The Honorable John D. Kelly died on October 21, 1998. The opinion is

1

consistent with his vote at the panel’s conference following oral argument on

September 25, 1998.

The Honorable Jean C. Hamilton, United States District Judge for the Eastern 2

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-1578

___________

Tyrone Devoil-El, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Michael Groose, Superintendent, *

*

Appellee. *

___________

Submitted: September 25, 1998

Filed: November 13, 1998 

___________

Before WOLLMAN, LOKEN, and KELLY, Circuit Judges. 1

___________

WOLLMAN, Circuit Judge.

Tyrone Devoil-El appeals from the district court’s judgment dismissing his 28 2

U.S.C. § 2254 petition for writ of habeas corpus. We affirm.
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I.

Devoil-El was found guilty of stealing from a person and was sentenced to

sixteen years’ imprisonment. His motion for post-conviction relief was denied by the

trial court. In a summary opinion, the Missouri Court of Appeals affirmed both the

conviction and the denial of post-conviction relief. See State v. Devoil, 865 S.W.2d

896 (Mo. Ct. App. 1993). 

The sole issue on appeal is whether the State improperly exercised peremptory

strikes to exclude six African-American potential jurors from the venire in violation of

the Equal Protection Clause of the Fourteenth Amendment. See Batson v. Kentucky,

476 U.S. 79 (1986).

The State used all six of its peremptory strikes to remove African-American

venirepersons. Devoil-El objected to the strikes as discriminatory. In response to the

objection, the prosecutor contended that each juror was removed because of one or

more of the following factors: body language, having been a crime victim, stating

dissatisfaction with the manner in which the police had handled a previous matter,

having been charged with a crime, having a relative in jail, or being unemployed. The

trial court found that none of the strikes had been exercised in a racially discriminatory

manner.

Devoil-El contends that these explanations for exercising the peremptory strikes

are pretextual. Specifically, he claims that the strike based upon body language must

be found discriminatory because it was subjective and was used to remove only an

African-American juror. In addition, he argues that the other reasons violate Batson

because they result in a disparate impact upon African-Americans.
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II.

We conduct a three-part analysis under Batson to determine the validity of

peremptory strikes. See United States v. Jenkins, 52 F.3d 743, 746 (8th Cir. 1995).

First, the defendant must make a prima facie showing that the State exercised a

peremptory strike because of race. Second, if such a showing is made, the burden

shifts to the State to articulate a race-neutral explanation for striking the prospective

juror. Third, the trial court must decide whether the defendant has proven purposeful

discrimination. See id.

Although the trial court failed to rule on whether a prima facie showing had been

made, this lapse is inconsequential, because once the State has offered a race-neutral

explanation for exercising the strikes, “the preliminary issue of whether the defendant

had made a prima facie showing becomes moot.” Hernandez v. New York, 500 U.S.

352, 359 (1991); see also United States v. Bishop, 959 F.2d 820, 824 (8th Cir. 1992)

(quoting Hernandez).

Step two of Batson requires the State to articulate a race-neutral reason for the

strike. See Gee v. Groose, 110 F.3d 1346, 1351 (8th Cir. 1997). At this step, the court

need not decide whether the explanation for the strike is “persuasive, or even

plausible.” Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam); see also Gee, 110

F.3d at 1351. The State’s reason may not be a mere denial of racial motive, however.

See Gee, 110 F.3d at 1351. Here, the State met its burden by articulating a race-neutral

reason for striking each juror.

“Once the prosecutor offers a race-neutral basis for his exercise of peremptory

challenges, ‘[t]he trial court then [has] the duty to determine if the defendant has

established purposeful discrimination.’” Hernandez, 500 U.S. at 363 (quoting Batson,

476 U.S. at 98). The trial court’s findings regarding pretext are on questions of fact,

which we will set aside only if clearly erroneous. See Hernandez, 500 U.S. 364-66.
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The State struck one of the venirepersons because of his body posture. The

prosecutor stated that this venireperson had covered his face with his hands, slouched

in his seat, rolled his eyes, and looked uninterested. We have upheld a finding that

scowling, body language, and facial expressions were race-neutral, see Jenkins, 52 F.3d

at 745-46, and likewise we do so here.

Devoil-El contends that the strikes exercised on the basis of the venireperson’s

unemployment, having a relative in jail, dissatisfaction with the police, having been

charged with a crime, and having been a crime victim all result in the removal of

African-Americans more often than Caucasians and thus are pretextual. We have found

similar reasons to be sufficiently race-neutral to withstand a Batson challenge. See

Malone v. Vasquez, 138 F.3d 711, 720 n.13 (8th Cir.), cert. denied, No. 98-6018, 1998

WL 651087 (U.S. Oct. 19, 1998) (allowing strike of potential juror who had been the

victim of an armed robbery, where no Caucasian venirepersons had been victims of

violent crimes); United States v. Gibson, 105 F.3d 1229, 1231-32 (8th Cir. 1997)

(upholding strike of potential juror who was the victim of a rape and who reported that

she had received unfair treatment from law enforcement as race neutral, in the absence

of a showing of pretext); Bowersox, 78 F.3d at 373-74 (permitting removal of potential

juror who had relatives that had previously been tried or convicted of a criminal

offense); United States v. Carr, 67 F.3d 171, 175-76 (8th Cir. 1995), cert. denied, 516

U.S. 1182 (1996) (stating that unemployment is race-neutral reason for strike when

defendant makes no attempt to show that unemployment was pretextual reason); United

States v. Jackson, 914 F.2d 1050, 1052-53 (8th. Cir. 1990) (upholding explanation for

strike that venireperson’s nephew was incarcerated). Although Devoil-El argued that

these reasons were pretextual because Caucasian jurors sharing the same characteristics

were not removed, the trial court found that because the combination of characteristics

was different in the non-stricken venirepersons, the state’s proffered reasons were

nondiscriminatory.
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Nevertheless, Devoil-El claims that because peremptory challenges based upon

these reasons result in disparate impact on African-Americans, they violate Batson. As

we have noted, however, disparate impact alone, without the showing of intent to

discriminate, will not “trigger the strictest level of scrutiny.” United States v. Greene,

995 F.2d 793, 796 (8th Cir. 1993). “An argument relating to the impact of a

classification does not alone show its purpose.” Hernandez, 500 U.S. at 362.

Therefore, even if the reasons given by the prosecutor result in the use of strikes against

African-Americans more often than against Caucasian venirepersons, the strikes will

not violate Batson without some showing that the prosecutor removed the potential

jurors “because of” their race. See Hernandez, 500 U.S. at 359-60. 

Devoil-El argues that discriminatory intent to remove African-American jurors

may be shown by looking to the totality of the circumstances. He contends that the trial

court erred by evaluating each strike individually, instead of looking to the pattern of

strikes exercised by the prosecutor. A trial court may indeed look to the

disproportionate removal of minority jurors to show discriminatory intent. See

Hernandez, 500 U.S. at 363-64; United States v. Brooks, 2 F.3d 838, 841 (8th Cir.

1993). A trial court’s findings of discriminatory intent will turn largely on its

assessment of the credibility of the proffered reasons for removing a venireperson. See

Hernandez, 500 U.S. at 365; United States v. Scott, 26 F.3d 1458, 1467 (8th Cir.

1994). With the exception of the venireperson removed because of his body language,

all of the other African-American venirepersons were removed for a combination of

reasons, such as being unemployed and having a relative in jail, which distinguished

them from the non-challenged Caucasian venirepersons. Accordingly, we conclude

that the trial court’s finding that the state’s peremptory strikes were not racially

motivated cannot be said to be clearly erroneous.

The judgment is affirmed.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.