USA v. Larry Hendrix, 06-4355.  A jury convicted Larry Hendrix of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 262 months’ imprisonment. Hendrix challenges his conviction, claiming that the district court erred in (1) finding that the prosecution made a race-neutral showing for striking two African-Americans during voir dire; (2) allowing testimonial evidence that a judge approved a warrant to search Hendrix’s home; and (3) concluding that Hendrix was not subject to interrogation under Miranda. Hendrix also challenges his sentence. For the following reasons, we affirm.

Voir dire took place on September 5, 2006. The venire consisted of thirty-three people, and after questioning by the court, both sides exercised a combined total of eighteen peremptory challenges. The court noted that the prosecution used two of its challenges to exclude Juror Nos. 22 and 16, the only African-Americans in the venire. Recognizing that a prima facie case of discrimination had been established, pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), the court sua sponte called both parties to the bench for a sidebar.

The prosecution offered an explanation as to why he struck those particular jurors, stating, "Mr. Woodland, number 22, he said his stepson is in prison for armed robbery, and that gave me pause. I struck from the panel everyone that I could that has relatives in prison . . . Ms. Hairston, number 16, who said her brother was in prison for murder . . . . " The prosecution also noted that he struck Juror No. 13, Ms. Strock, a Caucasian woman, "who said her [step]father was in prison."

Defense counsel expressed concern that the only two African-Americans were gone, stating "[it] leaves us with a jury without any minorities. And Mr. Hendrix is obviously African-American, and so that gives us some concern."

Defense counsel did not address the fact that Juror Martin, a Caucasian woman, was not struck from the panel, despite the fact that she had a brother who was sent to a reform school for armed robbery at age sixteen.

A. The Batson Challenge

Hendrix contends that (1) the prosecution’s strikes were not race-neutral, because the prosecution did not strike Juror Martin-who is Caucasian-even though she had a brother who went to reform school for armed robbery.

(2) the prosecution’s recognition that Jurors Woodland and Hairston had friends in law enforcement should have been appealing to the prosecution, and therefore undercuts its assertion that the strikes were race-neutral;

(3) the prosecution’s "sudden proffer of a new explanation" that Juror Woodland was "one of those CSI guys" was pretextual, because other white jurors on the panel who watched the show were not struck from the panel; and

4) the district court erred when it did not explain why it was satisfied with the prosecution’s explanations of striking the African-American jurors. Batson sets forth a three-step analysis that precludes a prosecutor from striking a juror based on race under the Equal Protection Clause.

First, the defendant must establish a prima facie case that the strike was racially motivated. The burden then shifts to the prosecution to articulate race-neutral reasons for the strike. Finally, the trial judge must assess the credibility of the prosecution’s explanation and determine if the defendant has established purposeful discrimination. Batson v. Kentucky, 476 U.S. 79, 96-98 (1986); see also Lamon v. Boatwright, 467 F.3d 1097, 1099 (7th Cir. 2006). The ultimate burden of persuasion regarding racial motivation rests with the opponent of the strike. United States v. Jones, 224 F.3d 621, 624 (7th Cir. 2000).

Not every strike of a racial minority is a violation of Batson. Jones, 224 F.3d at 624. A prosecutor’s motives are a question of fact, United States v. George, 363 F.3d 666, 673 (7th Cir. 2004), to be determined by the trial judge, who is in the best position to evaluate the demeanor of the attorney exercising the challenge. Hernandez v. New York, 500 U.S. 352, 365 (1991). Because these are determinations of credibility, we review a district court’s resolution of a Batson challenge for clear error. George, 363 F.3d at 673.

We must have a firm and definite conviction that a mistake was made before reversing a trial court’s Batson ruling. United States v. White, 416 F.3d 634, 640 (7th Cir. 2005). We must keep in mind, however, that "[o]nce the trial judge has been persuaded of the neutrality of the prosecutor’s reason for striking a juror, we have no basis for reversal on appeal unless the reason given is completely outlandish or there is other evidence which demonstrated its falsity." United States v. Griffin, 194 F.3d 808, 826 (7th Cir. 1999).

At the first stage of the Batson analysis, the burden is low, requiring only circumstances raising a suspicion that discrimination occurred, even where those circumstances are insufficient to indicate that it is more likely than not that the challenges were used to discriminate. United States v. Stephens, 421 F.3d 503, 512 (7th Cir. 2005) (citing Johnson v. California, 545 U.S. 162, 170 (2005)).

We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors. Batson, 476 U.S. at 97. Acknowledging that the only two African-Americans had been struck from the venire by the prosecution, the court found that a prima facie case under Batson had been established.

At the second stage of the Batson inquiry, the burden shifts to the prosecution to make a race-neutral explanation for its strikes. Unless a discriminatory intent is inherent in the prosecution’s explanation, the reason offered will be deemed race-neutral. Batson, 476 U.S. at 98 n.20.; see also George, 363 F.3d at 674.

The prosecution explained that Jurors Woodland, Hairston, and Strock all had relatives in prison, which is a valid and race-neutral basis for the strikes. Jurors with relatives in prison may sympathize with a defendant, or have feelings of animosity against the prosecution. See United States v. Lewis, 117 F.3d 980, 983 (7th Cir. 1997).

At the last stage of a Batson inquiry, the court must determine whether the defendant has carried his burden of proving purposeful discrimination by the prosecution.

The critical question in determining whether a defendant has proved purposeful discrimination at the last stage is the persuasiveness of the prosecution’s justification for his strike. Miller-El v. Cockrell,537 U.S. 322, 338-39 (2003). 

The issue is whether the trial court finds the prosecutor’s race-neutral explanations to be credible. Id. at 339. When approaching the issue of credibility, the court assesses "how reasonable, or how improbable, the [prosecutor’s] explanations are; and by whether the proffered rationale has some basis in accepted trial strategy." Coulter v. McCann, 484 F.3d 459, 465 (7th Cir. 2007).  Batson and its progeny direct trial judges to assess the honesty-not the accuracy-of a proffered race-neutral explanation. Moreover, at the third stage, the defendant may offer additional evidence to demonstrate that the proffered justification was pretextual.

The district court considered all of the prosecution’s explanations as to why Jurors Woodland and Hairston were struck when it found that the explanations were proper.

Furthermore, Hendrix failed to demonstrate any pretext to the court during voir dire.

We find no error in the district court’s assessment of the honesty of the prosecution’s proffered explanations. The district court had the opportunity to observe the voir dire, and determined that the prosecution gave legitimate and race-neutral showings as to why it struck the two African-Americans from the venire. Hendrix has not provided any sufficient reasons for us to conclude that the district court committed clear error by making this determination. Therefore, we find that the district court’s ruling on the prosecution’s peremptory challenges on Jurors Woodland and Hairston was proper and did not violate Hendrix’s right to equal protection of the law.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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