Link to Mo. Sup. Ct. Opinion
The Missouri Supreme Court held: (1) a trial court, when ruling on a Batson challenge to a peremptory strike, may assess the credibility and demeanor of the striking party’s explanation to determine whether the explanation is pretexual; and (2) the trial court’s determinations are dependent on its evaluation of credibility and demeanor in the courtroom at the time of the challenge and should be afforded wide deference.
I. Facts & Holding[2]
Ms. Kesler and her husband brought suit against Hy-Vee, Inc. (“Hy-Vee”) for a slip and fall accident that occurred in a Hy-Vee store in Belton, Missouri.[3] During the voir dire stage of the trial, Hy-Vee used its three peremptory strikes[4] to remove three African-Americans from the venire panel.[5] Kesler alleged that the three strikes were racially motivated and challenged them pursuant to Batson.[6]
Upon Kesler’s challenge, the trial court asked Hy-Vee to provide a race-neutral explanation for the strikes.[7] After hearing Hy-Vee’s proffered reasons, the trial court overruled two of the challenges and sustained the third as a violation of Batson.[8] Hy-Vee’s proffered reason for striking this last venire person was that he knew another member of the venire.[9] After the jury rendered a verdict against it, Hy-Vee motioned for new trial alleging error in sustaining Kesler’s Batson challenge.[10] The trial court overruled the motion.[11]
II. Legal Background
In Batson v. Kentucky, the Supreme Court of the United States held that the use of peremptory challenges to systematically exclude jurors because of their race violates the Equal Protection Clause of the Fourteenth Amendment.[12] While Batson was a criminal case, the Court has held that this rule applies to civil litigants as well.[13] Missouri courts have established a specific procedure for asserting a Batson challenge to an opposing party’s peremptory strike. In Benedict v. Northern Pipeline Construction Co.,[14] the Missouri Court of Appeals for the Western District wrote:
[A] party must first raise a Batson challenge by identifying each venire person who was improperly struck and the cognizable protected group to which that individual belongs.[15] Once that is done, the striking party must provide a race-neutral reason for the strike.[16] Assuming the striking party is able to articulate an acceptable explanation for the strike, the party asserting the Batson challenge then needs to show that the striking party's proffered reasons for the strikes are pretextual and that the strikes were racially motivated.[17] The party asserting the Batson challenge may meet its burden through evidence or analysis that shows that the striking party's explanation is pretextual.[18]
In the third stage of the Batson process, “the trial court must…decide…whether the opponent of the strike has proved purposeful racial discrimination.”[19] The trial court evaluates the credibility and demeanor of the striking party’s explanation.[20] The trial court looks to the totality of the circumstances surrounding the strike.[21] Since the trial court is in a much better position to observe the sincerity and credibility of the striking party’s explanation as well as the racial makeup of the venire panel, reviewing courts give wide discretion to the trial court’s ruling.[22]
In reviewing a trial court’s decision concerning a Batson challenge, the appellate court will afford the trial court’s decision great deference because its findings of fact are largely dependent on its evaluation of credibility and demeanor in the courtroom at the time of the challenge.[23] Thus, the trial court’s decision will be reversed only if it is clearly erroneous.[24] To reverse, the reviewing court must have a “definite and firm conviction that a mistake was made.”[25]
In this case, although Hy-Vee offered a race-neutral explanation in step two, the trial court nonetheless sustained the Batson challenge finding that the strike was racially motivated.[26] The Supreme Court of Missouri noted six reasons why the record supported the trial court’s sustaining the Batson challenge:
(1) Hy-Vee stated the reason for the strike was because two potential jurors knew each other, but both jurors said the acquaintance would not affect them in any way;
(2) Hy-Vee claimed it was concerned about the acquaintance, yet it asked no questions about the acquaintance during voir dire;
(3) Hy-Vee claims that its strikes were not racially motivated, yet it used all three of its peremptory strikes for the main panel to strike African-Americans;
(4) Hy-Vee claims that the acquaintance was genuinely the reason for the strike, yet there was a long delay and a pause while Hy-Vee tried to articulate a reason for its strike;
(5) Hy-Vee claims that the acquaintance was genuinely the reason for the strike, yet at one point Hy-Vee’s counsel could not even remember if he was striking the correct venire person; and
(6) Hy-Vee claims the three strikes were not racially motivated, yet the only strike not directed at a black individual was from a pool left for alternate jurors that had only white people in it.[27]
According appropriate deference to the trial court’s determination, the Supreme Court of Missouri found that the trial court’s sustaining of the Batson challenge was supported by the record.[28]
III. Commentary
This case addresses one of the most complex aspects of voir dire. “The United States Supreme Court has declared that the equal protection clause of the Fourteenth Amendment to the United States Constitution is violated when the courts permit a litigant to use a peremptory strike to remove a venire person solely on the basis of gender, ethnic origin, or race.”[29] In this case, the striking party offered its peremptory strikes, and the opposing party raised a timely Batson challenge. The striking party offered a purportedly race-neutral explanation for the strike, and in the third step of analyzing a Batson challenge, the trial court determined that the proffered explanation was pretextual.
Hy-Vee argued that the trial court placed an undue burden on it by requiring Hy-Vee to justify its strike with a race-neutral explanation.[30] The trial court, however, acted in accordance with the United States Supreme Court precedent when it required the explanation. When a party opposing a peremptory strike makes out a prima facie case that the strike violates the Fourteenth Amendment, the striking party must come forward with a race-neutral explanation.[31] The trial court is then charged with determining whether the opponent of the strike has proved purposeful discrimination.[32] Reviewing courts afford a trial judge’s determination on this issue great deference due to the intense fact-driven nature of the inquiry.
The trial judge’s evaluation of the striking party’s proffered explanation is one that only she can make. She must examine the totality of circumstances surrounding the strike, including the credibility and demeanor of the striking party’s counsel, the make-up of the venire as constituted, and the feasibility of the explanation. Such a fact-specific ruling must be afforded great deference if the judiciary expects to protect the Fourteenth Amendment in the way Batson demands. When exercising a peremptory strike, the striking party must have a credible, reasonable explanation to offer for the strike. If the explanation is lacking or appears to be pretextual, the trial court will sustain the Batson challenge and there will likely be no recourse on appeal. The fact-specific nature of this ruling makes reviewing courts especially leery of reversal.
- Robert J. Morrison
[1] 271 S.W.3d 556 (Mo. 2008).
[2] Id. at 558.
[3] Id.
[4] Civil litigants are permitted to strike three jurors peremptorily. Mo. Rev. Stat. § 494.480.1 (2000).
[5] Kesler, 271 S.W.3d at 558.
[6] Id. See also Batson v. Kentucky, 476 U.S. 79 (1986).
[7] Kesler, 271 S.W.3d at 558.
[8] Id.
[9] Id.
[10] Kesler, 271 S.W.3d at 558.
[11] Id.
[12] 476 U.S. 79 (1986).
[13] Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
[14] 44 S.W.3d 410 (Mo. Ct. App. 2001).
[15] State v. Smith, 5 S.W.3d 595, 597 (Mo. Ct. App. 1999).
[16] State v. Johnson, 930 S.W.2d 456, 460 (Mo. Ct. App. 1996).
[17] State v. Parker, 836 S.W.2d 930, 939 (Mo. 1992) (en banc).
[18] Benedict, 44 S.W.3d at 418-19 (citing Johnson, 930 S.W.2d at 460).
[19] Kesler, 271 S.W.3d at 559 (quoting Purkett v. Elem, 514 U.S. 765,767 (1995)).
[20] Parker, 836 S.W.2d at 939; see also Purkett, 514 U.S. at 768 (“At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.”).
[21] Parker, 836 S.W.2d at 939 (citing State v. Antwine, 743 S.W.2d 51, 65 (Mo. 1987)).
[22] Benedict, 44 S.W.3d at 420.
[23] Id.
[24] Id.
[25] Id.
[26] Kesler, 271 S.W.3d at 559.
[27] Id. at 559-60.
[28] Id. at 560-61.
[29] Id. at 558 (citing U.S. v. Martinez-Salazar, 528 U.S. 304, 315 (2000)).
[30] Id.
[31] Purkett, 514 U.S. at 767.
[32] Id.
