Hogan, for Applicant.

Hon. Leon A. Cannizzaro, Jr., District Attorney, Donna R. Andrieu, Kyle C. Daly, for Respondent.

PER CURIAM:^*

On November 22, 2011, four men, including Merlin Smothers and Jeremiah Harris, were engaged in illegal activities in Harris's vehicle when a blue Monte Carlo pulled up behind them. A person stood up through the Monte Carlo's sunroof and began shooting at them with an assault rifle. Harris was shot but survived. Smothers escaped injury. Police chased the Monte Carlo and ultimately apprehended the driver of the vehicle, Eugene Brashears, who was the only person in the vehicle by the time police were able to catch it. Smothers and Harris described the shooter as a black male wearing a red hat but they were otherwise unable to identify him. Two red hats were found in the vehicle but no firearm remained. DNA recovered from one red hat matched Brashears and he tested positive for gunshot residue. No one was charged with this shooting at the time and Brashears was deceased by the time of defendant's trial.

On December 2, 2011, police conducted aerial surveillance of a white pickup truck.

During that surveillance police saw two people, one of whom matched defendant's description,¹ exit the truck and appear to discard an object. Police recovered an assault rifle in the vicinity.

Two years later when Smothers and Harris were arrested on federal charges related to heroin distribution they identified defendant as the shooter in the incident on November 22, 2011. Defendant was indicted by grand jury with two counts of attempted second degree murder and one count of possession of a firearm by a convicted felon. The trial commenced in 2015.

During jury selection, defendant objected to the State's use of four peremptory challenges to remove African-American jurors in light of Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and State v. Collier , 553 So.2d 815 (La. 1989). The following colloquy then occurred:

The Court: What is your response?

The State: My first response would be that there [are] two African-Americans that we are going to keep on the Jury. The second response would be that of all the cuts used by Defense counsel, they are all on white Jurors. The third response, as to Ms. Hills, Judge, is that, first she is an educator and is—I had some concern when I asked her about her prior Jury service. First she didn't say anything, and then she couldn't give us any details about the type of crime, when it took place or anything like that.

The Court: I will note for the record that of the five challenges the State has exercised, one of them is a white male. So, per se, it is not satisfied and I accept the State's response as to the challenge, in addition to that.

Thereafter, the State objected to the defendant's use of ten peremptory challenges to remove white jurors in light of Georgia v. McCollum , 505 U.S. 42, 112 S.Ct. 48, 120 L.Ed.2d 33 (1992) and State v. Knox , 609 So.2d 803 (La. 1992). The court stated that "I'm noting that the State has satisfied that first level, they are all white" but also noted that most of the stricken jurors had already left the courthouse.² Therefore, the court asked the defense for reasons for exercising just three of the strikes of jurors Fiegel, Luke, and Laughlin. Regarding juror Fiegel, the defense stated the following:

I'm striking Mr. Fiegel, Your Honor, because Mr. Fiegel didn't talk much and I think Mr. Washington didn't really question him that much. The only thing I know about him is that he is a disc jockey at a radio station. I don't know what kind of radio station that is. Through our error, we didn't ask him any—we didn't get a feel for—one way or another, I struck him because he wasn't very talkative.

The defense then explained that it struck juror Luke because he appeared over-eager to serve on the jury and looked at the defendant "in a negative way," and that it struck juror Laughlin for expressing pro-prosecution views regarding witnesses who testify pursuant to plea agreements with the State. The court then ruled: "You have satisfied your race neutral basis for Jurors Luke and Laughlin. I am not satisfied with your response as to Mr. Fiegel. Batson challenge is granted as to Juror No. 28, Mr. Fiegel. He is part of this Jury."

The jury was selected and defendant proceeded to trial. Harris testified at trial, pursuant to a federal plea agreement, and he identified defendant with absolute certainty as the shooter. Smothers denied he had ever identified defendant. His testimony was contradicted by that of two FBI agents who testified he identified defendant but his statements to them were never recorded or transcribed. Multiple DNA profiles were obtained from the outside of the assault rifle recovered on December 2, 2011, including DNA matching the defendant. Defendant's DNA was not consistent with the mixed DNA profiles obtained from the assault rifle's magazine. Ballistics testing showed that the assault rifle recovered on December 2, 2011, was used in the shooting on November 22, 2011.

The jury found defendant guilty as charged of two counts of attempted second degree murder and one count of being a felon in possession of a firearm. Defendant admitted his status as a second-felony offender (with a prior conviction in Texas for possession of cocaine), and the district court sentenced him to two concurrent terms of 100 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, and one concurrent term of 20 years imprisonment at hard labor.

The court of appeal affirmed after examining and rejecting several assignments of error. State v. Jones , 15-0956 (La. App. 4 Cir. 3/22/17), 214 So.3d 124. We granted defendant's application primarily to examine the district court's handling of the Batson and reverse- Batson objections. Pertinent to those issues, the court of appeal interpreted the district court's statement that "per se, it is not satisfied" as a determination that the defense had failed to make a prima facie showing of racial discrimination in the State's use of its peremptory challenges. Jones , 15-0956, pp. 12–13, 214 So.3d at 136–137. While recognizing ambiguity in the district court's initial request for a response from the State, the court of appeal found it did not constitute a demand for race-neutral reasons such that the burden ever shifted to the State to articulate those reasons. Jones , 15-0956, p. 13, 214 So.3d at 136 ("And, we are not convinced that the trial judge's request for a response from the prosecutor, while perhaps not keeping within the confines of a Batson analysis, constituted a demand for race-neutral reasons such that the burden would shift to the state.").

In contrast, the court of appeal found the district court's statement that "the State has satisfied that first level" as indicating the State made a prima facie showing in conjunction with its reverse- Batson objection to defendant's use of peremptory challenges. Jones , 15-0956, p. 13, 214 So.3d at 137. With regard to Batson 's step two, the court of appeal also found the reasons provided by the defense for striking juror Fiegel were facially race-neutral because discriminatory intent was not inherent in them. Id. The court of appeal then inferred from the district court's statement that it was not satisfied, despite the district court's failure to adhere to the "precise mechanics" of Batson , that the district court correctly held the State to its burden of showing purposeful discrimination:

The trial judge's succinct statement that she was "not satisfied" with defense counsel's reasons may appear to have impermissibly shifted the burden onto the defense to rebut the prosecutor's prima facie case. We are convinced, however, that the trial judge "assess[ed] the plausibility of [the defense's] reason in light of all [the] evidence," and, in essence, determined that the prosecution had carried its burden. Miller–El , 545 U.S. at 251–52, 125 S.Ct. 2317. Although the trial judge may not have adhered to the precise mechanics of a Batson analysis, we find that her ultimate ruling, which seated Juror Fiegel, did not render the jury unqualified or biased. We thus cannot say, based on the record before us, that the circumstances presented here warrant automatic reversal of Mr. Jones's convictions. See Rivera [v. Illinois ], 556 U.S. [148] at 160, 129 S.Ct. 1446 [173 L.Ed.2d 320 (2009) ] (An error is "structural," therefore requiring automatic reversal "only when the error necessarily renders a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.") (internal quotation marks and brackets omitted).

Jones , 15-0956, p. 14, 214 So.3d at 137 (footnote omitted). That inference from scant evidence is where we find the court of appeal erred.

The United States Supreme Court in Batson and the cases that followed has provided a three-step process to guide courts in evaluating a claim of racial discrimination in jury selection:

(1) An opponent of the strike must make a prima facie showing that a peremptory challenge has been exercised on the basis of race;

(2) if the requisite showing has been made, the proponent of the strike "must demonstrate that ‘permissible racially neutral selection criteria and procedures have produced the monochromatic result;’ " and

(3) in light of the parties' submissions, the trial court must determine if the "[the opponent of the strike] has established purposeful discrimination."

State v. Green , 94-0887, p. 23 (La. 5/22/95), 655 So.2d 272, 287 (quoting Hernandez v. New York , 500 U.S. 352, 358–59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) ). The burden of persuasion never shifts from the opponent of the strike. State v. Nelson , 10-1724, 10-1726, p. 15 (La. 3/13/12), 85 So.3d 21, 32 (citing Purkett v. Elem , 514 U.S. 765, 768, 115...