654 S.E.2d 364
2. “It is a violation of the Equal Protection Clause of the Fourteenth
Amendment to the U.S. Constitution for a member of a cognizable racial group to be tried
on criminal charges by a jury from which members of his race have been purposely
excluded.” Syllabus point 1, State v. Marrs, 180 W. Va. 693, 379 S.E.2d 497 (1989).
3. “To establish a prima facie case for a violation of equal protection due
to racial discrimination in the use of peremptory jury challenges by the State, 'the
defendant first must 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. 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.” Finally, the defendant
must show that these facts and any other relevant circumstances raise an inference that the
prosecutor used that practice to exclude the venireman from the petit jury on account of
their race.' [Citations omitted.] Batson v. Kentucky, 476 U.S. 79 at 96, 106 S.Ct. 1712 at
1722, 90 L.Ed.2d 69 (1986).” Syllabus point 2, State v. Marrs, 180 W. Va. 693, 379
S.E.2d 497 (1989).
4. “The State may defeat a defendant's prima facie case of a violation
of equal protection due to racial discrimination in selection of a jury by providing non-
racial, credible reasons for using its peremptory challenges to strike members of the
defendant's race from the jury.” Syllabus point 3, State v. Marrs, 180 W. Va. 693, 379
S.E.2d 497 (1989).
5. “In assessing a Batson challenge, the trial court must consider a
party's assertion that a similarly situated prospective juror was not challenged, both in
determining whether the defendant has stated a prima facie case of discrimination, and in
deciding whether the explanation given by the prosecution was a pretext for racial
discrimination. In order for the trial court to make the latter determination, the State must
articulate a credible reason for the different treatment of similarly situated black and white
jurors.” Syllabus point 13, State v. Rahman, 199 W. Va. 144, 483 S.E.2d 273 (1996).
6. “The relevant test for determining whether a juror is biased is whether
the juror had such a fixed opinion that he or she could not judge impartially the guilt of
the defendant. Even though a juror swears that he or she could set aside any opinion he
or she might hold and decide the case on the evidence, a juror's protestation of impartiality
should not be credited if the other facts in the record indicate to the contrary.” Syllabus
point 4, State v. Miller, 197 W. Va. 588, 476 S.E.2d 535 (1996).
Per Curiam:
The appellant herein and petitioner below, Christopher Lee Davis
[hereinafter “Mr. Davis”], appeals from an order entered January 17, 2006, by the Circuit
Court of Kanawha County. By that order, the circuit court denied Mr. Davis's request for
a post-conviction writ of habeas corpus concluding that the State's exercise of a
peremptory strike to remove the only African-American juror from the jury panel did not
amount to constitutional error. On appeal to this Court, Mr. Davis argues that the
aforementioned peremptory strike violated his constitutional right to a fair trial. Upon a
review of the arguments of the parties, the record presented for appellate consideration,
and the pertinent authorities, we affirm the ruling of the circuit court.
During jury selection for Mr. Davis's criminal trial, prospective juror
Barbara Patterson [hereinafter “Ms. Patterson”] was questioned on voir dire. Ms.
Patterson was the only African-American prospective juror on the jury panel. She first
indicated that she would not be available for jury duty the following Monday because she
had to take her son to college in Orlando, Florida. Ms. Patterson also indicated that she
personally knew two of the witnesses on the defense's witness list: Reverend Richard
Bullet [hereinafter “Reverend Bullet”] and Reverend Cornell Byers [hereinafter “Reverend
Byers”]. As to Reverend Bullet, Ms. Patterson testified that she had known him for a long
period of time and that Reverend Bullet and her husband were fellow pastors who
performed ministerial tasks together. Ms. Patterson further testified that her husband and
Reverend Byers “are real good friends.” After responding that she did not believe that
these relationships with these potential witnesses would have any bearing on whether she
believed these witnesses to be truthful, the trial court found that there was no reason to
strike prospective juror Ms. Patterson for cause.
Later during the voir dire process, however, Ms. Patterson raised her hand
and stated to the trial court, “Judge, the longer I sit here, I don't think I can be impartial
. . . [b]ecause of the closeness of the relationship I have with . . . the [two defense]
witnesses.” At this point, the trial court indicated that it would strike Ms. Patterson for
cause, but counsel for Mr. Davis asked the court to refrain from so ruling offering that he
would not call Reverend Bullet and Reverend Byers as witnesses for the defense in an
attempt to ensure Ms. Patterson's impartiality. Accordingly, the trial court did not remove
Ms. Patterson from the jury panel. As voir dire progressed, however, the State renewed
its concerns about allowing Ms. Patterson to serve as a juror particularly in light of her
admission that she did not think she could be impartial.
The trial court then recalled all the prospective jurors to question them
individually. Ms. Patterson was asked whether her partiality would be compromised if the
defense called the two Reverends as witnesses to which she answered, “[s]ome.” When
Ms. Patterson was asked to explain this answer, she stated that, “[w]ell, those two men,
I do know are men of God, so I would really have to take what they say and believe it.”
Thereafter, the State exercised one of its peremptory strikes to remove Ms. Patterson from
the jury panel. To explain its removal of the only African-American juror from the jury
panel, the State provided four reasons for its decision to exercise its peremptory strike:
(1) Juror Patterson is acquainted with the two witnesses and
has already made a determination as to those witnesses'
credibility;
(2) Juror Patterson expressed concerns and exhibited facial
expressions and body language that indicate that she does not
wish to serve as a juror;
(3) Juror Patterson indicated that she would be unavailable for
the entire week, beginning the week after trial began; and
(4) Juror Patterson approached and patted one of the
Petitioner's [defendant Mr. Davis's] family members on the
back.
Counsel for Mr. Davis objected to the State's exercise of its peremptory strike to remove
Ms. Patterson, but the trial court overruled the objection.
Mr. Davis's trial by jury ensued and, on September 8, 2000, the jury returned
a verdict against Mr. Davis convicting him of one count of first-degree murder,
(See footnote 3)
with a
recommendation of mercy, and one count of malicious wounding.
(See footnote 4)
By order entered
January 10, 2001, the circuit court sentenced Mr. Davis to a term of life imprisonment,
with mercy, for the first-degree murder conviction and a term of two to ten years'
imprisonment for the malicious wounding conviction, with the sentences to be served
consecutively. Mr. Davis then appealed his convictions and resultant sentences to this
Court, which appeal we denied by order entered September 20, 2001.
Thereafter, on July 22, 2003, Mr. Davis filed a pro se petition for habeas
corpus relief. After counsel had been appointed for Mr. Davis, he filed an amended
habeas corpus petition on July 16, 2004, claiming, among other errors, that “[t]he Court
committed reversible error in permitting the State to exercise a peremptory challenge to
strike the sole black juror on the jury panel.” Following an omnibus hearing, the circuit
court, by order entered January 17, 2006, denied Mr. Davis's request for relief. In so
doing, the circuit court ruled that
the Court concludes that the Petitioner [Mr. Davis] presented
a prima facie case sufficient to shift the burden to the
prosecution. However, the Court also concludes that the
prosecution provided a neutral, non-pretextual, non-
discriminatory challenge where their challenge was based on
juror Patterson's initial hesitancy to serve on the jury and her
subsequent statements that she would have to believe the two
defense witnesses because they were “men of God” and that
she was questioning her impartiality.
The Court also concludes that the fact that the Petitioner
offered not to call the two witnesses with whom juror
Patter[son] was acquainted does not alleviate the prosecution's
valid concerns of juror Patterson's ability to be impartial. A
reasonable juror in juror Patterson's position may have
associated the “men of God” with the defendant and this may
have caused her to believe any and all witnesses the defendant
called in his defense.
The Court also concludes that the State's use of a peremptory
challenge to strike juror Patterson was consistent with the
requirements set forth in Batson [v. Kentucky, 476 U.S. 79, 106
S. Ct. 1712, 90 L. Ed. 2d 69 (1986),] and was not a violation
of the Petitioner's equal protection rights under the State and
Federal Constitutions. Therefore, the peremptory strike
ground of the Petitioner's petition must be an[d] is hereby
DENIED and DISMISSED.
From this order, Mr. Davis now appeals to this Court.
[i]n reviewing challenges to the findings and
conclusions of the circuit court in a habeas corpus action, we
apply a three-prong standard of review. We review the final
order and the ultimate disposition under an abuse of discretion
standard; the underlying factual findings under a clearly
erroneous standard; and questions of law are subject to a de
novo review.
Syl. pt. 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006). Furthermore,
“[f]indings of fact made by a trial court in a post-conviction habeas corpus proceeding will
not be set aside or reversed on appeal by this Court unless such findings are clearly
wrong.” Syl. pt. 1, State ex rel. Postelwaite v. Bechtold, 158 W. Va. 479, 212 S.E.2d 69
(1975), cert. denied, 424 U.S. 909, 96 S. Ct. 1103, 47 L. Ed. 2d 312 (1976). Guided by
these standards, we proceed to consider the parties' arguments.
The primary goal of the jury selection process is to obtain a jury that will
fairly and impartially decide the case at hand. See Syl. pt. 1, in part, State v. Hatfield, 48
W. Va. 561, 37 S.E. 626 (1900) (“The object of the law is, in all cases in which juries are
impaneled to try the issue, to secure men for that responsible duty whose minds are wholly
free from bias or prejudice[.]”). To ensure this neutrality, prospective jurors may be
removed from a jury panel for cause. See W. Va. Code § 56-6-12 (1923) (Repl. Vol.
2005) (“[I]f it shall appear to the court that such person is not a qualified juror or does not
stand indifferent in the cause, another shall be called and placed in his stead for the trial
of that cause. . . .”). See also Syl. pt. 3, O'Dell v. Miller, 211 W. Va. 285, 565 S.E.2d 407
(2002) (“When considering whether to excuse a prospective juror for cause, a trial court
is required to consider the totality of the circumstances and grounds relating to a potential
request to excuse a prospective juror, to make a full inquiry to examine those
circumstances and to resolve any doubts in favor of excusing the juror.”). Parties also are
permitted to remove a limited number of potential jurors through the use of peremptory
strikes. See W. Va. Code § 56-6-12 (“[I]n every case, unless it be otherwise specially
provided by law, the plaintiff and defendant may each challenge four jurors
peremptorily.”).
In felony criminal cases, however, where an individual's liberty interests are
at stake, additional factors must be considered to ensure that the defendant receives a fair
trial by an impartial jury of his/her peers. See W. Va. Code § 62-3-3 (1949) (Repl. Vol.
2005).
(See footnote 6)
At issue in the case sub judice is a defendant's right to be tried by a jury free from
racial bias in its selection. On this point, we previously have held that “[i]t is a violation
of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution for
a member of a cognizable racial group to be tried on criminal charges by a jury from
which members of his race have been purposely excluded.” Syl. pt. 1, State v. Marrs, 180
W. Va. 693, 379 S.E.2d 497 (1989). A challenge regarding the racial composition of a
jury achieved through the State's exercise of its peremptory strikes is known as a Batson
challenge. See generally Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d
69 (1986).
When a defendant challenges the racial composition of the jury, he/she must
make out a prima facie case of racial discrimination in its selection:
To establish a prima facie case for a violation of equal
protection due to racial discrimination in the use of
peremptory jury challenges by the State, “the defendant first
must 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.
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.' Finally, the
defendant must show that these facts and any other relevant
circumstances raise an inference that the prosecutor used that
practice to exclude the venireman from the petit jury on
account of their race.” [Citations omitted.] Batson v.
Kentucky, 476 U.S. 79 at 96, 106 S.Ct. 1712 at 1722, 90
L.Ed.2d 69 (1986).
Syl. pt. 2, State v. Marrs, 180 W. Va. 693, 379 S.E.2d 497.
After the defendant has made a prima facie case of racial discrimination, the
State may, in turn, present evidence that it exercised its peremptory challenge(s) in an
unbiased manner and that it had a valid, nonpretextual reason for removing the excluded
juror(s): “[t]he State may defeat a defendant's prima facie case of a violation of equal
protection due to racial discrimination in selection of a jury by providing non-racial,
credible reasons for using its peremptory challenges to strike members of the defendant's
race from the jury.” Syl. pt. 3, State v. Marrs, 180 W. Va. 693, 379 S.E.2d 497. Accord
Syl. pt. 12, State v. Rahman, 199 W. Va. 144, 483 S.E.2d 273 (1996) (“Striking even a
single black juror for racial reasons violates equal protection, even though other black
jurors remain on the panel. The focus of the trial court's analysis should be on whether
the State's reason for a challenged strike is pretextual, and not on the overall composition
of the jury.”). Finally,
[i]n assessing a Batson challenge, the trial court must
consider a party's assertion that a similarly situated
prospective juror was not challenged, both in determining
whether the defendant has stated a prima facie case of
discrimination, and in deciding whether the explanation given
by the prosecution was a pretext for racial discrimination. In
order for the trial court to make the latter determination, the
State must articulate a credible reason for the different
treatment of similarly situated black and white jurors.
Syl. pt. 13, State v. Rahman, 199 W. Va. 144, 483 S.E.2d 273.
Applying this law to the facts of the case sub judice, it is first necessary to
determine whether Mr. Davis has established a prima facie case of racial discrimination.
There is no dispute that Mr. Davis is African-American, prospective juror Patterson also
is African-American, and that Ms. Patterson was the only African-American member of
the jury panel. It is also uncontroverted that the State used one of its peremptory strikes
to remove Ms. Patterson from the jury panel. Based upon these facts, we find that Mr.
Davis has established a prima facie case of racial discrimination in the selection of his
jury. See Syl. pt. 12, State v. Rahman, 199 W. Va. 144, 483 S.E.2d 273; Syl. pt. 1, State
v. Marrs, 180 W. Va. 693, 379 S.E.2d 497. See also Syl. pt. 2, State v. Marrs, 180 W. Va.
693, 379 S.E.2d 497. Accordingly, we affirm the circuit court's ruling in this regard.
Having determined that Mr. Davis has established a prima facie case of racial
discrimination, we next must ascertain whether the State has presented evidence of
nondiscriminatory, nonpretextual reasons for its removal of Ms. Patterson sufficient to
overcome this presumption of discrimination. During the voir dire proceedings below,
counsel for the State explained the reasons for the State's use of a peremptory strike to
remove Ms. Patterson from the jury panel:
THE COURT: You want to tell me why you took this
name off [of the peremptory strike sheet]?
MS. WHITMYER [trial counsel for the State]: Ms.
Patterson? The reason for using a peremptory strike was the
fact that she is acquainted with two of the witness[es] that Mr.
McIntyre [trial counsel for Mr. Davis] may call in his case.
She indicated that her husband is a pastor, and that her
husband has a ministerial relationship with at least one of Mr.
McIntyre's witnesses, who is also a pastor. She described
both of the potential witnesses as men of God.
She initially expressed her concerns here at the
bench in front of you, and you were ready to strike her for
cause at that time. Mr. Morris [trial counsel for the State] and
I have observed her facial expressions throughout voir dire
today, as well has [sic] her body language, and it is Mr.
Morris's opinion that she does not wish to be here to serve as
a juror.
Additionally, she indicated that she would be
unavailable for the entire week beginning next week because
she is taking her son to college. And finally, sir, on the break
we were informed by members of the victim's family, the
Kraig and Kenny Davis family, that this juror approached Mr.
Christopher Davis's family and patted at least one of the
family members on the back. We asked one of the bailiffs,
John Rutherford, if he, in fact, had observed this behavior, and
he did confirm that he did see Ms. Patterson approach the
family members.
. . . .
[W]e are highly concerned about the fact on the break she was
observed by different people approaching the defendant's
family.
We believe that those reasons are nonracial in
nature and are legitimate reasons.
After receiving testimony from an individual who had observed Ms. Patterson patting a
member of defendant Mr. Davis's family on the shoulder and hearing Mr. Davis's
objections to the State's exercise of a peremptory strike to remove Ms. Patterson, the trial
court found that the State had provided valid, nonpretextual reasons for removing Ms.
Patterson from the jury panel and permitted her to be excused. During its consideration
of Mr. Davis's request for post-conviction habeas corpus relief, the circuit court also
determined that the State had defeated Mr. Davis's prima facie case of racial
discrimination.
Upon the record before us, we similarly conclude that the State overcame the
presumption of racial bias by presenting valid, nondiscriminatory, nonpretextual reasons
for exercising its peremptory strike to remove Ms. Patterson from the jury
panel-reasons
that had absolutely no relationship to Ms. Patterson's race. See Syl. pt. 3, State v. Marrs,
180 W. Va. 693, 379 S.E.2d 497. A central theme of the State's reasons for excusing Ms.
Patterson is her lack of impartiality as evidenced by her statements indicating she would
believe the defense witnesses, Reverend Bullett and Reverend Byers, because they are
“men of God” and her interactions with Mr. Davis's family in the courtroom. Another,
and perhaps even more telling, example of Ms. Patterson's lack of impartiality is her own
sua sponte statement during voir dire indicating that she questioned her ability to be a
neutral juror:
JUROR PATTERSON: Judge, the longer I sit here,
I don't think I can be impartial.
THE COURT: You say the longer that you sit
there you don't think you can be impartial? Tell me why you
think that.
JUROR PATTERSON: Because of the closeness of
the relationship I have with [Reverend] Cornell Byers and
Reverend Bullett, the witnesses.
Following Ms. Patterson's revelation that she did not think that she could be impartial, the
trial court stated that it would excuse Ms. Patterson. Only after counsel for Mr. Davis
asked the court to “give [him] the opportunity to consider withdrawing my representations
that I will be calling those two persons [Reverend Bullett and Reverend Byers] as
witnesses,” did the trial court agree to permit Ms. Patterson to sit on the jury panel.
We have long held that,
[t]he relevant test for determining whether a juror is
biased is whether the juror had such a fixed opinion that he or
she could not judge impartially the guilt of the defendant.
Even though a juror swears that he or she could set aside any
opinion he or she might hold and decide the case on the
evidence, a juror's protestation of impartiality should not be
credited if the other facts in the record indicate to the contrary.
Syl. pt. 4, State v. Miller, 197 W. Va. 588, 476 S.E.2d 535 (1996). See also Syl. pt. 5,
O'Dell v. Miller, 211 W. Va. 285, 565 S.E.2d 407 (“Once a prospective juror has made a
clear statement during voir dire reflecting or indicating the presence of a disqualifying
prejudice or bias, the prospective juror is disqualified as a matter of law and cannot be
rehabilitated by subsequent questioning, later retractions, or promises to be fair.”). Here,
Ms. Patterson voluntarily admitted that she did not believe she could be an impartial juror.
Given the totality of the circumstances and the numerous factors suggesting that Ms.
Patterson would not be a neutral and unbiased juror, we conclude that the circuit court did
not err by determining that the State's use of its peremptory strike to remove Ms. Patterson
from the jury panel was proper.
Finally, we must consider the propriety of the State's peremptory strike of
Ms. Patterson in light of the fact that the State did not exercise peremptory strikes to
remove other, similarly situated Caucasian jurors from the jury panel. See Syl. pt. 13,
State v. Rahman, 199 W. Va. 144, 483 S.E.2d 273. In addition to Ms. Patterson, Mr. Davis
complains that two other members of the jury panel, Deanna Hayes [hereinafter “Ms.
Hayes”] and Doris Akers [hereinafter “Ms. Akers”], also indicated that they were
acquainted with persons listed on the parties' lists of potential witnesses, but that the State
did not use its peremptory strikes to remove these jurors from the panel.
(See footnote 7)
After the trial court read the list of potential witnesses, it inquired of the jury
panel whether any of its members were acquainted with any of the potential witnesses.
Prospective juror Hayes testified, “I am a nurse at CAMC and I know Dr. Kessell. I know
of him; I've never worked with him.” Additionally, prospective juror Akers stated,
JUROR DORIS AKERS: Mr. Arlo Cook, one of the
witnesses; I don't know him personally. I believe that they
lived in our neighborhood at one time.
THE COURT: Mr. Arlo Cook lives on Pansy
Drive now.
Okay, would you consider yourself a friend, or
is he just somebody that you knew?
JUROR AKERS: No, he is just somebody that I
know of. I wouldn't know this gentlemen [sic] if I saw him.
Both Ms. Hayes and Ms. Akers remained on the jury panel and served as jurors for Mr.
Davis's trial. Of the witnesses of whom these jurors had knowledge, Dr. Kessel testified
at trial; Mr. Cook did not.
From the facts previously recited, it is evident that neither Ms. Hayes nor
Ms. Akers have as personal a relationship with the potential witnesses as Ms. Patterson
has with Reverend Bullett and Reverend Byers, both of whom she stated she knows
“socially.” Moreover, unlike Ms. Patterson, neither Ms. Hayes nor Ms. Akers informed
the trial court that they “[did not] think [they could] be impartial” as did Ms. Patterson.
Because Ms. Hayes and Ms. Akers indicated that they could be impartial jurors, while Ms.
Patterson stated that she could not be impartial, it was not error to permit the State to use
a peremptory strike to remove Ms. Patterson from the jury panel even though the State did
not also strike jurors Hayes and Akers. In ruling upon Mr. Davis's post-conviction habeas
corpus petition, the circuit court determined that no error had been committed in this
regard. We affirm this ruling.